The decision

HS (Article 8 - Family) Iran [2003] UKIAT 00036


Date of Decision: 10 July 2003
Date of Promulgation: 05/08/03

Mr K Drabu (Chairman)
Mrs J Harris



Miss N Dean solicitor of Greater Manchester Immigration Aid Unit for the appellant.
Mr John Wyatt, Presenting Officer for the respondent


1. The appellant is a citizen of Iran. He was born on 7 November 1973. He claims to have arrived clandestinely in the United Kingdom on 10 May 2000 and applied for asylum on that date. On 5 April 2001 has claim was turned down as was his claim to remain under the Human Rights Act. His asylum claim was certified under paragraph 9(4)(b) of Schedule 4 to the Immigration and Asylum Act 1999. His appeal under Sections 65 and 69(5) of the Act was heard by an Adjudicator, Mrs N J Gladstone, sitting at Salford Magistrates Court on 4 February 2003. In her determination promulgated on 13 February 2003 the Adjudicator gave her reasons for dismissing the appeal on both grounds. The appellant was granted leave to appeal to the Tribunal (Mr P R Lane, Vice President) on 5 June 2003.

2. The basis of the appellant’s claim under Article 8 is the presence of his mother and sister in the United Kingdom both of whom have been granted asylum. They arrived in the United Kingdom on 10 August 2002 and were granted refugee status in September 2002. The appellant lives with them. His two other siblings had come to the United Kingdom on 10 May 2005 but their claims were rejected and their appeals dismissed. They have sought permission to appeal to the Tribunal.

3. In relation to the Article 8 claim the Adjudicator’s states “ is only in exceptional circumstances that a relationship with family members other than partners or dependent children is considered to constitute ‘family life’. The appellant is now 29 years old, I find that he had been living independently of his family in Iran for a period of time, despite his attempt to qualify his initial answer. I find that thee are no exceptional circumstances, and do not consider that Article 8 would be breached by the appellant’s removal.”

4. It is with this approach of the Adjudicator that the appellant takes issue, claiming in his written grounds of appeal that there is case law to suggest that there can be family life between adult children and their parents and adult siblings – Boughanemi v France (1996) 22 EHRR 228. It is asserted in the grounds that “there is a great deal of emotional dependency between all the parties given their position here in the UK, and they all rely on each other for practical help and support.” The grounds also state “It is not reasonable to expect the appellant’s mother and sister who have been granted asylum to follow the appellant to Iran as they would lose the protection they have been given by the UK. Likewise it is not open to the appellant to apply for a visitor’s visa to come to the UK to visit his mother and sister. Having previously left Iran illegally, there is no real prospect of a failed asylum seeker being granted entry clearance to the UK. Removing the appellant amounts to interference where there are insurmountable obstacles to family life being established elsewhere. It is submitted that the interference is disproportionate to the end to be achieved, namely effective immigration control.”

5. Before we address the merits of the appeal we should like to say a word or two about the grounds of appeal which we have re-produced above. As can be seen the grounds make a number of “factual assertions” and a number of arguments. The factual assertions made are a) that there is a great deal of emotional dependency between all the parties; b) they rely on each other for practical help and support; c) It is not open to the appellant to apply for a visitor’s visa to come to the UK; and d) there is no real prospect of a failed asylum seeker being granted entry clearance. Grounds of appeal are not the place to make assertions of fact. What is perhaps worse here is that the “facts” asserted have no evidentiary foundation in that they have never been asserted before. Facts are established by oral and/or documentary evidence. We have not been able to see any such evidence in this case. We cannot take account of these assertions as none has been appraised for veracity, having first been made at this late stage and that too in a wholly inappropriate manner.

