Beoku-Betts v Secretary of State for the Home Department

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeBARONESS HALE OF RICHMOND,LORD BROWN OF EATON-UNDER-HEYWOOD,LORD SCOTT OF FOSCOTE,LORD HOPE OF CRAIGHEAD,LORD BINGHAM OF CORNHILL
Judgment Date25 Jun 2008
Neutral Citation[2008] UKHL 39

[2008] UKHL 39

HOUSE OF LORDS

Appellate Committee

Lord Bingham of Cornhill

Lord Hope of Craighead

Lord Scott of Foscote

Baroness Hale of Richmond

Lord Brown of Eaton-under-Heywood

Beoku-Betts (FC)
(Appellant)
and
Secretary of State for the Home Department

Appellant:

Richard Drabble QC

Sonali Naik

(Instructed by Irving & Co)

Respondent:

Monica Carss-Frisk QC

Adam Robb

(Instructed by Treasury Solicitor)

LORD BINGHAM OF CORNHILL

My Lords,

1

I have had the advantage of reading in draft the opinion of my noble and learned friend Lord Brown of Eaton-under-Heywood. I am in full agreement with it and would, for the reasons he gives, make the order he proposes.

LORD HOPE OF CRAIGHEAD

My Lords,

2

I have had the advantage of reading in draft the opinion of my noble and learned friend Lord Brown of Eaton-under-Heywood. I agree with it, and for the reason he gives I would allow the appeal and make the order he proposes.

LORD SCOTT OF FOSCOTE

My Lords,

3

I, too, have had the advantage of reading in draft the opinion prepared by my noble and learned friend Lord Brown of Eaton-under-Heywood. The reasons given by my noble and learned friend for allowing the appeal are, in my opinion, wholly persuasive and I am in full agreement with them. I would make the order that he proposes.

BARONESS HALE OF RICHMOND

My Lords,

4

I am in full agreement with the opinion of my noble and learned friend Lord Brown of Eaton-under-Heywood and for the reasons he gives I too would allow this appeal and reinstate the adjudicator's decision in the appellant's favour. To insist that an appeal to the Asylum and Immigration Tribunal consider only the effect upon other family members as it affects the appellant, and that a judicial review brought by other family members considers only the effect upon the appellant as it affects them, is not only artificial and impracticable. It also risks missing the central point about family life, which is that the whole is greater than the sum of its individual parts. The right to respect for the family life of one necessarily encompasses the right to respect for the family life of others, normally a spouse or minor children, with whom that family life is enjoyed.

The issue

LORD BROWN OF EATON-UNDER-HEYWOOD

My Lords,

5

In determining an appeal under section 65 of the Immigration and Asylum Act 1999 (the 1999 Act) (now sections 82 and 84 of the Nationality, Immigration and Asylum Act 2002 (the 2002 Act)) against the Secretary of State's refusal of leave to remain on the ground that to remove the appellant would interfere disproportionately with his article 8 right to respect for his family life, should the immigration appellate authorities take account of the impact of his proposed removal upon all those sharing family life with him or only its impact upon him personally (taking account of the impact on other family members only indirectly ie. only insofar as this would in turn have an effect upon him)?

6

That is the central question for your Lordships' determination on this appeal.

The background

7

The appellant is a citizen of Sierra Leone, now aged 29, who on 9 November 1997, just short of his 19th birthday, arrived in the United Kingdom from Senegal following a military coup in Sierra Leone. Initially he was granted 12 months' leave to enter as a student. Having completed his A-levels he began to study law at university, obtaining the necessary extensions of leave until 31 December 2000 when his final leave expired; he had mistakenly thought it continued until the end of his course.

8

The appellant is a member of a prominent and comparatively wealthy Creole family from Freetown which for generations had been involved in political life in Sierra Leone. His father was a friend of President Kabbah whose government was overthrown by the coup and, although in the coup no member of the family suffered physical harm, he and his elder brother Seth were subject to a terrifying mock execution and understandably the family sought refuge.

9

The appellant's elder sister, Josepha, is a British citizen (born here in 1973) and has lived here continuously since 1993. The rest of the family left Sierra Leone in stages, Seth going to the USA and the appellant being followed to the UK by his mother, father and a younger sister, Candace. His father registered as a British citizen in May 1998 (having originally applied as long ago as 1972) but died of cancer in December that year. Under the immigration policy then in force, the appellant's mother and Candace, as dependants, were both granted indefinite leave to remain in October 1998; the appellant was unable to benefit from the policy.

