PT (Sri Lanka) v Entry Clearance Officer, Chennai [2016] EWCA Civ 612 (27 June 2016)

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Re: PT (Sri Lanka) v Entry Clearance Officer, Chennai [2016] EWCA Civ 612 (27 June 20

1. INTRODUCTION
   
2. The Appellant, who was born on 26 June 1991, is one of four children of Thambiraja Thillainathan, to whom I will refer as the father, and his wife Nageswary Thillainathan. He has an elder brother and two younger sisters. They are all Sri Lankan by original nationality.
3. On 15 January 2002 the father came to this country and applied for asylum. His wife and children stayed in Sri Lanka. His claim for asylum was unsuccessful, but on 3 August 2010 he was granted indefinite leave to remain, although on what basis is unclear.
4. In January 2010 the elder son came to the UK on a student visa. In April 2013 his leave to remain was curtailed. Subsequent developments in his case are not material for present purposes, but we were told that he remains in this country although liable to removal.
5. In February 2012 the members of the family who were still in Sri Lanka – that is, the Appellant and his mother and sisters – applied for entry clearance to join the father in this country. At that date the Appellant was aged 20. His sisters were still under 18.
6. By decisions dated 18 April 2012 the Entry Clearance Officer in Chennai granted entry clearance in the case of the Appellant's mother and sisters but refused it in his case. His mother and sisters came to the UK shortly afterwards. The result is that the Appellant was the only member of the immediate family left in Sri Lanka.
7. The Appellant appealed to the First-tier Tribunal ("the FTT"). He was represented by an immigration consultant engaged by his father, Mr David Williams. The grounds of appeal relied on paragraph 317 of the Immigration Rules, which provides that a dependent child over the age of 18 will be entitled to leave to enter "if living alone outside the UK in the most exceptional compassionate circumstances" (see sub-paragraph (i) (f)). (There are also other conditions, particularly as to the availability of support and accommodation, but they are not relevant for present purposes.) It was also contended that refusal would represent an unlawful interference with the Appellant's rights under article 8 of the European Convention of Human Rights ("the Convention") by "[preventing] him from enjoying family life with his parents and siblings". The grounds of appeal included a statement that:
   "Culturally, regardless of their age, children of Sri Lankan families live with their parents until they enter into marriage. The Appellant is single."
8. The appeal was heard before FTTJ Herwald on 15 January 2013. By a determination promulgated on 23 January he found that the high threshold of "most exceptional compassionate circumstances" was not reached in the Appellant's case. He also dismissed the claim under article 8 outside the Rules. I will return to his reasons in due course.
9. Permission to appeal to the Upper Tribunal was given by UTJ Eshun. That appeal was heard by UTJ Clive Lane on 6 June 2013. The Appellant was represented by Mr Nishan Paramjorthy of counsel. The Tribunal's determination was promulgated on 14 June 2013. Both grounds of appeal were dismissed. Again, I will return to the reasoning of the Tribunal in due course.
10. The Appellant's application for permission to appeal came before me on an oral renewal, following refusal on the papers by Longmore LJ, as long ago as 13 February 2014. The Appellant's grounds of appeal had not been professionally drafted and disclosed no arguable grounds. But I was persuaded to give permission to appeal as a result of the advocate's statement and oral submissions of Mr Erum Waheed of counsel, who had not appeared below. The issues on which the appeal was allowed to proceed will appear from the discussion below.
11. Before us Mr Waheed has again appeared for the Appellant, leading Mr Michael Biggs. Ms Cathryn McGahey QC has appeared for the Respondent.THE DECISION OF THE FTT
    
12. Paras. 1-8 of the FTT's Reasons are introductory and nothing turns on them. The Judge records that he heard evidence from the father and identified the bundles before him, but he does not attempt to summarise the evidence. I should say that it appears from another passage that he had witness statements from the Appellant and his father.
13. Paras. 9-13 are headed "The Applicable Law" but are concerned only with general background matters such as the burden of proof. I should refer to one aspect. Para. 11 refers to section 85 (4) of the Nationality Immigration and Asylum Act 2002, which at the material time read:
    "On an appeal under section 82(1), 83(2) or 83A(2) against a decision the Tribunal may consider evidence about any matter which it thinks relevant to the substance of the decision, including evidence which concerns a matter arising after the date of the decision."
    The Judge said that that provision applied to the present case. At the hearing the Court raised with the parties whether that was correct, and both Mr Waheed and Ms McGahey agreed that it was in fact wrong. Section 85 (4) was subject to sub-section (5), which provided for exceptions set out in section 85A. One of those exceptions – see sub-section (2) – was where the application was for entry clearance: in such a case "the Tribunal may consider only the circumstances appertaining at the time of the decision". (I should mention for completeness that in AS (Somalia) v Secretary of State for the Home Department [2009] UKHL 32, [2009] 1 WLR 1385, the House of Lords held that these provisions – or, strictly, an earlier but substantially identical version of them – were not incompatible with article 8 of the Convention.)
    
