Arun Dasgupta v Entry Clearance Officer, New Delhi

The Appellant is a national of India, aged 85 years. The origins of this appeal to the Upper Tribunal are traceable to a decision made by the Entry Clearance Officer of New Delhi (the “ ECO ”), dated 27 June 2013, whereby the Appellant’s application for clearance to enter the United Kingdom as an adult dependant relative under Appendix FM of the Immigration Rules was refused. The Appellant’s ensuing appeal to the First-tier Tribunal (the “ FtT ”) was, by its determination promulgated on 06 August 2014, allowed. The appeal succeeded under Article 8 ECHR. The appeal was dismissed under the Immigration Rules. We shall elaborate on this infra .

The procedural developments thereafter may be described as somewhat atypical. First, the ECO, who is represented by the Secretary of State for the Home Department (“the Secretary of State”) sought, and was granted, permission to appeal. The permission Judge, in making this decision, highlighted:“ …. the weight which the Judge gives to the rights of the sponsor’s children …. ”, continuing:

The ECO noted that the Appellant’s application for clearance to enter the United Kingdom had been made as an adult dependant relative under Appendix FM of the Rules. The ECO considered the application under paragraph EC-DR.1.1 thereof, continuing:

The decision of the FtT illuminates the factual matrix of this appeal (which we shall augment infra ). The uncontentious facts recorded include that the Appellant is a widower and the sponsor is his daughter, a married lady who has two children now aged 15 and 14 years. The Appellant has been visiting this family with some frequency. His daughter is an NHS Doctor. She has undertaken in writing that she will be fully responsible for the maintenance, accommodation and care of the Appellant in the United Kingdom for a period of 5 years.

The appeal to the FtT was pursued on three bases:

The FtT determined the appeal in the following terms:

The relevant provisions of the Rules are not “ discriminatory, manifestly unjust, made in bad faith or [involving] an oppressive or gratuitous interference with people’s rights …. [and are] not an inherently disproportionate interference with rights to respect for family life ”.

In individual cases, any interference with the right to respect for family life would be in accordance with the law and pursues a legitimate aim.

The Appellant failed to demonstrate that “ … the sponsor is unable, with the practical and financial help of the sponsor [sic] , to obtain the required level of care in India ….. [and] … does not meet the requirement E-ECDR.2.5 of Appendix FM ”.

The Appellant’s case satisfied the requirement of “ exceptionality ”:

The Secretary of State’s appeal and the Appellant’s cross-appeal raise very different issues, as the following outline confirms:

The Secretary of State’s primary case is that the FtT erred in law in concluding that there was family life protected by Article 8 ECHR.

It is contended, in the alternative, that the FtT erred in law in allowing the Appellant’s appeal under Article 8 out with the framework of the Rules.

By his cross-appeal, the Appellant contends that that the FtT erred in law in dismissing his appeal under the Rules. The contention underlying this proposition is that the relevant provision of the Rules is unlawful as it is ultra vires and/or irrational and/or incompatible with Article 8.

First, we consider whether the finding of family life by the FtT is harmonious with legal principle. In this respect there is no shortage of guidance in the relevant jurisprudence, both domestic and international. In Kugathas v Secretary of State for the Home Department [2003] INLR 170, the Court of Appeal, in the context of considering a mother/adult son relationship, gave expression to certain general principles. The two main judgments enunciate with some emphasis the principle that normal emotional ties between a mother and adult son do not, without more, constitute family life under Article 8. This derives from S v United Kingdom [1984] 40 DR 196, at 198. Sedley LJ, adopting this approach, stated in [19]:

The decision in Kugathas was followed mutatis mutandis by the Court of Appeal in JB (India) v Entry Clearance Officer [2009] EWCA Civ 234: see especially per Sullivan LJ at [14]. The Court held that if the Kugathas principles had been applied, there was no rational basis upon which the immigration Judge could have concluded that there was family life between the three adult children, all living in India and their mother, who had been living in the United Kingdom for six years prior to the impugned decision: see [17].

Mr Sheldon in argument also relied on the recent decision of the Court of Appeal in Singh v Secretary of State for the Home Department [2015] EWCA Civ 630. There the Court of Appeal, agreeing with the Upper Tribunal, stated at [26]:

The decision in GHB v United Kingdom and those reviewed in extenso by the Court of Appeal in Singh lend emphasis to the proposition that the question of whether there exists family life between, or among, those under scrutiny will invariably be an intensely fact sensitive one. The scope of the protection afforded by Article 8 is elastic, not susceptible to precise measurement. Article 8 is couched in open textured language. It was memorably described by Stanley Burnton J as “the least defined and most unruly” of the Convention rights in R (Wright) v Secretary of State for Health [2006] EWCH 2886 (Admin) at [60]. Bearing in mind the emphasis on the individual factual matrix in all cases of this kind, we turn to consider the decision of the FtT in a little detail.

