AAO v Entry Clearance Officer

This appeal is that of a mother who wishes to join her daughter in England. It may also be said that the daughter, her sponsor, wishes her mother to join her in England. Mother and daughter come from Somalia. The daughter has been here since June 1997. She received indefinite leave to remain in December 2004 and has since become a British citizen. She has seven children and is supported on benefits. She is now 44. The mother was born in May 1942. She was 67 at the time of her application to join her daughter as a dependant, and is now 69. She has been living in Kenya (in Nairobi) since leaving Somalia in 2007. She has no other surviving close family apart from her daughter, having lost her husband in 2005. Her two sons have died or disappeared in the civil fighting in Somalia. She is living with and assisted by neighbours in Nairobi, but has health problems. She is assisted financially by her daughter who sends her monthly sums of US$ 100.

The issue on this appeal is whether the two determinations of the Asylum and Immigration Tribunal (AIT) below, that of Immigration Judge M A Khan promulgated 2 September 2009, and that on reconsideration of Senior Immigration Judge McGeachy promulgated on 20 January 2010, have dealt adequately with the mother’s article 8 claim. On behalf of the mother, Mr James Collins has submitted that the AIT’s treatment of the article 8 issue has been inadequate, indeed that it is fundamentally flawed, that there has been no proper assessment of the mother’s article 8 claim, and that a remission is therefore required for that issue to be properly addressed. On behalf of the respondent, Mr Sarabjit Singh submits that the issue has been adequately addressed, that there has been no error of law, and that in any event the failure of the article 8 claim is inevitable, because of the finding that the mother could not be maintained here without recourse to public funds.

There is no authority, either in Strasbourg or here, which the researches of either counsel have disclosed in which a dependent parent has succeeded in an article 8 claim to join an adult son or daughter. The closest authority on which this appeal is founded is ZB (Pakistan) v. SSHD [2009] EWCA Civ 834. There the AIT said that there was no family life between a mother who had been living in this country with a daughter and her family, and all of whose eight children with their families were living in the UK either as British citizens or, in the case of one child, with indefinite leave to remain, as was her husband. This court said that there was family life, and dependency, and that the case had to be remitted to the AIT to find whether there was sufficient interference with article 8 rights to amount to a breach, and whether, if so, her removal would be proportionate. There was no question in that case of recourse to public funds, rather an issue as to the circumstances in which the appellant had come to, and remained in, the UK.

In these circumstances, Mr Collins has relied on an argument which on the one hand has complained of the AIT’s failure to address the particular facts of this case adequately and on the other hand has ranged widely to assert reliance on the positive duty which article 8 places on states to respect family life. In giving permission to appeal, Pitchford LJ remarked that “The reservations [sc observations?] of the court upon the correct application of Article 8 to an out of country application such of this will be of value.”

The mother is A Ali O. The daughter is Farhiye Ahmed Jimale.

Article 8 perhaps needs no citation, but it is always well to have its text in mind. It provides:

“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 necessary in a 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.”

In R (Razgar) v. Secretary of State for the Home Department [2004] UKHL 27, [2004] 2 AC 368 at [17], the House of Lords summarised the questions to be asked where an appeal against removal was raised on article 8 grounds:

“In a case where removal is resisted in reliance on article 8, these questions are likely to be: (1) will the proposed removal be an interference by a public authority with the exercise of the applicant’s right to respect for his private or (as the case may be) family life? (2) If so, will such interference have consequences of such gravity as potentially to engage the operation of article 8? (3) If so, is such interference in accordance with the law? (4) If so, is such interference necessary in a 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? (5) If so, is such interference proportionate to the legitimate public end sought to be achieved?”

There is a question as to whether the same questions arise, or operate in the same way, in a case not of removal, but of leave to enter.

The mother’s application had been made principally under rule 317, which provides in material part as follows:

“317 The requirements to be met by a person seeking indefinite leave to enter or remain in the United Kingdom as the parent, grandparent or other dependent relative of a person present and settled in the United Kingdom are that the person:

(i)

is related to a person present and settled in the United Kingdom in one of the following ways:

(a)

mother or grandmother who is a widow aged 65 years or over;…and

(iii)

is financially wholly or mainly dependent on the relative present and settled in the United Kingdom; and…

(iva) can, and will, be maintained adequately…without recourse to public funds; and

(iv)

has no other close relatives in his own country to whom he could turn for financial support.”

