PT (Sri Lanka) v Entry Clearance Officer, Chennai

The Appellant, who was born on 26 June 1991, is one of four children of Thambiraja Thillainathan, to whom I will refer as the father, and his wife Nageswary Thillainathan. He has an elder brother and two younger sisters. They are all Sri Lankan by original nationality.

On 15 January 2002 the father came to this country and applied for asylum. His wife and children stayed in Sri Lanka. His claim for asylum was unsuccessful, but on 3 August 2010 he was granted indefinite leave to remain, although on what basis is unclear.

In January 2010 the elder son came to the UK on a student visa. In April 2013 his leave to remain was curtailed. Subsequent developments in his case are not material for present purposes, but we were told that he remains in this country although liable to removal.

In February 2012 the members of the family who were still in Sri Lanka – that is, the Appellant and his mother and sisters – applied for entry clearance to join the father in this country. At that date the Appellant was aged 20. His sisters were still under 18.

By decisions dated 18 April 2012 the Entry Clearance Officer in Chennai granted entry clearance in the case of the Appellant’s mother and sisters but refused it in his case. His mother and sisters came to the UK shortly afterwards. The result is that the Appellant was the only member of the immediate family left in Sri Lanka.

The Appellant appealed to the First-tier Tribunal (“the FTT”). He was represented by an immigration consultant engaged by his father, Mr David Williams. The grounds of appeal relied on paragraph 317 of the Immigration Rules, which provides that a dependent child over the age of 18 will be entitled to leave to enter “if living alone outside the UK in the most exceptional compassionate circumstances” (see sub-paragraph (i) (f)). (There are also other conditions, particularly as to the availability of support and accommodation, but they are not relevant for present purposes.) It was also contended that refusal would represent an unlawful interference with the Appellant’s rights under article 8 of the European Convention of Human Rights (“the Convention”) by “[preventing] him from enjoying family life with his parents and siblings”. The grounds of appeal included a statement that:

The appeal was heard before FTTJ Herwald on 15 January 2013. By a determination promulgated on 23 January he found that the high threshold of “most exceptional compassionate circumstances” was not reached in the Appellant’s case. He also dismissed the claim under article 8 outside the Rules. I will return to his reasons in due course.

Permission to appeal to the Upper Tribunal was given by UTJ Eshun. That appeal was heard by UTJ Clive Lane on 6 June 2013. The Appellant was represented by Mr Nishan Paramjorthy of counsel. The Tribunal’s determination was promulgated on 14 June 2013. Both grounds of appeal were dismissed. Again, I will return to the reasoning of the Tribunal in due course.

The Appellant’s application for permission to appeal came before me on an oral renewal, following refusal on the papers by Longmore LJ, as long ago as 13 February 2014. The Appellant’s grounds of appeal had not been professionally drafted and disclosed no arguable grounds. But I was persuaded to give permission to appeal as a result of the advocate’s statement and oral submissions of Mr Erum Waheed of counsel, who had not appeared below. The issues on which the appeal was allowed to proceed will appear from the discussion below.

Before us Mr Waheed has again appeared for the Appellant, leading Mr Michael Biggs. Ms Cathryn McGahey QC has appeared for the Respondent.

Paras. 1-8 of the FTT’s Reasons are introductory and nothing turns on them. The Judge records that he heard evidence from the father and identified the bundles before him, but he does not attempt to summarise the evidence. I should say that it appears from another passage that he had witness statements from the Appellant and his father.

Paras. 9-13 are headed “The Applicable Law” but are concerned only with general background matters such as the burden of proof. I should refer to one aspect. Para. 11 refers to section 85 (4) of the Nationality Immigration and Asylum Act 2002, which at the material time read:

At paras. 14-20 the Judge summarises the parties’ cases and the grounds of appeal, but he does so only very briefly and there is nothing that I need to refer to for present purposes.

