Kugathas v Secretary of State for the Home Department

LORD JUSTICE SEDLEY: This is an appeal, by permission of Schiemann LJ, by a Sri Lankan asylum-seeker against the oversetting by the Immigration Appeal Tribunal of an adjudicator's decision in his favour.

The decision in question, given by Mr PS Aujla on 18 January 2002, rejected the applicant's asylum claim on grounds of credibility but upheld his appeal against removal on the ground that to remove him would disproportionately interfere with the respect due under Article 8 to his family life. On the Home Secretary's appeal the IAT overset the latter decision. There was no cross appeal on the asylum question.

The appellant is now (probably) 38 years old. The relevant facts are simple and can be taken from the adjudicator's written decision at paragraph 27:

The adjudicator's conclusions on the subject were these:

The Home Secretary sought permission to appeal to the IAT and was granted it. It is apparent from the IAT's reasons that the grounds challenged all the elements of the adjudicator's decision, but the focus of the appeal was the adjudicator's holding that although the appellant had no family in the United Kingdom, he nevertheless enjoyed a family life here through contact with his close relatives in Germany, a contact which, in the adjudicator's opinion, he could not enjoy as fully if he had to maintain his contacts from Sri Lanka.

This was without any doubt an appealable decision, but it did not hinge on any question of law as to where, if anywhere, the material family life had to be located for Article 8 purposes.

The IAT, however (Mr JA O'Brien Quinn QC and Mr Davey) in a decision of fewer than three pages promulgated on 11 June 2002, almost seven weeks after the hearing that had taken place before them, held that the adjudicator had erred in law in failing to confine the meaning of family life to family life in the United Kingdom. They held:

Before us, however, Mr Robin Tam for the Home Secretary has not sought to sustain the IAT's decision on the ground which it gave. In the skeleton argument drafted by Mr Kovats, the same series of questions is rightly adopted as the adjudicator had adopted in paragraph 35 of his decision, but the first of the adjudicator's questions is broken down into two parts:

The subsequent decision of a differently composed Immigration Appeal Tribunal (Collins J, Mr Mather and Mr Baines) in Entry Clearance Officer, Lagos v Imoh [2002] UKIAT 01967 gives no support to the proposition advanced by the IAT in the present case. Imoh was a case in which the aunt and uncle of an orphaned four-year-old Nigerian girl had sought entry clearance to bring her to live with them in the United Kingdom. Addressing the relevance of Article 8 to such a decision (where by definition the applicant herself is not in the United Kingdom) the IAT said:

This holding, as one would expect, is carefully phrased. It speaks of "an attempt to create a family life in this country" not because there is a an unspoken geographical test in Article 8 but because, in the case before the tribunal, it was here that it was sought to establish a family life for the child. The reason why this mattered was, as Collins J goes on to explain, that entry clearance for dependents demands a settled family already in this country. Hence the key holding, which follows, that "It is not possible to use the Human Rights Act in order to establish a family life in this country". I say no more about this decision, since it may yet reach this court, than that it gives no support at all to the IAT's reasoning in the case before us.

How then did the IAT come to decide this appeal on the basis it did? It looks as if the Home Office presenting officer had initially advanced a territorial test for family life; but she had also expressly adopted the adjudicator's series of questions, which involve no such condition. She seems to have gone on to submit that the appellant's only true family life was in Sri Lanka, a proposition which would certainly have dealt with whether removal was going to interfere with it, but was wholly dislocated from the facts. Counsel for Mr Kugathas, the appellant, wisely stuck, for his part, to the adjudicator's reasoning.

Before us, Mr Tam has not attempted to uphold the proposition of law on which the IAT's decision turned. It is necessary in my judgment to say no more about it than that there is no basis for it, either in the Convention or in any relevant authority. What will matter in each case to the question of location is the legal ground of the intended interference. For the rest, the question is one of fact, not of law.

