The decision

ar KM (Article 8 - Family Life) Albania [2004] UKIAT 00079


Date of Hearing: 13 April 2004
Date Determination notified:
23 April 2004


Mr N H Goldstein (Vice President)
Dr A U Chaudhry

Secretary of State for the Home Department



For the appellant : Miss J. Sigley, Home Office Presenting Officer
For the respondent : Miss R. Chowdhury, Counsel, instructed by TMK Solicitors

1. The appellant, the Secretary of State for the Home Department, has been granted permission to appeal to the Tribunal against the determination of an Adjudicator, Mr J. Brennan, who allowed the respondent's appeal on human rights grounds.

2. It is noteworthy that at paragraph 2 of the Adjudicator's determination the Adjudicator noted as follows:

‘The appellant orally, by written notice and through his Counsel admitted that the facts upon which he had made his claim for asylum were not true. Accordingly that aspect of his appeal was withdrawn. I agreed to that course.’
3. The respondent is a citizen of Albania and it is appropriate to note that notwithstanding his date of birth being described on the Home Office documentation as 20 February 1980, it was accepted by the parties’ representatives that the Adjudicator was correct at paragraph 1.1 of his determination in noting the respondent's date of birth as 4 April 1977. It follows that at the date of hearing before the Adjudicator, namely 16 June 2003, the respondent was aged twenty-six. Further, that when the respondent left Albania on 12 September 1997 the respondent was aged twenty-two years.

4. In the circumstances, the parties’ representatives agreed with us that for the purposes of our consideration of the appeal the respondent was at all relevant times an adult and not a minor.

5. In granting the Secretary of State permission to appeal, the Vice President, Dr H.H. Storey, noted as follows:

‘The grounds contend that the Adjudicator failed to apply the principles set out in Mahmood and Kugathas to the relationship existing between the claimant and the Harman family. It does not appear that this is a case where the Secretary of State conducted a balancing Article 8 exercise to which an Adjudicator was obliged to defer, so the issue is solely whether the Adjudicator properly approached and assessed relevant factors under Article 8.

Whilst all grounds are arguable, it will be necessary of course to consider not just whether the Adjudicator erred in finding that there was a family life but whether the Adjudicator erred in considering that the factors he identified as significant – be they family or private elements – sufficed to justify his conclusion that the decision to remove was disproportionate.

The grounds disclose an arguable error of law.’

6. It would be as well, for the sake of completeness, if we set out the grounds:

‘1. It is submitted that the Adjudicator has made an error in law in applying the principles as laid out in Mahmood (ImmAR 229) in relation to the establishment of family life.

2. In the case of Kugathas [2003] EWCA Civ 31 the proposition that family life exists between parent and adult child because of normal emotional ties was examined in depth and the relevant case law considered. In that case the court found unanimously that it did not, without additional factors – see paragraphs 19, 25 and 31.

3. In the present case it is submitted that such additional factors do not exist.

4. The Harman family with whom the [respondent] resides are not family members.

5. The [respondent] has a mother and father that still live in Albania.

6. The Adjudicator has acknowledged that if the [respondent] were returned to Albania the Harman family would set him up in a business in order to provide the [respondent] with an income. They would try and visit him as much as possible.

7. The Tribunal is respectfully requested that this appeal be allowed.’

8. We have decided to allow the Secretary of State's appeal.

9. The first two grounds go to the question of whether a family life exists between the respondent and the Harman family. As Miss Sigley helpfully clarified, the Secretary of State accepted that there clearly existed a degree of private life but that the Adjudicator had determined it as family life and erred in law in so doing. We entirely agree.

10. Our starting point is of course that when the respondent left Albania he was an adult. He is now aged twenty-seven. It follows that he has spent all the formative years of his life in his homeland where indeed his natural parents still reside.

11. It is helpful at this point to set out the Adjudicator’s summary of the appellant's immigration history and family circumstances which appear at paragraph 6 of his determination as follows:

‘The [respondent] arrived in the United Kingdom on 23 September 1997 and made an untruthful application for asylum. On 1 October 1997 he with other Albanians seeking asylum visited a local church who were sponsoring ‘Albanian Awareness’ in the local community. Here he met Robb and Fanny Harman and an instant rapport was established. They became good friends. The relationship with the family deepened and in June 1998 he was invited to live with a member of the family. He was treated as a member of the family and included in weekends away, birthday parties, meals, days out and trips. The Harman’s children ... considered him to be their older brother. He became very much involved in their growing up. The effect upon them of any removal to Albania is graphically displayed in their statement.’

