Etti-Adegbola v Secretary of State for the Home Department

This is an appeal against a decision of the Asylum and Immigration Tribunal dated 13 January 2009. The tribunal, Immigration Judge Cohen, on a reconsideration dismissed the appellant’s appeal against the decision of the Secretary of State, dated 26 July 2007, to refuse the appellant’s application for leave to remain in the United Kingdom on human rights grounds.

The appellant, a Nigerian national, entered the United Kingdom in May 1997 when almost 16 years old. He made an application to remain as an over age dependent on his mother in 2005. That was refused in 2007 and an appeal was dismissed.

The present appeal, brought with permission of Sedley LJ following oral hearing, is on the basis that a return to Nigeria would, contrary to the tribunal’s findings, violate the appellant’s rights under Article 8 of the Convention.

The appellant’s mother had arrived in the United Kingdom in 1987 when the appellant was six years’ old: that is, about ten years before him. He is now 26 years’ old. The tribunal accepted that the appellant’s mother, younger brother and uncle are in the United Kingdom, as are members of the extended family. The appellant believed that his brother had come to the United Kingdom in 2001. Their father has died since 1997.

The appellant gave evidence at the hearing before the tribunal. His mother, brother, uncle and a friend also gave evidence. The tribunal summarised his evidence as to family life at paragraphs 9 and 11:

The tribunal referred to the appellant’s mother’s evidence:

The tribunal noted discrepancies between the evidence of witnesses, which were found to damage the credibility of the appeal as a whole:

The judge’s conclusion, in relation to whether the limb of Article 8 involving family life was engaged, is at paragraph 24. Article 8(1) of the Convention provides:

When refusing permission to appeal a Senior Immigration Judge stated, with respect to family life in Kugathas v SSHD[2003] INLR 170, that the court held that, in order to establish family life between adults, it is necessary to show that there is a real, committed or effective rapport or relationship between family members and the normal emotional ties between mother and adult son without more are not enough. On the basis of the evidence before him, the immigration judge was entitled to find, it was stated, that there was no family life either between the appellant and his mother or his adult younger brother.

When refusing permission to appeal on a consideration of the papers, Elias LJ took the same position:

When granting leave, Sedley LJ expressed concern about the finding that Article 8(1) was not engaged with respect to family life. He stated at paragraph 5:

In submitting that the finding of the tribunal was perverse, Mr Ogunbiyi, on behalf of the appellant, submits that, on the evidence, he, the appellant, his mother and younger brother were living in one household as one unit. There was an emotional dependency between them -- though he accepts not at present a financial one -- that constitutes, he submits, family life. He seeks to rely on the decision of the House of Lords in Beoku-Betts v SSHD[2008] UKHL 39.

I do not consider the case to be of any assistance to the appellant on the issues of this case. It was common ground in Beoku-Betts that the family constituted a close-knit unit and his mother relied on him (that is, the party involved) for emotional support. The issue in that case was whether one had to consider the effect on members of the family other than the appellant in considering the interference with his family life. It was held by Lord Brown of Eaton-Under-Heywood, giving a speech with which the other members of the house agreed, that it was necessary to consider the family unit as a whole, and, if the proposed removal would be disproportionate in that context, each affected family member was to be regarded as a victim. Lord Brown stated at paragraph 43 that “There is only family life”.

That determination does not assist as to whether family life exists for the purpose of Article 8(1). However, I see force in counsel’s submissions. If the matter were free from authority I would see considerable force in it. The question what constitutes family life has, however, been considered in this court in other cases. I say at once that these can readily be distinguishable on their facts, but statements are made as to the approach to be applied.

In Kugathas v SSHD, -- that is the case to which the Senior Immigration Judge refusing leave to appeal referred -- reference was made to the European Commission for Human Rights decision in S v UK [1984] 40 DR 196. The Commission stated at page 198:

Sedley LJ referred at paragraph 16 to the decision of the European Court of Human Rights in Abdulaziz Cabales and Balkandali v The UK(1985) 7 EHRR 471, paragraph 63, where the phrase “committed relationship” was used. In Beldjoudi v France [1992] 14 EHRR at 801, a decision of the Commission was upheld by the Court, at paragraph 55 the phrase “real and effective family ties” was used.