The refusal of entry clearance letter stated that the entry clearance officer was not satisfied that the mother was over 65. This was because the daughter’s statement of evidence form (SEF) had stated that her mother had been born on 3 May 1940, whereas the mother’s form had stated that she was born on 5 May 1942. This inconsistency led the officer to doubt the credibility of the application and to be left unsatisfied as to the mother’s age. If the mother was under 65, then rule 317 stated the additional requirement of “living alone outside the United Kingdom in the most exceptional compassionate circumstances” (sub-rule (i)(e)). The entry clearance officer therefore considered the mother’s application under that sub-rule. It was in this connection that he entered into the detail of the mother’s case, but he concluded that she was not living in the most exceptional compassionate circumstances. He also concluded that she was not financially wholly or mainly dependent on her daughter, because he did not accept that the daughter sent her $100 per month. He finally concluded, so far as rule 317 was concerned, that the mother also failed to satisfy him about maintenance free of recourse to public funds (sub-rule (iva)). Therefore, even if the mother was over 65, she failed to meet the requirements of rule 317 (iii) and (iva).

The entry clearance officer turned next to article 8 and said this:

“…I have given careful consideration to your rights under Article 8…However, I am not satisfied that you have established that there is family life as defined in Article 8 and as such am satisfied that there has been no breach of that article for the reasons stated. I have also considered your application should it be established that there is family life as defined in Article 8.

However, although there may be a perceived interference with your right to a family life under Article 8 such interference is justified for the purpose of maintaining an effective immigration control and is proportionate to that aim and does not therefore breach your Convention rights.”

Thus the entry clearance officer found that there was no family life and thus no breach of article 8; but that even if an interference with family life had been established, it would have been proportionate to refuse the mother’s application for the purpose of maintaining effective immigration control. In coming to that conclusion, it must be inferred that he had drawn on his conclusions, mentioned earlier in his letter, that the unsatisfactory evidence of an alleged telephone contact with her daughter once a month, and the lack of any explanation of any prior attempt to join her daughter, and otherwise the lack of contact with her daughter for 12 years, meant that there was insufficient evidence of any family life; but that even if any interference with family life had been shown, it would have been proportionate in the circumstances to refuse entry, bearing in mind the need for the mother to have recourse to public funds and the system of immigration control which required the absence of such a need.

The mother appealed to the AIT. The grounds of appeal sought to deal with the factual matters about which the entry clearance officer had not been satisfied, namely the mother’s age, the extent of telephone contact with her daughter (it was now said that that it was several times a week, not once a month), the financial support provided by the daughter (it was now said that this was £100 per month, not $100), and the reason for there being no previous attempt to join her daughter (it was now accepted that the move from Somalia to Kenya had been in 2007). As for article 8, all that was said was to quote from Huang v. SSHD [2007] UKHL 11, [2007] 2 AC 11 at [20], where the appellate committee said that there was no additional test of exceptionality under article 8, but that the expectation was that only a very small minority of claimants would achieve success in reliance on it.

At the appeal, the daughter gave evidence, adopting her witness statement. In her statement she said that after her arrival in England in 1997 she had started sending her mother $100 every month and speaking to her once a week. Her stepfather and a brother were killed by a bomb in 2005, and her other brother had gone missing in 2006. In that year her mother had gone to live with a half-sister (the sponsor’s aunt) in Mogadishu, but some time later the sister had left Mogadishu. Her mother remained living with “our old neighbours”. Then in August 2007 her mother fled with her neighbour friends to Nairobi. Of those neighbours, the only one who remained living with her (ie next door to her) was a man named Ali Abdullahi Mohammed (“our next-door neighbour”). The daughter asked him to look after her mother. She feared that as her mother got older, he would not be able to continue to look after her, and could leave at any time. He cooked for her and took her to the doctors. He was a decent and kind man, who had been best friends with the mother’s older son. However, it was embarrassing for both of them for him to take her to the toilet. The daughter paid him for his trouble. Her mother would like to join her in England and grow old in dignity. She confirmed her mother’s age as 67, the date on her birth certificate, and explained her own SEF reference to her birth as being in 1940 as an inaccurate guess on her own part. Currently she spoke to her mother three times a week, and her mother was wrong, through forgetfulness, to have said it was only once a month. She also said that her mother was wrong to have said that she had been living in Nairobi for only seven months: she had gone there in August 2007. She described her mother’s health as poor: she suffered from depression and arthritis and was on medication. She was distressed not to be able to look after her mother and feared losing her.

In her oral evidence, the daughter developed and was cross-examined on this evidence. One important development was that she now said for the first time that Mr Mohammed was planning to leave Kenya and so could no longer look after her mother. She said that he had informed her of this after the refusal of her mother’s application (which had been on 24 November 2008). IJ Khan was not impressed by this: it was not in her written evidence, which was dated 20 August 2009 just six days before the appeal hearing of 26 August. He did not accept it (see below). Another development was a reference to dementia, which he did not accept either.

There was also oral evidence from Maryan Mohamed Odawa, who adopted her witness statement dated 12 January 2009, but was not cross-examined. In her statement, Ms Odawa said that she had been a neighbour of the mother in Somalia, and had last seen her in August 2008, just before the witness had come to England. She said that the mother was living in a room on the third floor which she shared with three other people. She had bad legs and had difficulty in fetching water. She had a difficult life.

