Family life and extraterritorial jurisdiction: IA & Ors v Secretary of State for the Home Department [2025] EWCA Civ 1516 

10 December 2025 by Guest Contributor

By Samuel Talalay

Introduction 

Case overview 

The case originated in a visa application from a Palestinian family of six, resident in Gaza, who had sought leave to enter the UK outside the Immigration Rules (under which it was agreed they had no right to enter). The family, comprising a mother, father, and four children, hoped to join the father’s younger brother, a naturalised British citizen who came to the UK in 2007.  

The family’s application was refused by the Secretary of State in May 2024. Their appeal to the First-tier Tribunal (“FtT”) was dismissed but they were successful before the Upper Tribunal (“UT”). Both the FtT and the UT held that their Article 8 right to family life was engaged by the Home Secretary’s decision. Unlike the FtT, the UT held that the interference was disproportionate and therefore constituted a violation of that right. 

The Home Secretary appealed against the UT decision on three grounds, set out at [5]: 

• There was no family life for her decision to interfere with; 

• Even if there was family life, the proportionality exercise ought only to consider the UK sponsor’s rights, rather than those of the applicant family; and 

• The UT did not assign the correct weight to the various factors relevant to that exercise.   

The appeal was successful on the first ground, but the Court also went on to consider grounds two and three. Had it held that family life existed between the applicants and the sponsor, the Court would have nonetheless allowed the appeal after conducting a fresh proportionality exercise, which “would have come down heavily in favour of refusing entry clearance” (at [176]).  

Family life 

The Court conducted a sweeping review of the case law of the European Court of Human Rights (“ECtHR”) (at [42]-[60]) and of the domestic courts (at [61]-[85]) concerning the protection afforded by Article 8 to family life.  

It reiterated, at [113], the settled position that family life is normally limited to core family members and that it will only exist between adult siblings where certain further conditions are met. It then considered diverging accounts of those further conditions.  

It disapproved of the approach taken by the FtT (see [21]) which, applying the dictum of Sedley LJ (Kugathas v SSHD [2003] EWCA Civ 31), held that family life exists between adult siblings when there is real, committed or effective support going beyond normal emotional ties.  

The Court’s role in light of section 2(1) of the Human Rights Act 1998, expressed at [59], was “to draw out the broad principles which animate the [ECHR]” rather than “cast[ing] around” the case law “like blackletter lawyers seeking clues”. Applying that approach, the Court found, at [60], that the test representing the “consistent jurisprudence of the ECtHR” was the one it endorsed at [116]: family life exists between adult siblings when there are the “necessary additional elements of dependence, involving more than the normal emotional ties” – which is a “fact-sensitive exercise that is to be decided on a case-by-case basis”. This was the test articulated by the ECtHR in Kumari v the Netherlands 44051/20, 10 December 2024 and by the domestic courts in Beoku-Betts v SSHD [2008] UKHL 39. 

Searching for the existence of real, committed or effective support, per Kugathas, is not incorrect as a way of ascertaining the presence of additional elements of dependence, but “it is not the test in itself” (at [123]).  

Moreover, it would not have been appropriate for the Court to prefer the ‘real, committed and effective support’ test given its observation, at [40], that domestic courts should “go no further than they can be fully confident that the ECtHR would go, because public authorities have no right to apply to that court.”  

As for what additional elements of dependence are required for family life to be made out, the Court was circumspect, observing at [125] that “it is undesirable to lay down hard and fast rules”. The Court agreed with Kumari that “it is harder for adults to demonstrate the necessary dependency because family life is normally limited to the core cohabiting family,” but declined to say more than that the exacting standard “obviously requires some dependence”, but not “one person being completely dependent on another”.  

Lastly, a question remains as to the exact scope of the ‘additional elements of dependence’ test. It clearly applies to family life between adult siblings, and the Court seemed to suggest at [118] that it would also apply between parents and adult children. Whether it applies to other non-core family members remains to be seen. 