6. Miss Dean in her submissions to us helpfully drew our attention to the decision in Boughanemi v France 91996) 22 EHRR228. We noted that the facts of that case were materially different to those before us. Mr Boughanemi had lived in France from the age of 8 to 28 – twenty years. He had then re-entered and lived illegally for a further period until he was deported the second time. Most of his schooling was in France. His parents and 10 siblings lived in France – 8 had been born in France. Further he had lived in France with a French woman by whom he had a son. The relationship had lasted only a year and the couple had separated before the child’s birth. However he had formally accepted paternity of his son 10 months after his birth. The Court held that the French Governments’ doubts concerning the existence of family ties between Mr Boughanemi and his girlfriend from whom he had separated were “not wholly unfounded”. However France’s concerns did “not justify finding that (Mr Boughanemi) had no family and private life in France.” The Court stated that the “concept of family life on which Article 8 is based embraces, even where thee is no co-habitation, the tie between a parent and his her child, regardless of whether or not the latter is legitimate. Although that tie may be broken by subsequent events this can only happen in exceptional circumstances (see Gul). In the present case neither the belated character of the formal recognition not the applicant’s alleged conduct in regards to the child constitutes such a circumstance.” Further Mr Boughanemi parents and 10 siblings live legally in France, “and there is no evidence that he has no ties with them, family life did exist. As the deportation order separated Mr Boughanemi from his child and his parents and siblings it was an interference with his right to family life. However the Court held that the interference was not disproportionate because of his criminal convictions in France. As is evident the existence of family life was not found solely because of his parents and 10 siblings – 8 of whom were born in France. It was found also because of the applicant’s relationship with his son who he had not initially accepted and had never financially supported. Further the applicant had lived with his parents and siblings not for a year or even less as in the case before us but for over twenty years. In the circumstances the decision in Boughanemi does not assist the appellant.

7. Miss Dean also placed reliance on the Tribunal case of Soloot,01TH01366 drawing our particular attention to paragraph 22 of the determination. She said that the appellant could not continue his family life with his mother and sister as they were refugees and this factor had weighed heavily with the Tribunal in Soloot. It had indeed but the material difference between the two claims is being overlooked by Miss Dean. In Soloot the appellant had a right to live in the United Kingdom as spouse of a woman present and settled in the United Kingdom. The issue there was queue jumping and proportionality of removal was judged in that context. In the appeal before us the appellant has no right under the immigration laws to live here. He is an adult who does not have any kind of leave under the Rules and does not have a legitimate expectation of securing such leave in the future. At the risk of repeating an overused but much misunderstood phrase – insurmountable obstacles- we find that the appellant can continue with his family life with his mother and sister in the UK by means of letters, telephone calls and even visits. We accept that the mother and the sister may not be able to visit him in Iran but we have no evidence that he will not be granted entry clearance to visit them in the future as a visitor. He may or may not be granted permission to visit but given his age and the quality of his relationship with the two (the mother and his sister) it is not of great import. We have already made the point that we do not know what kind of relationship he has with his mother and his sister – i.e. how close they are and whether there is anything beyond normal ties between them. The burden of proof was upon him and he has not produced such evidence. We remind ourselves of what was said in the case of Advic v United Kingdom by the European Commission of Human Rights in its judgment delivered on 6 September 1995. It said,”Nevertheless, in accordance with the Commission’s case law, the exclusion of a person from the country in which his close relatives reside may raise an issue under Article 8 of the Convention. However in examining cases of this nature the Commission’s first task is to consider whether a sufficient link exists between the relatives concerned to give rise to the protection of the Article of the Convention. Although this will depend on the circumstances of each particular case, the Commission has already considered that the protection of Article 8 did not cover links between adult brothers who had been living apart for a long period of time and who were not dependent on each other. Moreover, the relationship between a parent and an adult child would not necessarily acquire the protection of Article 8 of the Convention without evidence of further elements of dependency involving more than normal emotional ties.”

8. In our judgment the Adjudicator’s consideration of the appellant’s claim under Article 8 was fair and she applied the correct legal test to the facts, which were placed before her.

9. The appeal is dismissed.

K Drabu
Vice President