Kugathas v Secretary of State for the Home Department

Article 8 imposes no absolute requirement that protected family life be located in the United Kingdom. The initial questions are whether family life exists and whether removal would interfere with respect for it. Relationships between adult children, parents and siblings require something more than normal emotional ties. Blood relationship, affection and occasional contact alone are insufficient. Dependency may establish the additional connection. The existence of family life requires examination of the actual relationship and its circumstances. Where the evidence fails to establish family life, the family-life ground fails without a necessary decision on interference or proportionality.

The appellant was a Sri Lankan asylum-seeker aged about 38. His mother, brother, sister and his sister's family lived in Germany as refugees. He had previously lived in Germany and came to the United Kingdom in 1999. His father had been killed in Sri Lanka, where he had no remaining family. Contact with his relatives comprised telephone calls and one visit by his sister and her family.

An adjudicator rejected his asylum claim on credibility grounds but allowed his appeal against removal under Article 8. The adjudicator considered that removal to Sri Lanka would diminish his contact with his relatives in Germany. The Immigration Appeal Tribunal allowed the Secretary of State's appeal because the appellant had no family life in the United Kingdom. With permission from Schiemann LJ, the appellant appealed to the Court of Appeal; the asylum decision was not challenged. The questions were whether Article 8 required family life within the United Kingdom and whether the established relationships amounted to protected family life.

Appeal dismissed unanimously. The Immigration Appeal Tribunal had correctly set aside the adjudicator's decision, although its territorial reasoning was erroneous.

1. All three judges rejected an absolute requirement that family life must exist within the United Kingdom. Sedley LJ distinguished the existence of family life from interference with respect for it. Location was a factual consideration whose relevance depended on the proposed interference. Arden LJ accepted that protected family life could cross national boundaries. Simon Brown LJ illustrated this with a parent living across a border from dependent children whom he regularly visited.

2. Sedley LJ and Arden LJ agreed that relationships between adults required something more than normal emotional ties. The approach in S v United Kingdom (1984) 40 DR 196 was applied. Blood ties, ordinary affection, telephone contact and a single family visit did not establish family life on the evidence. Arden LJ stated that even immediate family relationships carried no presumption of family life.

3. In his additional reasoning, Sedley LJ explained that dependency need not be economic. Understood as personal support, it required support that was real, committed or effective. He also observed, tentatively and for completeness, that the natural tie between a parent and an infant might dispense with demonstrable support, referring to Boughanemi v France [1996] 22 EHRR 228.

4. Arden LJ identified relevant considerations including the relatives concerned, the nature of the links, age, previous residence and maintained contact. The appellant's family's refugee status and experiences in Sri Lanka formed part of the context. Any earlier family life in Germany remained undecided. His departure from Germany involved no act of the United Kingdom government, so the relevant relationship was the one maintained during his residence here.

5. Sedley LJ explained that Entry Clearance Officer, Lagos v Imoh [2002] UKIAT 01967 supplied no general territorial restriction. Its references to establishing family life in this country concerned its entry-clearance context. He also endorsed the distinction in Entrance Clearance Officer Dhaka v Shamim Box [2002] UKIAT 02212 between entry and removal cases: their factual settings could differ while the underlying meaning of family life remained the same.

6. Simon Brown LJ additionally considered that removal could not realistically interfere with respect for family life through its limited consequences for visits and telephone costs. Arden LJ reserved the interference question because family life had not been established. The common dispositive ground was the absence of protected family life; interference and proportionality were therefore unnecessary to the court's decision.

• Court of Appeal (Civil Division): In Kugathas v Secretary of State for the Home Department [2003] EWCA Civ 31 , dismissed the appellant's appeal unanimously. The tribunal's decision stood because the evidence failed to establish family life, although its territorial reasoning was rejected.
• Immigration Appeal Tribunal: By a decision promulgated on 11 June 2002, allowed the Secretary of State's appeal and set aside the adjudicator's Article 8 decision. It considered that the appellant had to establish family life in the United Kingdom.
• Immigration adjudicator: On 18 January 2002, rejected the asylum claim on credibility grounds but allowed the appeal against removal under Article 8. There was no cross-appeal against the asylum decision.