Whose right is it anyway? 

A central question for the Court was this: whose rights are relevant in the Article 8 analysis?  

Non-claimant family members 

The more straightforward facet of this question concerned the rights of a claimant’s family members. In the instant case, how should the Court think about the rights of the non-claimant UK-based brother?  

The Court observed, at [87], that this question was definitively answered in Beoku-Betts. In that case the House of Lords decided that, where it is established that a public authority has interfered with a claimant’s family life, this necessarily requires consideration of the other members of the family with whom that life is enjoyed. Family life is unitary; the rights of one member cannot be considered in isolation from the rights of those with whom it is shared.  

It is worth pausing on an important point regarding the stage at which non-claimant family members’ rights enter the calculus. The Court does not consider the rights of individuals who belong to a claimant’s family (in layman’s terms) when deciding whether family life is established in the first place. Rather, the Court must consider the rights of non-claimant individuals with whom a claimant is found to have family life. In other words, other family members’ rights only fall to be considered as part of the proportionality exercise once family life has already been established. As the Court observed, at [100], “[t]hat is what is meant by family life being unitary” (see also [141]).  

Individuals outside the UK 

The thornier facet of the ‘whose rights’ question related to the extraterritorial dimension of this case. What is the territorial scope of the contracting parties’ obligation, under Article 1 of the Convention, to secure the Convention rights and freedoms of “everyone within their jurisdiction”?  

The Court considered the authorities on this question at [86]-[100]. Rejecting the Home Secretary’s argument that only the brother’s Article 8 rights were engaged since only he was located within the UK, the Court found, at [141], that “[t]he true position is rather more nuanced.” 

That position, elaborated at [142]-[143], brings together the territorial constraints of Article 1 and the position on family life from Beoku-Betts; while the UK’s positive obligation extended only to the brother resident in the UK, the unitary nature of family life meant that the brother’s rights necessarily encompassed the rights of any family members with whom he was found to share a family life. 

There are, of course, instances where individuals outside of a Convention state’s territory are nonetheless within its jurisdiction in the sense required by Article 1. The leading authority as to when this situation obtains is Al Skeini v United Kingdom 55721/07, 7 July 2011, which the Court considered at [92]-[93]. However, there was no suggestion that the circumstances of this case could ground a finding of this sort of extraterritorial jurisdiction. 

It is worth distinguishing the foregoing issue from the more straightforward question of extraterritoriality that arises when an individual on UK soil challenges a decision on the basis that it will lead to a violation of his Convention rights elsewhere and therefore constitutes a straightforward (albeit indirect) violation of the Government’s negative Convention obligations. This distinction was drawn out explicitly by the House of Lords in the domestic decision in Al-Skeini v SSHD [2007] UKHL 26, at [109(4)(iv)]: 

“The Soering v United Kingdom (1989) 11 EHRR 439 line of cases, the Court pointed out, involves action by the state whilst the person concerned is “on its territory, clearly within its jurisdiction” (para 68) and not, therefore, the exercise of the state’s jurisdiction abroad.” 

Conclusion 

The impact of this decision is already being felt in legal proceedings involving Article 8 claims. It marks the latest episode in the judiciary’s efforts to apply the law in a way that answers the charge that human rights generally, and Article 8 in particular, represent an anti-democratic blocker on Government policy.  

The point is well-illustrated by the Court’s discussion of the proportionality exercise, which this post has not considered in detail. The Court reaffirmed the centrality of the Home Secretary’s immigration policy in striking the right balance between individuals’ rights and the legitimate aims in pursuit of which the Government is entitled to interfere with those rights. The point was made particularly forcefully at [173]: attaching significant weight to the Home Secretary’s immigration policy was “a question of respect for the UK’s laws and democratic process. The decision as to what is necessary in UK society to protect the economic well-being of the UK and the rights of citizens of the UK is the business of the SSHD and the Government.” 

Samuel Talalay is a pupil barrister at 1 Crown Office Row.