Para. 21 is headed “My Findings”. It contains a number of findings of fact about the Appellant’s circumstances in Sri Lanka as at the date of the decision, i.e. after his mother and sisters had left (though for the reason given at para. 12 above that was not the material date). The findings are explicitly directed to the question of “most exceptional compassionate circumstances” under rule 317. They are sufficiently summarised at sub-paras. (g) and (h), which read as follows:

The Judge then turns to the claim under article 8 outside the Rules. He reviews the relevant law at paras. 24-25. At para. 24 he sets out the familiar five “Razgar questions”: see R (Razgar) v Secretary of State for the Home Department [2004] UKHL 27, [2004] 2 AC 368, per Lord Bingham at para. 17.As regards the first question, namely whether the Respondent’s decision would interfere with the Appellant’s right to respect for his private or family life, he comments:

The Judge then continues:

The reasoning there is distinctly compressed. I would analyse it as follows:

The grounds of appeal from the FTT to the UT, pleaded by Mr Paramjorthy, were rather discursive. But the broad point made was that the FTTJ had “failed to engage with the fact that the Appellant had not established an independent family life and had lived his entire life from child to adulthood with his family”. Reference was made to “South Asian familial tradition”, under which “a child remains a family member until marriage”. That failure was said to have led also to his having “failed to engage with proportionality”. The Judge was said to have made a particular error in finding that the Appellant continued to live in the family home, whereas that had in fact been sold in anticipation of the remaining members of the family joining the father in the UK. No point was taken on the fact that the Judge had made his decision by reference to the wrong date.

In his determination the UTJ started by dealing with the error about the house where the Appellant was living. He doubted whether the true position had in fact appeared in the evidence before the FTT, but he held that any error was in any event immaterial. This point is not now pursued. In the course of that discussion he held, at para. 5, that the FTTJ had not failed to engage the issue of proportionality: he referred to para. 28 of the FTT’s determination.

The UTJ then turned, at para. 8 of his determination, to the more general question of whether the FTTJ had failed to engage with the Appellant’s particular circumstances. As to that, he acknowledged that “the [FTTJ] may have concentrated to too great an extent on quoting from the jurisprudence relating to article 8 at the expense of a close analysis of the facts”. But he held that no error of law had been established. His reasoning is quite short. His essential conclusion appears to have been that the FTT’s conclusion that article 8 was not engaged was justified by the fact that the Appellant was an adult and that “there were no special ties of dependency which should bring [him] within the ambit of Article 8”. But he makes two additional points – first, that “any disruption in the close family bonds that [the other members of his family] no doubt enjoyed with the Appellant in Sri Lanka” was the consequence of their own decision to come to the United Kingdom; and secondly that there was no evidence before the FTT about the special characteristics of South Asian families.

The essential basis on which I gave permission to appeal was that I considered that it was arguable that the FTTJ had not correctly stated the law as to the circumstances in which an adult child could be regarded as enjoying family life with his parents and/or siblings; and that if the correct approach had been taken to that question the FTT’s decision that article 8 was not engaged was unsustainable on the facts. I acknowledged that that would not matter if the interference with any such rights constituted by the refusal of leave to enter was proportionate, but I was not persuaded by the FTT’s very short reasons on the point that he had properly addressed the question.

As regards the law, I can start with Kugathas. In that case the appellant was resisting removal to Sri Lanka on the basis of his continuing family life with his mother, his brother and his married sister, who all lived in Germany He had lived with them for many years in Germany before coming to this country about three years prior to the decision under appeal. The leading judgment was given by Sedley LJ. At para. 14 of his judgment he quoted the statement of the Commission in S v United Kingdom that:

It appears to have been the case that some tribunals have read Kugathas as establishing a rebuttable presumption against any relationship between an adult child and his parents or siblings being sufficient to engage article 8. In Ghising v Secretary of State for the Home Department [2012] UKUT 00160 (IAT) the Upper Tribunal (Lang J and UTJ Jordan) was critical of that reading. It observed at para. 56 of its determination that “the judgment in Kugathas has been interpreted too restrictively in the past and ought to be read in the light of subsequent decisions of the domestic and Strasbourg courts”. It continued, at para. 57, to point out that several authorities had recognised that family life may continue between parent and child even after the child has reached the age of majority. So far as the UK authorities are concerned, the Tribunal referred to RP (Zimbabwe) v Secretary of State for the Home Department[2008] EWCA Civ 825, Etti-Adegbolu v Secretary of State for the Home Department[2009] EWCA Civ 1319 and Secretary of State for the Home Department v HK (Turkey)[2010] EWCA Civ 583. I think I should set out in full its account of the Strasbourg case law at paras. 60-61, which reads:

The approach of the Upper Tribunal in Ghising was approved by this Court in R (Gurung) v Secretary of State for the Home Department[2013] EWCA Civ 8, [2013] 1 WLR 2546: see the judgment of Lord Dyson MR at para. 46 (p. 2567H).