The [respondent] has lived with the Harman family for five years and the [respondent] claims that life has undergone a radical change. He is employed working full time as a sheet metal worker at Mr Harman’s company and part of the time in a local restaurant. He is devoted to the Harman family and their children. The [respondent] considers Mr & Mrs Harman as his brother and sister although at times they have been his mother and father.

He has a brother living in Italy and his father and mother still live in Albania. If he is returned to Albania the Harman family would set him up in a business in order to provide the [respondent] with an income. They would try to visit him as often as possible.’

14. Miss Sigley, in our view, rightly submitted that amongst other things, the Adjudicator appears to have failed to take account of the fact that the appellant was at all times for the purposes of the appeal, an adult. The Adjudicator should have recognised the difficulties in establishing an independent family life between adults. We are of the view that on the facts the relationship enjoyed between the respondent and the Harmans cannot be described as some form of quasi-adoptive relationship but one where the Harmans have, as the Adjudicator noted, treated the respondent as a member of their family.

15. Further and on a lesser note, it was the respondent's account to the Adjudicator that he essentially regarded the Harmans as siblings. In this regard it is accepted law 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 sibling, there needs to be further elements of dependency involving more than normal emotional ties. This indeed was reaffirmed by the Tribunal recently in a decision in Salad [2002] UKIAT 06698. Equally, where relationships between parents and adult children are concerned, the protection of Article 8 will not necessarily be engaged without evidence of further elements of dependency.

16. In addition to the significant relevance of the respondent's age, (a factor which does not appear to have been considered at all by the Adjudicator), our view has been reinforced by those observations.

17. The respondent has natural parents. They are living in Albania, the country where the respondent was brought up until leaving in September 1997 when he was aged twenty.

18. Further, we cannot ignore the respondent's acknowledgment that on arrival in the United Kingdom he made an untruthful application for asylum. As Miss Chowdhury very candidly acknowledged, it was the respondent's close relationship with the Harmans which he had formed over a period of some six or seven years which caused him to admit to the falsity of his asylum application and the withdrawal of the respondent's asylum appeal before the Adjudicator.

19. We find that the Adjudicator further erred in establishing a family life between the respondent and the Harmans by reference to the Court of Appeal decision in Kugathas. At paragraph 24 within the judgment of Lady Justice Arden, there appears the following:

‘There is no presumption that a person has a family life, even with the members of the person’s immediate family. The Court has to scrutinise the relevant factors. Such factors include identifying who are the nearest relatives of the appellant, the nature of the link between them and the appellant, the age of the appellant, where and with whom he has resided in the past and the form of contact he has maintained with the other members of the family with whom he claims to have a family life.’

19. Applying those factors to the present case, the respondent’s nearest relatives are his parents, living in his homeland in Albania. The appellant was aged twenty and an adult when he left Albania.

20. At paragraph 25 of Kugathas, Lady Justice Arden continued:
‘Because there is no presumption of family life, in my judgment a family life is not established between an adult child and his surviving parent unless more exists than normal emotional ties. Such ties might exist if the appellant were dependent on his family or vice versa. It is however not essential for the member of the family to be in the same country.’

21. We agree with Miss Sigley that such considerations were especially important in the context of the appeal before us where no blood relationship exists between the respondent and the Harman family to establish whether a family life exists.

22. The representations most helpfully made by Miss Chowdhury in her skeleton argument, can only refer to circumstances concerning adults and children such as where, for example, there is an element of care for a minor child.

23. As stated by Lady Justice Arden at paragraph 25 of her judgment in Kugathas:

‘Further developments of dependency which have to be significant are those which apply where one is considering blood relationships.”

24. In the circumstances of this appeal the respondent has not demonstrated to the level necessary a family life between himself and the Harman family. We agree with Miss Sigley that in situations where there is no blood relationship such ties have to be demonstrated to an even higher standard.

25. Miss Chowdhury, in reminding us that the Secretary of State had made no decision under Article 8, referred us to paragraph 9 of the Adjudicator’s determination that blood relationships were in the Adjudicator's view a starting point but that the Courts had recognised that financial and emotional ties were sufficient to establish family life within the meaning of Article 8.

26. It was noteworthy that most fairly and candidly Miss Chowdhury acknowledged this was not her ‘strongest point’. She maintained that the respondent had shown elements of dependency, as set out in Kugathas, in that he lived with the Harman family, was financially dependent upon them and that in her words ‘his life is based around them’. She further reminded us that the appellant in Kugathas was a Sri Lankan adult living in the United Kingdom and in telephone contact with his family in Germany. We reminded Miss Chowdhury that Kugathas enjoyed a relationship with his natural mother. It was a relationship with an adult and blood relation and not as in this case a family with whom the respondent had no relationship by blood.

