The decision

Heard at Field House
On 14 April 2004

CO and NO (No protected family life) Nigeria [2004] UKIAT 00232


Date Determination notified:

24 August 2004


Mr C M G Ockelton
(Deputy President)
Mr J Perkins
(Vice President)
Mr L V Waumsley
(Vice President)





1. Before us the appellant, hereinafter “the Entry Clearance Officer”, was represented by Mr P Deller, a Senior Home Office Presenting Officer, and the respondents, hereinafter “the claimants”, were represented by Mr S Chelvan of counsel instructed by Dillon & Co.
2. The claimants are citizens of Nigeria. They are brother and sister. The first respondent was born on 11 February 1979 and so is now 25 years old and the second respondent was born on 24 March 1981 and so is now 23 years old. In a determination promulgated on 16 September 2002 an Adjudicator, Mr G F Denson, allowed their appeal against a decision of the Entry Clearance Officer that refusing them admission to the United Kingdom was not contrary to their rights under Article 8 of the European Convention on Human Rights. It is against that decision that the Entry Clearance Officer now appeals.
3. On 7 July 2000 the claimants, with other members of their family, applied for permission to settle in the United Kingdom with their sponsor and mother. Their father and younger brother made similar applications at the same time. The applications of their father and younger brother were allowed by the Entry Clearance Officer. The application of these claimants was refused. At the time of making that application they had each achieved their majority and were unable to show that they were living alone outside the United Kingdom in the most exceptional compassionate circumstances. The Adjudicator dismissed their appeal against that decision and it is not suggested that that decision can be criticised. However the Adjudicator decided that excluding the claimants was not proportionate to the proper purpose of enforcing immigration control. At paragraph 42 of the determination the Adjudicator said
“I note that the respondent has granted entry clearance to the appellant’s father and younger brother who had subsequently travelled to this country and obtained indefinite leave to remain together with their mother and elder sister. I also note that the appellant’s mother is a nurse and that strenuous efforts are made to recruit nurses within the Health Service in the United Kingdom. I do not consider for one moment that it is proportionate to preclude entry to the United Kingdom of the appellants and thus in effect split up the close family unit. I accept that the sponsor could return to Nigeria with other members of her family who have been granted indefinite leave to remain but I do not consider for one moment that it is proportionate in relation to the aim to be achieved.”
4. It is against that decision that the Entry Clearance Officer now appeals.
5. It is fair to say that the determination was promulgated as long ago as September 2002. The jurisprudence concerning the application for Article 8 in the United Kingdom has developed considerably since then. We have reached the conclusion, in the light of that development, that the Adjudicator erred in his approach.
6. Article 8(1) of the European Convention on Human Rights says “Everyone has the right to respect for his private and family life, his home and his correspondence.” This does not mean that everything that might be described reasonably in ordinary conversation as part of a person’s “private and family life” is within the meaning of the words “private and family life” in Article 8(1) of the European Convention. It was the claimants’ case that they were maintained by their sponsor in the United Kingdom. The Adjudicator appears to have accepted that their sponsor in the United Kingdom was paying for them to continue their education in Nigeria. We have no hesitation in accepting that their relationships with their father and younger brother and with their mother were all part of the appellants’ private and family life in the colloquial sense. However we also note that any financial dependency was one of choice, as was the fact that their mother and sister on earlier occasions and their father and brother on this occasion applied to settle in the United Kingdom. In this case the claimants have two older brothers who have formed independent lives in Nigeria and were not said to be part of the family unit.
7. We do not accept that the right “to respect for private and family life” extends necessarily to a right (even a qualified right) to join with other relatives who are entitled to live in the United Kingdom under the Immigration Rules. Mr Chelvan was not able to show us any decision of the European Courts which recognised the right of adult children to choose to live with their parents in a country where the European Convention on Human Rights applies. We accept that there may well be cases where removing a person interferes with his private and family life established in, for example, the United Kingdom. That is quite different from saying that a person has the right to join with a relative who has chosen to live in the United Kingdom. Similar points were made by Mr J Barnes (Vice President) in the case known as S(Uganda) [2004] UKIAT 00064 at paragraph 8
“It is accepted that in circumstances where family life is put forward as existing between an adult child and his parents or an adult sibling and his other siblings there needs to be further evidence of dependency involving more than normal emotional ties. This was reaffirmed by the Tribunal in the recent case of Salad [2002] UKIAT 06698 relying on the earlier case of Advik v United Kingdom, a Strasbourg case decided in September 1995. The relevant quotation from Advik is also contained at paragraph 13 of the decision in Salad. Each case is fact dependent. In Salad adult brothers had been living apart for a long period of time and were not dependent on each other. Equally where relationships between parents and an adult child are concerned the protection of Article 8 would not necessarily be engaged without evidence of further elements of dependency. In the present appeal no evidence of such further dependency has been adduced although the appellant was offered the opportunity to bring oral evidence before us had he wished to do so.”
8. In this case the only dependency was a dependency of choice because the claimants wanted an education. There is no suggestion that there was any exceptional emotional dependency. This is not a case, for example, of ill-health creating any special circumstances.
9. It is quite clear to us that on the evidence before him it was not open to the Adjudicator to conclude that the appellants’ dealings with their relatives, either those settled in the United Kingdom or those who were permitted to enter the United Kingdom when these claimants applied for and were refused permission, were within the scope of the “private and family life” protected by Article 8(1) of the European Convention. In those circumstances there is no question of it being contrary to the claimants’ rights to refuse them admission to the United Kingdom. It follows that the Adjudicator was wrong and we must allow the Secretary of State’s appeal.
10. Furthermore the adjudicator was plainly wrong to find that the interference with the claimants’ private and family life caused by their being refused entry clearance was disproportionate to the proper purpose of immigration control. A state is entitled to regulate admission to its territory. Unless the immigration rules are themselves unlawful (and this was not suggested here) it will only be in the most exceptional circumstances that an Adjudicator can say properly that a person who does not qualify for admission under the rules must still be admitted because refusal is disproportionate to the proper purpose of enforcing control.
11. As indicated above, we allow the Entry Clearance Officer’s appeal.

Jonathan Perkins
Vice President
14 April 2004