The facts in Kugathas were stated in the judgment of Simon Brown LJ at paragraph 31:

It was on that factual basis that Sedley LJ made the comments to which I have referred and they also form the background to Arden LJ’s judgment at paragraph 25:

The researches of Arden LJ during the short adjournment have revealed a much more recent Strasbourg decision (Application no. 51268/99). It was a decision as to the admissibility of an application in which several issues were involved, but in finding the application inadmissible the fourth section of the court sitting as a chamber on 26 March 2002 stated on the facts in that case, which are very different from the present one: “there is no element of dependency between the applicant and his children”. It is certainly not crucial or even central to my decision, but it is noteworthy that the word “dependency” which has been used in earlier cases has been carried forward.

In JB (India) & Others v The Entry Clearance Officer[2009] EWCA Civ 234 Sullivan LJ, giving a judgment with which Mummery LJ and Lawrence Collins LJ agreed, referred to Kugathas in these terms:

Sullivan LJ’s conclusion is at paragraph 21:

Each of those cases, as I have said, is readily distinguishable from the present one on the facts. The facts in the present case, as accepted by the tribunal, are of a mother who has been living for many years now with two young adult sons in the same household. They have been, and are, helping and supporting each other in the way members of a family living together usually do. They are not financially dependent on each other but there are undoubtedly emotional ties. Some of the expressions to which reference has been made in the Strasbourg jurisprudence, “committed relationship”, and “real and effective family ties”, would appear to cover the present situation. However, I accept that the Strasbourg jurisdiction does not all point in that direction. Moreover, I regard myself as bound by the decisions of this court to which I referred, in particular the approval in the case of Kugathas of the Commission’s decision in S and the approach to that decision of Sedley LJ. The test is that applied by the tribunal, as appears from the expressions in the determination. The behaviour is “no way exceptional or beyond the norm” (at paragraph 24), an expression repeated in paragraph 26.

I follow that a distinction between underage children and adult children may for many purposes properly be drawn. It is, however, common knowledge that many children, both in this jurisdiction and possibly in other member states, do remain in family homes beyond the age of majority and at least until they are well into their twenties. Having regard to the ordinary use of words, I find it difficult to say that family life determines, subject to exceptional circumstances, when the child or children attain their majority.

I take the opportunity to express that reservation, but, as I have said, I regard myself as bound to hold that, on the facts of this case, the tribunal was entitled to find, as it did, that the family limb of Article 8(1) was not engaged. That was a permissible finding on the test indicated by the authorities.

Mr Ogunbiyi’s second submission is in relation to Article 8(2) and whether, on the basis that private life limb of Article 8 was to be considered, it was proportionate to require the removal of the appellant from the jurisdiction. It does not appear to me that Sedley LJ has given permission to appeal on this ground but the court has been prepared to hear arguments on it and to deal with it.

The findings of the tribunal are at paragraph 26. This is a long and, with respect, confusing paragraph; confusing first in that it mixes a consideration of Article 8(1) issues with Article 8(2) issues, and also in the difficulty in distinguishing between the private life and family life aspects of the findings. I have already referred to several of the findings in relation to the issues already considered.

Counsel’s submissions about the paragraph begin with criticism of gratuitous comments made by the tribunal which on the evidence, it is submitted, are difficult to justify. Sedley LJ referred to this issue. It is stated at paragraph 25, “the appellant was aware that he was subject to removal at any time”. Paragraph 26:

Mr Ogunbiyi submits that the overall findings must be considered in the light of remarks which, in his submission, were not justified. To some extent I see force in the submissions. The tribunal was entitled to say that the appellant and his witnesses had sought to bolster the case, but it was too strong a comment, on the tribunal’s own findings, to go on to say that the appellant has had no regard for the immigration laws or laws of the UK.