14. At paras. 14-20 the Judge summarises the parties' cases and the grounds of appeal, but he does so only very briefly and there is nothing that I need to refer to for present purposes.
15. Para. 21 is headed "My Findings". It contains a number of findings of fact about the Appellant's circumstances in Sri Lanka as at the date of the decision, i.e. after his mother and sisters had left (though for the reason given at para. 12 above that was not the material date). The findings are explicitly directed to the question of "most exceptional compassionate circumstances" under rule 317. They are sufficiently summarised at sub-paras. (g) and (h), which read as follows:
    "(g) I remind myself of the Appellant's age, but he is familiar with his surroundings where he has lived for many years and he has strong community ties. He has been permitted to study and has followed studies in his homeland. There is nothing to suggest he can't continue his studies there, nor gain work in that country.
    (h) The Appellant stated that he is in touch with his family constantly, including by skype and his family is able to send remittances to him, to keep him going in Sri Lanka and can continue to do so."
    (I should add, because it is material to a point that comes up later, that he refers to the Appellant as "living in a house where the family have lived with him for many years".) His conclusion is that "most exceptional compassionate circumstances" had not been demonstrated, and accordingly at para. 22 he dismisses the appeal under the Rules. That part of his decision is not challenged before us.
    
16. The Judge then turns to the claim under article 8 outside the Rules. He reviews the relevant law at paras. 24-25. At para. 24 he sets out the familiar five "Razgar questions": see R (Razgar) v Secretary of State for the Home Department [2004] UKHL 27, [2004] 2 AC 368, per Lord Bingham at para. 17. As regards the first question, namely whether the Respondent's decision would interfere with the Appellant's right to respect for his private or family life, he comments:
    "Article 8 envisages real, committed or effective support in the personal sense and financial support is not necessarily enough in itself (Kugathas v SSHD (2003)) and Imoh 2002 UKIAT 01967). Relationships between adults would not necessarily acquire the protection of Article 8 without evidence of further elements of dependency involving more than the normal emotional ties (S v UK (1984))."
    He then goes on to review at some length some of the authorities relating to proportionality, including at para. 25 a (then) recent decision of the Upper Tribunal about section 55 of the Borders Citizenship and Immigration Act 2009. I am bound to say that I am not sure that all the authorities referred to were relevant to the issues in the present case, but nothing turns on this passage for the purposes of this appeal.
    
17. The Judge then continues:
    "26. I find that the Appellant fails at the first hurdle. He is an adult, and while financially dependent on the rest of his family in the UK, I have no evidence before me to suggest that this relationship would acquire the protection of Article 8 without evidence of further elements of dependency.
    27. Even if there were an interference with the right to respect for private life, which there is not, it would not have consequences of such gravity as potentially to engage the operation of Article 8. It would be in accordance with the law and have the legitimate aim of forwarding immigration control.
    28. I am persuaded that it would be proportionate for reasons given above – this adult can continue his life in Sri Lanka as before. For the avoidance of doubt, I have considered as necessary the interests of a juvenile sibling residing in the United Kingdom. No evidence was given in relation to that child whatsoever, and I find that that child can continue his or her present relationship with the Appellant, with the maintenance of the status quo."
18. The reasoning there is distinctly compressed. I would analyse it as follows:
    (1) Para. 26 is clearly a decision that article 8 would not interfere with the Appellant's family life, essentially because he was at the relevant date an adult and there was no evidence of "further elements of dependency" on "the rest of his family in the UK". The reference to "further elements of dependency" derives from S v United Kingdom (1984) DR 196, no doubt mediated through the well-known decision of this Court in Kugathas v Secretary of State for the Home Department [2003] EWCA Civ 31, [2003] INLR 170, to both of which the Judge had already referred in para. 24. I say more about Kugathas below.(2) It was agreed before us that the purpose of para. 27 was to address the Appellant's private life, as distinct from his family life which was considered in the previous paragraph. That may be right, but I am inclined on reflection to think that para. 26 was intended rather to address the first Razgar question as concerns both family life and private life (though in truth only the former could really have been in play); and that para. 27 is directed, by way of fallback, to the second to fourth Razgar questions – namely whether any interference was of sufficient gravity to engage the operation of article 8, whether it was in accordance with the law and whether it had a legitimate aim. But any uncertainty does not need to be resolved because it is the previous and subsequent paragraphs that matter for present purposes.
    (3) The first sentence of para. 28 is evidently directed to the fifth Razgar question, namely whether if article 8 is (to use the shorthand) engaged the interference with the family lives of the Appellant and the other members of his family occasioned by refusing him leave to enter while granting it to his mother and sisters is proportionate. It was common ground before us that "the reasons given above" must be wholly or mainly those given in para. 21, since it is the findings in that paragraph that demonstrate, in the Judge's view, that the Appellant can continue to live in Sri Lanka "as before".
    (4) The last two sentences of para. 28 must refer to the Appellant's younger sister. They are by way of a footnote and do not affect the substance of the reasoning.
    
