[2005] UKIAT 81
- Case title: NS (Relevance of children to removal, Art 8)
- Appellant name: NS
- Status of case: Reported
- Hearing date:
- Promulgation date:
- Publication date:
- Last updated on:
- Country: Sri Lanka
- Judges: Mr P D King, Mrs L R Schmitt, Sir J James KBE,CMG
- Keywords Relevance of children to removal, Art 8
The decision
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NS (Relevance of children to removal – Art 8) Sri Lanka [2005] UKIAT 00081
IMMIGRATION APPEAL TRIBUNAL
Date of Hearing: 5 January 2005
Date of notification: 4th April 2005
Before:
Mr P D King TD (Vice President)
Sir Jeffrey James KBE, CMG
Mrs L R Schmitt
APPELLANT
and
Secretary of State for the Home Department
RESPONDENT
DETERMINATION AND REASONS
1. The appellant appeals with leave to the Tribunal against a determination of an Adjudicator, Professor R.M.M. Wallace, promulgated on 19th December 2003, dismissing her appeals in respect of asylum and human rights.
2. The appellant is a citizen of Sri Lanka, born in 1952. She arrived in the United Kingdom in May 2002 and claimed asylum. The appellant's fear of persecution was based on an alleged imputed political opinion, namely that of her husband’s involvement in the LTTE. She lived with her husband in Kopay. He became actively involved in the LTTE. She last saw her husband in October 1995 and she has reason to believe that he is still alive, living in an LTTE controlled area. In 1996 there were a number of visits to her home by the army enquiring as to her husband’s whereabouts. She was threatened and physically abused by the soldiers. Her daughter, ( ), was a member of the LTTE and the appellant began to be questioned in relation to her daughter’s activities in addition to those of her husband. The house would be raided and she would be physically ill-treated. She went to Colombo with her younger daughter on 25 October 2001 and eventually came to the United Kingdom. She maintained that if returned to Colombo the authorities would suspect that her daughter and husband had been involved with the LTTE and that she would be at risk of torture. She maintained also that she had a close and loving family in the United Kingdom. Her daughter, ( ), had been recognised as a refugee by the United Kingdom government and her other daughter, ( )had been granted exceptional leave to remain in the United Kingdom until April 2006. The appellant has a brother and two sisters in the United Kingdom. Her parents and other brother and sister live in Jaffna.
3. At the hearing before the Adjudicator the appellant's older daughter, ( ), gave evidence. Initially when she had come to the United Kingdom she had lived with her aunt in Wembley who had taken care of her. She said that after she had been arrested and then released, her mental state was badly affected and she needed her mother desperately. She felt better now that her mother was in the United Kingdom. She had been sixteen years old when she arrived in the United Kingdom and was now eighteen, taking ‘A’ levels with a view to studying medicine at university. There was also a statement from the younger daughter,( ). She is thirteen years old and started school at nine. She feels much happier now that her mother is with her and that they are safe. A report was presented before the Adjudicator by an expert, Dr Anthony Good, setting out his understanding as to the situation and circumstances in Colombo and Sri Lanka generally. The report expressed the opinion that it would be completely unfeasible for a lone Tamil woman to live in Colombo.
4. The Adjudicator did not find that the appellant would be at risk if returned to Sri Lanka, either under the 1951 Convention or in respect of Article 3 of the 1950 Convention. At paragraph 32 the Adjudicator considered the Appellant’s position under Article 8. She did not find that to return the appellant to Sri Lanka would cause the United Kingdom to be in breach of its obligations under the Convention of Human Rights. The Adjudicator expressed the view that there were no insurmountable obstacles to the younger daughter returning to Sri Lanka and that contact between mother and daughters would still be maintained, notwithstanding removal.
5. It was in respect of the mother/daughter relationship and removal that permission was granted.
6. The appellant was represented before us by Miss L. Dubinsky of Counsel, instructed by Wandsworth & Merton Law Centre. The respondent was represented by Mr S. Ouseley, the Home Office Presenting Officer.
7. Miss Dubinsky submitted that the Adjudicator had failed to consider adequately or at all the relationship as it existed between the appellant and her two daughters. She had failed to consider the closeness of mother and daughters and in terms of Article 8 had failed to follow the steps of reasoning which have been referred to on many occasions by the Tribunal. It is necessary for the Adjudicator to ask herself four questions, namely :
- Is there family life as between mother and daughters?
- If so, would a removal of the mother amount to an interference with that family life?
- Was such removal lawful?
- Was it proportional to the proper exercise of immigration control?
8. It was submitted that family life was to be presumed between mother and daughters. Our attention was drawn to the decision of Sen v Netherlands [2003] 36 EHRR 7. This was a decision of the European Court of Human Rights in December 2001.
9. In that case the applicants, who were Turkish, were settled in the Netherlands. They applied for a residence permit to enable their first child who was born in Turkey to join them and their second child in the Netherlands. The application had been rejected. The applicants claimed that such a refusal to grant a residence permit interfered with their right to respect for their family life. It was held that there had been a violation of Article 8 of the Convention. It was held that from the moment of birth there existed between the child and the parents a bond amounting to family life which subsequent events could not break, save in exceptional circumstances. It was held further that by giving the first two applicants the choice of giving up the position which they had acquired in the Netherlands or renouncing the company of their eldest child, the respondent state failed to strike a fair balance between the appellant's interest on the one hand and their interest in controlling immigration on the other. It was not necessary for the court to examine whether family members in Turkey were able and willing to look after the child.
10. Miss Dubinsky submits that there is a distinction to be made between the relationship between siblings and that as between parents and child.
11. Thus it was submitted that the starting point of the Adjudicator ought to have been a recognition that family life existed as between the appellant and her daughters.
12. Miss Dubinsky invited us to consider the situation of each daughter separately although she submitted that the general principle in Sen v The Netherlands applied equally to both. The elder daughter was now nineteen and involved in her studies, hopefully to lead to a university place. She had been recognised as a refugee. Indeed her statement and her oral evidence had been before the Adjudicator. She had been active within the LTTE as a result of which the army had been actively looking for her. Indeed, she was detained in 2001 for some twenty days on account of her own activities and those of her father, being released only by bribery. Notwithstanding her release it was the evidence of the appellant that the authorities continued to look for her daughter, indeed had beaten her up in the process. Her father had been involved with the intelligence unit of the LTTE and was therefore wanted by the authorities. The authorities had shown a keen interest in her as well.
13. The Adjudicator had given no consideration in her determination to the possibility of return of the elder daughter. It was submitted that she was a refugee and that it could not safely be assumed without more that she could safely return. Indeed, it was submitted before us by Miss Dubinsky that the daughter fell within the ambit of Jeyachandran [2002] UKIAT 01869 and that she would have been of interest to the authorities.
14. In that connection our attention was drawn to a decision of the Tribunal chaired by the President, in SS (ILR – Article 8 – return) Sri Lanka [2004] UKIAT 00126. The appellant in that case was a citizen of Sri Lanka. The Adjudicator considered the Article 8 claim on the basis of his acceptance that there was family life enjoyed in the United Kingdom with her husband who had been a recognised as a refugee. The Adjudicator considered the issue of proportionality by reference to the ratio of the decision in Mahmood [2001] ImmAR 229, making the assumption that Mr S was unable to travel to Sri Lanka by virtue of his acknowledged status as a refugee. He concluded however that the appellant and the baby could return to Sri Lanka and make an application for leave to enter under the Immigration Rules from abroad. The Tribunal in paragraph 10 of the decision considered that the Adjudicator was wrong in his assumption of the existence of an inability for Mr S to return to Sri Lanka simply by reason of his having been recognised as a refugee. The Tribunal went on in these terms:
‘That means no more than that the Secretary of State cannot give directions for his removal whilst his indefinite leave to remain exists, but it does not mean that there is, in the sense in which it is explored in Mahmood, an insurmountable obstacle to his return. The fact of former recognition of refugee status does not of itself show that there is a continuing insurmountable obstacle to returning to the country of origin. Such cases will depend upon a consideration of the specific facts upon which the claim had been recognised. It is not necessary for the Refugee Convention cessation provisions to be applied to someone with refugee status and ILR in order for the potential of his return to the country of origin, so as to remain with his family, to be contemplated in an Article 8 case. There is no automatic insurmountable hurdle in the mere fact of the past grant of ILR. Of course, that person is not expected to prove his asylum claim again and there would need to be a proper basis for contemplating that circumstances had changed significantly since the grant of ILR. If they have, and it is contended that a person still faces an insurmountable obstacle to return with his family, evidence will be needed as to why.’
15. The Tribunal went on to consider that there had been substantial change in the situation following the ceasefire and that there was no evidence before the Adjudicator to show that there existed any current insurmountable obstacles to Mr S returning to Sri Lanka, and therefore no evidential basis for saying that the removal decision made by the Secretary of State was unlawful.
16. Miss Dubinsky submits that the Adjudicator did not apply her mind in the present case to the situation of whether the elder daughter could or could not return to Sri Lanka. She had not addressed her mind to whether the circumstances of the elder daughter had changed significantly in Sri Lanka as to enable her to return. It was submitted that they had not and that insurmountable obstacles remained in the return of the elder daughter.