The tribunal has made clear and justifiable findings of fact adverse to the appellant, but I agree with counsel that the matter is put too strongly by that statement. It is not clear whether, when he entered the United Kingdom at the age of 15, the appellant knew that his entry was unlawful, or indeed whether it was in fact unlawful; and, apart from the lapse of time and the obvious intelligence of the appellant and his family, there is no clear evidence of any disregard for the immigration laws or the laws of the United Kingdom. However, the appellant was a long-term overstayer, and it is difficult to conclude other than that he was aware of the position in which he stood. He himself applied for leave to remain in 2005.

I read paragraph 26 with those over-vigorous comments in mind. The tribunal stated, and I quote those passages which appear to me to be relevant under the present head:

The tribunal concluded:

What saves the paragraph, in my judgment, are the clear findings of fact which emerge from it. They were findings of fact, notwithstanding the reservations I have expressed, the tribunal was entitled to make. It may be that there is some overstatement in the closeness to him of the remaining relations in Nigeria, but a finding that the appellant could manage there having regard to his age; health and qualifications, is totally unsurprising. The over-vigorous comments do not in my judgment affect, so as to make them untenable, the findings of fact the tribunal made. On those findings, the tribunal was clearly entitled, in my judgment, to reach the conclusion it did.

I would also be prepared to hold, if I am wrong on the first issue and family life was engaged, that the tribunal in paragraph 26 was dealing with the effect on family life as well as that on private life. There are references in the paragraph which can only apply to family life, and the tribunal stated that the removal would not “breach his Article 8 right to a family or private life”. As to family life, the conclusions were ones which the tribunal was also entitled to reach, and on those findings, and having regard to the general approach of the tribunal to this case, it is in my view inevitable that the tribunal would, had it found family life engaged, have reached the same conclusion on Article 8(2) as it did for private life.

For the reasons I have given, I would dismiss this appeal.

I agree. I am obviously mindful of the effect that the decision of this court would have on the appellant’s mother, particularly given the sacrifices she has made to bring the appellant up and on the appellant’s younger brother. However, this court has to apply the law which is binding on it. The appellant is now well over the age of majority. Whether family life exists for the purposes of Article 8 as between a parent and an adult child must depend on the facts. I do not think it necessarily automatically determines on obtaining majority, but I am satisfied that the appellant failed to establish family life before the immigration judge and that there is no basis on which this court can interfere with that decision. I therefore, notwithstanding the defects in the decision referred to by Pill LJ, agree with the order that he proposes.

I also agree.

On the basis Kugathas, particularly paragraphs [14] and [16] in the judgment of Sedley LJ and paragraph [25] in the judgment of Arden LJ, the Judge was correct to conclude that there was no family life engagement of Article 8 of the Convention.

So far as concerns the issue of proportionality in relation to Article 8(2) and the appellant’s private life, I do not consider that the Judge was entitled to conclude, if he did conclude, that the appellant was always aware that he was subject to removal at any time. Plainly he did become aware at some stage, but there is no evidence that when he arrived in this country aged 15 he was aware of any unlawful status. I also find it difficult to see why the Judge said in paragraph [25] of his judgment that the appellant had not told the truth concerning family members in Nigeria bearing in mind the Judge’s acceptance of the appellant’s evidence, in preference to that of his mother, as to family members of whom he had knowledge in the past. Similarly, I find it difficult to understand the basis for the Judge’s view in paragraph [26] of his judgment that the appellant had no regard for the immigration laws or the laws generally of the United Kingdom, and that the appellant was lacking in scruples or credibility. Notwithstanding that I find that in all those respects there was no proper basis for the Judge’s comments, I agree with Pill LJ that the findings which he was entitled to make and did make, set out in paragraph [26] of the judgment, are sufficient to justify his conclusion on proportionality under Article 8(2).