10

On 1 June 2001 (shortly after discovering that his leave had expired) the appellant claimed asylum and also the right to remain under articles 3 and 8 of ECHR. On 27 February 2002 the Secretary of State refused both claims. The appellant appealed.

The three successive appeal hearings below

11

On 30 January 2003 the adjudicator dismissed the appellant's asylum appeal but allowed his human rights appeal on the article 8 ground. As for the asylum appeal he accepted that "the appellant's situation in Sierra Leone at the time of his departure was life-threatening due to his family's political connections" but found that the situation in Sierra Leone had improved significantly not least because of President Kabbah's return to power, although conditions there remained "comparatively harsh".

12

On the article 8 appeal the evidence included a number of statements from members of the appellant's family. The adjudicator expressed himself satisfied that "the appellant's family is close-knit and interacts on a very regular basis", that "the appellant has a strong relationship with his sisters" and "currently resides with his mother and younger sister", travelling home most weekends during university term time. The appellant also has "a range of cousins and uncles in the United Kingdom". As for the suggestion that the "appellant's mother relied upon him for emotional support", this he found "entirely natural in the circumstances of the family's departure from Sierra Leone and the death of [her husband] in 1998". He noted that Josepha was employed in a local law firm, that Candace (then 13) was clearly doing very well at school, and that her mother worked full-time as a study supervisor at that school. He expressed himself satisfied that the family "would not return to Sierra Leone even if the appellant was returned. Consequently, if the appellant's article 8 claim were to fail, … he would be separated from his family". Having directed himself to "consider whether the interference with the appellant's family rights, which would obviously interfere with the family as a whole, is justified in the interest of controlling immigration", he concluded that the appellant's return to Sierra Leone would indeed be disproportionate so as to breach article 8.

13

On 5 September 2003 the Immigration Appeal Tribunal allowed the Secretary of State's appeal. For present purposes the critical paragraph in the Tribunal's determination is this:

"14. So far as the article 8 claim is concerned, we take the view that the adjudicator has placed too much emphasis on the position of the respondent's mother and siblings. It is not disputed that this is a close family with a not inconsiderable amount of inter-dependence, but it has to be borne in mind that it is the position of the respondent with regard to article 8 that is being considered and not that of his mother and siblings. In our view, the approach of the adjudicator … is flawed to the extent that it places considerable importance on the position of other members of the respondent's family."

14

On 4 November 2003 the Immigration Appeal Tribunal gave leave to appeal to the Court of Appeal on one ground only, namely "as to the extent to which the position of the claimant's family members was to be taken into account. There are apparently conflicting decisions by the tribunal in Kehinde… and at first instance on judicial review by Jack J in AC [2003] EWHC 389 (Admin) which it is desirable the Court of Appeal should resolve".

15

On 6 June 2005 the Court of Appeal (Brooke, Latham and Lloyd LJJ) dismissed the appellant's appeal. Latham LJ gave the single reasoned judgment. Para 12 is central:

"Under section 65 of [the 1999 Act], the right of appeal on human rights grounds requires consideration of the alleged breach of the appellant's human rights. In the present case this required the adjudicator to concentrate on the effects of removal on the appellant. True it is, as Jack J said in R (AC) v Immigration Appeal Tribunal [2003] EWHC 389 (Admin) [2003] INLR 507, the effect on others might have an effect on an appellant, nonetheless it is the consequence to the appellant which is the relevant consequence. In the context of a merits appeal, which this was, the tribunal was entitled to conclude that the adjudicator had allowed his judgment to be affected unduly by the effect of removal on the remainder of the family in particular his mother. Further, the adjudicator does not suggest that the effect on the family, let alone the appellant, amounted to an exceptional circumstance."

16

Although by no means central to this appeal I should at this point briefly note two matters. First, that both the adjudicator and the IAT had directed themselves in accordance with R (Mahmood) v Secretary of State for the Home Department [2001] 1 WLR 840 to ask whether the Secretary of State as the decision-maker could reasonably have concluded that the interference with the appellant's article 8 rights were proportionate in the interests of immigration control-an approach subsequently corrected by the Court of Appeal's later decision in Huang v Secretary of State for...

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