There was also a witness statement from a Mr Abdulle, who had come to England in 1997. He had been a neighbour in Somalia. He had gone to Nairobi in June 2008 (to see his mother) and had visited the appellant. He also described her as living on the third floor in one room. He said she was finding it difficult to manage on her own. There were also two medical reports from a doctor in Nairobi. One said that the mother did not know her exact age, but he estimated from her dental formula that she was in her late sixties; the other referred to a diagnosis of rheumatoid arthritis and neuropathy. He said she was dependent on well-wishers for assistance, but that they were tired of assisting her.

In his determination, IJ Khan referred in detail to the somewhat unsatisfactory evidence about the mother’s age, but accepted that she was born in May 1942, that she was 67, and therefore that the additional requirement, for a dependant under 65, of the most compelling compassionate circumstances did not apply.

IJ Khan set out the evidence and the submissions on the evidence with care and clarity, and in my judgment in good and sufficient detail, even if, in the case of the witnesses other than the daughter, he simply referred to their statements and reports. I accept that article 8 was an issue in the appeal, but it is apparent from the whole format of the determination that the major portion of the submissions was addressed to rule 317. Thus the issue of the mother’s age clearly loomed large at the hearing; and there was also a submission, based on evidence in her witness statement, that the daughter could save enough from her benefits to enable her to maintain her mother as well as her children without further recourse to public funds. The submission on behalf of the mother as to article 8 is simply recorded as follows:

“As far as Article 8 is concerned I should find that there is family life between the appellant and the sponsor. The sponsor cannot go and live in Kenya and the only place where this family can exercise family right is in the United Kingdom.”

It is also relevant to point out that the judge recorded his view, in discussing the daughter’s testimony, that she was “vague and evasive in giving evidence as to why she has not gone to see her mother in the last 12 years”.

IJ Khan set out his conclusions, which were premised on lengthy citation of the evidence and submissions, inter alia as follows:

“31.

I have taken all the evidence into consideration before coming to my decision in this matter…

35.

However, I do not accept the sponsor’s evidence in relation to her mother’s condition described by her. The appellant was interviewed and she did not mention difficulties of going to the toilet and some of the medical problems. She said that she was taking painkillers for pains and had problem with her leg. I do find that the sponsor has somewhat exaggerated her mother’s condition.

36.

The appellant has been living with friends and neighbours since she arrived in Kenya. She has accommodation and is well looked after by her neighbours. The sponsor in the United Kingdom now financially supports her sending her $100 per month. The sponsor said that Mr Mohamed has told her that he is planning to leave Kenya. This [is] not mentioned anywhere in the written evidence and suddenly came out in the sponsor’s oral evidence. I do not find it credible that she would miss such important [piece] of evidence out of her written witness statement. I do not accept this [piece] of evidence by the sponsor as credible.

37.

The sponsor is in receipt of Income Support and has 7 children to support. It is said that she can maintain the appellant with the $100 per months she sends to her mother and the saving of £100 per month with the committee. This amounts to about £155 per month. I do not accept this submission. The…money the sponsor receives from the DSS is for her and her children to live on. It may be possible that at the present moment she is able to squeeze some savings to send money to the appellant but when the appellant comes to the United Kingdom she will have other needs with her old age. I am not convinced or persuaded that the sponsor will not make a further claim for the appellant and the DSS [would be] obliged to consider such claim. I find on the evidence that the appellant cannot be maintained in the United Kingdom without additional recourse to the public funds.

38.

It is submitted that there is strong family life under Article 8 between the appellant and the sponsor. The sponsor has been in the United Kingdom for 12 years. Up to 2005 she was more concerned with her own immigration status. Although some family life remains between parents and children but there comes a time when it becomes weak. I do not accept on the evidence that there is strong bond between the appellant and the sponsor in this case.

39.

On the evidence, I do not accept that the appellant meets the requirements of paragraph 317 HC of the Immigration Rules.”

Thus IJ Khan found there to be some family life, but that it was weak. There is no reference to proportionality. It is probably to be inferred that he found there to be insufficient family life and/or insufficient interference in family life for there to be any need to consider the justification of what might otherwise have amounted to a breach of article 8.

It may be observed that IJ Khan made no specific finding as to financial dependency, other than that the daughter was sending her mother $100 per month. It will be recalled that the entry clearance officer in the refusal letter did not accept that such support was being afforded the mother. Thus IJ Khan did not in terms find whether the mother “is financially wholly or mainly dependent on the relative present and settled in the United Kingdom” (for the purposes of rule 317 (iii)). However, IJ Khan may well have thought that that was unnecessary given both his finding about the monthly $100 and his finding that the mother could not be maintained without recourse to public funds (rule 317 (iva)).

The appellant applied for reconsideration. The grounds were separately numbered. Ground 7 read:

“7.

