TC (Zimbabwe) v Entry Clearance Officer, Harare

An adult child’s relationship with a parent may engage Article 8 family life where there is an unusual degree of dependency. The assessment is fact-sensitive. Financial remittances alone may be insufficient, and prolonged separation in different countries may make the relationship too tenuous for interference to be disproportionate. Procedural defects in an immigration tribunal’s reconsideration do not justify permission to appeal where, on the evidence and submissions that could have been advanced, the appeal had no realistic prospect of success.

The appellant, who had remained in Zimbabwe with his father and sister, applied for entry clearance to join his mother in the United Kingdom after she had been recognised as a refugee. The application was refused because he was over 18 and outside Rule 352D of the Immigration Rules; the Entry Clearance Officer also declined to exercise compassionate discretion.

An Immigration Judge dismissed the appeal. On reconsideration, the Asylum and Immigration Tribunal accepted that the first decision contained material errors concerning the Refugee Family Reunion Policy and Article 8, but reached the same result. The Court of Appeal considered whether the procedural history warranted permission to appeal and whether the relationship engaged Article 8 family life.

Application for permission to appeal refused. Lord Justice Wilson agreed with Lord Justice Longmore.

1. The reconsideration procedure gave rise to concern. The Immigration Judge had not worked through the five-step Article 8 approach identified in Razgar and had treated the issue by reference to exceptionality. The AIT also said that the first decision had failed to consider the policy exception allowing consideration outside the Rules in compelling compassionate circumstances. Nevertheless, the Court focused on what evidence or submissions could have been advanced if the representative had been given the opportunity to address the alleged error.
2. Family life under Article 8 may continue between an adult child and parent where there is an unusual degree of dependency. The dependency must be more than financial. The Court accepted that it might go too far to conclude that the evidence showed no family life at all. However, the relationship was, on any view, extremely tenuous. The appellant had lived apart from his mother, in another country, for seven years. Remittances and telephone calls did not alter that assessment.
3. Given the tenuous nature of the relationship and the prolonged separation, any interference with the family life would have been proportionate. The appeal therefore had no realistic prospect of success on its merits, even if the procedural shortcomings were established.
4. It would consequently be inappropriate to grant permission to appeal merely to permit a rehearing of an appeal that could not succeed. The application was refused.

1. Court of Appeal (Civil Division) — On 2 September 2008, the application for permission to appeal was refused: [2008] EWCA Civ 1020.
2. Asylum and Immigration Tribunal — On reconsideration, the Tribunal accepted that the Immigration Judge had made material errors concerning the Refugee Family Reunion Policy and Article 8, but concluded that the decision remained lawful and compatible with Article 8. AIT No: 0A/27753/2006.
3. Immigration Judge — On 1 March 2007, Immigration Judge Reynolds dismissed the appeal against the entry-clearance decision.