FK & OK (Botswana) v Secretary of State for the Home Department

JurisdictionEngland & Wales
JudgeSir Stanley Burnton,Lord Justice Davis,Lord Justice Elias
Judgment Date26 March 2013
Neutral Citation[2013] EWCA Civ 238
CourtCourt of Appeal (Civil Division)
Docket NumberCase No: C5/2012/0670
Date26 March 2013

[2013] EWCA Civ 238


On appeal from the Upper Tribunal (Immigration and Asylum Chamber)

Upper Tribunal Judge Hanson

Royal Courts of Justice

Strand, London, WC2A 2LL


Lord Justice Elias

Lord Justice Davis


Sir Stanley Burnton

Case No: C5/2012/0670

FK & OK (Botswana)
Secretary of State for the Home Department

Abid MAHMOOD (instructed by Wilson LLP) for the A ppellant

Susan CHAN (instructed by Treasury Solicitor) for the Respondent

Hearing date: 20th March 2013

Sir Stanley Burnton



This is an appeal against the determination of Upper Tribunal Judge Hanson, sitting in the Upper Tribunal (Immigration and Asylum Chamber), dismissing the appellants' appeals against the Secretary of State's rejection of their asylum and human rights claims to remain in this country.

The background


Both appellants are nationals of Botswana. The first appellant claimed asylum and humanitarian protection on the ground that she feared violence at the hands of her husband if she were returned to Botswana. She also claimed that her removal would infringe her rights under article 8 of the European Convention on Human Rights. The second appellant is her daughter. She was born in 1990, and is 22 years old. The first appellant came to this country in 2003 as a visitor, and was granted leave to remain until March 2004. Her leave was then extended until 31 May 2005. On the expiration of her leave she made a further application to remain as a student.


The second appellant came to this country in August 2004, aged 13, and was granted leave to enter for 6 months as a visitor. In April 2005 she was granted leave to remain until May 2005 as the dependent of her mother. Further applications to remain were refused in September 2005 on the ground that the Secretary of State was not satisfied that the first appellant had not worked without the necessary consent. The first appellant did not appeal against that decision, but remained in this country with her daughter, who attended school here. In September 2010 the first appellant claimed asylum. Her claim was refused by the Secretary of State in October 2010. Thus between September 2005 and September 2010 both appellants remained in this country without leave to remain.


The appellants' claims for asylum and humanitarian protection on the basis of the fear of violence from the first appellant's husband were dismissed by both the First-tier Tribunal and the Upper Tribunal, essentially on the grounds of the availability of adequate protection from the government authorities in Botswana and their ability to relocate there to a sufficiently safe location, and permission to appeal against that finding was refused by both the Upper Tribunal and the Court of Appeal. This appeal is confined to the appellants' claims under article 8 of the European Convention on Human Rights. The first appellant's article 8 claim, if it stood alone, was rejected for reasons that have not been the subject of appeal. In giving permission to appeal to the second appellant in respect of her article 8 claim Sir Richard Buxton stated that if the second appellant's article 8 appeal was successful, with the result that she remained in this country, her mother's article 8 claim would have to be considered. In essence, therefore, both appellants' appeals turn on the second appellant's article 8 appeal, and it is her case that I shall now consider.

The facts


The Upper Tribunal Judge found that the appellants had family life together recognised by article 8, and that their private life was also engaged. It followed that their removal required to be justified under article 8.2. In paragraphs 128 and 129 of his determination, he summarised the facts relied upon by the second appellant in support of her claim. She had been in the UK for 7 years, during which she had been a minor for 5 years. She had a strong private life here, having been educated here, and she had a deferred offer of a place at university. She undertook voluntary work in this country, and was a very active member of her church, to which her contribution had been recognised by letters and witness statements submitted in her support. If allowed to remain here, her contribution to the church locally and within wider society could be expanded. She and her mother had shown themselves to be law-abiding.


The Upper Tribunal Judge took into account the fact that the private life of the appellants could not be replicated in Botswana: see paragraph 134 of his determination.


In making his assessment of the proportionality of removal, the Upper Tribunal Judge said, at paragraphs 143 to 145 of his determination:

"143. Opelo entered the United Kingdom on 15 th August 2004 when she was thirteen years of age. She therefore spent the first thirteen years of her life growing up in Botswana. She only had lawful leave for a period of six months s a visitor, which would have expired in January 2005, and when her leave was extended in April 2005 until May 2005 as a dependant of her mother. Thereafter all subsequent applications were refused and so she has been in the...

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27 cases
  • Shahzad (Art 8: Legitimate Aim) [Asylum and Immigration Tribunal]
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    • Upper Tribunal (Immigration and Asylum Chamber)
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    ...of proportionality under Article 8 of the Convention (see Nunez, cited above, § 73).” 71 In a similar vein, Sir Stanley Burnton in FK & OK (Botswana) [2013] EWCA Civ 238 at [11] stated (in relation to non-criminal cases): “[t]hat the individuals concerned in the present case are law-abidin......
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    ...aspect of the public interest in the economic well-being of the country by Sir Stanley Burnton in FK and OK (Botswana) v SSHD [2013] EWCA Civ 238 at [11]. There is no doubt, that C1 and C2’s presence in the UK will impose a significant burden upon public resources in the NHS. There will als......
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    ...11, the European Court of Human rights said that the State enjoyed a margin of appreciation under Article 8. In FK and OK Botswana [2013] EWCA Civ 238 Sir Stanley Burnton said that "The maintenance of immigration control is not an aim that is implied for the purposes of article 8.2. Its mai......
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