In relation Paragraph 317 (iii) the IJ has failed to determine this issue at all. The IJ was required to determine whether the Appellant “is financially wholly or mainly dependent on the relative present and settled in the United Kingdom.”

Grounds 9ff were concerned with article 8. Thus ground 9 read:

“9.

In relation to article 8 the IJ has failed to carry out adequate assessment of article 8. The IJ’s decision on article 8 is extremely short (one paragraph) and totally inadequate.”

Ground 10 continued –

“10.

The IJ’s failure to determine whether the Appellant is financially wholly or mainly dependent on the sponsor has a decisive impact on the article 8 assessment…”

The grounds then continued for several more pages in relation to article 8.

On 14 October 2009 Senior Immigration Judge Eshun ordered reconsideration as follows:

“I find that the IJ failed to make a finding as to whether the appellant is financially wholly or mainly dependent on the sponsor in the UK. I order reconsideration on this ground only.”

On reconsideration SIJ McGeachy referred (at para 7) to this direction, and continued:

“It was not clear from that order whether or not Immigration Judge Eshun considered that because of that alleged failure by the Immigration Judge the decision of the Immigration Judge not to find that the appellant’s article 8 rights were infringed by the decision was incorrect.”

Without resolving that question, however, SIJ McGeachy went on to consider the article 8 issue as it was argued before him on behalf of the appellant. In that respect the appellant may be said to have been fortunate. However, that is by now water under the bridge.

As for the article 8 argument, SIJ McGeachy reasoned as follows in finding that there was no material error of law in the determination of IJ Khan. He said:

“10.

I would comment that I do not consider that the judgment in ZB is of assistance to the appellant in this case as it is a completely different set of circumstances in that ZB was living with the daughter on whom she claimed to be dependent in Britain (and clearly was dependent on her) whereas the appellant in this case has not lived [with] or indeed seen the sponsor for twelve years.

11.

Miss Oscroft accepted there was no challenge to the conclusions of the Immigration Judge that the state benefits on which the sponsor relied could not be considered to be sufficient to support the appellant. Rather she argued that the findings of the Immigration Judge were insufficient for him to have reached the conclusion that there was no family life between the appellant the sponsor.

12.

In reply, Mr Melvin emphasised that Senior Immigration Judge Eshun had accepted that the Immigration Judge had properly concluded that the appellant could not meet the requirements of paragraph 317(iv)(a) of the Rules. The arrival of the appellant would lead to an increase in the payment of benefits to this family.

13.

I find that there is no material error of law in the determination of the Immigration Judge. While I accept that his approach to article 8 as set out in paragraph 38 of the determination could have been more structured, what in fact the Immigration Judge is saying in that paragraph was that given that the sponsor had not seen the appellant for twelve years, the weakness of the family life between the appellant and the sponsor was such that the decision was not an interference with (or show a lack of respect for) the Article 8 rights of the appellant. That must surely be correct. I note from the sponsor’s statement that after she came to Britain in 1997 she was living with he husband here until they separated in 2004. The appellant, however, remained with her own husband (the sponsor’s stepfather) in Somalia [until] 2005 when he was killed. It cannot therefore be said that the appellant and the sponsor were exercising family life together after the sponsor left Somalia as they each had their separate families. Any family life which they had exercised came to an end therefore when the sponsor left Somalia, if not before, when she married. The appellant and the sponsor are adults who have not seen each other for twelve years. I accept that there may well be clear reasons for that but that is the reality. They have not been exercising family life over that very lengthy period and the decision is not an interference with, or lack of respect for their family life. I would add that, even if it were the case that the Immigration Judge could have found that there was some family life between the appellant and the sponsor, the fact that the sponsor is unable to support the appellant without recourse to public funds and that the appellant appears to have been able to live with others who have been taking care of her in Kenya for at least the last two years would mean that it would not be possible to conclude that the lack of respect for the appellant’s family life was disproportionate.”

It may be observed, first, that SIJ McGeachy did not in terms state by reference to rule 317 (iii) whether the mother was financially wholly or mainly dependent on her daughter, (albeit the whole of his determination was premised on the facts found by IJ Khan which included the finding that the mother was receiving $100 per month from her daughter); secondly, that although he said at one point that there had been no family life between mother and daughter since their separation in 1997, at other points of his reasoning he appears to have accepted that family life was sufficiently weak to enable him to say that there was no interference or lack of respect for the mother’s article 8 rights; but thirdly, that even if there had been any such interference or lack of respect, it could not be said to be disproportionate.

In the circumstances, SIJ McGeachy’s determination on reconsideration may on one view have gone even beyond IJ Khan’s, for the latter had not said there was no family life, but that it was at best a weak family life with which there had been no sufficient interference to require a consideration of proportionality. However, SIJ McGeachy’s determination did expressly consider proportionality on the hypothesis that there had been a sufficient interference to amount to what might otherwise have constituted a breach of article 8.