Albeit without any respondent's notice, Mr Tam therefore concentrates on the argument that the adjudicator's findings of fact do not amount to family life properly construed. The further argument that, contrary to the adjudicator's view, any family life which is established is so exiguous, and so slenderly reliant on Mr Kugathas' presence in the United Kingdom, that removal under an acceptable régime of law cannot possibly amount to interference with it, arises only if Mr Manjit Gill QC for the appellant succeeds on the prior question whether family life is established at all.

Mr Tam relies in particular on the Commission's decision in S v United Kingdom (1984) 40 DR 196. At page 198 of the report, the Commission said:

It is true that it is a now elderly decision of the Commission alone, but we have been helpfully shown by Mr Gill a recent decision of the IAT chaired by Dr Hugo Storey, Entrance Clearance Officer Dhaka v Shamim Box [2002] UKIAT 02212, in which at paragraph 31 the IAT stresses, what is clearly right, that the approach to Article 8 in the case of an entry decision is different from the approach in a removal case. They go on: "Strasbourg has never seen this to entail a significant difference in underlying criteria." In other words, family life must mean the same thing whatever the issue, but the state of relevant fact in determining whether there is an extant family life is likely to be very different as between entry and removal cases. Whether the present case approximates more nearly to an entry case than a removal case is a question which needs, however, to be borne in mind. The IAT may also be right where in ECO Dhaka v Box, at paragraph 29, it suggests that the Strasbourg leading cases on entry focus on the state's positive duty to secure respect for family life.

Nevertheless, there are repeated dicta which point to the continuing relevance of the passade which I have quoted from S v United Kingdom. In Marckx v Belgium [1979] 2 EHRR 330, a decision of the full Court, at paragraph 31 the adjectives "real" and "normal" were used to characterise family life if it was to come within Article 8. In Abdulaziz, Cabales and Balkandali v United Kingdom [1985] 7 EHRR 471 paragraph 63, again a decision of the Court, the phrase "committed relationship" was used. In Beldjoudi v France [1992] 14 EHRR 801, a decision of the Commission which went on to be upheld by the Court, at paragraph 55 the phrase "real and effective family ties" was used.

Mr Gill says that none of this amounts to an absolute requirement of dependency. That is clearly right in the economic sense. But if dependency is read down as meaning "support", in the personal sense, and if one adds, echoing the Strasbourg jurisprudence, "real" or "committed" or "effective" to the word "support", then it represents in my view the irreducible minimum of what family life implies. It may be that, for a time in Germany, that minimum was reached, as between the appellant and his family there; but that time has gone.

I would add, for completeness, that it is probable that the natural tie between parent and infant is a special case which may in some cases supersede any need for a demonstrable measure of support: see Boughanemi v France [1996] 22 EHRR 228 at paragraph 35.

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 judgment 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 purpose of Article 8.

For these reasons, it seems to me that the IAT was right to allow the Home Secretary's appeal, although it did so for the wrong reason. The right reason was that, giving the most benign interpretation to such factual evidence as there was before the adjudicator, it was not possible to find that it amounted to family life within the meaning of Article 8.

Accordingly I would dismiss this appeal.

LADY JUSTICE ARDEN: I agree that the facts as found by the adjudicator, read as Mr Gill rightly submits in the context of the adjudicator's decision, could not amount to a family life for the purpose of Article 8. The appellant is a single man of about 38 years old who has lived here since 1999. Previously to that, since about 1985, he was in Germany. His nearest family is his mother, his brother, his sister and her family, who are all living in Germany. They are refugees and after the appellant left Sri Lanka his father was shot dead in Sri Lanka. Those facts are, to say the least, life-changing experiences and part of the context within which this case must be decided.

The appellant's nearest family is, as I have said, his mother, his brother, his sister and her family. It is possible that the appellant had a sufficient family life for article 8 purposes with them in Germany before he left. However, that point has not been fully argued and it is unnecessary to express a view on it.

There is no presumption that a person has a family life, even with the members of a person's immediate family. The court has to scrutinise the relevant factors. Such factors include identifying who are the near relatives of the appellant, the nature of the links between them and the appellant, the age of the appellant, where and with whom he has resided in the past, and the forms of contact he has maintained with the other members of the family with whom he claims to have a family life.