17. Considerable reliance was placed by Miss Dubinsky upon the case of Sen. She submitted that the elder daughter was placed in an invidious position and that she would have to remain in the United Kingdom, separated from the appellant if removed. Alternatively, she would have to give up the status which she had obtained and expose herself to risk upon return to Sri Lanka. It was this real difficulty which was recognised by the Court of Human Rights in the case of Sen.
18. The Adjudicator had given no regard to the situation of the elder daughter and of the effect which that would have upon her were the appellant to be returned. The daughter had established a life for herself and it was disproportionate in all the circumstances for the Secretary of State to force an agonising decision upon the parties, namely to cause mental anguish to the appellant by separating her from the daughter, or by in effect forcing the daughter to give up her rights and freedoms to accompany the appellant.
19. Our attention was drawn to the statement of ( )dated 21 November 2003 which was before the Adjudicator at the date of hearing of the 3 December 2005. In that statement she speaks of having found it difficult to be in a foreign country, namely the United Kingdom, without her mother. There had been no contact between her and her mother since June 2001. Her younger sister, ( ), arrived in the United Kingdom in December 2001 when she was only twelve years old. They lived together with their aunt. The appellant arrived on 31 May 2002 and that was the first occasion that contact had been established. ( )needs the appellant’s support, particularly as she is studying hard at school.
20. Insofar as the younger daughter is concerned, our attention was drawn to a statement from her also dated 21 November 2003, as was placed before the Adjudicator. She had been twelve when she came to the United Kingdom and relied very much upon her elder sister and aunt for support. She missed her mother very much and was relieved when her mother arrived in the United Kingdom. She has started at school and feels safe now that her mother is here to look after her.
21. Miss Dubinsky submits that once again the Adjudicator failed to bear in mind the very close bond which clearly exists in emotional and family terms as between the appellant and her daughter.
22. She further submitted that it cannot be ignored in the analysis that both daughters and the appellant had a particularly difficult and stressful time in Sri Lanka. There was clearly a considerable bond established between the family unit in adversity in Sri Lanka. That was particularly so given the disappearance of their father in 1995. The particular experience of the appellant and her younger daughter in seeking to flee Sri Lanka firmly established such a bond. Our attention was invited to paragraph 37 of Sen in which the Court says as follows:
‘In its analysis, the court takes into consideration the age of the children concerned, their situation in their country of origin and their degree of dependence on their parents. It cannot in effect consider the matter from the sole point of the view of immigration, by comparing this situation with that of persons who have only established bonds after becoming settled in their host country...’
23. It was submitted therefore that the nature of the relationship should be considered. The Adjudicator had failed to consider that whole context in her analysis of the situation.
24. It was submitted that the Adjudicator had indeed focussed albeit erroneously on a very narrow issue as expressed by her in paragraph 32 of the determination, namely:
‘The appellant's younger daughter is not required to remain in the United Kingdom. There are no insurmountable obstacles to her returning to Sri Lanka. The contact between mother and daughter could still be maintained.’
25. It was submitted that the Adjudicator erred in law in that approach because an insurmountable obstacle was essentially to be seen in the context of a marriage case. In any event, the issue of insurmountable obstacle was but one of a number of factors to be borne in mind. Our attention was drawn to the judgment of Mahmood itself and in particular to paragraph 55 of that judgment. The conclusions were set out therein, in particular 55(3) :
‘Removal or exclusion of one family member from a state where other members of the family are lawfully resident will not necessarily infringe Article 8 provided that there are no insurmountable obstacles to the family living together in the country of origin of the family member excluded, even where this involves a degree of hardship for some or all members of the family.’
26. Paragraph 55(4):
“Article 8 is likely to be violated by an expulsion for a member of a family that has been long established in the state if the circumstances are such that it is not reasonable to expect the other members of the family to follow that member expelled.”
27. Miss Dubinsky submits that it was more the ingredient of 55(4) that ought to have been considered. The family had been long established as a family unit even before coming to the state. It was not reasonable to expect the younger daughter to give up all that she had obtained in order to go back to the uncertainties and potential dangers of Sri Lanka. She submitted that the Adjudicator was in error in requiring the element of insurmountable obstacle to be a pre-requisite . What had been made clear in Sen was that the appellant had been culturally integrated. This is the case with the appellant and her children.
28. The Adjudicator had failed to consider the precarious situation which the appellant would face upon her return to Colombo, particularly in the light of Dr Good’s report. Matters had further worsened, it was submitted, because of the recent natural disaster which had affected the area and the disruption which had been caused to the fabric of many countries, particularly that of Sri Lanka. It would not be reasonable to expect either daughter to return to a situation where there was a lack of support and stability.
29. In that connection our attention was drawn to the decision of the Tribunal in Bakir [2002] UKIAT 01176, notified in April 2002. Our attention was drawn to the judgment of the then President to the IAT, Mr Honourable Justice Collins, who set out in paragraphs 9 and 10 of that decision as follows:
‘The Adjudicator's reference to the need for there to be “no insurmountable obstacle to the family living together in the country of origin and for family members excluded” comes from the judgment of the Master of the Rolls in Mahmood. At paragraph 55 he sets out his conclusions as to the approach of the Commission on the European Court of Human Rights to the potential conflict between the respect for family life and the enforcement of immigration control. The Adjudicator has quoted number 3. It is to be noted that, helpful though they are, these conclusions are not specifically adopted by the other two members of the court (Laws and May, LJJ). The test to be applied is whether in all the circumstances it is reasonable to require the family members to leave the country, that is to say, whether the interference is proportional.
It is always necessary to consider the facts of a particular case. Lord Phillips’ conclusions are not requirements which have always to be met. Naturally, it would usually be the case that, if there were insurmountable obstacles to the continuation of family life out of the United Kingdom, removal would not be reasonable. Even if the respondent has a family life here, it is one which has been established for little over a year with siblings he had not seen for some years. He had parents are in Turkey with whom he had been living until they decided to leave and come to the United Kingdom. That was, on the findings of the Adjudicator, a voluntary act. There is no reason why he should not return and continue his family life with his parents in Turkey, being able to see sisters who are still there. His eldest brother is now a British citizen and has visited his parents in Turkey. He can continue to do so. Equally, the respondent can (at least if he persuades an Entry Clearance Officer of his bona fides) visit his siblings here. The particular family life enjoyed in the United Kingdom with his siblings is not one which in the circumstances must continue to exist and which it would be unreasonable to break.’
[ It may well be that such comments should now be
read within the context of Razgar and of Huang]
30. Miss Dubinsky submits that that is not the situation as faces the two daughters in the United Kingdom. There is a much closer bond established in emotional terms because of the past experiences of the family unit. There is no guarantee of family support, either to the appellant or to the children were they to return. Given the recent events of the flooding and the tsunami, it cannot be said that any family members continue to reside in the Jaffna area which was an area affected by the flooding. There is no indication that contact with the father could be made. It is submitted that the Adjudicator failed to have regard to any of these factors in making the comments which he did relating to the younger daughter.
31. Finally, Miss Dubinsky invites us to revisit the situation of the appellant's return, notwithstanding that such an aspect was not an aspect of the leave to appeal. She has placed before us a number of BBC news items relating to the tsunami. She invites our attention to the extent of the destruction and to the considerable strain placed upon the resources within Sri Lanka. Such would only add to the difficulties it is submitted of the appellant returning to Colombo. It cannot safely be said that the LTTE and the government are cooperating over that disaster such as to have removed the danger to the appellant in her return. The involvement of the husband was at a high level in the LTTE and the risk to her on return is a significant one. The Adjudicator failed to bear in mind the matters set out by Dr Good in the report, and the difficulties which she would face upon return to Colombo would be exacerbated in any event by the humanitarian crises with which the country is now faced.
32. Miss Dubinsky invites us to remit the matter to be heard again in order for there to be a proper evaluation as to the dependence within the family unit and a proper assessment of the risk of return in light of the tsunami disaster.
33. Mr Ouseley on behalf of the respondent invites us to find that there has been no error of law on the part of the Adjudicator. The Adjudicator heard all the evidence relating to the family. She had before her the evidence of both children in terms of statements or oral evidence and has recorded in some detail the evidence as given by the appellant. The children are settled in the United Kingdom and have the support of close relatives within the United Kingdom. Indeed both daughters lived with their aunt and her family for a considerable period of time prior to the appellant arriving in the United Kingdom. The appellant herself has family members living in Jaffna and there is no suggestion that they have been adversely affected by the tsunami. In addition, her husband is also alive in a part of Sri Lanka. No doubt efforts could be made to find him. There is nothing to indicate that the Adjudicator failed to have regard to the report of Dr Good. There is nothing to indicate that there has been a fundamental change in circumstances brought about by the tsunami. Indeed, there have been reports which, taken as a whole, speak of aid being brought to the country and of the cooperation between government and Tamil Tigers. The comments made by the Adjudicator as to the return of the younger daughter were ones which were open to her. The appellant had been in the United Kingdom for three years and there is no reason to believe that she could not adapt to life in Sri Lanka, particularly as there is no suggestion that she has ever been detained or ill-treated or indeed of any interest to the authorities.
