10 Apr 2017, 47 mins ago

The balance that needs to be struck between sending a foreign national back to their country of origin over allowing them to stay in the UK on the basis of their right to private and family life relies on considerations of a proportionality balancing exercise that immigration judges often have to tackle. 

No single factor is determinative and the proportionality assessment will always entail an evaluative exercise involving a value judgment which must be made by the court. This was the situation in the recent Court of Appeal case of Butt v Secretary of State for the Home Department [2017] EWCA Civ 184 which dealt with the position of parents’ ties to two adult daughters’ residing in the UK.

A husband and wife, aged 64 and 54 respectively, of Pakistani nationality, appealed against the Secretary of State’s (SSHD’s) refusal of their asylum and human rights claims and challenged the SSHD’s decision to remove them from the UK. Their two adult daughters’ appeals were allowed. The issue in this case was whether the judge had erred when conducting the proportionality assessment under Article 8 of the ECHR in light of the evidence submitted about the extent to which the daughters’ depended on their parents.

The appellants have four adult children, two of which have their own independent status’ in the UK. Their other two daughters are aged 29 and 25. The family of four came to the UK in 2004 as visitors and overstayed until 2012, with no attempt to regularise their stay in the UK until applying for leave to remain on human rights grounds, which was refused. They made further claims, which were again refused, together with a decision to remove them. In 2013, the First-tier tribunal (FTT) dismissed the parents’ appeal but allowed the daughters’ appeal on Article 8 grounds. In allowing the daughters’ appeal, the FTT found that they were ‘young people likely to make a positive contribution to the UK economy and the retention of their skills is in the public interest…’ and that ‘their Westernised development over eight years…militate in favour of them remaining at present’. Weight was also given to their university education and achievements. On appeal to the Upper Tribunal (UT), the UT then allowed the parents appeal and dismissed the appeal in relation to the daughters. This decision was then appealed to the Court of Appeal.

In assessing the proportionality exercise undertaken by the FTT, the Court of Appeal reiterated some general findings from previous case law including:

  • there is no general proposition that article 8 can never be engaged between adult siblings living together or between adult children and their parents and that the issue is “highly fact sensitive” (Ghising (family life-adults-Gurkha-policy) [2012] UKUT 00160 (IAC))
  • there must be something more than the love and affection between an adult and his parents or siblings which will not of itself justify a finding of family life (Singh v Secretary of State for the Home Department [2015] EWCA Civ. 630)
  • the court should be wary of attempting to give prescriptive guidance as to the weight to be given to particular factors when the article 8 balancing exercise is performed (R (Gurung) v SSHD [2013] EWCA Civ. 8 [2013] 1 WLR 2456)

Lord Justice Beatson then considered the factors taken into account by the UT in relation to the proportionality assessment regarding the dependency that the daughters’ had towards their parents. These included the fact that they still both lived with their parents in the family home, that they always took advice from their parents on all important matters, are single and have no independent life, and the negative impact that their removal would have on them. The factors taken into account in favour of removal included the families’ poor immigration history, the fact that their evidence was not found credible and the strong public interest in maintaining immigration control. Lord Justice Beatson noted at [25] that “although their dependency on their parents means that article 8 is engaged, the discussion of weight…shows that their desire does not operate as a trump card in considering whether it is proportionate to remove their parents. Their wish to pursue higher education in this country and their dependency on their parents and need for their support are only two factors to be weighed against the need to maintain a firm and fair immigration policy.

In reviewing the UT decision in its entirety, the Court of Appeal found that the UT did carefully consider factors relevant to the proportionality assessment, including the impact of the parents’ removal on their daughters. There was no clear indication that the UT had misdirected itself in law in relation to the proportionality exercise or in the conclusions that the judge reached. The Court of Appeal therefore found that despite the daughters’ dependence on their parents, ‘ultimately the maintenance of effective immigration control outweighed the private and family rights of the appellant and his family’ (at para 31).

This decision highlights the balancing exercise in assessing whether the right to private and family life outweighs the public interest in maintaining effective immigration control. Clearly the approach to be taken is highly fact sensitive but this case indicates that there are indeed circumstances where the latter outweighs the former.