We elaborate on [4] above as follows. The family circle consists of the Appellant, a retired businessman who is now aged 85; his daughter (the sponsor), a doctor, who has lived in the United Kingdom for almost 25 years; her husband, whom she married some 20 years ago; and their two children (the Appellant’s grandchildren), aged 17 and 16 years respectively. The Appellant’s spouse died in 2007. Both retired from their respective occupations around 2001.

Mr De Mello invited us to read the decision of the FtT in conjunction with the evidence available to it and we have done so, paying particular attention to those materials which were highlighted in Counsel’s submissions: the witness statements of the Appellant’s daughter, son, and old grandchild; the written accounts of family friends; the medical evidence; and the family photographs.

The unchallenged evidence is that by the time of the grandmother’s death in 2007, a very close and loving bond had been established between grandparents and grandchildren through visits from India to the United Kingdom and vice-versa, coupled with family reunions in the United States, where the sponsor’s brother resides; since 2007 the Appellant has visited his daughter’s family in England almost annually, each sojourn lasting three – five months; the Appellant has developed a strong and close relationship with his grandchildren; and there are robust ties of mutual love and affection. In short, the Appellant has gradually assumed a special position in the lives of his grandchildren. Simultaneously, the father/daughter relationship between the Appellant and the sponsor has continued and flourished, notwithstanding the factors of distance and marriage and has, if anything, strengthened during recent years following the demise of the Appellant’s wife and in conjunction with his gradually deteriorating health.

Mr Sheldon, on behalf of the Secretary of State, criticised the determination of the FtT primarily on the basis that it consists of extensive recitation of evidence, coupled with very few explicit findings of fact. As appellate courts have frequently observed, while this is sometimes a vice it is not necessarily fatal. Furthermore, it is of no little significance that the existence of family life in respect of all members of the family circle identified above, was not disputed before the FtT. In particular, we were informed, and accept, that there was no cross-examination of the Appellant’s daughter. We would add that this is consistent with the ECO’s decision, which did not dispute the nature or depth of the relationships under scrutiny. It is also reflected in the Secretary of State’s grounds of appeal to this Tribunal, which contain no complaint about the FtT’s approach to the topic of family life. We attach significant weight to these considerations. It is within this context that we must evaluate what Mr Sheldon characterised the FtT’s “assumption” that there is family life in relation to the five persons concerne d and const rue the decision .

There is, in the abstract , some force in Mr Sheldon’s criticism that the FtT did not conduct the exercise of acknowledging, and then applying, the principles in Kugathas and the line of authority to which we have referred. Furthermore, the FtT did not carry out the “Razgar” exercise ( Razgar v Secretary of State for the Home Department [2004] 2 AC 368, at [17]). In addition, the obligation imposed by the Tameside principle to pose the correct question – namely whether there was family life – was not explicitly discharged. However, as the House of Lords has made clear, decisions in human rights cases, save where the Convention right in question has a procedural content (the paradigm being Article 6), are about outcome, rather than the anterior decision making process. See R (SB) v Governors of Denbigh High School [2007] 1 AC 100 at [68] especially and Belfast City Council v Miss Behavin ’ Limited [2007] UKHL 19, at [12] - [13] per Lord Hoffmann.

Alternatively, bearing in mind that this is an error of law appeal and not a challenge on t he merits, we apply the Edwards v Bairstow [1956] AC 14 prism. It is timely to recall the se principles. There, in an error of law appeal, the House of Lords applied the standard of “ the true and only reasonable conclusion ” open to the Commissioners [at p10 ] and, notably, in doing so, employed the language of “ perversity ” [at p 6 ]. They defined the latter as a case in which -

We apply these principles in the following way. In the decision of the FtT there is an underlying acceptance of Article 8 family life involving all five people in question. We consider that our scrutiny of the decision of the FtT must take into account both the evidence available to it, its undisputed nature and the significant contextual factor, also uncontentious, that the existence of family life among the five relatives concerned was not contested. In JB (India) , the test formulated by Sullivan LJ was whether the tribunal could rationally have found that there was family life if it had expressly applied the Kugathas principles. Weighing all of the evidence in tandem with the de facto concession on this issue, which illuminates the content of the FtT’s decision, we conclude that it withstands the Secretary of State’s challenge. In our judgement the assumption, or finding [the precise formulation matters not] of family life underlying and underpinning the decision of the FtT was properly open to the Judge having regard to the findings express or implicit in the decision, the available evidence , the terms of the ECO’s decision and the de facto concession. In these particular circumstances, while a more structured approach coupled with more extensive findings by the FtT would have been preferable, this does not vitiate its decision. No error of law has been demonstrated.