34. Our attention was drawn to the decision of the Court of Appeal in Kugathas [2003] EWCA Civ 31, dated 21 January 2003. Essentially, it was a case involving a relationship between siblings but comments are made within the judgment as to the wider issue of family life as between adult child and a parent or other siblings. In particular, paragraph 25 states as follows:
‘Because there is no presumption of family life, in my judgment of family life, it is not established between an adult child and surviving parent or other siblings unless something more exists than normal emotional ties: see S v United Kingdom [1984] 40 DR 196 and Abdulazis, Cabales and Balkandali v United Kingdom [1985] 7 EHRR 471. Such ties might exist if the appellant were dependent on his family or vice versa. It is not, however, essential that members of the family should be in the same country. The Secretary of State accepts that that possibility may exist, though in my judgment it will probably be exceptional. Accordingly there is no absolute rule that there must be family life in the United Kingdom, as the Immigration Appeal Tribunal held.’
35. It is submitted that the approach of the Adjudicator was entirely correct and that there is no reason at all why the appellant may not return to Sri Lanka. It is a matter of choice for the children to remain in the United Kingdom or return with her. The fact that there was no contact as between them and their mother prior to her coming to the United Kingdom does not mean that communication could now not be established. There are telephones and faxes in Sri Lanka and also the ability to write and keep in general contact.
36. Miss Dubinsky, in reply, submitted that contact between the appellant and her children in the United Kingdom had been difficult in the past and there was no reason to believe that there had been any improvement now. Given the tsunami it could be argued that the infrastructure was more strained than previously.
37. In coming to our conclusions the first question to ask is of course whether there exists family life as between the appellant and her daughters in the United Kingdom. The existence of family life as between parent and child must necessarily depend upon the circumstances of the particular case. As the Court of Appeal made clear in the case of Kugathas at paragraph 25 of the judgment of Lady Justice Arden, there is no presumption of family life. Further, it is not established between an adult child and his surviving parent or other siblings unless something more exists than normal emotional ties. The judgement went on in these terms:
“ Such ties might exist if the appellant were dependent
on his family or vice versa. It is not however essential
that the members of the family should be in the same
country. The Secretary of State accepts that the possibility
may exist, although in my judgement it will probably be
exceptional. Accordingly, there is no absolute rule that
there must be family life in the United Kingdom, as the
Immigration Appeal Tribunal held.”
38. As was noted later in the same judgment, the appellant in that particular case, if sent back to Sri Lanka, could still make telephone calls to his family and it would still be possible for him to visit. The court emphasised at paragraph 19 that neither blood ties nor the concern and affection which ordinarily go with them are by themselves enough to constitute family life.
39. In the case before us it is clear that the appellant lives with her two daughters, one of whom is over the age of eighteen and the other still a minor. There is nothing to indicate, however, that there is a dependency which is far greater than the normal bonds of affection as between mother and daughter.
40. Miss Dubinsky submitted to us that the full pattern of the family life as between the appellant and her two daughters was not before the Adjudicator. We would reject that submission. It is clear to us that the appellant and her two daughters had the fullest opportunity to present their particular perspectives to the Adjudicator. Such matters are noted by her in the determination. The elder daughter, now aged nineteen, arrived in the United Kingdom in June 2001 and was able to establish her life in the United Kingdom with the assistance of her aunt and her aunt’s family in the United Kingdom. She coped without her mother the appellant until the mother’s arrival in May 2002. The younger daughter arrived in the United Kingdom in December 2001 and established herself with her sister and aunt as a family unit until the arrival of the appellant. She, too, has established herself in terms of being at school. As a matter of commonsense there would be a close bond between daughters and mother as would be expected in any family relationship. There is no suggestion, however, that there is any emotional or physical dependence other than that. It is of course to be recognised, in fairness to all, that families who have experienced hardship and privation will be possibly more drawn together with such experiences than not. It is understandable therefore that the daughters would very much welcome the presence of their mother and the reassurance which that gives. Equally, the same would apply to the mother to be reunited with her daughters. Such matters were canvassed before the Adjudicator and there was no indication from the determination that they were matters not borne in mind.
41. In tackling the question of proportionality it is of course important to consider the family unit as a whole as part of the assessment. The matter was dealt with recently by the Administrative Court in AC [2003] EWHC 389 Admin, a decision of Mr Justice Jack reported on 11 March 2003. The context of that case was one of deportation but the focus of the attention was, however, upon S, the child of appellant who was placed with foster parents initially, following the detention of her mother and later stayed with her father. She maintained her relationship with her mother whilst the appellant had been in prison by means of visits and telephone calls. It was said that there was a warm and loving relationship which existed between them and it was accepted that family life existed. The fact of the appellant's deportation on her relationship with S was an important factor in the Adjudicator's decision in allowing the appeal. The Tribunal had considered the case of Kehinde v Secretary of State (01/TH/2668) the essence of which decision was that in an appeal under s.65 the Adjudicator or Tribunal is concerned only with the human rights of the appellant. Mr Justice Jack interpreted the comments by the Tribunal as exhibiting their intention to consider the relationship between S and her mother from the viewpoint of the mother’s right alone. It did not intend to consider the impact of the deportation on S. The court was referred to a number of decisions by the European Court, in particular that of Boultif v Switzerland [2001] 33 EHRR 1179, that of Amrollahi v Denmark [2002] and Ciliz v Netherlands [2000].
42. Mr Justice Jack in the course of the judgment said as follows at paragraph 33 thereof:
‘In my judgment, where in a deportation case an interference with family is under consideration in the context of the deportee’s right to freedom from interference with the exercise of family life under Article 8, it is right to consider and take into account the effect of the interference on all those sharing the family life in question, and not simply the effect upon the individual who is subject to possible deportation. I accept that this question was not specifically addressed by the European Court in either Boultif or Amrollahi. Nevertheless, it is consistent with the manner in which the European Court expressed itself in those cases and with its approach. It seems to me artificial and unsatisfactory that, where a right to family life is established as existing, the effect of the interference on only one individual should be taken into account. That must particularly be so where the effect of the decision to be made, if made one way, is likely to be to destroy the family life in question. The purpose for the Article is, in relation to family life, to conserve that life. As I pointed out, the impact of one family member in turn impacts on another. So I consider that it is the effect of the proposed interference with the family life as a whole which should be taken into account.’
43. In paragraph 37 of the judgment the court considered a number of other decisions including that of Beqiri [2002] UKIAT 00725.
44. It seems to us, however, that paragraph 33 of the judgment should be read in the context of paragraph 38 in which it was stated as follows:
‘I conclude that the Tribunal was right in deciding that it was not primarily concerned with the human rights of S. The grounds of appeal under s.65 are restricted to breach of the human rights of the appellant. The human rights of another person will only be relevant if a breach of them impinges on the human rights of the appellant. I also conclude that the Tribunal was wrong if, as I think it did, it concluded that in considering the rights of the appellant, AC under Article 8, it should take no account of the impact of the proposed deportation on S. On an appeal under s.65 the Adjudicator and the Tribunal should take into account of the impact of the proposed deportation on the family life of any person with whom the appellant has established a family life.’
45. The scope of that decision was further considered by the Immigration Appeal Tribunal in the starred decision SS (ECO – Article 8) Malaysia [2004] UKIAT 00091(starred), notified on 29 April 2004. The appellant in that case was a citizen of Malaysia applying for indefinite leave to remain, his mother being settled in the United Kingdom. The appellant was twenty two years at the date of the decision. The appellant’s mother and stepfather had decided to return to the United Kingdom and she was granted indefinite leave to remain in 1999. The eldest child was married and lived in the United States of America. Her second child graduated from a UK university and lived in the United Kingdom on a work permit expiring in 2006. The appellant had also studied in the United Kingdom but had returned to Malaysia.
46. The issue in the appeal was whether the exclusion of the appellant was proportionate. In considering whether there was a duty upon the ECO not in a way which was incompatible with the ECHR rights. the case of Box v ECO Dhaka [2003] UKIAT 02212 was cited. The case of Kehinde was cited as indeed the judgment of Jack J in AC. The Tribunal chaired by the President essentially reaffirmed the position as set out in Kehinde. Paragraph 26 in these terms :
‘We also agree with the point made by him in paragraph 32 when he points out that the impact of removal, or refusal of entry, may have an impact on a person other than the Appellant and that impact in turn may affect the Appellant; for example, the anxiety that the non-appellant may feel about the absence of the Appellant may in turn make the appellant distressed. However, it is only in that indirect way that the position of someone other than the Appellant can be taken into account. The Tribunal is still examining the Appellant's position when it allows for the indirect impact of the position of others. It is right to say that there are passages in Jack J’s judgment which suggested that a broader approach was being taken; which appeared to contradict what he said elsewhere. However, if a broader approach had been intended, which we doubt, we would not have followed it. We are bound by Kehinde which is correct as a matter of statutory interpretation.’
47. The Tribunal went on in paragraph 29 a follows:
‘Even were the Tribunal to have the power to look more widely than it does at the position of the family, it would still be necessary for those who were not the Appellant to identify themselves as “victims”. Only those who so identify themselves have the right to challenge decisions on human rights grounds by s.7 of the 1998 Act. It would be entirely inappropriate for someone, the Appellant, to seek to advance his case by reliance on the rights which he asserts for others which they do not seek to vindicate themselves.’
