Dasgupta (error of law – proportionality – correct approach)
| Jurisdiction | UK Non-devolved |
| Judge | THE HON. MR JUSTICE MCCLOSKEY |
| Judgment Date | 03 December 2015 |
| Neutral Citation | [2016] UKUT 28 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 03 December 2015 |
[2016] UKUT 28 (IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
The Hon. Mr Justice McCloskey, President
Upper Tribunal Judge Blum
Appellant: Mr R De Mello and Mr T Muman, both of Counsel, instructed by JM Wilson Solicitor
Respondent: Mr N Sheldon, of Counsel, instructed by the Government Legal Department
Dasgupta (error of law — proportionality — correct approach)
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(i) A tribunal's failure to make clear findings about family life is not per se erroneous in law where its existence has not been contested in the Secretary of State's decision and has not been challenged at the appeal hearing and the tribunal's decision is not otherwise unsustainable in law.
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(ii) The question of whether there is family life in a child/grandchild context requires a finding of something over and above normal emotional ties and will invariably be intensely fact sensitive.
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(iii) In error of law appeals, the Upper Tribunal should apply the principles in Edwards v Bairstow [1956] AC 14 .
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(iv) In appeals involving the proportionality of an interference with a Convention right, the ultimate question for the Upper Tribunal is whether the interference is proportionate, per Huang v Secretary of State for the Home Department [2007] 2 AC 167 .
The Appellant is a national of India, aged 85 years. The origins of this appeal to the Upper Tribunal are traceable to a decision made by the Entry Clearance Officer of New Delhi (the “ ECO”), dated 27 June 2013, whereby the Appellant's application for clearance to enter the United Kingdom as an adult dependant relative under Appendix FM of the Immigration Rules was refused. The Appellant's ensuing appeal to the First-tier Tribunal (the “ FtT”) was, by its determination promulgated on 06 August 2014, allowed. The appeal succeeded under Article 8 ECHR. The appeal was dismissed under the Immigration Rules. We shall elaborate on this infra.
The procedural developments thereafter may be described as somewhat atypical. First, the ECO, who is represented by the Secretary of State for the Home Department (“the Secretary of State”) sought, and was granted, permission to appeal. The permission Judge, in making this decision, highlighted: “ …. the weight which the Judge gives to the rights of the sponsor's children ….”, continuing:
“The Judge [arguably] erred in his application of the Rules and the jurisprudence relating to the Article 8 rights of the Appellant …..”
At the stage when this order was made the Appellant had an application, undetermined, seeking permission to appeal on the ground that the FtT should also have allowed the appeal under the Rules and decided that the adult dependant relative rule is, at least in part, not in accordance with the law and/or is incompatible with Article 8 ECHR. Next, having learned that the ECO had been granted permission to appeal, the Appellant's representatives lodged a “cross-appeal” on the same grounds. This elicited a grant of permission to appeal to the Appellant. By way of sketching the contextual framework of these combined appeals, it is appropriate to set out part of the decision of the second permission Judge:
“ It seems to me that the Appellant's submissions, in suggesting that the Upper Tribunal could deal simultaneously with the case as a judicial review (deploying a High Court Judge), has [sic] not only technical obstacles (no such application having been made) but overlooks that achallenge to the vires of the Rules is excluded by the Lord Chief Justice's Practice Direction governing UT judicial reviews. However, there is some authority for the proposition that in exercising its statutory ‘in accordance with the law’ jurisdiction …. the Upper Tribunal in deciding appeals cannot exclude issues going to vires.”
The scene is thus set.
The ECO noted that the Appellant's application for clearance to enter the United Kingdom had been made as an adult dependant relative under Appendix FM of the Rules. The ECO considered the application under paragraph EC-DR.1.1 thereof, continuing:
“ You have applied to join your sponsor in the UK [SD] and you have stated that she provides you with financial support in the form [of] providing you [with] accommodation here in India and payment of all of your utility bills and tax. However, you have not submitted any evidence of any financial support from your sponsor. You have also stated that you require care on a day to day basis due to both having medical conditions ……..
You are aged 83 years and state that you have end stage macular degeneration in both eyes, Glaucoma and Ischemic heart disease ….
