MT (Zimbabwe) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Buxton,Lord Justice Waller,Lord Justice Lloyd |
| Judgment Date | 25 April 2007 |
| Neutral Citation | [2007] EWCA Civ 455 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C5/2006/1978 |
| Date | 25 April 2007 |
[2007] EWCA Civ 455
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
[AIT No. HX/22972/2003]
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Waller
Lord Justice Buxton and
Lord Justice Lloyd
Case No: C5/2006/1978
MR D BAZINI (instructed by Immigration Advisory Service) appeared on behalf of the Appellant.
MR N SHELDON (instructed by Treasury Solicitors) appeared on behalf of the Defendant.
The appellant, Ms MT, was born on 8 March 1981. She arrived in the United Kingdom in September 2002 and claimed asylum on arrival. That was four-and-a-half years ago. Since that date she has been continuously engaged in the asylum and immigration processes of this country. There have, in fact, been five tribunal hearings of one sort or another in respect of her case. I do not need to give any further account of them. They are set out in some detail in paragraphs 4–11 of the determination of the Asylum and Immigration Tribunal under appeal in this case.
We are concerned with a decision of an adjudicator, again as long ago as 13 September 2004. Claims were made on Ms MT's behalf, both for asylum and under the European Convention on Human Rights. The adjudicator dismissed the asylum appeal and the human rights appeal so far as they sought to engage articles 2 and 3, but she allowed the human rights appeal under article 8 of the convention. That was subject to an appeal by the Secretary of State to the Asylum and Immigration Tribunal, which was heard on 9 May 2006. The tribunal upheld the adjudicator on the asylum claim but reversed her on article 8 and therefore dismissed the appeal on human rights grounds.
Ms MT appealed both parts of the AIT's decision. She was refused permission to appeal to this court on the asylum claim and that is no longer in issue, but she was granted permission on the article 8 point by Sedley LJ, who in granting permission said this:
“It is arguable that the adjudicator's article 8 decision was legally sound and factually tenable and so should have been upheld by the AIT. While such claims are never easy, the finding of family life was arguably sound, and the finding that removal would be disproportionate—a mixed question of law and fact—not demonstrably erroneous or intrinsically perverse.”
The background to the case was that in Zimbabwe Ms MT's family had been involved with the Movement for Democratic Change, an opposition group to the then ruling regime, and in that connection the adjudicator found that she might have suffered, or at least witnessed, violence on the part of the authorities. Her mother died in 1996 and since the death of her mother she had lived with her cousin, a Mr G. He was and was accepted to be an MDC activist and Ms MT's involvement and awareness of the persecution directed at the MDC came through her family relationship and indeed her common residence with Mr G. He has come to this country and has refugee status here, and when Ms MT came here, she continued to live with him here with his family (his wife and young children).
The adjudicator's conclusion as to Ms MT's asylum claim bears setting out. Taken from paragraph 43 of her determination, she said this:
“… I am not satisfied that the Appellant faces a well founded fear of persecution for reasoned political opinion. The option of internal flight is open to her should she feel she has concerns about return to the same locality. I accept that as a single young woman she may encounter difficulties but there does appear to be the opportunity with Mr G's sister or brother. I do not consider that it would be unduly harsh to expect her to live elsewhere in Zimbabwe.”
The adjudicator then went on to consider the article 8 application and she did that in paragraphs 45–50 of her determination:
“The Appellant has lived with her cousin since 1996 when she was fourteen years old. Although she has other brothers and sisters she has now lost contact with them and has not seen them since 2000. Given that she has lived with the family for eight years I am satisfied that she has established a family life with them.
“I have considered whether this family life is one which can fall within the ambit of Article 8 given that the Appellant is now an adult and the relationship is that of cousins. While it is generally the case that relationships between adult relatives would not necessarily fall within the ambit of Article 8 it is a question of fact in each case whether there are strong enough family ties and more than the normal emotional bonds. In considering this I have taken account of the fact the Appellant has lived with her cousin since her mother dies in 1996when she was fourteen years old. She sees her cousin as a father figure and she has been part of the lives of his children since they were babies. The relationship between the Appellant and her cousin is more akin to father and daughter rather than cousins. The Appellant and her cousin have given evidence that in their culture the girl remains in the family home until she is married. I am satisfied that there exist strong family ties between the Appellant and her cousin and his family. I find that she is more than normally emotionally dependent on him and his family as they are in fact the only family she now has and because of the experiences in Zimbabwe. I am satisfied that the relationship which exists between them is sufficiently strong to engage Article 8.
“Therefore if she were returned to Zimbabwe this family life would be interfered with but such interference is set out in the law and is in pursuance of the legitimate aim of maintaining fair and firm immigration control.
“In considering whether such interference is proportionate I have taken account of the following factors. The Appellant has lived with her cousin for eight years and is an established member of his family. If she were returned to Zimbabwe there would be an insurmountable obstacle to her continuing this family life there. Mr G has been granted refugee status on the basis of the risk of persecution; he is not able at this time to return there with the Appellant and the rest of his family.
“I have also considered that it may be open to the Appellant to return to Zimbabwe and to maintain her contact through visits, telephone calls and correspondence but given the nature of the family life she has with her cousin, and his family I do not find that this would enable her to maintain this family life.
“I have taken account of the legitimate aim of immigration control and the fact that generally this would take precedence but I consider in the case that the balance just falls in favour of the Appellant. I find that her family life with her cousin and his family would be disproportionately interfered with by her return to Zimbabwe.”
The Asylum and Immigration Tribunal gave its reasons for reversing that conclusion in paragraphs 23–29 of its determination:
“The appellant is now 25 years of age. When she arrived in the UK she was 22 years. She came to the UK with her cousin Mr G. Both the appellant and her cousin have submitted witness statements and other evidence in support of the claim. It appears that the appellant has lived with her cousin since 1996 when she was 14 years old. She appears to have lost contact with her other brothers and sisters. The adjudicator was satisfied that the appellant had established a family life with her cousin, his wife and her children.
“It appears the appellant treats her cousin as a father figure. She has helped him and his wife to raise their children. She apparently relies on Mr G for emotional support, maintenance and accommodation. We accept as previous tribunals have accepted' that Mr G has become a type of stepfather to the appellant and assumed the role of father to her.
“The adjudicator considered that a return to Zimbabwe would interfere with the appellant's family life with her cousin and family. The cousin has been granted refugee status on the basis of risk of persecution. He is not able to return with the appellant and the rest of his family to Zimbabwe. The adjudicator concluded that visits, telephone calls and correspondence with her cousin would not enable her to maintain family life. In taking account of immigration control, the adjudicator found that the appellant's “family life with her cousin and his family would be disproportionately interfered with by her return to Zimbabwe”.
“The respondent argued, when applying for permission to appeal to the IAT that the adjudicator had erred in law in her approach to the appellant's article 8 rights. The adjudicator found that the appellant “is more than normally emotionally dependent on (her cousin) and his family as they are in fact the only family she now has and because of the experience in Zimbabwe”. In his application for permission to appeal, the respondent argued that the adjudicator had failed to give reasons as to how this relationship is “beyond what would normally be accepted between adult family members and an adult child and parent”. This is the test which needs to be met in accordance with N (Sri Lanka) [2004] UKAIT 0069. The adjudicator gave no adequate reasons for this finding. We can see nothing in the evidence which takes the admittedly close relationship between the appellant and her cousin's family beyond the normal family ties between an adult child and her family. In our judgment, the appellant has failed to establish that her right to “family life” is engaged.
“There is no question and it has not been argued...
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