48. The Tribunal in paragraph 43 had regard to a number of decisions including that of Sen.
49. The Tribunal set out certain matters in paragraph 48 of its judgment as follows:
‘The appellant is now nearing 26. He was nearing 23 at the date of the decision. At that age, is it possible to have a family life with parents but one would normally expect something stronger than the normal ties of love and affection and concern for a child or parent’s wellbeing. There should be evidence of specific emotional dependency or a serious lack of maturity. There is no evidence of any especial mental or emotional dependency of the Appellant on his parents; he is financially dependent on them. Although he has illnesses in Malaysia, he is in good health and is not physically or mentally disabled. We would accept that he does at present enjoy some form of family life with them but that is inevitably one which will diminish as the years go by and the normal expectation would be that in the United Kingdom he would set up home away them in due course, as have his brother and sister, and that it would be stretching a point to say that he then enjoyed family life with them. We accept that a family life can be constituted by the relationship with adult siblings but it is not usually strong in the absence of any particular dependencies; they would normally be regarded as separate families who have grown up and gone their separate ways, however much the bond of affection and contact remained. This evolution reflects the way in which the rules make it fairly easy for children up to 12 years old to join their parents somewhat more difficult for those under 18, and impose very much more stringent tests for those over 18.’
50. That matter was further dealt with in the decision of AC (deportation – Article 8) Turkey [2004] UKIAT 00122. The Tribunal gave guidance as to the manner in which s.65 of the Immigration and Asylum Act 1999 is to be applied in cases where the immigration decision affects not only the appellant but also others including members of his family. The Tribunal stated (paragraph 17) et seq as follows:
’17. We regard it as clear that the effect of s.65 is to require the Adjudicator and the Tribunal to decide whether or not the decision breaches the appellant's human rights and not whether it breaches the rights of others who are not appellants. The appellant’s human rights are not breached by a decision relating to his entitlement to enter or remain simply because the right of someone else who is not an appellant may be breached by that decision. That another person has the ability, if a victim, to bring proceedings in the Administrative Court under s.7 of the 1998 Act. It may be cumbersome, but it avoids an appellant making claims related to someone else who may be unaware of what is being said or who may disagree with it. A child of divorced or separated parents may be in a particularly difficult position in this respect.
18. This is not to say that the position of others is always irrelevant. As the Tribunal pointed out in its ruling on this matter, the impact on the human rights of a third party may be relevant in this way. If their return to the country to which it is proposed to remove the appellant is precluded because that would put their Article 3 rights there at risk, that may be very material to the degree to which they might be able to unable to return and hence to the degree of interference with the appellant's rights which the latter’s removal might entail. We also accept, as Jack J pointed out in AC, that although the right to family life and the effect of interference on it is examined, under s.65, from the viewpoint of the appellant, the impact of separation on another may cause distress or anxiety to the appellant and that indirect impact on the appellant should be taken into account. It is right to recognise that although some family relationships may involve complete reciprocity, others, and parent child relationships are the obvious example, may be very different depending upon the person from whose viewpoint that matter is examined.
19. Although there was room for some argument before us as to the meaning of the judgment, we consider that, read as a whole, it is accepting the point that an appeal under s.65 must be determined by whether or not the decision breaches the right of the appellant in all the circumstances. We agree with Jack J’s observations if we are correct in our understanding of them; they are in line with Kehinde and with the paragraphs of the ruling referred to in the Order.’
51. The wording of s.65 of the 1999 Act is not materially different to that of s.84(1)(g) of the 2002 Act. The approach must be the same in considering issues arising under the 2002 Act consistently with what is stated in AC above. The Tribunal are therefore concerned only with whether or not the decision breaches the human rights of the appellant and not whether it breaches the rights of her daughters. We are entitled to take into account the impact on her of removal insofar as her separation from her children may cause her distress and anxiety or otherwise may affect her. This is particularly so given the nature of her depression as highlighted in the medical report as was be fore the Adjudicator.
52. We find therefore that the degree of focus which Miss Dubinsky has sought to place on the wellbeing of the daughters is one which is not supported by the authorities. Clearly, in looking at the issue of removal and whether or not it is proportional, it is right to have regard to the whole of the family unit but focussing particularly upon the impact of the removal upon the appellant. It is clear that in certain cases it would be impractical to separate the interests of children from that of the mother. In the recent Court of Appeal decision in CA that was precisely the concern of the court, namely the removal of the mother and the risk which that presented to her young child. Clearly the court had found the interest of the child in that case as being bound inextricably with the interests and removal of the mother.
53. Turning therefore to the elder daughter in the appeal before us, it should be noted that she is nineteen and is developing her own life and study. She is an adult and as time goes on she will move to university and will live apart from her mother for appreciable periods of time in all probability. It is the way with children that they will develop their own life and move away to some extent from the closeness of childhood dependence upon parents. There is nothing to indicate that the elder daughter is otherwise vulnerable or unduly dependant upon her mother. She managed to build up a life for herself in the United Kingdom in the period between her coming to the United Kingdom and her mother arriving. She was not alone in the United Kingdom and has close family members to whom she may turn and indeed to whom she did in fact turn initially. The Adjudicator set out her particular circumstances in paragraph 6 of the determination.
54. The Adjudicator at paragraph 32 comments as follows:
‘Taking initially the elder daughter, once a person is no longer a child, family life relationships may be considered to continue only if there continues to be a factual content to those relationships. The appellant's daughter has been in the United Kingdom since 2001, the appellant's daughter, has aunt and uncle and cousin in the United Kingdom. The appellant's daughter, although it may have been difficult has within that two year period settled into the United Kingdom educational system and is studying for her ‘A’ levels.’
55. We find that the Adjudicator has properly addressed the situation of the elder daughter. Relationships do change and the degree of closeness between parents and children will vary according to age and circumstances. We understand the Adjudicator to mean that in her speaking of “factual content”. There is nothing to indicate that the elder daughter would not be able to continue to make communication with her mother once her mother has returned to Sri Lanka. It was said by Miss Dubinsky that the tsunami has caused major disruption to Sri Lanka. There is no evidence that that is so in the area of Colombo. It may well be so in terms of the coastal region but there is nothing to indicate that the facilities of telephoning and contact would not be available in Colombo or indeed elsewhere.
56. The fact that the daughter is recognised as a refugee does not of itself mean that she is unable to return to Sri Lanka either on a permanent or basis or on a temporary one. Reference has already been made to SS (INLR Article 8 – return) Sri Lanka [2004] UKIAT 00126 and to the comments made in paragraph 10 thereof. The circumstances have considerably changed since the daughter came to the United Kingdom.
57. So far as the younger daughter is concerned, once again the Adjudicator has set out her situation and circumstances in paragraph 6 of the determination. In particular the Adjudicator has highlighted the matter which was stressed in the statement of( ), namely that she is relieved because her mother could resume the role of supporting her emotionally and be a parent again. The Adjudicator recognised that someone studying for ‘A’ levels is very much in need of care and support. There is nothing to indicate that the Adjudicator failed to appreciate such matters. It is said that the comment made by the Adjudicator to the effect that ‘the appellant's younger daughter is not required to remain in the United Kingdom and there are no insurmountable obstacles to her returning to Sri Lanka and contact between mother and daughter could still be maintained’ is in the event an error of law. We do not find it to be so. We recognise that there is some merit in the submissions on behalf of the appellant that the phrase ‘insurmountable obstacles’ should not be a mantra to be recited. Clearly in determining proportionality the whole nature of the relationship falls to be considered. As the case of SS 00126 makes clear, the fact of leave to remain simply means that the Secretary of State cannot give directions for removal but that does not prohibit the return. Essentially the younger daughter would have a choice upon the return of her mother. One would be to stay in the United Kingdom for the currency of her existing leave to complete her studies. She would have the support of her elder sister which she had before her mother came and the support of her wider family in the United Kingdom including her aunt. There is nothing to suggest that her mother could not maintain contact with her when returned. Alternatively, she could return with her mother to study in Sri Lanka. It is suggested that the tsunami has divested the infrastructure of Sri Lanka such that a return would be inappropriate or unduly harsh. We do not find that argument to be made out. It is clear that there has been widespread devastation of the coastal region but there was nothing to indicate that the infrastructure in Colombo is otherwise than functioning. In any event, there are relatives in Jaffna to whom the appellant and her daughter could return. There is no indication before us that those relatives have suffered adversely as a result of the tsunami in any event.
58. We detect an effort by Miss Dubinsky, as it were, to introduce considerations of asylum by the side door. She submits that the experiences of the appellant in Sri Lanka would be such that there would be a continuing interest in her by the authorities and that her failure to register in Colombo would be a matter acting to her detriment. The Adjudicator has determined the matter as to the safety of return and such was not the subject of permission to appeal in any event.
59. We find that the Adjudicator has borne in mind the balance of the family unit in her consideration of proportionality. She was right to focus upon the appellant in particular. We bear in mind the way in which proportionality should be approached, particularly in the light of Razgar [2004] UKHL 27 and Huang [2005] EWCA Civ 105. We do not find that this case is an exceptional one in all the circumstances. We do not find that there is any evidence to suggest that being separated from one or both of her children will result in the nature of the harm or hurt as envisaged in CA or in any way to make removal exceptional or disproportionate.
