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Family life depends on the substance of the relationship, not the form

The Court of Appeal has helpfully confirmed in the case of Uddin v The Secretary of State for the Home Department [2020] EWCA Civ 338 that the existence of family life depends on the substance of the relationship, not the form [§ 23].  

Background

The case involved a Bangladeshi national born in Bangladesh on 8 December 1999. He claimed that he had left home at the age of six after being mistreated and that he was subsequently brought to London and abandoned in early 2013. On 23 February 2013 he was treated as a  trafficked child and placed with foster carers by the local authority. 

His asylum application was refused, but he was granted leave to remain as an unaccompanied asylum-seeking child until 8 June 2017. He applied for further leave, which in part relied on his family life with his foster carers and their family. The issue of whether refusal to grant leave would breach his right to respect for family life under Article 8 ECHR was the sole issue considered by the Upper Tribunal (following a dismissal of his asylum, humanitarian protection and Article 3 claims in the First-tier Tribunal). His appeal was dismissed and he appealed to the Court of Appeal on the basis that the First-tier Tribunal had given inadequate reasons for its findings, defined family life too narrowly, and erred in its finding that there was insufficient dependency. 

The witness evidence from the Appellant and his foster mother was that he is treated as her own child, and has a strong bond with her and her family. Evidence from the local authority confirmed their ‘close attachment’ and the commitment shown towards the Appellant by his foster mother, as well as confirming that he continued to live with them after becoming an adult, having been assessed as not yet ready for ‘independent living’ 

The Judgment

The Senior President of Tribunals, Lord Justice Bean, undertakes a comprehensive review of the case-law relating to the existence of family life and confirms that this will depend on the substance of the relationship, not the form . This is a fact-specific analysis that must be based on the evidence provided. 

The leading case of Kugathas v Secretary of State for the Home Department [2003] EWCA Civ 31 is analysed in depth [§ 26-31] leading to the conclusion that the ‘irreducible minimum’ of what family life is is dependency in the sense of real, committed or effective support. 

LJ Bean rejects the submission by the Secretary of State that foster care is a special category of case, requiring an appellant to prove family life in a different manner than if it were a birth family. He finds no basis in law for a difference in principle between a relationship that has arisen from a foster care arrangement or from both. In doing so he rejected the assumption reached by the Upper Tribunal, that as a foster care relationship is a commercial, non-voluntary relationship with financial support from the state, there was no emotional dependency. Again, there must be a factual finding regarding the substance of the relationship. 

Similarly, whether family life exists after a child turns 18, is a question of fact, with no presumption either way [§ 36], though continued cohabitation is a highly material factor. 

The appeal was allowed, and the case remitted to the First-tier Tribunal to make findings of fact on whether family life existed between the Appellant and his foster family, sufficient to engage the protection of Article 8 ECHR. 

Comment 

While these findings are predominantly based on existing case-law (see e.g. Singh & Anor v Secretary of State for the Home Department), and other than the specific issue relating to foster carers, the case does not raise any new issue of principle, it is helpful that the Court of Appeal has confirmed the correct approach in relation to the existence of Article 8 ECHR family life. 

There is no presumption of family life and it will always be a fact-sensitive issue. This means that it is imperative that any application or appeal relying on Article 8 ECHR fully addresses the existence of family life through detailed and comprehensive evidence. 

Contact our Immigration Barristers

If you would like advice or assistance in relation to application or appeal involving the right to family life under Article 8 ECHR then contact our immigration barristers & lawyers in London on 0203 617 9173 or complete our enquiry form below.

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