It cannot be said therefore that either determination contained a wholly satisfactory exposition of the considerations which arise under article 8. There is every sign that both judges considered the appellant’s case to be extremely weak on the facts. Moreover, if the hearing before IJ Khan was concerned mainly (although not exclusively) with rule 317, that cannot be said of the hearing before SIJ McGeachy, where article 8 and not rule 317 was the focus of the submissions on behalf of the appellant. Rule 317 had slipped out of contention, because by the time of the hearing it was accepted on behalf of the appellant that, because the finding concerning sub-rule (iva) and recourse to public funds could not be challenged, therefore it was impossible to succeed under the immigration rule itself. It was possibly for that reason that SIJ McGeachy did not address sub-rule (iii) itself in terms.

Nevertheless, on behalf of the appellant Mr Collins submitted that the failure to address the question of financial dependency invalidated SIJ McGeachy’s analysis. The mother’s financial dependency was capable of and in fact did constitute family life of the kind recognised by article 8 jurisprudence. That jurisprudence recognised that something more than mere emotional ties between a parent and an adult child was required to create a situation where article 8 was engaged sufficiently for an interference in family life to be found: that something more could, however, be found in financial dependency. The mother was and had long been financially dependent on her daughter, and that dependency ought to have been recognised as creating a situation where there was both real family life, and what was more a disproportionate interference with it. In this connection the factors stressed by Mr Collins were these: (i) the family were Somali refugees separated only by virtue of the troubles in Somalia; (ii) the mother was wholly dependent financially on her daughter; (iii) the mother was emotionally dependent on her daughter (because of the telephone calls); (iv) the mother’s sons were dead or missing; (v) the mother was old, unwell and vulnerable, living without any legal status or immediate family in a foreign country; and (vi) the mother was forced to rely on a neighbour for day to day help, when social and cultural mores would look to a child to perform that role. Mr Collins submitted that these matters were wholly ignored. Therefore, there had to be a remission back to the AIT for a proper consideration of the mother’s article 8 claim, as had occurred in ZB.

On behalf of the respondent, Mr Singh on the other hand submitted that it was clear that all these factors had been in the judges’ minds when they reached their conclusions. The evidence to support them was discussed and accepted, as far as they went, in the determinations. But they did not take the case very far. Evidence of family life was at best of a weak connection. There was no sufficient interference with family life, no lack of respect for family life, no positive duty which went as far as requiring the appellant to be admitted to the United Kingdom to live with her daughter when there had been so little in their relationship for the previous twelve years. However, even if there was a case suggestive of some degree of interference, the question of proportionality was so clearly in favour of the respondent’s position to refuse entry that any further remission back to the tribunal was unnecessary. Strasbourg and domestic jurisprudence combined to demonstrate that the mother’s case was without merit.

No case approaching the circumstances of this one, namely that of a state required to admit a parent from abroad to join an adult child in circumstances where the child could not maintain the parent without recourse to public funds, has been cited to us. I will refer, however, to the main jurisprudential texts relied on by the parties. I have already referred to the five questions posed by Razgar at any rate in the situation of removal.

The or a leading Strasbourg authority is still Gül v. Switzerland [1996] 22 EHRR 93, where the ECtHR said this:

“38.

The Court reiterates the essential object of Article 8 is to protect the individual from arbitrary action by the public authorities. There may in addition be positive obligations inherent in effect[ive] “respect” for family life. However, the boundaries between the State’s positive and negative obligations under this provision do not lend themselves to precise definition. The applicable principles are, none the less, similar. In both contexts regard must be had to the fair balance of the individual and of the community as a whole; and in both contexts the State enjoys a certain margin of appreciation.

The present case concerns not only family life but also immigration and the extent of a State’s obligation to admit to its territory relatives of settled immigrants will vary according to the particular circumstances of the persons involved and the general interest. As a matter of well established international law and subject to its treaty obligations, a State has the right to control the entry of non-nationals into its territory.

Moreover, where immigration is concerned, Article 8 cannot be considered to impose on a State a general obligation to respect the choice of married couples of the country of their matrimonial residence and to authorise family reunion in its territory. In order to establish the scope of the State’s obligations, the facts of the case must be considered.”

In Gül the claimant had been permitted to reside in Switzerland with his wife and daughter, but two sons were left behind in Turkey. At a later date he sought to sponsor his sons’ entry to Switzerland, but was refused. The ECtHR rejected his complaint. The Court acknowledged that the family situation was “difficult from the human point of view” but that Switzerland had not failed to fulfil the obligations under article 8(1) and there was therefore no interference in family life within the meaning of that article (at para 43).