The second limb of the Secretary of State’s appeal focuses on the following passage in the concluding paragraph of the FtT’s decision:

We refer to, but do not repeat, our consideration of the decision of the FtT above. To this we add that the Judge, en route to this conclusion, made certain specific findings about the Appellant’s state of health. Further, having noted his isolated and lonely way of life, he found:

The Judge’s next port of call was section 55 of the Borders, Citizenship and Immigration Act 2009 (the “ 2009 Act ”), giving rise to the following assessment:

The Judge found, in terms, that the best interests of the two grandchildren would be promoted by the advent of the Appellant to live with their family and the continued presence of the mother in the family unit. We consider these findings to be unimpeachable. It is clear that the Judge committed no error of law in his approach to the best interests of the grandchildren. In substance, he viewed this as a primary consideration. This consideration is to be evaluated in tandem with the Judge’s other findings and the weight given by him to the cultural issue specifically raised. All of the ingredients in this equation must be considered as a whole. Mr Sheldon’s submission is that they are insufficient to justify a finding of exceptional circumstances. Viewed through the prism of conventional public law litigation, this has all the hallmarks of an irrationality challenge. As the Court of Appeal stated recently in Secretary of State for the Home Department v Boyd [2015] EWCA Civ 1190, at [16], the question for the appellate court or tribunal in such cases is whether the decision of the first instance tribunal on this issue is “one that was open to it”. Framed in somewhat more elaborate terms, the test is whether it is sustainable by reference to the principles in Edwards v Bairstow , rehearsed above .

The elevated hurdle which a challenge of this nature must overcome requires no elaboration. Mr Sheldon submitted that in finding exceptional circumstances the FtT identified two factors only, namely the grandchildren and the “ cultural aspects ”. This was the core of the Secretary of State’s appellate challenge. We consider this submission unsustainable for two reasons. First, the FtT highlighted these two factors “ particularly , not exclusively. Second, the submission focuses on the concluding paragraph of the decision only, neglecting everything which precedes it. We consider that the Judge’s exceptional circumstances finding was based on the whole of the evidential picture. The question for us is whether, viewing the decision of the FtT as a whole, its finding of exceptional circumstances is sustainable in law. This, in the context of an error of law appeal, requires us to pose the question of whether the decision is compatible with the Edwards v Bairstow principles. We consider that this invites an affirmative answer. The Judge’s exceptional circumstances conclusion, uncontaminated by any legal misdirection or other error of law, lay within the range of outcomes reasonably available to him, was not contradicted by the evidence but, rather, had a sufficient evidential foundation and did not leave anything material out of account. Or, to borrow again the recent Court of Appeal phraseology ( supra ), we are satisfied that this conclusion was “ open to ” the FtT in the circumstances.

The alternative approach is to view this aspect of the Secretary of State’s appeal through the lens of Convention rights, given the nexus between the exceptional circumstances test and Article 8(2) ECHR, as explained and illuminated by the Court of Appeal in MF (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 1192. The FtT having made (in our judgment) no error in its approach to the existence of family life linking and uniting the several persons concerned, the next question which it was bound to address was whether the impugned decision represented a disproportionate interference with the Article 8 rights of the family members. Having found that the Appellant’s settlement application could not succeed under the Rules, the Judge, in order to decide the question of proportionality, had to apply the recognised test of exceptional circumstances and proceeded to do so. His finding that exceptional circumstances existed equates to a conclusion that the impugned decision interfered disproportionately with the Article 8 rights of the family members concerned.

In thus concluding, the FtT was giving effect to Huang v Secretary of State for the Home Department [2007] 2 AC 167, where the House of Lords held that when deciding appeals on human rights grounds, it is the function of the relevant immigration appellate authority to conduct a full merits appeal – see [13] – as the arbiter of all aspects of the human rights claim, including proportionality. To this one adds the footnote that the court or tribunal, in common with the executive ’s decision maker, is a public authority under section 6 of the Human Rights Act 1998. We can detect no error of law in the conclusion reached by the FtT on the issue of proportionality. Neither the decision making process of the FtT nor its outcome discloses any such error. We remind ourselves that the focus of the Secretary of State’s challenge was the sufficiency of reasons and evidence underpinning the impugned conclusion. For the reasons explained above, this challenge is not made out.

Finally, while observing that the provisions of Part 5A of the 2002 Act did not form part of the grounds of appeal or the submissions developed in argument, we are alert to our duty under s 117A(2)(a). There was no suggestion that either of the public interests enshrined in s 117B (2) or (3) is engaged. Further the “little weight” provisions do not arise. Applying the same reasoning and analysis as set out above, we are satisfied that the conclusion of the FtT in substance , which was to tip the balance in favour of the assorted factors on the Appellant’s side of the equation over the public interest factor in s 117B(1), cannot be impugned.

This disposes of the Secretary of State’s appeal. As appears from our recent case management directions, we have decided to sever the Secretary of State’s appeal from the Appellant’s cross-appeal, for the reasons therein explained.

We dismiss the appeal of the Secretary of State and affirm the decision of the FtT.