Kugathas v Secretary of State for the Home Department

Article 8 does not require family life to be located in the United Kingdom before removal can interfere with it. The existence of family life and any interference with it are separate questions of fact and law.

For an adult child, parent or sibling, ordinary blood ties, affection, telephone contact and occasional visits do not by themselves establish protected family life. There must be something more than normal emotional ties, such as real, effective and committed personal support or dependency. The assessment is fact-sensitive and considers the relatives, their links, age, residential history and actual contact.

A Sri Lankan asylum-seeker appealed against the Immigration Appeal Tribunal’s reversal of an adjudicator’s decision allowing his appeal under Article 8. The adjudicator had rejected his asylum claim but found that removal to Sri Lanka would disproportionately interfere with his family life with his mother, brother and sister’s family, who lived in Germany.

The appellant was an adult and had left Germany for the United Kingdom in 1999. His contact with his German relatives consisted of telephone calls and one visit by his sister and her family. The Tribunal held that he could not rely on family life because it was not located in the United Kingdom. The central issues were whether that territorial approach was correct and whether the established facts amounted to family life protected by Article 8.

1. The appeal was dismissed unanimously. Lord Justice Sedley held that the Immigration Appeal Tribunal had reached the correct outcome, although for the wrong reason. Lady Justice Arden and Lord Justice Simon Brown agreed.
2. The Tribunal had erred in treating family life in the United Kingdom as an absolute precondition. Under Article 8 of the 1950 Convention, the court must first ask whether family life exists and then whether removal would interfere with respect for it. Family life centred abroad may in an exceptional case be affected by removal from the United Kingdom. Its location is a factual matter, informed by the legal basis of the proposed interference, not a territorial rule.
3. However, the appellant had not established family life within Article 8. Lord Justice Sedley held that adult family relationships require more than blood ties and the ordinary concern and affection which accompany them. They require real, committed and effective personal support or dependency. Lady Justice Arden added that there is no presumption of family life even between immediate relatives; relevant matters include the relatives concerned, the nature of their links, age, residence and actual contact.
4. The appellant’s telephone contact and the single family visit did not meet that standard. Any possible family life while he lived in Germany had ended or was not material to the present issue. As no protected family life had been shown, removal did not engage Article 8 on the facts found. It was unnecessary to decide proportionality. The Tribunal’s allowing of the Secretary of State’s appeal against the adjudicator therefore stood.

• Court of Appeal (Civil Division): Appeal dismissed: [2003] EWCA Civ 31. The court held that the Immigration Appeal Tribunal’s territorial reasoning was wrong, but upheld its ultimate conclusion because no Article 8 family life had been established.
• Immigration Appeal Tribunal: Allowed the Secretary of State’s appeal and overturned the adjudicator’s Article 8 determination.
• Adjudicator: On 18 January 2002, rejected the asylum claim on credibility grounds but allowed the appeal against removal under Article 8.