Navaratnam Kugathas v Secretary of State for the Home Department

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLORD JUSTICE SEDLEY,LADY JUSTICE ARDEN,LORD JUSTICE SIMON BROWN
Judgment Date21 January 2003
Neutral Citation[2003] EWCA Civ 31
Docket NumberC1/2002/1943
Date21 January 2003

[2003] EWCA Civ 31

IN THE SUPREME COURT OF JUDICATURE

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE IMMIGRATION APPEAL TRIBUNAL

Royal Courts of Justice

Strand

London, WC2

Before:

Lord Justice Simon Brown

(Vice President of the Court of Appeal, Civil Division)

Lord Justice Sedley

Lady Justice Arden

C1/2002/1943

Navaratnam Kugathas
Appellant
and
The Secretary of State for the Home Department
Respondent

MR M GILL QC AND MR M JACKSON (instructed by Alaga & Co, London SW17 0SF) appeared on behalf of the Appellant

MR R TAM (instructed by the Treasury Solicitor) appeared on behalf of the Respondent

LORD JUSTICE SEDLEY
1

This is an appeal, by permission of Schiemann LJ, by a Sri Lankan asylum-seeker against the oversetting by the Immigration Appeal Tribunal of an adjudicator's decision in his favour.

2

The decision in question, given by Mr PS Aujla on 18 January 2002, rejected the applicant's asylum claim on grounds of credibility but upheld his appeal against removal on the ground that to remove him would disproportionately interfere with the respect due under Article 8 to his family life. On the Home Secretary's appeal the IAT overset the latter decision. There was no cross appeal on the asylum question.

3

The appellant is now (probably) 38 years old. The relevant facts are simple and can be taken from the adjudicator's written decision at paragraph 27:

"Apart from the issue of persecution and ill-treatment, I find that the other relevant material facts have established that the Appellant has the following relations in Germany who have been granted asylum there: his mother, brother, sister and sister's husband and their infant child. Copies of their passports/ID cards have been put before me. I am prepared to accept that these are the Appellant's genuine relations. I also accept that he is a single man who has no family in Sri Lanka. His sister has been to visit him here in the United Kingdom once and he has regular contact with them all by telephone."

The adjudicator had earlier recorded that in 1986 the applicant's father had been killed by the Sri Lankan security forces.

4

The adjudicator's conclusions on the subject were these:

"35. Under this Article I have to determine the following separate questions:

1. Is there an interference with the right to respect for private life (which includes the right to physical and moral integrity) and family life?

2. Is that interference in accordance with the law?

3. Does that interference have legitimate aims?

4. Is the interference proportionate in a democratic society to the legitimate aim to be achieved?

36. The Appellant does not have an established family life in Sri Lanka as he has no member of the family left there and he has been away from the country for the last 17 years. He left the country when he was very young. He is a single man with members of his close family living in Germany and enjoying their company, in person or by telephonic contact, is his 'family life'. He has no established family life in the United Kingdom either. However, whatever family life he has anywhere in the world, he is entitled to have access to it and enjoy it from the least convenient location in the world. The Appellant's sister has been to visit him in the United Kingdom and no doubt the other members would come to visit him as well as time goes by. Equally, if he himself were in a position to visit them in Germany in the future, I have no doubt he would visit them and enjoy their company, especially that of his mother. He keeps in contact with the family by telephoning them regularly.

37. The Appellant will not be able to enjoy the family life with his family in Germany if he is returned to Sri Lanka with the same ease and convenience as he has been so far doing while in the United Kingdom. The quality and strength of that enjoyment will diminish to a non-existent level, on account of the distance and the expense of telephone calls if he is to be removed to Sri Lanka. In the circumstances, although the Appellant has no family in the United Kingdom, I find that he still does have a 'family life' here for the purposes of the 1950 Convention. I therefore find that his protected rights under this Article are engaged which will be breached if he is returned to Sri Lanka. I find that the interference with his rights is not proportionate to the Respondent's legitimate aim of regulating immigration control."