60. We do not find that the Adjudicator has made any material error of law in her assessment of the case.
61. In the circumstances therefore the appeal is dismissed.
P.D. KING TD
VICE PRESIDENT
23rd March 2005
Approved for electronic distribution as a reported decision
NS (Relevance of children to removal – Art 8) Sri Lanka [2005] UKIAT 00081
IMMIGRATION APPEAL TRIBUNAL
Date of Hearing: 5 January 2005
Date of notification: 4th April 2005
Before:
Mr P D King TD (Vice President)
Sir Jeffrey James KBE, CMG
Mrs L R Schmitt
APPELLANT
and
Secretary of State for the Home Department
RESPONDENT
DETERMINATION AND REASONS
1. The appellant appeals with leave to the Tribunal against a determination of an Adjudicator, Professor R.M.M. Wallace, promulgated on 19th December 2003, dismissing her appeals in respect of asylum and human rights.
2. The appellant is a citizen of Sri Lanka, born in 1952. She arrived in the United Kingdom in May 2002 and claimed asylum. The appellant's fear of persecution was based on an alleged imputed political opinion, namely that of her husband’s involvement in the LTTE. She lived with her husband in Kopay. He became actively involved in the LTTE. She last saw her husband in October 1995 and she has reason to believe that he is still alive, living in an LTTE controlled area. In 1996 there were a number of visits to her home by the army enquiring as to her husband’s whereabouts. She was threatened and physically abused by the soldiers. Her daughter, ( ), was a member of the LTTE and the appellant began to be questioned in relation to her daughter’s activities in addition to those of her husband. The house would be raided and she would be physically ill-treated. She went to Colombo with her younger daughter on 25 October 2001 and eventually came to the United Kingdom. She maintained that if returned to Colombo the authorities would suspect that her daughter and husband had been involved with the LTTE and that she would be at risk of torture. She maintained also that she had a close and loving family in the United Kingdom. Her daughter, ( ), had been recognised as a refugee by the United Kingdom government and her other daughter, ( )had been granted exceptional leave to remain in the United Kingdom until April 2006. The appellant has a brother and two sisters in the United Kingdom. Her parents and other brother and sister live in Jaffna.
3. At the hearing before the Adjudicator the appellant's older daughter, ( ), gave evidence. Initially when she had come to the United Kingdom she had lived with her aunt in Wembley who had taken care of her. She said that after she had been arrested and then released, her mental state was badly affected and she needed her mother desperately. She felt better now that her mother was in the United Kingdom. She had been sixteen years old when she arrived in the United Kingdom and was now eighteen, taking ‘A’ levels with a view to studying medicine at university. There was also a statement from the younger daughter,( ). She is thirteen years old and started school at nine. She feels much happier now that her mother is with her and that they are safe. A report was presented before the Adjudicator by an expert, Dr Anthony Good, setting out his understanding as to the situation and circumstances in Colombo and Sri Lanka generally. The report expressed the opinion that it would be completely unfeasible for a lone Tamil woman to live in Colombo.
4. The Adjudicator did not find that the appellant would be at risk if returned to Sri Lanka, either under the 1951 Convention or in respect of Article 3 of the 1950 Convention. At paragraph 32 the Adjudicator considered the Appellant’s position under Article 8. She did not find that to return the appellant to Sri Lanka would cause the United Kingdom to be in breach of its obligations under the Convention of Human Rights. The Adjudicator expressed the view that there were no insurmountable obstacles to the younger daughter returning to Sri Lanka and that contact between mother and daughters would still be maintained, notwithstanding removal.
5. It was in respect of the mother/daughter relationship and removal that permission was granted.
6. The appellant was represented before us by Miss L. Dubinsky of Counsel, instructed by Wandsworth & Merton Law Centre. The respondent was represented by Mr S. Ouseley, the Home Office Presenting Officer.
7. Miss Dubinsky submitted that the Adjudicator had failed to consider adequately or at all the relationship as it existed between the appellant and her two daughters. She had failed to consider the closeness of mother and daughters and in terms of Article 8 had failed to follow the steps of reasoning which have been referred to on many occasions by the Tribunal. It is necessary for the Adjudicator to ask herself four questions, namely :
- Is there family life as between mother and daughters?
- If so, would a removal of the mother amount to an interference with that family life?
- Was such removal lawful?
- Was it proportional to the proper exercise of immigration control?
8. It was submitted that family life was to be presumed between mother and daughters. Our attention was drawn to the decision of Sen v Netherlands [2003] 36 EHRR 7. This was a decision of the European Court of Human Rights in December 2001.
9. In that case the applicants, who were Turkish, were settled in the Netherlands. They applied for a residence permit to enable their first child who was born in Turkey to join them and their second child in the Netherlands. The application had been rejected. The applicants claimed that such a refusal to grant a residence permit interfered with their right to respect for their family life. It was held that there had been a violation of Article 8 of the Convention. It was held that from the moment of birth there existed between the child and the parents a bond amounting to family life which subsequent events could not break, save in exceptional circumstances. It was held further that by giving the first two applicants the choice of giving up the position which they had acquired in the Netherlands or renouncing the company of their eldest child, the respondent state failed to strike a fair balance between the appellant's interest on the one hand and their interest in controlling immigration on the other. It was not necessary for the court to examine whether family members in Turkey were able and willing to look after the child.
10. Miss Dubinsky submits that there is a distinction to be made between the relationship between siblings and that as between parents and child.
11. Thus it was submitted that the starting point of the Adjudicator ought to have been a recognition that family life existed as between the appellant and her daughters.
12. Miss Dubinsky invited us to consider the situation of each daughter separately although she submitted that the general principle in Sen v The Netherlands applied equally to both. The elder daughter was now nineteen and involved in her studies, hopefully to lead to a university place. She had been recognised as a refugee. Indeed her statement and her oral evidence had been before the Adjudicator. She had been active within the LTTE as a result of which the army had been actively looking for her. Indeed, she was detained in 2001 for some twenty days on account of her own activities and those of her father, being released only by bribery. Notwithstanding her release it was the evidence of the appellant that the authorities continued to look for her daughter, indeed had beaten her up in the process. Her father had been involved with the intelligence unit of the LTTE and was therefore wanted by the authorities. The authorities had shown a keen interest in her as well.
13. The Adjudicator had given no consideration in her determination to the possibility of return of the elder daughter. It was submitted that she was a refugee and that it could not safely be assumed without more that she could safely return. Indeed, it was submitted before us by Miss Dubinsky that the daughter fell within the ambit of Jeyachandran [2002] UKIAT 01869 and that she would have been of interest to the authorities.
14. In that connection our attention was drawn to a decision of the Tribunal chaired by the President, in SS (ILR – Article 8 – return) Sri Lanka [2004] UKIAT 00126. The appellant in that case was a citizen of Sri Lanka. The Adjudicator considered the Article 8 claim on the basis of his acceptance that there was family life enjoyed in the United Kingdom with her husband who had been a recognised as a refugee. The Adjudicator considered the issue of proportionality by reference to the ratio of the decision in Mahmood [2001] ImmAR 229, making the assumption that Mr S was unable to travel to Sri Lanka by virtue of his acknowledged status as a refugee. He concluded however that the appellant and the baby could return to Sri Lanka and make an application for leave to enter under the Immigration Rules from abroad. The Tribunal in paragraph 10 of the decision considered that the Adjudicator was wrong in his assumption of the existence of an inability for Mr S to return to Sri Lanka simply by reason of his having been recognised as a refugee. The Tribunal went on in these terms:
‘That means no more than that the Secretary of State cannot give directions for his removal whilst his indefinite leave to remain exists, but it does not mean that there is, in the sense in which it is explored in Mahmood, an insurmountable obstacle to his return. The fact of former recognition of refugee status does not of itself show that there is a continuing insurmountable obstacle to returning to the country of origin. Such cases will depend upon a consideration of the specific facts upon which the claim had been recognised. It is not necessary for the Refugee Convention cessation provisions to be applied to someone with refugee status and ILR in order for the potential of his return to the country of origin, so as to remain with his family, to be contemplated in an Article 8 case. There is no automatic insurmountable hurdle in the mere fact of the past grant of ILR. Of course, that person is not expected to prove his asylum claim again and there would need to be a proper basis for contemplating that circumstances had changed significantly since the grant of ILR. If they have, and it is contended that a person still faces an insurmountable obstacle to return with his family, evidence will be needed as to why.’
15. The Tribunal went on to consider that there had been substantial change in the situation following the ceasefire and that there was no evidence before the Adjudicator to show that there existed any current insurmountable obstacles to Mr S returning to Sri Lanka, and therefore no evidential basis for saying that the removal decision made by the Secretary of State was unlawful.
16. Miss Dubinsky submits that the Adjudicator did not apply her mind in the present case to the situation of whether the elder daughter could or could not return to Sri Lanka. She had not addressed her mind to whether the circumstances of the elder daughter had changed significantly in Sri Lanka as to enable her to return. It was submitted that they had not and that insurmountable obstacles remained in the return of the elder daughter.
17. Considerable reliance was placed by Miss Dubinsky upon the case of Sen. She submitted that the elder daughter was placed in an invidious position and that she would have to remain in the United Kingdom, separated from the appellant if removed. Alternatively, she would have to give up the status which she had obtained and expose herself to risk upon return to Sri Lanka. It was this real difficulty which was recognised by the Court of Human Rights in the case of Sen.
