Family Law Titles
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(Court of Appeal; Rix, Wall and Aikens LJJ; 30 July 2009)
The 58-year-old woman was a citizen of Pakistan who had spent a considerable time in the UK as a dependent wife; the first 3 of her children had been born in UK. However, the woman then returned to Pakistan, where she had four more children. Later she was refused entry clearance to the UK for some reason, after which she had another child in Pakistan. The husband was based in the UK throughout, therefore, for much of her married life the couple lived apart. Eventually one of the woman's daughters went out to Pakistan to care for the woman, who was a diabetic; both of them were supported financially by the woman's sons, all of whom were based in the UK. After a successful 6-month visit to the UK, the wife entered the UK as visitor, with leave to remain for 6 months, accompanied by the daughter. After this the woman lived with a different daughter in the UK, who was married with 6 children, one of whom was disabled. The woman applied for indefinite leave to remain, on the basis that she was dependent on her daughter and family in UK because of her ill health. The woman's husband, all her children and all 19 of her grandchildren lived in the UK, all but one as UK citizens. The AIT had to consider whether the woman was entitled to indefinite leave to remain in UK as dependent parent, and whether her removal represented a disproportionate interference with family life. The AIT held that there was no family life with any individual family member for the purposes of European Convention on Human Rights, Art 8 and that if the woman returned to Pakistan she could simply resume the married life that she had had for most of her life, living separately from her husband, contacting and perhaps visiting him periodically.
The AIT had erred in law in arriving at its conclusion that there was no family life for the purposes of Art 8. The AIT would have been wise to follow the series of questions posed in R (Razgar) v Secretary of State for the Home Department, which had been reaffirmed in EB (Kosovo) v Secretary of State for the Home Department. The AIT had paid little regard to the positive duty on the state to show respect for family life; further the AIT's reasons did not appear to demonstrate a proper appreciation of the basic proposition that a person's family or extended family was the group on which many people most heavily depended, socially, emotionally and often financially. These failures had led the AIT into the error of not looking at the issue of whether family life existed in this group as a whole, and then assessing the woman's relationship within it. The AIT had also failed to examine the relationship between the woman and the daughters on the correct basis. It was true that when a court or tribunal was analysing the relationship of a parent and adult children for Art 8 purposes, something more than normal emotional ties between them had to be shown, but when the focus was on the parent, the issue must be: how dependent is the older relative on the younger ones and does that dependency create something more than the normal emotional ties? The AIT had clearly erred in its finding that there was no family life as between the woman and her husband. Finally, the AIT had erred in not properly taking into account the fact that the woman's husband, five sons, three daughters and 19 grandchildren all lived in the UK and that her husband, seven of her children and all her grandchildren were British citizens. On the facts found by the AIT, there might be family life of this family unit for Art 8 purposes and the proposed removal of the appellant might have consequences of such gravity as potentially to engage the operation of Art 8. The AIT had failed to grapple properly with the question: would interference in the family life of the woman be proportionate to the public end sought to be achieved by operating the immigration controls? The AIT should have asked first: looking at the family as a whole, could it reasonably be expected that the life of the family could be enjoyed elsewhere? Secondly, it had not weighed the answer to that question against all considerations in favour of removal, such as any failure to comply with any requirements of the Immigration Rules, possible deception on entry and so forth. Thirdly, therefore, it could not properly come to a final conclusion on where the balance lay for the purposes of Art 8(2).
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