Can “family ties” in Article 8 terms arise out of mere financial dependency?

25 July 2011 by Rosalind English

A A O v Entry Clearance Officer [2011] EWCA Civ 840 – read judgment

1 Crown Office Row’s Sarabjit Singh appeared for the Respondent in this case. He is not the writer of this post.

“No”, seems to be the Court of Appeal’s answer to the question posed by the heading above; indeed Rix LJ goes as far to say that “the provision of such money can be as much an insulation against family life as evidence of it.”

In this case the appellant, a 69 year old Somalian national who had been living in Kenya,  appealed against the respondent entry clearance officer’s refusal to grant her leave to enter the UK to join her daughter. The daughter, who sponsored this claim, had been granted British citizenship. She had seven children and was living on benefits, out of which she sent a monthly contribution to her mother.  The appellant, who was said to be in poor health and dependent on a neighbour for daily care, had applied for indefinite leave to join her daughter as a relative and financial dependant of a person settled in the UK under the Immigration Rules r.317. The entry clearance officer refused her request, having found that she did not satisfy r.317(iva) in respect of her ability to be maintained without recourse to public funds and that any interference with her rights under Article 8 of the European Convention on Human Rights was justified and proportionate for the purpose of maintaining effective immigration control.

On appeal, the Asylum and Immigration Tribunal judge upheld the conclusion on r.317 and found that since the daughter had not seen the appellant  for 12 years, this lengthy period and the weakness of the family life between them meant that the decision was not an interference with, or lack of respect for their family life.

The appellant contended before the Court of Appeal that the AIT had failed to properly consider Article 8 and also that it had inadequately failed to address the question of her financial dependency, which was capable of and did in fact constitute family life of the kind recognised by Article 8 jurisprudence.

The judgment

Appeal dismissed.

Family life would not normally exist at all between parents and adult children within the meaning of Article 8 in the absence of further elements of dependency which went beyond normal emotional ties. Although the money sent by the daughter to the appellant raised an element of dependency, it did not take the matter very far. In any event, the fact that the appellant had applied unsuccessfully for leave to enter did not prevent the continuation of the financial support from her daughter and to that extent  there was no interference with family life.

Furthermore, the AIT had taken account of evidence of the bond between appellant and daughter and had found the witness evasive and unconvincing as to why she had been so reluctant to visit her mother in Kenya. Although the appellant lived in straitened circumstances in Kenya, she had accommodation and support from neighbours. In those circumstances, there could be no complaint about the immigration judge’s conclusion. There was no positive duty which imposed on the UK an obligation which went beyond making systematic allowance for a right of entry which was governed both by carefully composed immigration rules, such as r.317, and an overriding consideration of Article 8 on a case-by-case basis. States were entitled to have regard to their system of immigration control and its consistent application and a requirement that an entrant should be maintained without recourse to public funds was an ultimately fair and necessary limitation on what would otherwise become a possibly overwhelming burden on all of its citizens. Even if the appellant’s rights under Article 8 had been engaged, the decision to refuse entry was  therefore justified and proportionate.

Comment

As we have seen, Article 8, though hugely prevalent in immigration cases, is an unreliable friend and applicants for entry usually rely on some other rule to buttress their claim. In this case the applicable regime were the Immigration Rules, in particular Rule 317, which applies to financially dependant relatives who fit certain categories, such as a “mother or grandmother who is a widow aged 65 years or over”.

What was fatal to her application was the fact that she failed to fulfil the requirement under  317(iva) that she could be supported by her daughter without recourse to public funds. Since the daughter was on benefits this requirement was clearly not going to be fulfilled; indeed the immigration judge was “not convinced” that the sponsor would not make a further claim for the appellant and the DSS would be obliged to consider such claim.

The immigration rules reflect the recognition in Article 8 jurisprudence that something more than mere emotional ties between a parent and an adult child is required to create a situation where article 8 was engaged sufficiently for an interference to be found, and  that something more could be found in financial dependency. But the very dependency that opens the door a crack closes it rapidly if Rule 317(iva) applies.

There are no examples from Strasbourg or this country where a dependent parent has succeeded in an Article 8 claim to join an adult son or daughter:

As for the position of parents and adult children, it is established that family life will not normally exist between them within the meaning of article 8 at all in the absence of further elements of dependency which go beyond normal emotional ties: see S v. United Kingdom (1984) 40 DR 196, Abdulaziz, Cabales and Balkandali v. United Kingdom [1985] 7 EHRR 471, Advic v. United Kingdom [1995] EHRR 57, Kugathas v. SSHD [2003] EWCA Civ 31, and JB (India) v. ECO [2009] EWCA Civ 234. That is not to say that reliance on the further element of financial dependency will bring a breach of article 8: no case in which it has in the present context has been discovered.

In any event, the Court of Appeal’s conclusion that Rule 317’s requirements of financial dependency and of the absence of the need for recourse to public funds themselves represent essential aspects of article 8 jurisprudence  puts an end to the matter.  As Rix LJ observed,  a requirement that an entrant should be maintained without recourse to public funds is an ultimately fair and necessary limitation on what would otherwise become a possibly overwhelming burden on all of its citizens.

It  could be objected that it is somewhat illogical to insist that state’s sovereign control on immigration be lifted in respect of family bonds that travel from child to parent but not the other way round, but that is the position to which the authorities lead us:

the consequences of a generally open door to such applications on behalf of the family members left behind by adult children who have been able to make a new life in other countries would represent a wholly new and step change in the understanding of state responsibility pursuant to article 8 [para 36]

The truth is that there is a general feeling that the jaws of Article 8 have been opened wide enough, and that if it were further interpreted to create a positive duty to permit entry of a parent to join an adult child even where the parent would require support by public funds, this would “represent a wholly new and step change”  in the understanding of state responsibility pursuant to that provision.

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