Article 8: Test for Family Life arising out of Foster Care is no different to that of “Birth Families”

24 March 2020 by

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Uddin v The Secretary of State for the Home Department [2020] EWCA Civ 338 – read judgment

On 12 March 2020 a unanimous Court of Appeal led by Sir Ernest Ryder (Senior President of the Tribunals), together with Lord Justice Bean and Lady Justice King, allowed the Appellant’s appeal against the First tier Tribunal (“FtT”) and Upper Tribunal (“UT”)’s decisions upholding the refusal of his application for leave to remain.

The case concerns the correct approach to the interpretation of Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“ECHR”) in circumstances arising out of a foster care relationship where the person who had received or continued to receive that care is now an adult.

Background

The Appellant, a national of Bangladesh, was born on 8 December 1999. By 20 February 2013 (when the Appellant was 13) he was abandoned and treated as a trafficked child and placed with foster carers by the responsible local authority. His application for asylum was refused on 22 April 2013 but he was granted leave to remain as an unaccompanied asylum-seeking child until 8 June 2017. He applied for further leave to remain on 18 May 2017, relying in part on his family life with his foster carers and their family. That application was refused on 12 December 2017.

In his appeal to the FtT, the Appellant challenged the aspect of the decision taken under Articles 3 and 8. His appeal was primarily dismissed in respect of his case based on Article 3: the judge held that there was no real risk that he would suffer serious harm if he were deported (§9). She also recorded that she did not find him to be a credible witness in respect of his history (§10). Under Article 8, the judge declined to find that the relationship with his foster family constituted family life and held that he had not demonstrated dependency beyond normal emotional ties. As such, his Article 8 rights were not engaged (§§12-13).

Before the UT, the Appellant argued that in respect of the Article 8 appeal the FtT had: (a) given inadequate findings; (b) defined family life too narrowly and contrary to authority; and (c) erred in finding that there was insufficient dependency.

The UT held that there had been no error of law in the FtT’s conclusion, finding that the determination was carefully prepared by a very experienced judge who made a meticulous and balanced assessment of the evidence. Further, it was “almost too obvious to require mention that the Appellant’s foster carers were appointed by the local authority, who supervise and pay them. The connection is not a voluntary one… but a commercial arrangement reached so that the local authority could discharge its statutory duties to the Appellant. The main financial support comes from the state, not the foster carers.” From this, it was held that the FtT judge was “entitled to find that there was no emotional dependency, particularly as the Appellant had not been found to be credible” (§§15-16).

Decision

The Senior President held that the UT decision

elided the credibility issues… without an analysis of the evidence and also confined the analysis of family life in foster care to a narrow concept of financial dependency… It was regrettably wrong (§17).

Firstly, the FtT and the UT had both failed to provide reasons for finding that family life did not exist between the Appellant and his foster carers and family. Noting that at least three separate witnesses had given evidence and were on paper consistent, that the evidence had not been referred to or analysed, and that the conclusion that family life did not exist was not reasoned, the Senior President held that the factual conclusion was unsustainable and must be set aside (§19; §24).

Secondly, the Senior President rejected the Secretary of State’s argument that there was a

qualitative different in principle between the relationships of members of birth families and those that develop in foster care,

such that a member of a foster family should have to prove the existence of a family life, unlike a member of a “birth” or “natural” (in the language of the Secretary of State) family (§22).

The Senior President was clear that there was no basis in law for the purposes of Article 8 for requiring a difference treatment between these relationships. In both cases, the existence of family life after a young person has achieved his or her majority is a question of fact. The Tribunal’s task is to

assess whether the family life that existed in the run up to a child’s attainment of majority continues to exist afterwards i.e. based upon the factual findings: what is the substance of the relationship

To hold otherwise would be inconsistent with authority that it is the

substance and not the form of a relationship that grounds a family life (§39).

Discussion

The Senior President’s analysis of the second question is anchored by the decision in Kugathas v Secretary of State for the Home Department [2003] EWCA Civ 31 (“Kugathas”) (§26). At §14 of Kugathas, Sedley LJ cited with approval the report of the Commission in S v United Kingdom  [1984] 40 DR 196 at §198:

Generally, the protection of family life under Article 8 involves cohabiting dependents, 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 … would not necessarily acquire the protection of Article 8 of the Convention without evidence of further elements of dependency, involving more than the normal emotional ties.

He added that

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 (§17, Kugathas).

In considering what this “irreducible minimum” may entail, the Senior President had regard to the judgment of Arden LJ in Kugathas at §24, where she found that “there is no presumption that a person has a family life”, but relevant factors would include

identifying who are the near relatives of the appellant, the nature of the links between them and the appellant, the age of the appellant, where and with whom he has resided in the past, and the forms of contact he has maintained with the other members of the family with whom he claims to have a family life (§30).

That “dependency, in the Kugathas sense, is… a question of fact, a matter of substance not form” (§§28 – 31) was further confirmed by the subsequent case of Ghising [2012] UKUT 00160 (IAC). The Senior President noted that it was observed there that family life between adult children and their birth parents will “readily be found without evidence of exceptional dependence”. This dispelled the suggestion that Kugathas described a rigid test of exceptional dependency, and the Senior President agreed that each case would be fact sensitive (§32).

The question is therefore highly fact-specific, but entirely consistent with the role and function of a specialist tribunal.

Turning to the specific question raised in this case, the Senior President went on to hold that there is “no intention, articulated or implied, to limit the test of real or effective or committed support to birth families” and “no support in the case law” for the proposition that foster care was a “special category” for the purposes of Article 8. Notably, Kugathas specifically described at §18 the “special case” which was the converse to that asserted by the Secretary of State, namely that

in some cases, a natural tie between parent and infant may displace the principle of general application that a family life will need to be proved based on the substance of the relationship being asserted (§34).

In light of this, the Secretary of State’s argument in support of a “starting presumption” of family life for birth but not foster families appears almost impossible to sustain.

The Senior President added that the same principle was well embedded in ECtHR case law, notably in Kopf and Liberda v Austria App no. 1598/06 [2012] 1 FCR 526. On the facts of Kopf, it was the applicant foster parents’ “genuine concern” for the child’s well-being and that an “emotional link” between the child and the applicants similar to the one between parents and children had started to develop that grounded the court’s finding, at §37, that the relationship fell within the notion of family life.

Adding that

it may be significant that through the support, protection and upbringing of his foster family, the Appellant has transformed from a destitute thirteen-year-old who spoke no English, to an accomplished young man engaged in his community and education (§41),

the Senior President ordered that a new tribunal must consider all of the relevant evidence afresh and come to a conclusion about the Appellant’s family life. Given the likely prevalence of Article 8 claims arising out of circumstances involving foster families, the decision gives welcome guidance as to how the test for establishment of Article 8 family life must be approached.

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