As for the position of parents and adult children, it is established that family life will not normally exist between them within the meaning of article 8 at all in the absence of further elements of dependency which go beyond normal emotional ties: see S v. United Kingdom (1984) 40 DR 196, Abdulaziz, Cabales and Balkandali v. United Kingdom [1985] 7 EHRR 471, Advic v. United Kingdom [1995] EHRR 57, Kugathas v. SSHD [2003] EWCA Civ 31, and JB (India) v. ECO [2009] EWCA Civ 234. That is not to say that reliance on the further element of financial dependency will bring a breach of article 8: no case in which it has in the present context has been discovered.

Two leading cases in the domestic jurisprudence on article 8 have been Anufrijeva v. Southwark LBC [2003] EWCA Civ 1406, [2004] QB 1124 and Huang v. SSHD [2007] 2 AC 167. Each has drawn deeply on the underlying Strasbourg jurisprudence. In Anufrijeva this court considered the nature of a duty under article 8 to take positive action, but indicated by reference to Strasbourg jurisprudence that it had two aspects, neither of which assists the appellant in this case: one aspect was to require the introduction of a legislative or administrative scheme to protect the right to respect for private and family life, and the other was to require the scheme to be operated competently so as to achieve its aim (at para 16). In this case, rule 317 represents such a scheme, but it does not assist the mother because of the need to have recourse to public funds. It is perfectly true that article 8 lies beyond the immigration rules and there is no necessity that those rules represent the appropriate balance in a particular case: nevertheless, it is also clear that the requirements of financial dependency and of the absence of the need for recourse to public funds represent essential aspects of article 8 jurisprudence. I can find no support in the jurisprudence, however, for a positive duty to permit entry of a parent (spouses and minor children may present different problems) to join an adult child even where the parent would require support by public funds. Although it is always wise never to say never, the consequences of a generally open door to such applications on behalf of the family members left behind by adult children who have been able to make a new life in other countries would represent a wholly new and step change in the understanding of state responsibility pursuant to article 8.

This is also reflected in Huang. There the appellate committee of the House of Lords reflected on the inadequacies of tribunal adjudication of appeals by applicants for entry into this country where their cases could not be brought under the immigration rules but reliance was placed on article 8. Two cases were considered: one was of a Chinese mother, born in 1942, the rest of whose family were British citizens living in this country; the other was of an Iranian son born in 1981 whose family had been admitted here to asylum, which he had been refused. Both cases had to be remitted to the AIT. The case of Mrs Huang has some similarities with our case in that she had sought entry under rule 317, but could not fit herself within that rule because at the time of application she was neither over 65 nor a widow; but she did not need to rely on public funds. The tribunals below had erred as a matter of principle (in ways which are not relevant here) in their application of article 8. In the course of their opinion (delivered by Lord Bingham) the appellate committee made these (already classic) observations:

“18…The reported cases are of value in showing where, in many different factual situations, the Strasbourg court, as the ultimate guardian of Convention rights, has drawn the line, thus guiding national authorities in making their decisions. But the main importance of the case law is in illuminating the value which article 8 exists to protect. This is not, perhaps, hard to recognise. Human beings are social animals. They depend on others. Their family, or extended family, is the group on which most people most heavily depend, socially, emotionally and often financially. There comes a point at which, for some, prolonged and unavoidable separation from this group seriously inhibits their ability to live full and fulfilling lives. Matters such as age, health and vulnerability of the applicant, the closeness and previous history of the family, the applicant’s dependence on the financial and emotional support of the family, the prevailing cultural tradition and conditions in the country of origin and many other factors may all be relevant. The Strasbourg court has repeatedly recognised the general right of states to control the entry and residence of non-nationals, and repeatedly acknowledged that the Convention confers no right on individuals or families to choose where they prefer to live. In most cases where the applicants complain of a violation of their article 8 rights, in a case where the impugned decision is authorised by law for a legitimate object and the interference (or lack of respect) is of sufficient seriousness to engage the operation of article 8, the crucial question is likely to be whether the interference (or lack of respect) complained of is proportionate to the legitimate end sought to be achieved. Proportionality is a subject of such importance as to require separate treatment…”

In then treating the question of proportionality, the committee observed that the overriding requirement was “the need to balance the interests of society with those of individuals or groups” and referred to the need to strike “a fair balance between the rights of the individual and the interests of the community which is inherent in the whole of the Convention” (at [19], citing from Razgar at [20]). In his judgment in Razgar at [20], Lord Bingham cited from Secretary of State for the Home Department v. Kacaj [2002] Imm AR 213 at para 25 where the IAT (Collins J, Mr CMG Ockelton and Mr J Freeman) said that:

“although the [Convention] rights may be engaged, legitimate immigration control will almost certainly mean that derogation from the rights will be proper and will not be disproportionate.”

Lord Bingham commented:

“I respectfully consider the element of overstatement to be small. Decisions taken pursuant to the lawful operation of immigration control will be proportionate in all save a small minority of [exceptional] cases, identifiable on a case by case basis.”

