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United Kingdom Asylum and Immigration Tribunal
You are here: BAILII >> Databases >> United Kingdom Asylum and Immigration Tribunal >> S v Secretary of State for the Home Department (Afghanistan)  UKIAT 00132 (06 November 2003)
Cite as:  UKIAT 00132,  UKIAT 132
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Heard at Field House on:
21 October 2003
 UKIAT 00132 S (Afghanistan)
21 October 2003
Date Determination notified: 6/11/2003
Ms T Hart, Senior Home Office Presenting Officer, appeared on behalf of the Appellant. Mr J Patel, Counsel, instructed by Malik & Malik, Solicitors, appeared on behalf of the Respondent.
'that appears in evidence in this case there has been a lack of proportionality in the individual members that have been dealt with by the immigration authorities.[sic] Whilst each case turns upon its own individual elements, it is clear that the fears that have been espoused by all family members relate to their ethnicity and to their religion. The family are bound together by such elements and in this case it would be wholly disproportionate for the United Kingdom to return the family group, in particular the [Respondent].'
What the Adjudicator did, was fail to recognise that the Respondent's family within the context of Article 8(1) comprised the Respondent, his wife and his two children. While there are family members within the United Kingdom, the Respondent does not enjoy a family life with them. She referred us to a decision of the Tribunal in Pubanesparan  UKIAT 04476 in which at paragraph 10, the Tribunal said:-
'In our view this was a decision properly open to the Adjudicator. When the relationship relied upon is not a close family relationship such as husband and wife or parent and child, but between adults such as brothers and sisters who are adults, there would have to be special circumstances before it was shown that there was a family life within Article 8 (1) as contemplated by the Treisberg jurisdiction or sufficient elements of private life to establish a protective right'.
(1) Everyone has the right to respect for his private and family life, his home and his correspondence.
(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessarily in democratic society in the interests of national security, public safety, or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
'Returning to the present case, neither blood ties nor the concern and affection that ordinarily go with them are, by themselves, or together, in my judgement enough to constitute family life. Most of us have close relations of whom we are extremely fond and whom we visit, or who visit us, from time to time; but none of us would say on those grounds alone that we share a family life with them in any sense capable of coming within the meaning and the purpose of Article 8'.
'Under Article 8 I have to determine the following separate questions:-
(i) Is there an interference with the right to respect for private life (which includes the right to physical and moral integrity) and family life?
(ii) Is that interference in accordance with the law?
(iii) Does that interference have legitimate aims?
(iv) Is the interference proportionate in a democratic society to the legitimate aim to be achieved?'
'The [Appellant] has indicated that there will be forcible return to Kabul if it is thought appropriate in the circumstances of this case. With regard to the [Respondent] and his family, it has been stated that the majority, if not all of his family, are now within the United Kingdom and to remove him with his own family from the extended family would be an interference to his rights. Evidence has been brought by family members that there has been a system whereby extended and indefinite leave has been made available to other family members within the group whose position, therefore, is that they can remain within the United Kingdom for a definite or indefinite period of time.'
'With regard to the [Respondent's] claim the issue of proportionality must take centre stage in any assessment under Article 8. The United Kingdom is entitled to impose and interpret both conventions, but, more importantly, the 1951 convention in dealing with its valid and legal immigration controls. However, within the extended family that appears in evidence in this case, there has been a lack of proportionality in the individual members that have been dealt with by the immigration authority. Whilst each case turns upon its own individual elements, it is clear that the fears that have been espoused by all family members, relate to their ethnicity and to their religion. The family are bound together by such elements and in this case it would be wholly disproportionate for the United Kingdom to return the family group, in particular the [Respondent]. I can see no legitimate aim that would be achieved by such action.'