18. The Adjudicator had given no regard to the situation of the elder daughter and of the effect which that would have upon her were the appellant to be returned. The daughter had established a life for herself and it was disproportionate in all the circumstances for the Secretary of State to force an agonising decision upon the parties, namely to cause mental anguish to the appellant by separating her from the daughter, or by in effect forcing the daughter to give up her rights and freedoms to accompany the appellant.
19. Our attention was drawn to the statement of ( )dated 21 November 2003 which was before the Adjudicator at the date of hearing of the 3 December 2005. In that statement she speaks of having found it difficult to be in a foreign country, namely the United Kingdom, without her mother. There had been no contact between her and her mother since June 2001. Her younger sister, ( ), arrived in the United Kingdom in December 2001 when she was only twelve years old. They lived together with their aunt. The appellant arrived on 31 May 2002 and that was the first occasion that contact had been established. ( )needs the appellant’s support, particularly as she is studying hard at school.
20. Insofar as the younger daughter is concerned, our attention was drawn to a statement from her also dated 21 November 2003, as was placed before the Adjudicator. She had been twelve when she came to the United Kingdom and relied very much upon her elder sister and aunt for support. She missed her mother very much and was relieved when her mother arrived in the United Kingdom. She has started at school and feels safe now that her mother is here to look after her.
21. Miss Dubinsky submits that once again the Adjudicator failed to bear in mind the very close bond which clearly exists in emotional and family terms as between the appellant and her daughter.
22. She further submitted that it cannot be ignored in the analysis that both daughters and the appellant had a particularly difficult and stressful time in Sri Lanka. There was clearly a considerable bond established between the family unit in adversity in Sri Lanka. That was particularly so given the disappearance of their father in 1995. The particular experience of the appellant and her younger daughter in seeking to flee Sri Lanka firmly established such a bond. Our attention was invited to paragraph 37 of Sen in which the Court says as follows:
‘In its analysis, the court takes into consideration the age of the children concerned, their situation in their country of origin and their degree of dependence on their parents. It cannot in effect consider the matter from the sole point of the view of immigration, by comparing this situation with that of persons who have only established bonds after becoming settled in their host country...’
23. It was submitted therefore that the nature of the relationship should be considered. The Adjudicator had failed to consider that whole context in her analysis of the situation.
24. It was submitted that the Adjudicator had indeed focussed albeit erroneously on a very narrow issue as expressed by her in paragraph 32 of the determination, namely:
‘The appellant's younger daughter is not required to remain in the United Kingdom. There are no insurmountable obstacles to her returning to Sri Lanka. The contact between mother and daughter could still be maintained.’
25. It was submitted that the Adjudicator erred in law in that approach because an insurmountable obstacle was essentially to be seen in the context of a marriage case. In any event, the issue of insurmountable obstacle was but one of a number of factors to be borne in mind. Our attention was drawn to the judgment of Mahmood itself and in particular to paragraph 55 of that judgment. The conclusions were set out therein, in particular 55(3) :
‘Removal or exclusion of one family member from a state where other members of the family are lawfully resident will not necessarily infringe Article 8 provided that there are no insurmountable obstacles to the family living together in the country of origin of the family member excluded, even where this involves a degree of hardship for some or all members of the family.’
26. Paragraph 55(4):
“Article 8 is likely to be violated by an expulsion for a member of a family that has been long established in the state if the circumstances are such that it is not reasonable to expect the other members of the family to follow that member expelled.”
27. Miss Dubinsky submits that it was more the ingredient of 55(4) that ought to have been considered. The family had been long established as a family unit even before coming to the state. It was not reasonable to expect the younger daughter to give up all that she had obtained in order to go back to the uncertainties and potential dangers of Sri Lanka. She submitted that the Adjudicator was in error in requiring the element of insurmountable obstacle to be a pre-requisite . What had been made clear in Sen was that the appellant had been culturally integrated. This is the case with the appellant and her children.
28. The Adjudicator had failed to consider the precarious situation which the appellant would face upon her return to Colombo, particularly in the light of Dr Good’s report. Matters had further worsened, it was submitted, because of the recent natural disaster which had affected the area and the disruption which had been caused to the fabric of many countries, particularly that of Sri Lanka. It would not be reasonable to expect either daughter to return to a situation where there was a lack of support and stability.
29. In that connection our attention was drawn to the decision of the Tribunal in Bakir [2002] UKIAT 01176, notified in April 2002. Our attention was drawn to the judgment of the then President to the IAT, Mr Honourable Justice Collins, who set out in paragraphs 9 and 10 of that decision as follows:
‘The Adjudicator's reference to the need for there to be “no insurmountable obstacle to the family living together in the country of origin and for family members excluded” comes from the judgment of the Master of the Rolls in Mahmood. At paragraph 55 he sets out his conclusions as to the approach of the Commission on the European Court of Human Rights to the potential conflict between the respect for family life and the enforcement of immigration control. The Adjudicator has quoted number 3. It is to be noted that, helpful though they are, these conclusions are not specifically adopted by the other two members of the court (Laws and May, LJJ). The test to be applied is whether in all the circumstances it is reasonable to require the family members to leave the country, that is to say, whether the interference is proportional.
It is always necessary to consider the facts of a particular case. Lord Phillips’ conclusions are not requirements which have always to be met. Naturally, it would usually be the case that, if there were insurmountable obstacles to the continuation of family life out of the United Kingdom, removal would not be reasonable. Even if the respondent has a family life here, it is one which has been established for little over a year with siblings he had not seen for some years. He had parents are in Turkey with whom he had been living until they decided to leave and come to the United Kingdom. That was, on the findings of the Adjudicator, a voluntary act. There is no reason why he should not return and continue his family life with his parents in Turkey, being able to see sisters who are still there. His eldest brother is now a British citizen and has visited his parents in Turkey. He can continue to do so. Equally, the respondent can (at least if he persuades an Entry Clearance Officer of his bona fides) visit his siblings here. The particular family life enjoyed in the United Kingdom with his siblings is not one which in the circumstances must continue to exist and which it would be unreasonable to break.’
[ It may well be that such comments should now be
read within the context of Razgar and of Huang]
30. Miss Dubinsky submits that that is not the situation as faces the two daughters in the United Kingdom. There is a much closer bond established in emotional terms because of the past experiences of the family unit. There is no guarantee of family support, either to the appellant or to the children were they to return. Given the recent events of the flooding and the tsunami, it cannot be said that any family members continue to reside in the Jaffna area which was an area affected by the flooding. There is no indication that contact with the father could be made. It is submitted that the Adjudicator failed to have regard to any of these factors in making the comments which he did relating to the younger daughter.
31. Finally, Miss Dubinsky invites us to revisit the situation of the appellant's return, notwithstanding that such an aspect was not an aspect of the leave to appeal. She has placed before us a number of BBC news items relating to the tsunami. She invites our attention to the extent of the destruction and to the considerable strain placed upon the resources within Sri Lanka. Such would only add to the difficulties it is submitted of the appellant returning to Colombo. It cannot safely be said that the LTTE and the government are cooperating over that disaster such as to have removed the danger to the appellant in her return. The involvement of the husband was at a high level in the LTTE and the risk to her on return is a significant one. The Adjudicator failed to bear in mind the matters set out by Dr Good in the report, and the difficulties which she would face upon return to Colombo would be exacerbated in any event by the humanitarian crises with which the country is now faced.
32. Miss Dubinsky invites us to remit the matter to be heard again in order for there to be a proper evaluation as to the dependence within the family unit and a proper assessment of the risk of return in light of the tsunami disaster.
33. Mr Ouseley on behalf of the respondent invites us to find that there has been no error of law on the part of the Adjudicator. The Adjudicator heard all the evidence relating to the family. She had before her the evidence of both children in terms of statements or oral evidence and has recorded in some detail the evidence as given by the appellant. The children are settled in the United Kingdom and have the support of close relatives within the United Kingdom. Indeed both daughters lived with their aunt and her family for a considerable period of time prior to the appellant arriving in the United Kingdom. The appellant herself has family members living in Jaffna and there is no suggestion that they have been adversely affected by the tsunami. In addition, her husband is also alive in a part of Sri Lanka. No doubt efforts could be made to find him. There is nothing to indicate that the Adjudicator failed to have regard to the report of Dr Good. There is nothing to indicate that there has been a fundamental change in circumstances brought about by the tsunami. Indeed, there have been reports which, taken as a whole, speak of aid being brought to the country and of the cooperation between government and Tamil Tigers. The comments made by the Adjudicator as to the return of the younger daughter were ones which were open to her. The appellant had been in the United Kingdom for three years and there is no reason to believe that she could not adapt to life in Sri Lanka, particularly as there is no suggestion that she has ever been detained or ill-treated or indeed of any interest to the authorities.
