The UK’s approach to ‘family life’ between adult children and their parents
In the case of Singh & Anor v Secretary of State for the Home Department[2015] EWCA Civ 630, the Appellants, two brothers, appealed against the decision of Upper Tribunal Judge Kebede, 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 brought their appeal on the basis that the Secretary of State laid down too strict a test in determining whether they had a family life, and therefore 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 was infringed by the decision of the Secretary of State.
The Appellants, both citizens of India, were brothers. Their father, a professional Indian cuisine chef, came to the UK in 2001 and acquired indefinite leave to remain on the basis of his continuous residence as a work permit holder. In October 2009, the Appellants and their mother came to the UK to join their father, having been granted entry clearance. In February 2009, the Appellants’ father returned to India, and a few weeks later, the Appellants’ father passed away.
On 7 December 2010, the Appellants and their mother applied for ILR outside of the Immigration Rules. The Appellants’ mother was granted ILR in May 2009 (it is unclear on what basis), but the Appellants were refused their applications, 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 Upper Tribunal Judge held that there was no family life between the Appellants and their mother, stating that the First Tier Tribunal’s finding of family life 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”. The Upper Tribunal Judge did find however, that the Appellants had clearly established a private life in the UK, having lived and worked there for three years, but that nevertheless any interference with their private lives caused by their removal would be justified and proportionate.
The Appellants contended that the test set out in Kugathas was too stringent, and wrongly relied on given the subsequent caselaw from Strasbourg.
The Court of Appeal in this case considered “family life” as described in Kugathas, wherein it was held that family life between adult children and their parents required elements of dependency involving more than the normal emotional ties. It is worth noting that the court in Kugathas accepted that family life was not limited to being in the UK for the purposes of considering interference with Article 8.
The Court of Appeal then considered the case of AA v UK [2012] INLR 1, in which the European Court of Human Rights considered its own case-law, which appeared to broaden the remit, as it considered that the relationship between young adults who had not yet founded a family of their own and their parents or other close family members could constitute “family life”.
The bench in Singh was unable to accept so wide a remit however, taking guidance from other more recent Court of Appeal cases, which recognised that normal emotional ties will exist between adult children and parents or members of their family – that these ties presumably existed whilst the child was growing up and cannot therefore be regarded as suddenly cut off when he reaches maturity. But for this reason (that many children do remain emotionally tied to their parents throughout their adulthood), Kugathas was correctly decided: there has to be something more than the love and affection between an adult and his parents or siblings to justify the finding of a family life for the purposes of Article 8.
The Court of Appeal also held at [25] that the distinction between ‘private life’ and ‘family life’ for the purposes of assessing proportionality was redundant, adopting the ECHR’s approach (at [16]) in AA v UK (cited above), in which it was stated that “as Art 8 also protects the right to establish and develop relationships with other human beings and the outside world and can sometimes embrace aspects of an individual’s social identity, it must be accepted that the totality of social ties between settled migrants and the community in which they are living constitutes part of the concept of ‘private life’ within the meaning of Art 8. Thus, regardless of the existence or otherwise of a ‘family life’, the expulsion of a settled migrant constitutes an interference with his right to respect for private life. While the court has previously referred to the need to decide in the circumstances of the particular case before it whether it is appropriate to focus on ‘family life’ rather than ‘private life’, it observes that in practice the factors to be examined in order to assess the proportionality of the deportation measure are the same regardless of whether family or private life is engaged (Üner, cited above, paras 57–60).”
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