In Singh v Secretary of State for the Home Department[2015] EWCA Civ 630 Sir Stanley Burnton, with whom Richards and Christopher Clarke LJJ agreed, reviewed most of the authorities referred to in Ghising though not, oddly, Ghising itself (or Gurung). He concluded, at para. 24:

The position thus is that Sedley LJ’s statement of the applicable principles in Kugathas has not been in any sense disapproved – unsurprisingly, since it requires a fact-sensitive approach – but that it requires to be understood in the light of the subsequent case-law helpfully summarised in Ghising.

I have quoted at para. 15 above the FTTJ’s self-direction as to the relevant principles. It will be seen that there is no reference in that passage to Ghising, which had been decided over a year previously, or indeed to any of the domestic or Strasbourg authorities reviewed in it. Although neither party was represented by counsel, I would have expected a competent immigration consultant and, perhaps still more, a Home Office Presenting Officer to be sufficiently familiar with the relevant case-law to ensure that it was placed before the Tribunal.

However, the absence of any reference to Ghising does not mean that the FTTJ’s self-direction was wrong, and indeed I do not think that any positive error can be detected in it so far as the actual words go. The real question is how the Judge understood the effect of Kugathas. That can only be established by considering his conclusion in the light of the evidence before him. That exercise is rendered more difficult by the fact that we do not have a clear picture of what that evidence consisted of. We do not have the original application to the ECO or any materials that accompanied it; nor do we have the bundles in the form that they were before the FTT. As we have said, there appear to have been witness statements from the Appellant and his father; but we only have the latter, which unsurprisingly does not address the nature of the Appellant’s family life with his mother and sisters in Sri Lanka. The Appellant and his present advisers may not be wholly to blame for this, since it appears that Mr Williams did not retain his full file (and has indeed been criticised by the Office of the Immigration Services Commissioner for that failure) and it is understandable that the Appellant’s family have not kept copies themselves. But it is unfortunate that no approach appears to have been made to ask the Home Office to produce whatever was on its own file.

In those circumstances our only real guide as to what evidence was before the FTT is the summary that appears in the determination. This does not tell us much. In truth, all that we can be sure that the FTT was told was that the Appellant was aged 20 at the time of the ECO’s decision; that he had always lived with his mother and sisters in the family home (subject to the qualification mentioned in para. 19 above); that he was continuing his studies and had not got a job; and that he was financially dependent on remittances from his father. There was the statement in the grounds of appeal about cultural norms in Sri Lanka which I have quoted at para. 6 above, but it is not clear if that was supported in either witness statement. The question must be whether, if that was the totality of the evidence, the FTTJ was entitled to hold that it did not demonstrate that the Appellant enjoyed family life with his mother and his sisters at the time of the ECO’s decision.

It is not satisfactory to have to proceed on this uncertain basis. But in the end I do not think that the FTT’s conclusion was sustainable, and the UT erred in law by failing so to find. Even on the skeletal facts that may have been all that was available to the Judge, the probability must have been that the Appellant enjoyed a family life with his mother and sisters of the kind protected by article 8. It was not simply a matter of “normal emotional ties”. The Appellant was a single student, living with his family, who had attained adulthood less than two years previously. Sir Stanley Burnton’s comment in Singh quoted at para. 24 above seems to me entirely apposite:

The shortness of the Judge’s reasoning makes it impossible to be sure what led him to reach a conclusion that was unsustainable on the facts, and it is not necessary to decide that question. But I suspect that he was misled by focusing on the position as it was at the date of the hearing before him, by which time the Appellant’s mother and sisters had already left, rather than on the position at the date of the ECO’s decision. He may also have had an unduly restrictive view of the effect of Kugathas of the kind referred to by the UT in Ghising, which makes it the more regrettable that he was not referred to it. It is also unfortunate that no reference was made to Ghising in the grounds of appeal to the UT.

Ms McGahey acknowledged in her oral submissions that many judges would have found on the facts of this case that the Appellant’s article 8 rights were engaged. She was not prepared to concede that the Judge’s finding to the contrary was not open to him; but in my view that is in fact the case.

It may also follow from that conclusion that the article 8 rights of the Appellant’s mother and sisters were also engaged; but that was not the focus of the argument before us and I need not consider it further.

The FTT’s error about whether article 8 was engaged will not vitiate his decision if its alternative finding that the refusal of entry clearance was in any event proportionate is one which was open to it in law. Mr Waheed submitted that it was not. His essential submission was that the Judge’s reasoning on this point was wholly inadequate. He acknowledges that the single sentence at para. 28 of the determination must be read with the findings at para. 21, but he submits that those findings were directed to the claim under rule 317 and cannot be used to support a claim based on article 8 outside the Rules.