34. Our attention was drawn to the decision of the Court of Appeal in Kugathas [2003] EWCA Civ 31, dated 21 January 2003. Essentially, it was a case involving a relationship between siblings but comments are made within the judgment as to the wider issue of family life as between adult child and a parent or other siblings. In particular, paragraph 25 states as follows:
‘Because there is no presumption of family life, in my judgment of family life, it is not established between an adult child and surviving parent or other siblings unless something more exists than normal emotional ties: see S v United Kingdom [1984] 40 DR 196 and Abdulazis, Cabales and Balkandali v United Kingdom [1985] 7 EHRR 471. Such ties might exist if the appellant were dependent on his family or vice versa. It is not, however, essential that members of the family should be in the same country. The Secretary of State accepts that that possibility may exist, though in my judgment it will probably be exceptional. Accordingly there is no absolute rule that there must be family life in the United Kingdom, as the Immigration Appeal Tribunal held.’
35. It is submitted that the approach of the Adjudicator was entirely correct and that there is no reason at all why the appellant may not return to Sri Lanka. It is a matter of choice for the children to remain in the United Kingdom or return with her. The fact that there was no contact as between them and their mother prior to her coming to the United Kingdom does not mean that communication could now not be established. There are telephones and faxes in Sri Lanka and also the ability to write and keep in general contact.
36. Miss Dubinsky, in reply, submitted that contact between the appellant and her children in the United Kingdom had been difficult in the past and there was no reason to believe that there had been any improvement now. Given the tsunami it could be argued that the infrastructure was more strained than previously.
37. In coming to our conclusions the first question to ask is of course whether there exists family life as between the appellant and her daughters in the United Kingdom. The existence of family life as between parent and child must necessarily depend upon the circumstances of the particular case. As the Court of Appeal made clear in the case of Kugathas at paragraph 25 of the judgment of Lady Justice Arden, there is no presumption of family life. Further, it is not established between an adult child and his surviving parent or other siblings unless something more exists than normal emotional ties. The judgement went on in these terms:
“ Such ties might exist if the appellant were dependent
on his family or vice versa. It is not however essential
that the members of the family should be in the same
country. The Secretary of State accepts that the possibility
may exist, although in my judgement it will probably be
exceptional. Accordingly, there is no absolute rule that
there must be family life in the United Kingdom, as the
Immigration Appeal Tribunal held.”
38. As was noted later in the same judgment, the appellant in that particular case, if sent back to Sri Lanka, could still make telephone calls to his family and it would still be possible for him to visit. The court emphasised at paragraph 19 that neither blood ties nor the concern and affection which ordinarily go with them are by themselves enough to constitute family life.
39. In the case before us it is clear that the appellant lives with her two daughters, one of whom is over the age of eighteen and the other still a minor. There is nothing to indicate, however, that there is a dependency which is far greater than the normal bonds of affection as between mother and daughter.
40. Miss Dubinsky submitted to us that the full pattern of the family life as between the appellant and her two daughters was not before the Adjudicator. We would reject that submission. It is clear to us that the appellant and her two daughters had the fullest opportunity to present their particular perspectives to the Adjudicator. Such matters are noted by her in the determination. The elder daughter, now aged nineteen, arrived in the United Kingdom in June 2001 and was able to establish her life in the United Kingdom with the assistance of her aunt and her aunt’s family in the United Kingdom. She coped without her mother the appellant until the mother’s arrival in May 2002. The younger daughter arrived in the United Kingdom in December 2001 and established herself with her sister and aunt as a family unit until the arrival of the appellant. She, too, has established herself in terms of being at school. As a matter of commonsense there would be a close bond between daughters and mother as would be expected in any family relationship. There is no suggestion, however, that there is any emotional or physical dependence other than that. It is of course to be recognised, in fairness to all, that families who have experienced hardship and privation will be possibly more drawn together with such experiences than not. It is understandable therefore that the daughters would very much welcome the presence of their mother and the reassurance which that gives. Equally, the same would apply to the mother to be reunited with her daughters. Such matters were canvassed before the Adjudicator and there was no indication from the determination that they were matters not borne in mind.
41. In tackling the question of proportionality it is of course important to consider the family unit as a whole as part of the assessment. The matter was dealt with recently by the Administrative Court in AC [2003] EWHC 389 Admin, a decision of Mr Justice Jack reported on 11 March 2003. The context of that case was one of deportation but the focus of the attention was, however, upon S, the child of appellant who was placed with foster parents initially, following the detention of her mother and later stayed with her father. She maintained her relationship with her mother whilst the appellant had been in prison by means of visits and telephone calls. It was said that there was a warm and loving relationship which existed between them and it was accepted that family life existed. The fact of the appellant's deportation on her relationship with S was an important factor in the Adjudicator's decision in allowing the appeal. The Tribunal had considered the case of Kehinde v Secretary of State (01/TH/2668) the essence of which decision was that in an appeal under s.65 the Adjudicator or Tribunal is concerned only with the human rights of the appellant. Mr Justice Jack interpreted the comments by the Tribunal as exhibiting their intention to consider the relationship between S and her mother from the viewpoint of the mother’s right alone. It did not intend to consider the impact of the deportation on S. The court was referred to a number of decisions by the European Court, in particular that of Boultif v Switzerland [2001] 33 EHRR 1179, that of Amrollahi v Denmark [2002] and Ciliz v Netherlands [2000].
42. Mr Justice Jack in the course of the judgment said as follows at paragraph 33 thereof:
‘In my judgment, where in a deportation case an interference with family is under consideration in the context of the deportee’s right to freedom from interference with the exercise of family life under Article 8, it is right to consider and take into account the effect of the interference on all those sharing the family life in question, and not simply the effect upon the individual who is subject to possible deportation. I accept that this question was not specifically addressed by the European Court in either Boultif or Amrollahi. Nevertheless, it is consistent with the manner in which the European Court expressed itself in those cases and with its approach. It seems to me artificial and unsatisfactory that, where a right to family life is established as existing, the effect of the interference on only one individual should be taken into account. That must particularly be so where the effect of the decision to be made, if made one way, is likely to be to destroy the family life in question. The purpose for the Article is, in relation to family life, to conserve that life. As I pointed out, the impact of one family member in turn impacts on another. So I consider that it is the effect of the proposed interference with the family life as a whole which should be taken into account.’
43. In paragraph 37 of the judgment the court considered a number of other decisions including that of Beqiri [2002] UKIAT 00725.
44. It seems to us, however, that paragraph 33 of the judgment should be read in the context of paragraph 38 in which it was stated as follows:
‘I conclude that the Tribunal was right in deciding that it was not primarily concerned with the human rights of S. The grounds of appeal under s.65 are restricted to breach of the human rights of the appellant. The human rights of another person will only be relevant if a breach of them impinges on the human rights of the appellant. I also conclude that the Tribunal was wrong if, as I think it did, it concluded that in considering the rights of the appellant, AC under Article 8, it should take no account of the impact of the proposed deportation on S. On an appeal under s.65 the Adjudicator and the Tribunal should take into account of the impact of the proposed deportation on the family life of any person with whom the appellant has established a family life.’
45. The scope of that decision was further considered by the Immigration Appeal Tribunal in the starred decision SS (ECO – Article 8) Malaysia [2004] UKIAT 00091(starred), notified on 29 April 2004. The appellant in that case was a citizen of Malaysia applying for indefinite leave to remain, his mother being settled in the United Kingdom. The appellant was twenty two years at the date of the decision. The appellant’s mother and stepfather had decided to return to the United Kingdom and she was granted indefinite leave to remain in 1999. The eldest child was married and lived in the United States of America. Her second child graduated from a UK university and lived in the United Kingdom on a work permit expiring in 2006. The appellant had also studied in the United Kingdom but had returned to Malaysia.
46. The issue in the appeal was whether the exclusion of the appellant was proportionate. In considering whether there was a duty upon the ECO not in a way which was incompatible with the ECHR rights. the case of Box v ECO Dhaka [2003] UKIAT 02212 was cited. The case of Kehinde was cited as indeed the judgment of Jack J in AC. The Tribunal chaired by the President essentially reaffirmed the position as set out in Kehinde. Paragraph 26 in these terms :
‘We also agree with the point made by him in paragraph 32 when he points out that the impact of removal, or refusal of entry, may have an impact on a person other than the Appellant and that impact in turn may affect the Appellant; for example, the anxiety that the non-appellant may feel about the absence of the Appellant may in turn make the appellant distressed. However, it is only in that indirect way that the position of someone other than the Appellant can be taken into account. The Tribunal is still examining the Appellant's position when it allows for the indirect impact of the position of others. It is right to say that there are passages in Jack J’s judgment which suggested that a broader approach was being taken; which appeared to contradict what he said elsewhere. However, if a broader approach had been intended, which we doubt, we would not have followed it. We are bound by Kehinde which is correct as a matter of statutory interpretation.’
47. The Tribunal went on in paragraph 29 a follows:
‘Even were the Tribunal to have the power to look more widely than it does at the position of the family, it would still be necessary for those who were not the Appellant to identify themselves as “victims”. Only those who so identify themselves have the right to challenge decisions on human rights grounds by s.7 of the 1998 Act. It would be entirely inappropriate for someone, the Appellant, to seek to advance his case by reliance on the rights which he asserts for others which they do not seek to vindicate themselves.’
