PT (Sri Lanka) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Sedley,Lord Justice Pitchford,Lady Justice Arden,Lord Justice Thorpe |
| Judgment Date | 16 February 2010 |
| Neutral Citation | [2009] EWCA Civ 1149,[2010] EWCA Civ 251 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C5/2009/1166 |
| Date | 16 February 2010 |
[2009] EWCA Civ 1149
IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM & IMMIGRATION TRIBUNAL [AIT No: AA/12935/2007]
Lord Justice Sedley
Case No: C5/2009/1166
Ms S Jegarajah (instructed by Messrs K Ravi) appeared on behalf of the Appellant.
THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED.
Lord Justice Sedley:
Ms Jegarajah, with her customary persuasiveness, appears this morning for an appellant who is a Sri Lankan national. With his wife he arrived here at the end of August 2007. He claimed asylum, with his wife as a dependant, but the asylum claim has failed. It is material that there has been no undue delay in the processing of that claim. The failure of the claim was followed by an appeal which was heard in December 2008 and went against the appellants. A more embarrassing delay has been the lapse of time from then until now. It has however resulted in July this year in a refusal by Longmore LJ of permission to appeal on sight of the papers. I have to say that upon renewal and upon my reading of the papers I was strongly disposed to take the same course.
The reason I am not going to do so is this. Although the designated Immigration Judge was sceptical of the dependability of much of the evidence given in court by the appellant, his decision accepted and established at least this much: that the appellant couple when they came here joined their daughter, who had been effectively abandoned by her husband, together with her children. The wife as grandmother has helped to fill that gap by becoming an integral part of the family unit and taking a considerable part of the burden off the daughter's shoulders.
At paragraph 41, the Immigration Judge said:
“The evidence is that the Appellant and especially his wife take an active part in their daughter's household and in caring for their grandchildren. I accept that they are able to give each other mutual support and their lives are fraught in that the Appellant's daughter states she is separated from her husband and is a single parent, her father is not in the best of health and the immigration status of her parents is uncertain. Beyond that I can place little weight on their evidence.”
At paragraph 49 the Immigration Judge made it clear that he was taking into account all the elements of the family unit which had been constituted in the period of the asylum application, but he rejected the claim at paragraph 50 on the ground that more than mere hardship or mere difficulty must be shown and that there must be sufficiently serious interference with family life for there to be a breach.
I am not convinced that that was the right way to approach it. It seems to me, and it seemed I think at other points of the determination to the Immigration Judge, that the real question underlying the determination was whether, giving full weight to the jurisprudence which preceded and has followed the Beoku-Betts case in the House of Lords ([2008] UKHL 40), it was really possible to allow a successful Article 8 claim to be erected entirely on the basis of a family life which has only come into being because an asylum claim which turned out to be ill-founded had been made and processed. That seems to me to be a question of principle which if it is answered in the sense in which the Immigration Judge answered it, would be an end of this case, but if answered in the sense in which Ms Jegarajah wants it to be answered, might open up the question whether this was a sufficiently reasoned conclusion.
There are difficult borderline issues in this class of case. If, for example, the processing of the asylum claim was done not merely in the relatively brief time that this one took but for no good reason dragged on for years, it might be much more difficult for the Home Office to say that reliance cannot be placed on the passage of time in establishing family life. I can see also that there may be cases in which, even though the claims have been processed expeditiously, some unexpected event of a possibly catastrophic nature, for example the orphaning of grandchildren, has led to the constitution of a family involving the appellants which could not have been foreseen but which is now real and has got to be faced in dealing with the Article 8 issue.
But this is neither of those two cases. It is in a sense a paradigm case —and this is why I am giving permission to appeal —in which the genuineness of the family unit that has developed is not in doubt but the basis of it has been simply the relatively brief time that has elapsed in the course of making an unsustainable asylum claim. I do not think that this claim necessarily has a better than even chance of success, but I do think that the question of principle which it throws up may well be of assistance in developing the jurisprudence of Article 8 post- Beoku-Betts, and for that reason deserves the attention of this court.
Order: Application granted.
[2010] EWCA Civ 251
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ASYLUM AND IMMIGRATION TRUBINAL
(Senior Immigration Judge Taylor)
Before: Lord Justice Pitchford
Lady Justice Arden
and
Lord Justice Thorpe
Case No: C5/2009/1166
Miss S Jegarajah (instructed by Messrs K Ravi appeared on behalf of the Appellant.
Mr M Barnes (instructed by Treasury Solicitors) appeared on behalf of the Respondent.
Lord Justice Pitchford:
The appellant and his wife are Sri Lankan nationals. They arrived in the United Kingdom on 31 August 2007. The appellant is now aged 76 and his wife is aged 65. They have, since their arrival, been living as a family unit with their daughter, whom I shall call VJ, and her two children, now aged seven and five years.
The appellant and his wife were refused asylum on 15 November 2007, against which decision the appellant appealed to the Immigration Appeal Tribunal. In a determination of 27 May 2008 Immigration Judge Beg dismissed the appeal on both asylum and human rights grounds, including the appellant's claim under Article 8 of the ECHR. Following her determination the decision of the House of Lords in Beoku-Betts v SSHD [2008] UKHL 38, [2008] 3 WLR 166 was published. On 29 October 2008 Senior Immigration Judge Martin ordered reconsideration of the appellant's Article 8 appeal. That hearing took place before Designated Immigration Judge (“IJ”) Shaerf, who dismissed the appeal in a determination dated 23 December 2008. The appellant now appeals with the permission of Sedley LJ given upon a renewed oral application by Miss Shivani Jegarajah, who continues to represent the appellant before the full court.
The issue raised by the appeal, as identified by Sedley LJ, is whether IJ Shaerf adopted the correct legal approach to the issue of proportionality, and if so whether he was right to discount the weight to be given to a family life formed only while the appellant's unsuccessful asylum claim was being processed.
Before considering the IJ's application of Article 8 principles it is necessary first to summarise the evidence and the judge's findings of fact. The appellant himself did not give evidence. He had, however, been interviewed. He suffered from diabetes, for which he took medication. It was represented by his advocate at the appeal hearing that he was prone to confusion, although the judge later observed that no medical evidence was relied on to support that assertion. Oral evidence in support of the appeal was given by the appellant's wife and daughter. It was common ground that the appellant and his wife had three children, two adult sons and their daughter VJ. The sons had also left Sri Lanka and were living at the time of the appeal in Europe. VJ herself came to the United Kingdom in 1997. She sought asylum, married in 1999 and had her two children. In 2005 she and her husband were given indefinite leave to remain. According to VJ, she and her husband separated in May 2006 and she moved with her children to a house close to their primary school. At the end of August or beginning of September 2007 her parents moved in with her following their arrival in the United Kingdom.
On 28 July 2008 Guildford County Court made an order upon the application of the children's father for supervised contact with the children on 5 and 18 August 2008 when they were to be accompanied by the appellant's wife. We are told by Miss Jegarajah that although there was initial contact there was certainly no contact with the father during 2009. According to VJ's evidence there had been violence in the marriage which on one occasion had been witnessed by the appellant's wife, which she also confirmed in evidence. Remarkably, however, there was no allegation to that effect. In a copy divorce petition produced in evidence VJ said that her husband had deserted her. Her mother, on the contrary, gave evidence that they sometimes lived together and sometimes lived apart. VJ said that her divorce petition had been filed in January 2008. A copy produced to the hearing was unstamped but dated 23 October 2008. VJ was inconsistent when asked whether she had accompanied her mother...
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