5

The Home Secretary sought permission to appeal to the IAT and was granted it. It is apparent from the IAT's reasons that the grounds challenged all the elements of the adjudicator's decision, but the focus of the appeal was the adjudicator's holding that although the appellant had no family in the United Kingdom, he nevertheless enjoyed a family life here through contact with his close relatives in Germany, a contact which, in the adjudicator's opinion, he could not enjoy as fully if he had to maintain his contacts from Sri Lanka.

6

This was without any doubt an appealable decision, but it did not hinge on any question of law as to where, if anywhere, the material family life had to be located for Article 8 purposes.

7

The IAT, however (Mr JA O'Brien Quinn QC and Mr Davey) in a decision of fewer than three pages promulgated on 11 June 2002, almost seven weeks after the hearing that had taken place before them, held that the adjudicator had erred in law in failing to confine the meaning of family life to family life in the United Kingdom. They held:

"15. The situation as we see it is, that for a person to claim that there would be an interference with his private and family life here, he must first establish that he has a family life in the United Kingdom. However, it was found by the Adjudicator that the appellant had not established a family life in the United Kingdom. What the Adjudicator found was that the [appellant] had left Sri Lanka 17 years ago and had no established family life there, but, although he had not established family life in the United Kingdom either, he did have a 'family life' here for the purpose of the 1950 Convention as he would not be able to enjoy family life with his family in Germany if he were returned to Sri Lanka with the same ease and convenience which he has been doing so far while in the United Kingdom. The Adjudicator found that the quality and strength of that enjoyment would diminish to a non-existent level on account of the distance and expense of telephone calls if the appellant were removed to Sri Lanka.

16. In our considered opinion, the contention that the appellant would not be able to enjoy family life with his family in Germany, if he were returned to Sri Lanka, with the same ease and convenience as he as been so far doing while in the United Kingdom, cannot establish that the [appellant] has a family life in the United Kingdom. Either the appellant has family life in the United Kingdom or he has not. He cannot establish a family life in the United Kingdom on the basis that it is more convenient for him to be in contact with his relatives in Germany from the United Kingdom rather than from Sri Lanka."

The IAT accordingly allowed the Home Secretary's appeal on a ground which Schiemann LJ, in granting permission to appeal, understandably considered to be of general importance.

8

Before us, however, Mr Robin Tam for the Home Secretary has not sought to sustain the IAT's decision on the ground which it gave. In the skeleton argument drafted by Mr Kovats, the same series of questions is rightly adopted as the adjudicator had adopted in paragraph 35 of his decision, but the first of the adjudicator's questions is broken down into two parts:

(1) Does the appellant enjoy (ie have) family life?

(2) If yes, will removing him from the United Kingdom be an interference with his right to respect for his family life? This I would hold to be a correct approach. While it will no doubt make it very difficult in most cases to establish interference with family life by removal from the United Kingdom if the family life which is established is located or centred elsewhere, it involves no such territorial barrier as the IAT, for no articulated reason, accorded to it.

9

The subsequent decision of a differently composed Immigration Appeal Tribunal (Collins J, Mr Mather and Mr Baines) in Entry Clearance Officer, Lagos v Imoh [2002] UKIAT 01967 gives no support to the proposition advanced by the IAT in the present case. Imoh was a case in which the aunt and uncle of an orphaned four-year-old Nigerian girl had sought entry clearance to bring her to live with them in the United Kingdom. Addressing the relevance of Article 8 to such a decision (where by definition the applicant herself is not in the United Kingdom) the IAT said:

"The fact is in our judgment that there is no family life in this case. What is being done here is an attempt to create a family life in this country. In our view Article 8 requires that there is as a matter of fact a family life in existence and the mere payment of money for the care of a child, and one visit to see that child, is not capable of creating a family life. Furthermore, the purpose behind the...

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