48. The Tribunal in paragraph 43 had regard to a number of decisions including that of Sen.
49. The Tribunal set out certain matters in paragraph 48 of its judgment as follows:
‘The appellant is now nearing 26. He was nearing 23 at the date of the decision. At that age, is it possible to have a family life with parents but one would normally expect something stronger than the normal ties of love and affection and concern for a child or parent’s wellbeing. There should be evidence of specific emotional dependency or a serious lack of maturity. There is no evidence of any especial mental or emotional dependency of the Appellant on his parents; he is financially dependent on them. Although he has illnesses in Malaysia, he is in good health and is not physically or mentally disabled. We would accept that he does at present enjoy some form of family life with them but that is inevitably one which will diminish as the years go by and the normal expectation would be that in the United Kingdom he would set up home away them in due course, as have his brother and sister, and that it would be stretching a point to say that he then enjoyed family life with them. We accept that a family life can be constituted by the relationship with adult siblings but it is not usually strong in the absence of any particular dependencies; they would normally be regarded as separate families who have grown up and gone their separate ways, however much the bond of affection and contact remained. This evolution reflects the way in which the rules make it fairly easy for children up to 12 years old to join their parents somewhat more difficult for those under 18, and impose very much more stringent tests for those over 18.’
50. That matter was further dealt with in the decision of AC (deportation – Article 8) Turkey [2004] UKIAT 00122. The Tribunal gave guidance as to the manner in which s.65 of the Immigration and Asylum Act 1999 is to be applied in cases where the immigration decision affects not only the appellant but also others including members of his family. The Tribunal stated (paragraph 17) et seq as follows:
’17. We regard it as clear that the effect of s.65 is to require the Adjudicator and the Tribunal to decide whether or not the decision breaches the appellant's human rights and not whether it breaches the rights of others who are not appellants. The appellant’s human rights are not breached by a decision relating to his entitlement to enter or remain simply because the right of someone else who is not an appellant may be breached by that decision. That another person has the ability, if a victim, to bring proceedings in the Administrative Court under s.7 of the 1998 Act. It may be cumbersome, but it avoids an appellant making claims related to someone else who may be unaware of what is being said or who may disagree with it. A child of divorced or separated parents may be in a particularly difficult position in this respect.
18. This is not to say that the position of others is always irrelevant. As the Tribunal pointed out in its ruling on this matter, the impact on the human rights of a third party may be relevant in this way. If their return to the country to which it is proposed to remove the appellant is precluded because that would put their Article 3 rights there at risk, that may be very material to the degree to which they might be able to unable to return and hence to the degree of interference with the appellant's rights which the latter’s removal might entail. We also accept, as Jack J pointed out in AC, that although the right to family life and the effect of interference on it is examined, under s.65, from the viewpoint of the appellant, the impact of separation on another may cause distress or anxiety to the appellant and that indirect impact on the appellant should be taken into account. It is right to recognise that although some family relationships may involve complete reciprocity, others, and parent child relationships are the obvious example, may be very different depending upon the person from whose viewpoint that matter is examined.
19. Although there was room for some argument before us as to the meaning of the judgment, we consider that, read as a whole, it is accepting the point that an appeal under s.65 must be determined by whether or not the decision breaches the right of the appellant in all the circumstances. We agree with Jack J’s observations if we are correct in our understanding of them; they are in line with Kehinde and with the paragraphs of the ruling referred to in the Order.’
51. The wording of s.65 of the 1999 Act is not materially different to that of s.84(1)(g) of the 2002 Act. The approach must be the same in considering issues arising under the 2002 Act consistently with what is stated in AC above. The Tribunal are therefore concerned only with whether or not the decision breaches the human rights of the appellant and not whether it breaches the rights of her daughters. We are entitled to take into account the impact on her of removal insofar as her separation from her children may cause her distress and anxiety or otherwise may affect her. This is particularly so given the nature of her depression as highlighted in the medical report as was be fore the Adjudicator.
52. We find therefore that the degree of focus which Miss Dubinsky has sought to place on the wellbeing of the daughters is one which is not supported by the authorities. Clearly, in looking at the issue of removal and whether or not it is proportional, it is right to have regard to the whole of the family unit but focussing particularly upon the impact of the removal upon the appellant. It is clear that in certain cases it would be impractical to separate the interests of children from that of the mother. In the recent Court of Appeal decision in CA that was precisely the concern of the court, namely the removal of the mother and the risk which that presented to her young child. Clearly the court had found the interest of the child in that case as being bound inextricably with the interests and removal of the mother.
53. Turning therefore to the elder daughter in the appeal before us, it should be noted that she is nineteen and is developing her own life and study. She is an adult and as time goes on she will move to university and will live apart from her mother for appreciable periods of time in all probability. It is the way with children that they will develop their own life and move away to some extent from the closeness of childhood dependence upon parents. There is nothing to indicate that the elder daughter is otherwise vulnerable or unduly dependant upon her mother. She managed to build up a life for herself in the United Kingdom in the period between her coming to the United Kingdom and her mother arriving. She was not alone in the United Kingdom and has close family members to whom she may turn and indeed to whom she did in fact turn initially. The Adjudicator set out her particular circumstances in paragraph 6 of the determination.
54. The Adjudicator at paragraph 32 comments as follows:
‘Taking initially the elder daughter, once a person is no longer a child, family life relationships may be considered to continue only if there continues to be a factual content to those relationships. The appellant's daughter has been in the United Kingdom since 2001, the appellant's daughter, has aunt and uncle and cousin in the United Kingdom. The appellant's daughter, although it may have been difficult has within that two year period settled into the United Kingdom educational system and is studying for her ‘A’ levels.’
55. We find that the Adjudicator has properly addressed the situation of the elder daughter. Relationships do change and the degree of closeness between parents and children will vary according to age and circumstances. We understand the Adjudicator to mean that in her speaking of “factual content”. There is nothing to indicate that the elder daughter would not be able to continue to make communication with her mother once her mother has returned to Sri Lanka. It was said by Miss Dubinsky that the tsunami has caused major disruption to Sri Lanka. There is no evidence that that is so in the area of Colombo. It may well be so in terms of the coastal region but there is nothing to indicate that the facilities of telephoning and contact would not be available in Colombo or indeed elsewhere.
56. The fact that the daughter is recognised as a refugee does not of itself mean that she is unable to return to Sri Lanka either on a permanent or basis or on a temporary one. Reference has already been made to SS (INLR Article 8 – return) Sri Lanka [2004] UKIAT 00126 and to the comments made in paragraph 10 thereof. The circumstances have considerably changed since the daughter came to the United Kingdom.
57. So far as the younger daughter is concerned, once again the Adjudicator has set out her situation and circumstances in paragraph 6 of the determination. In particular the Adjudicator has highlighted the matter which was stressed in the statement of( ), namely that she is relieved because her mother could resume the role of supporting her emotionally and be a parent again. The Adjudicator recognised that someone studying for ‘A’ levels is very much in need of care and support. There is nothing to indicate that the Adjudicator failed to appreciate such matters. It is said that the comment made by the Adjudicator to the effect that ‘the appellant's younger daughter is not required to remain in the United Kingdom and there are no insurmountable obstacles to her returning to Sri Lanka and contact between mother and daughter could still be maintained’ is in the event an error of law. We do not find it to be so. We recognise that there is some merit in the submissions on behalf of the appellant that the phrase ‘insurmountable obstacles’ should not be a mantra to be recited. Clearly in determining proportionality the whole nature of the relationship falls to be considered. As the case of SS 00126 makes clear, the fact of leave to remain simply means that the Secretary of State cannot give directions for removal but that does not prohibit the return. Essentially the younger daughter would have a choice upon the return of her mother. One would be to stay in the United Kingdom for the currency of her existing leave to complete her studies. She would have the support of her elder sister which she had before her mother came and the support of her wider family in the United Kingdom including her aunt. There is nothing to suggest that her mother could not maintain contact with her when returned. Alternatively, she could return with her mother to study in Sri Lanka. It is suggested that the tsunami has divested the infrastructure of Sri Lanka such that a return would be inappropriate or unduly harsh. We do not find that argument to be made out. It is clear that there has been widespread devastation of the coastal region but there was nothing to indicate that the infrastructure in Colombo is otherwise than functioning. In any event, there are relatives in Jaffna to whom the appellant and her daughter could return. There is no indication before us that those relatives have suffered adversely as a result of the tsunami in any event.
58. We detect an effort by Miss Dubinsky, as it were, to introduce considerations of asylum by the side door. She submits that the experiences of the appellant in Sri Lanka would be such that there would be a continuing interest in her by the authorities and that her failure to register in Colombo would be a matter acting to her detriment. The Adjudicator has determined the matter as to the safety of return and such was not the subject of permission to appeal in any event.
59. We find that the Adjudicator has borne in mind the balance of the family unit in her consideration of proportionality. She was right to focus upon the appellant in particular. We bear in mind the way in which proportionality should be approached, particularly in the light of Razgar [2004] UKHL 27 and Huang [2005] EWCA Civ 105. We do not find that this case is an exceptional one in all the circumstances. We do not find that there is any evidence to suggest that being separated from one or both of her children will result in the nature of the harm or hurt as envisaged in CA or in any way to make removal exceptional or disproportionate.
60. We do not find that the Adjudicator has made any material error of law in her assessment of the case.
61. In the circumstances therefore the appeal is dismissed.
P.D. KING TD
VICE PRESIDENT
23rd March 2005
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