I initially saw force in this argument, as appears from my grant of permission. But in the end I am not persuaded that the FTT made any error of law in this part of the determination. While it is correct that the issues under rule 317 and article 8 are not identical, they involve consideration of very similar factors. What the findings at para. 21 of the determination amount to is that while the Appellant had a degree of dependence on his mother and sisters while they lived together as a family, he was able to make the transition to living on his own an independent adult (notwithstanding a degree of financial dependence) albeit somewhat sooner than might otherwise have been the case. Those findings are not challenged as far as they go, and it is not suggested that there was evidence before the FTT of any special impact on the Appellant of being separated from his mother and sisters (indeed, as noted above, we have not been shown the evidence at all). In my view the Judge’s findings are an adequate basis for his conclusion that the separation of the family was proportionate in the interests of a consistent system of immigration control. It is not the law, in the Strasbourg jurisprudence any more than under the Immigration Rules, that there is a right for adult children always to join their parents or siblings in their country of residence. Identifying cases where such a right may nevertheless arise under the Convention requires FTT judges to make fact-sensitive assessments in areas where there are no bright lines and where the outcome will sometimes be a sad one in human terms. This Court should not interfere with such assessments unless they are based on a misunderstanding of the law or are plainly wrong. That is not so here.

Ms McGahey relied also on the point made by the UT that the immediate reason why the family life in Sri Lanka broke up was that the Appellant’s mother and sisters chose to go to the UK to join the father; or, to look at it another way, because the father did not choose to come back to live with them all in Sri Lanka – it must be recalled that he was not a refugee and so did not face persecution if he returned. She did not suggest that that meant that the difference in the decisions taken in the Appellant’s case and those of his mother and sisters did not constitute an interference with family life. But she said that it was relevant to the assessment of proportionality. Although this was not a point on which the FTT relied I agree that it is a material consideration. The Respondent’s decision gave the family a hard choice; but it was nevertheless a genuine choice.

I return to the question of the date as at which the proportionality of the refusal of entry clearance had to be assessed. Mr Waheed did not in fact seek permission to amend his grounds of appeal to rely on the error by the FTT in assessing proportionality as at the date of his decision rather than the ECO’s, though he did in the course of his reply make some reference to it. I should be reluctant to allow the Appellant to rely on a point taken for the first time in reply in this Court. But I do not in fact believe that it has been established that the error was material on this aspect of the case. If the Judge had focused on the evidence relating to the position as at the date of the ECO’s decision he would have had to consider the impact on the Appellant of having to live on his own on a prospective basis rather than on the basis of how things had turned out; but the difference between the two dates was only some nine months, and there is no reason to suppose that his assessment would in fact have been any different.

For the reasons given above I believe that the FTT was wrong to find that the Appellant did not enjoy any family life with his mother and sisters so as to engage article 8 of the Convention. But I believe that it was entitled to find that the denial to him of leave to enter the UK together with them was a justifiable interference with that right. The UT thus made no error of law in dismissing his appeal.

There are two points which I should mention for completeness.

First, Ms McGahey complained that the Appellant had misled the Court in his application for permission to appeal (a) by relying on a witness statement from his father that gave the impression (though she accepted that it did not explicitly say) that he had been granted asylum, which would have meant that it was unlikely that he could return to Sri Lanka, and (b) by failing to tell the Court that his brother’s leave to remain had been curtailed, so that the Appellant would not for much longer be the only “stranded sibling”. I understand the Respondent’s concern about applicants for permission being candid with the Court, but neither of the criticisms advanced by Ms McGahey is unequivocally well-founded, nor do I think that if I had been given fuller or clearer information on either point it would have affected my decision to grant permission. In those circumstances I see no point in my trying to assess whether the Appellant’s advisers were in any degree culpable. The general question of the duty of disclosure on applicants for permission to appeal has very recently been authoritatively considered by this Court in R (Khan) v Secretary of State for the Home Department[2016] EWCA Civ 416, and there is no need for any further discussion of the applicable principles.

Secondly, the Appellant lodged for the purpose of this appeal a number of new materials, including published reports on South Asian family norms and new witness statements from his family members. As those advising him should have appreciated, that material was not admissible. The only question before us is whether the FTT reached a conclusion that was open to it in law on the evidence that was before it.

I agree.

I also agree.