Because there is no presumption of family life, in my judgment a family life is not established between an adult child and his surviving parent or other siblings unless something more exists than normal emotional ties: see S v United Kingdom (1984) 40 DR 196 and Abdulaziz, Cabales and Balkandali v United Kingdom [1985] 7 EHRR 471. Such ties might exist if the appellant were dependent on his family or vice versa. It is not, however, essential that the members of the family should be in the same country. The Secretary of State accepts that that possibility may exist, although in my judgment it will probably be exceptional. Accordingly there is no absolute rule that there must be family life in the United Kingdom, as the Immigration Appeal Tribunal held.

The links with this jurisdiction are however relevant to this case in another sense. The appellant left Germany without any act of the United Kingdom government and accordingly the only relevant family life in this case is that which exists between the appellant in this country and his immediate family. There have been telephone calls between them and also a single visit by the sister. I appreciate that the family are refugees and take account of the circumstances which occurred in Sri Lanka, to which I have already referred. However, in my judgment, a family life cannot not shown on the evidence that was before the adjudicator.

Had I not been satisfied that that was so, I would have wanted to consider the question of whether or not there was any lack of respect for that family life by sending the appellant back to Sri Lanka. It is still possible for him, and indeed for his family, to make telephone calls to each other between Sri Lanka and Germany and, of course, it is still possible for the appellant to visit his family in Germany or a third country.

In those circumstances, I have come therefore to the conclusion that the appeal should be dismissed.

LORD JUSTICE SIMON BROWN: The Immigration Appeal Tribunal held in this case that the appellant needed to establish that he enjoys "family life in the UK". That, as the respondent Home Secretary rightly recognises, is not strictly correct. Take a case where, for example, a father lives in France, close to the Swiss border, enjoying, just over the border, weekly access to his dependent children who live there with their mother, his estranged wife. The family life would be enjoyed not in France but in Switzerland, and yet clearly any attempt by the French authorities to remove the father to, say, Sri Lanka would engage his Article 8 rights to respect for his enjoyment of family life.

Such an exceptional case serves to point the error in the IAT's holding. It by no means follows, however, that the present case too is an exception to what is obviously the more general rule, the likelihood that any family life will be enjoyed in the country which is having to determine whether or not to remove (or, as the case may be, admit) the person concerned.

The first real question arising in the present case is whether or not there has existed during the three years the appellant has been in this country any family life within the meaning of Article 8, such that his proposed removal now to Sri Lanka could reasonably be said to interfere with respect for it. The appellant is now in his 30s. It may perhaps be that during the 15 years or so he spent in Germany before coming to this country in 1999, he was then enjoying what could properly be described as family life, or at any rate private life, through his relationship and contact there with his widowed mother and his brother and sister. But even if he did then enjoy such private or family life (and I reach no conclusion one way or the other as to that) there was on any view substantial interference with it when, for reasons good or ill, the appellant left Germany and came to this country in 1999. The only contact he has enjoyed with his family since then has been (a) a single three-week visit made to him here in August 2000 by his sister, her husband and their young daughter and (b) periodic phone calls between the appellant and his relations in Germany. Nothing either in the domestic or the Strasbourg jurisprudence, to my mind, supports the view that in these circumstances family life can properly be said to have been enjoyed for these last three years.

Another way of looking at the case is perhaps this. The removal of this appellant cannot realistically be said to interfere with the right to respect for family life, given that the only consequences of removal will be (a) the impossibility of other family members visiting the appellant (although as a countervailing consideration he may be better able -- becase of the constraints on his leaving the UK during his temporary presence here -- to travel from Sri Lanka to visit them in Germany or in some third country where they could meet); and (b) (the point which seems to have so impressed the adjudicator) the greater expense of phone conversations between Sri Lanka and Germany than between the United Kingdom and Germany.

Either way, in common with Lord Justice Sedley and Lady Justice Arden, I am satisfied that the IAT had no alternative but to allow the Secretary of State's appeal against the adjudicator's determination, and that accordingly the present appeal falls to be dismissed.