    In short, the FTT held that article 8 was not engaged (the first and second Razgar questions), but that if it was the interference with the Appellant's family life was justified (the third to fifth questions).
    THE DECISION OF THE UPPER TRIBUNAL
    
19. The grounds of appeal from the FTT to the UT, pleaded by Mr Paramjorthy, were rather discursive. But the broad point made was that the FTTJ had "failed to engage with the fact that the Appellant had not established an independent family life and had lived his entire life from child to adulthood with his family". Reference was made to "South Asian familial tradition", under which "a child remains a family member until marriage". That failure was said to have led also to his having "failed to engage with proportionality". The Judge was said to have made a particular error in finding that the Appellant continued to live in the family home, whereas that had in fact been sold in anticipation of the remaining members of the family joining the father in the UK. No point was taken on the fact that the Judge had made his decision by reference to the wrong date.
20. In his determination the UTJ started by dealing with the error about the house where the Appellant was living. He doubted whether the true position had in fact appeared in the evidence before the FTT, but he held that any error was in any event immaterial. This point is not now pursued. In the course of that discussion he held, at para. 5, that the FTTJ had not failed to engage the issue of proportionality: he referred to para. 28 of the FTT's determination.
21. The UTJ then turned, at para. 8 of his determination, to the more general question of whether the FTTJ had failed to engage with the Appellant's particular circumstances. As to that, he acknowledged that "the [FTTJ] may have concentrated to too great an extent on quoting from the jurisprudence relating to article 8 at the expense of a close analysis of the facts". But he held that no error of law had been established. His reasoning is quite short. His essential conclusion appears to have been that the FTT's conclusion that article 8 was not engaged was justified by the fact that the Appellant was an adult and that "there were no special ties of dependency which should bring [him] within the ambit of Article 8". But he makes two additional points – first, that "any disruption in the close family bonds that [the other members of his family] no doubt enjoyed with the Appellant in Sri Lanka" was the consequence of their own decision to come to the United Kingdom; and secondly that there was no evidence before the FTT about the special characteristics of South Asian families.THE APPEAL
    
22. The essential basis on which I gave permission to appeal was that I considered that it was arguable that the FTTJ had not correctly stated the law as to the circumstances in which an adult child could be regarded as enjoying family life with his parents and/or siblings; and that if the correct approach had been taken to that question the FTT's decision that article 8 was not engaged was unsustainable on the facts. I acknowledged that that would not matter if the interference with any such rights constituted by the refusal of leave to enter was proportionate, but I was not persuaded by the FTT's very short reasons on the point that he had properly addressed the question.(A) WERE THE APPELLANT'S ARTICLE 8 RIGHTS ENGAGED ?
    
23. As regards the law, I can start with Kugathas. In that case the appellant was resisting removal to Sri Lanka on the basis of his continuing family life with his mother, his brother and his married sister, who all lived in Germany He had lived with them for many years in Germany before coming to this country about three years prior to the decision under appeal. The leading judgment was given by Sedley LJ. At para. 14 of his judgment he quoted the statement of the Commission in S v United Kingdom that:
    "Generally, the protection of family life under Article 8 involves cohabiting dependants, such as parents and their dependent, minor children. Whether it extends to other relationships depends on the circumstances of the particular case. Relationships between adults, a mother and her 33 year old son in the present case, would not necessarily require the protection of Article 8 of the Convention without evidence of further elements of dependency, involving more than the normal emotional ties."
    Sedley LJ described that as setting out "a proper approach". As regards the meaning of "dependency" in that passage, at para. 17 of his judgment he said:
    "Mr Gill QC says that none of this amounts to an absolute requirement of dependency. That is clearly right in the economic sense. But if dependency is read down as meaning 'support', in the personal sense, and if one adds, echoing the Strasbourg jurisprudence, 'real' or 'committed' or 'effective' to the word 'support', then it represents in my view the irreducible minimum of what family life implies."
    He held that the appellant's relationship with his family did not at the time of the decision constitute family life for the purpose of article 8, whatever might have been the position while they were still in Germany. He said, at para. 19:
    
    
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