27. We find that the Adjudicator indeed erred in concluding as a matter of law that a family life had been established within the meaning of Article 8 between the respondent and the Harman family.

28. It follows that the Adjudicator’s assessment at paragraph 9 in that regard must be held to be flawed.

29. As Miss Sigley rightly submitted, in such circumstances the issue before us was whether a private life was clearly engaged and whether as a consequence of that private life the removal of the respondent to Albania would amount to a disproportionate interference.

30. Miss Sigley rightly recognised that the respondent had indeed established a private life which was relatively well developed and well documented. We were persuaded by her submissions, that the decision of the Secretary of State to remove the respondent was in the circumstances a proportionate response on his part.

31. Private life has indeed been established by the respondent but we bear in mind that as observed by the Adjudicator at paragraph 2 of his determination, that the basis upon which the respondent arrived in the United Kingdom was his application for asylum which it turned out, was without foundation and based upon an untruthful set of facts.

32. We were referred to the decision of the learned President in the recent starred Tribunal case of [2004] UKIAT 00024 M (Croatia). It would he as well to set out the learned President’s observations at paragraph 28:

‘The starting point should be that if in the circumstances the removal could reasonably be regarded as proportionate, whether or not the Secretary of State had actually said so or applied his mind to this, it is lawful. The Tribunal and Adjudicators should regard Shala, Edore and Djali as providing clear exemplification of the limits of what is lawful and proportionate. They should normally hold that a decision to remove is unlawful only when the disproportion is so great that no reasonable Secretary of State could remove in those circumstances. However, where the Secretary of State, e.g. through a consistent decision-making pattern of thorough decisions in relation to members of the same family, has clearly shown where, within the range of reasonable responses, his own assessment would lie, it would be inappropriate to assess proportionality by reference to a wider range of responses than he in fact uses. It would otherwise have to be a truly exceptional case, identified and reasoned, which would justify the conclusion that the removal decision was unlawful by reference to an assessment that removal was within the range of reasonable assessments of proportionality. We cannot think of one at present; it is simply that we cannot rule it out.’

33. We cannot agree with Miss Chowdhury’s submission that if the respondent’s circumstances did not amount to a truly exceptional case, then she did not know what would amount to such a case.

34. It would be difficult to establish an independent family life between adults unless peculiar or exceptional factors applied.

35. There is no doubt that the respondent has conducted his life in this country in an exemplary manner but we do not agree with Miss Chowdhury that on the facts he was financially dependent on the Harmans particularly in circumstances where it was the appellant's account that he was not only currently employed working full time as a sheet metal worker at Mr Harman’s company but also part time at a local restaurant.

36. We had earlier referred Miss Chowdhury to a decision of the Tribunal in Matia [2002] UKIAT 26134, where a failed asylum seeker had made his home in the United Kingdom. The Tribunal held that the fact he had been accepted into the community and was popular with his neighbours did not make his removal a disproportionate interference with the right to respect for his home. Indeed the converse would not be acceptable if a claimant were unpopular with his neighbours, that he should be allowed to stay. The appellant's estimable characteristics and talents, as indeed we note in relation to this respondent, would help him to adjust to life in Kosovo and indeed would be of benefit to the Kosovo community from whence he sprang.

37. It was noteworthy that Miss Chowdhury accepted that this was not a case where the respondent had been left with no option but to remain in the United Kingdom for these past six or seven years. Indeed, she rightly accepted that it had at all times been open to the respondent, bearing in mind that he acknowledged from the outset that he made a false asylum application, to return to his family in Albania. It had been the respondent's choice to embrace the affection and generosity of the Harman family in accommodating him within their family and their own home and providing him with full time employment in their business. Bearing in mind the decision in M, we conclude that it cannot possibly be said, notwithstanding the estimable private life that the respondent has established in the United Kingdom, that the decision to remove him to Albania would involve a breach of the respondent’s human rights. As Miss Chowdhury candidly accepted, there had at all times been ‘no physical barrier stopping [the respondent] from returning to Albania over the past seven years’.

38. We therefore find the Secretary of State's decision to remove the respondent, was a proportionate response to the interests of immigration control.

39. The respondent's circumstances and the private life that he has established here, cannot be said to demonstrate the truly exceptional case which would justify the conclusion that the removal decision of the appellant was unlawful.

41. For the above reasons we have concluded that the decision of the Adjudicator must be reversed and the appeal of the Secretary of State allowed.