24 Oct 2016, 35 mins ago

A recent decision of the Upper Tribunal considered this question in the case of Singh and another v Secretary of State for the Home Department (SSHD) [2015] ECWA Civ 630. Article 8 of the European Convention on Human Rights (ECHR) provides for the right to respect for private and family life.

The case concerned two adult brothers from India (aged 24 and 26) who had been refused indefinite leave to remain in the UK. Their father moved to the UK in 2001 and was later granted indefinite leave to remain following continuous residence as a work permit holder. The mother and adult brothers joined their father in the UK in 2008, initially on visit visas valid to December 2010. In 2009, the mother and father travelled back to India intending to bring their three younger children to the UK. However during this trip, the father passed away in India. The mother returned to the UK. The two adult brothers and their mother applied for indefinite leave to remain in the UK outside the Immigration Rules.

The mother’s application for indefinite leave was granted but her two adult sons were refused on the basis that there was no family life between them and their mother and that their removal from the UK would not breach article 8.

In the adult brothers’ applications for indefinite leave, they submitted evidence about their employment as chefs in the UK and that they financially supported their mother and family since the untimely death of their father.

The issue was whether the two adult brothers enjoyed family life in addition to private life for the purposes of Article 8. In refusing the two brothers’ indefinite leave, the SSHD found that they had not established a family life with their mother since they were living an independent life at a separate address to her.

On appeal before the Upper Tribunal, Judge Kebede found that there was no family life between the two adult brothers and their mother because there was “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”. As there was evidence that the mother had been travelling back and forth between India and the UK and based more of her time in India, it was found that she was capable of living apart from her two adult sons, who lived an independent life to her. The fact that there was “an element of financial dependence” by the mother on her two adult sons’ did not “alone constitute family life for the purposes of article 8.”

The issue was then taken to the Court of Appeal. Sir Stanley Burnton considered several authorities of the European Court of Human Rights and their approach taken to article 8. In considering whether article 8 extends to parents and their adult children, the particular circumstances of the relevant relationship need to be scrutinised. Each of the authorities establish that there has to be something more than “normal emotional ties” in order to create the right to family life and obtain the relevant protection under article 8. Most notably, the issue of “dependency” is often noted weighing in favour of granting the right to family life where there is a higher element of dependency between an adult child and his parents.

Sir Stanley Burnton stated that “there is no legal or factual presumption as to the existence or absence of family life for the purposes of article 8” in respect of adults in the context of immigration control. The Court of Appeal agreed with the findings of the Upper Tribunal, that the two adult brothers had not established family life in the UK: “They are independent and working. Their siblings, who are younger, are in India and their mother understandably spends as much or more time in India than in this country. There was no evidence of anything beyond the normal bonds of affection, apart possibly from some financial support of the family in India. That support cannot lead to a finding of a family life in this country…” Accordingly, the appeal was dismissed.