I have put the word “exceptional” in square brackets, as reflecting the necessary deletion of it engendered by what was said in Huang at [20], where the appellate committee said:

“It is not necessary that the appellate immigration authority, directing itself along the lines indicated in this opinion, need ask in addition whether the case meets the test of exceptionality. The suggestion that it should is based on an observation of Lord Bingham in Razgar above, para 20. He was there expressing an expectation, shared with the Immigration Appeal tribunal, that the number of claimants not covered by the Rules and supplementary directions but entitled to succeed under article 8 would be a very small minority. That is still his expectation. But he was not purporting to lay down a legal test.”

Also in Huang at [16], the appellate committee said this about the question of justification under article 8(2) (in a passage repeated and emphasised by Lord Bingham in EB (Kosovo) v. Secretary of State for the Home Department [2008] UKHL 41, [2009] AC 1159 at [9]):

“The authority will wish to consider and weigh all that tells in favour of the refusal of leave which is challenged, with particular reference to justification under article 8(2). There will, in almost any case, be certain considerations to bear in mind: the general administrative desirability of applying known rules if a system of immigration control is to be workable, predictable, consistent and fair as between one applicant and another; the damage to good administration and effective control if a system is perceived by applicants internationally to be porous, unpredictable or perfunctory; the need to discourage non-nationals admitted to the country temporarily from believing that they can commit serious crimes and yet be allowed to remain; the need to discourage fraud, deception and deliberate breaches of the law; and so on.”

In EB Kosovo Lord Bingham also approved this statement by Wall LJ in Senthuran v. Secretary of State for the Home Department [2004] EWCA Civ 950, [2005] 1 FLR 229 at [15]:

“In our judgment, the recognition in Advic [(1995) 20 EHRR CD 125] that, whilst some generalisations are possible, each case is fact-sensitive places an obligation on both adjudicators and the IAT to identify the nature of the family life asserted, and to explain, quite shortly and succinctly, why it is that Art 8 is or is not engaged in a given case.”

Finally, reference has already been made to ZB (Pakistan) v. SSHD [2009] EWCA Civ 834. There this court remitted the case of a 59 year old mother, an insulin dependent diabetic, who had come here to join seven of her children, nineteen grandchildren, and her husband, all of whom (save the husband) were citizens of this country, and was relying on article 8 to prevent her removal. She had previously been living in Pakistan, supported financially by sons in the UK. She had arrived here in 2007 on a visitor’s visa and applied for indefinite leave to remain. She had previously sought leave to enter in 1988, but had been refused. She could not bring herself within rule 317 (or other rules), but not for reasons connected with the need to have recourse to public funds. Despite clear evidence of the existence of family life, the AIT had found that there was none, at any rate none within the meaning of article 8. This court found numerous failings of analysis which undermined the tribunal’s decision and necessitated remittal. In my judgment, however, her case is not comparable to this, either in its essential facts or in the failings of the determination from which the appeal to this court was taken.

The analysis in the determinations of IJ Khan and SIJ McGeachy below is admittedly compromised by the facts that IJ Khan did not consider proportionality, having considered that he did not need to reach it, and SIJ McGeachy, who did go on to consider proportionality, may have found, unlike IJ Khan, that there was no family life at all. However, in my judgment the sole ground on which reconsideration had been in terms granted, namely a failure to find whether there had been material financial dependency on the daughter, was not made good. Both IJ Khan and SIJ McGeachy, who was bound in this respect by IJ Khan’s findings, plainly proceeded on the basis that the daughter had been sending her mother $100 per month. That is what IJ Khan found (at his para 36: “The sponsor now financially supports her sending her $100 per month”). He was entitled to limit his finding to that “now”. There was no evidence of any other current financial support for the mother; and the daughter said that was her mother’s only income. It was for this reason that IJ Khan rejected the mother’s reliance on rule 317 not under sub-rule (iii) but under sub-rule (iva). It was for this reason that SIJ McGeachy ultimately rejected the mother’s reliance on article 8 on the basis of proportionality (although admittedly starting from the position that no family life was shown).

However, although the money sent to her mother by the daughter raises an element of dependency, it is not one which in my judgment takes the matter very far. The provision of such money can be as much an insulation against family life as evidence of it. In any event, there is nothing to prevent the daughter continuing with the provision of money to her mother in Kenya: therefore to this extent there is no interference with family life. Of rather more importance, as it seems to me, are the facts and the reasons which led IJ Khan to conclude that there was no evidence of a strong bond between mother and daughter. For twelve years there had been little contact between mother and daughter, other than the provision of the monthly $100 and the making of telephone calls, the extent of which was said by the mother to be only once a month, although put by the daughter as rising from once more recently to 2 to 3 times a week. The daughter was found to be vague and evasive as to why she had not gone to see her mother over the twelve years since she had left Somalia. There could well be good reasons for her reluctance to travel, such as the dangers of Somalia and the needs of her seven children, which might make it all the more surprising that she was so unconvincing in her evidence in this respect; and particularly since her mother had left Somalia for Nairobi.