From the evidence I am not satisfied that these conditions are so severe that you would both require long term personal care to perform everyday tasks ……
I am …. not satisfied that you require, due to either [sic] age, illness or disability, long term personal care to perform every day tasks. I therefore refuse your application under paragraph EC-DR1.1(d) of Appendix FM of the Immigration Rules.”
The decision of the ECO continues:
“ Additionally you state that you have employed your domestic help …. for several years and that she currently provides care for you; cooking for you and doing other daily chores. Although you state that only your daughter can provide the care you need, I am therefore not satisfied that you are unable to obtain the required level of care in India. I am also satisfied that the financial support your currently receive from your sponsor will continue and that any care if required could be provided through financial help from her.”
The decision of the FtT illuminates the factual matrix of this appeal (which we shall augment infra). The uncontentious facts recorded include that the Appellant is a widower and the sponsor is his daughter, a married lady who has two children now aged 15 and 14 years. The Appellant has been visiting this family with some frequency. His daughter is an NHS Doctor. She has undertaken in writing that she will be fully responsible for the maintenance, accommodation and care of the Appellant in the United Kingdom for a period of 5 years.
The appeal to the FtT was pursued on three bases:
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(a) The Appellant satisfied the age/illness/disability requirement enshrined in paragraph E-ECDR2.4/2.5 of the Rules.
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(b) In the alternative, the impugned decision infringed the Appellant's right to respect for family life under ECHR.
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(c) In the further alternative, the operative provisions of the Rules are incompatible with Article 8 ECHR.
The FtT determined the appeal in the following terms:
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(a) The relevant provisions of the Rules are not “ discriminatory, manifestly unjust, made in bad faith or [involving] an oppressive or gratuitous interference with people's rights …. [and are] not an inherently disproportionate interference with rights to respect for family life”.
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(b) In individual cases, any interference with the right to respect for family life would be in accordance with the law and pursues a legitimate aim.
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(c) The Appellant failed to demonstrate that “ … the sponsor is unable, with the practical and financial help of the sponsor [sic], to obtain the required level of care in India ….. [and] … does not meet the requirement E-ECDR.2.5 of Appendix FM”.
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(d) The Appellant's case satisfied the requirement of “ exceptionality”:
“ I find that there are such exceptional circumstances here, particularly the fact that there are children that are affected and also the cultural aspects. I find that the decision is a disproportionate interference with the family life of the Appellant and the sponsor and her children and therefore infringes Article 8 ECHR.”
In making this latter conclusion, the Judge explicitly considered section 55 of the Borders, Citizenship and Immigration Act 2009.
The Secretary of State's appeal and the Appellant's cross-appeal raise very different issues, as the following outline confirms:
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(a) The Secretary of State's primary case is that the FtT erred in law in concluding that there was family life protected by Article 8 ECHR.
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(b) It is contended, in the alternative, that the FtT erred in law in allowing the Appellant's appeal under Article 8 out with the framework of the Rules.
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(c) By his cross-appeal, the Appellant contends that that the FtT erred in law in dismissing his appeal under the Rules. The contention underlying this proposition is that the relevant provision of the Rules is unlawful as it is ultra vires and/or irrational and/or incompatible with Article 8.
Both parties agreed that the first question raised by the cross-appeal is whether this Tribunal is competent to consider a challenge of this kind. If “yes,” the second question is whether the Appellant's challenge to the offending provision of the Rules is established. If “yes”, the third question focuses on the consequences which follow, in broad terms the issue of relief or remedy.
First, we consider whether the finding of family life by the FtT is harmonious with legal principle. In this respect there is no shortage of guidance in the relevant jurisprudence, both domestic and international. In Kugathas v Secretary of State for the Home Department [2003] INLR 170, the Court of Appeal, in the context of considering a mother/adult son relationship, gave expression to certain general principles. The two main judgments enunciate with some emphasis the principle that normal emotional ties between a mother and adult son do not, without more, constitute family life under Article 8. This derives from S v United Kingdom [1984] 40 DR 196, at 198. Sedley LJ, adopting this approach, stated in [19]:
“ Neither...
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