Vikas Singh and Another v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Sir Stanley Burnton,Lord Justice Christopher Clarke,Lord Justice Richards |
| Judgment Date | 24 June 2015 |
| Neutral Citation | [2015] EWCA Civ 630 |
| Docket Number | Case No: C5/2014/2542 |
| Court | Court of Appeal (Civil Division) |
| Date | 24 June 2015 |
[2015] EWCA Civ 630
Lord Justice Richards
Lord Justice Christopher Clarke
and
Sir Stanley Burnton
Case No: C5/2014/2542
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
UPPER TRIBUNAL JUDGE KEBEDE
Royal Courts of Justice
Strand, London, WC2A 2LL
Zane Malik (instructed by Ash Norton Solicitors) for the Appellants
Samantha Broadfoot (instructed by the Government Legal Department) for the Secretary of State
Hearing date: 18 June 2015
Introduction
This is an appeal by the Appellants, who are brothers, against the determination of Upper Tribunal Judge Kebede, promulgated on 23 May 2013, dismissing their appeal against the decisions of the Secretary of State refusing their applications for indefinite leave to remain outside the Immigration Rules.
The Appellants challenge the Secretary of State's and the Upper Tribunal Judge's reliance on the decision of this Court in Kugathas v Secretary of State for the Home Department [2003] EWCA Civ 31 on the application of Article 8 of the European Convention on Human Rights to adult children. On the basis of subsequent decisions of the European Court of Human Rights and of this Court, they contend that it has been wrongly regarded as laying down too stringent a test for the presence of family life for the purposes of Article 8. They contend that the Upper Tribunal wrongly held that they had no family life for the purposes of Article 8 and that their right to a family life is infringed by the decision of the Secretary of State.
The facts
The Appellants are citizens of India. Vikas Singh was born on 1 May 1991, and so is aged 24, and Maneesh Singh was born on 1 July 1989, and so is virtually 26. Their immigration history was set out in paragraphs 2 to 4 of the Upper Tribunal Judge's determination:
2. …[The Appellants'] father, a professional Indian cuisine chef, came to the United Kingdom in 2001 with entry clearance to work as a chef and acquired indefinite leave to remain on the basis of his continuous residence as a work permit holder. Following an appeal heard in May 2008 against a refusal to grant them and their mother entry clearance to join their father in the United Kingdom, they were granted entry clearance and joined him in the United Kingdom on 5 October 2008 with visas valid until 8 December 2010. On 17 February 2009 the appellants' father and mother travelled to India, intending to bring their three other children to the United Kingdom. However on 3 March 2009 their father passed away in India. Their mother, it is claimed, returned to the United Kingdom in July 2010 and went back to India on 30 May 2011. She then returned to the United Kingdom on 3 July 2011. In the meantime, on 7 December 2010 the appellants and their mother applied for indefinite leave to remain in the United Kingdom outside the Immigration Rules.
3. In the letter accompanying the application for indefinite leave to remain, details were provided of the appellants' father's residence in the United Kingdom and his employment as a chef, and of the appellants having been trained themselves by their father as chefs with a view to their father setting up his own restaurant business. Their father's death in India came as a devastating shock to the family. The letter stated further that the appellants, having been trained as chefs, were both in employment and were supporting their mother and their family. They had the support of their father's close friends in the United Kingdom, especially Mr Suresh Mehra and his family, with whom they were employed. …
4. The appellants' mother was granted indefinite leave to remain on 9 May 2011, although the basis for that grant to leave is unknown. The respondent, however, refused the appellants' applications under paragraph 322(1) of HC 395, on the grounds that variation of leave was being sought for a purpose not covered by the Rules and that the appellants' removal would not breach Article 8 of the ECHR. The respondent considered that the appellants had not established a family life with their mother since they were living an independent life at a separate address to her.
The Upper Tribunal Judge made the following findings of fact:
19. … the appellants' mother appears to have been granted indefinite leave to remain on a completely erroneous basis, on the understanding that she had been living in the United Kingdom continuously for over two years, which was not the case. At section 6 of her application form (page 141 of the appellants' appeal bundle), she stated that she had first entered the United Kingdom on 8 October 2008 and confirmed that she had not had any absences since then. The covering letter accompanying that application form supported that statement and referred only to the appellants' father having returned to India in March 2009. That was the basis upon which the grant of indefinite leave to remain was assessed. However that is clearly not true. According to the evidence in the statements of the appellants and their mother, she left the United Kingdom for India with her husband on 17 February 2009 and did not return until 3 July 2010. She then left the United Kingdom on 10 May 2011 and returned to the United Kingdom on July 2011, That in itself is inconsistent with the grounds of appeal before the FTT, dated 2 June 2011, which stated that the appellants had been supporting their mother and their younger siblings in India since the death of their father and following their mother's return to India in March 2009. A similar indication was given by Mr Mehra in his statement of 30 August 2010, where the clear implication was that the appellants' mother remained in India. There is therefore inconsistent evidence as to the amount time spent by the appellants' mother in the United Kingdom since February 2009, some of which goes so far as to suggest that she had been based in India since returning there and that she had returned to the United Kingdom only in July 2011, shortly before the appeal hearing before the FTT. At the very least the evidence suggested that she had been absent from the UK for nearly a year and a half. Whatever the true picture is, it is plain that the respondent's understanding at the time the grant of indefinite leave to remain was made, was that the appellants' mother had been living continuously in the United Kingdom for over two years, whilst that was clearly far from the true situation.
…
21. Turning next to Article 8, I do not accept that there is family life between the appellants and their mother, following the principles in Kugathas v SSHD [2003] EWCA Civ 31. The appellants are adults and there is no evidence of any particular dependency between them and their mother over and above the usual emotional and other ties that exist between parents and their adult children. Whilst the FTT found there to be family life, that conclusion was reached upon an apparent failure to appreciate the fact that the appellants' mother had been living apart from them in India for more than a year. As stated above, there is no consistent evidence as to the period spent by their mother in the United Kingdom since their father's death, but the evidence suggests that she has travelled between India and the United Kingdom and, whilst she has been granted indefinite leave to remain here, she appears to be based in India as much as, or more than in the United Kingdom. She is therefore more than capable of living apart from the appellants and is still a relatively young woman, having only just turned 50 years of age. The appellants, likewise, are able to live independently from their mother. Whilst there may be an element of financial dependence by the appellants' mother upon them, that alone does not constitute family life for the purposes of Article 8.
22. However, the appellants have clearly established a private life in the United Kingdom, having lived here for over three years and having established themselves as chefs in an Indian restaurant in Surrey. Their removal to India would clearly interfere with that private life and Article 8 is engaged. Contrary to [counsel for the appellants] Mr Slatter's submissions, and for the reasons I have given above, such an interference is in accordance with the law and is, I find, in pursuit of a legitimate aim, namely the economic well-being of the country as expressed in terms of immigration control. Mr Slatter sought to argue that the appellants' presence was beneficial to the economic well-being of the country as a result of their employment and their contribution to their employer's business, but I do not agree with him. They have no basis of stay here and there are no doubt many others who do have a proper basis of stay here and who would be more than willing to have such employment opportunities. The argument that their financial support prevents their mother becoming a burden on the state is not in the least bit persuasive, in particular given that her ability to stay here appears to have been granted on a false premise and that there is no reason why she could not find employment and support herself.
The Judge's assessment of proportionality was in paragraph 23 of her determination:
23. Turning, therefore, to proportionality, I find that any interference with the appellants' private life caused by their removal from the United Kingdom is justified and proportionate. Their ties to the United Kingdom are limited. They have resided here for only three and a half years and that was on the...
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