As for the mother’s situation in Nairobi, she has accommodation, albeit in straightened circumstances, which she appears to share with three other people, and is looked after (IJ Khan said “well looked after”) by the good Mr Mohammed, an old friend of her elder son. Her health is not excellent, but arthritis affecting her legs, for which she receives medication, is a common enough ailment with increasing age, and not life threatening. IJ Khan found that in other respects the daughter exaggerated her ailments. Nor did he accept the daughter’s new evidence that Mr Mohammed had said that he was leaving.

In all these circumstances, there can in my judgment be no complaint about the conclusion of IJ Khan that “Although some family life remains between parents and children but there comes a time when it becomes weak. I do not accept on the evidence that there is a strong bond between the appellant and the sponsor in this case.” In other words, he found that there was at most a weak family life between the mother and daughter.

SIJ McGeachy seems to me essentially to have shared the same conclusion. It is true that he also said that “Any family life which they exercised came to an end therefore when the sponsor left Somalia, if not before, when she married” and that “They have not been exercising family life over that very lengthy period”; but on the whole I would also regard SIJ McGeachy as saying, with IJ Khan, that during that time such family life as remained was too weak to render the entry clearance officer’s decision an interference with or a failure to show respect for the mother’s article 8 rights (see his para 14 cited above).

It seems to me that such a conclusion is justified. When consideration is given to the weakness of family life in this case, and to the lack, as it seems to me, of any positive duty which imposes on the United Kingdom an obligation which goes beyond making systematic allowance for a right of entry which is governed both by carefully composed immigration rules such as rule 317 and an overriding consideration of article 8 on a case by case basis, it is not possible to say that there has either been an interference with family life, or a lack of respect for family life, which amounts to a breach of article 8, or would amount to a breach of article 8 but for justification on the basis of proportionality. Alternatively, if I am wrong about that, I would agree with SIJ McGeachy (and with the implicit conclusion of IJ Khan) that any such interference or lack of respect would be justified by the principles of immigration control and by what would otherwise amount to the imposition on the admitting state of the use of public resources to maintain the immigrant.

Mr Collins complained that the factors relied on by him as set out at para 30 above had not been taken into consideration. I do not agree. The basic facts there outlined were all recorded and clearly in the judges’ minds. There is, as Mr Collins accepted, no need of any “list”. The colouring of those facts by Mr Collins’ advocacy was not necessarily accepted, but that is another question.

Looking at the matter through the five Razgar questions, I would answer them therefore as follows. (1) There is no question of a proposed removal in this case, but only of whether the mother is to be given leave to enter. It is hard to say that refusal of such leave is an interference with the exercise of the mother’s right to respect for her family life. However, let it be supposed that it is. (2) Will such interference have consequences of such gravity as potentially to engage the operation of article 8? Given the weakness of the family life in issue in this case, and the facts that the mother has accommodation, care and support from a near neighbour and old family friend, medical assistance, financial support and no life-threatening or debilitating illness, it is not possible to conclude that the answer to this question should be positive. But let it be supposed that it is. (3) Such interference would be in accordance with law, namely pursuant to the applicable immigration rules (subject of course to the ultimate outcome of the article 8 issue). (4) and (5) These questions of justification and proportionality are, as has been said, often taken together. I have no doubt that only one answer is possible to them, on any view of the previous questions. As Strasbourg and domestic jurisprudence has consistently emphasised (see above), states are entitled to have regard to their system of immigration control and its generally consistent application, and a requirement that an entrant should be maintained without recourse to public funds is an ultimately fair and necessary limitation on what would otherwise become a possibly overwhelming burden on all of its citizens. It is an unfortunate reality of life that states, especially one like the United Kingdom which is generally accessible and welcoming to refugees and immigrants, cannot undertake to allow all members of a family to join together here, even those members who can show emotional and financial dependency, without creating unsupportable burdens.

In conclusion, therefore, whatever might be said about the earlier Razgar questions (1) and (2), it seems to me that this appeal must fail on the ultimate questions (4) and (5) which reflect the qualified right aspect of article 8(2). In such circumstances, there would on any view be no point in remitting this appeal. Thus, although I would accept that the article 8 analysis of the determinations of IJ Khan and SIJ McGeachy is not of the highest quality, it is acceptable. The facts are found and the issue is dealt with, as Wall LJ and Lord Bingham suggested it should be, “quite shortly and succinctly”. In any event, and even if the analysis was so poor as to be inadequate, I would not accept that on the facts of this case, which are not complex or difficult, any conclusion was possible save that there has been here no breach of article 8.

In sum, I would dismiss this appeal.

I agree.

I also agree.