RO (India) v Entry Clearance Officer

For Article 8(2), proportionality is the governing question once potential interference with family or private life is established. There is no separate exceptionality or small-minority test. The expectation that disproportionate cases will be uncommon is descriptive, not a legal criterion.

Family life may exist between adult children and a parent where emotional dependency exceeds ordinary bonds of affection. An adequately reasoned finding need identify its evidential basis; it need not narrate all the evidence. In assessing proportionality, considerable weight may be given to historical discrimination and barriers that prevented or delayed family migration. A reconsideration can proceed only where the original tribunal made a material error of law.

Three Indian sisters sought entry clearance to join their mother in the United Kingdom under paragraph 317 of the Immigration Rules. Their applications were refused because they were over 18 and could not satisfy the dependency and exceptional-compassionate-circumstances requirements.

Immigration Judge Graham allowed the appeals under Article 8, finding family life based on emotional dependency and concluding that refusal was disproportionate in light of the historical operation of the special quota voucher scheme. Reconsideration was ordered, and Senior Immigration Judge Eshun dismissed the appeals. The Court of Appeal considered whether the first decision contained an error of law, including whether the finding of family life and the proportionality assessment were adequately reasoned.

1. Appeal allowed unanimously. Laws LJ gave the principal judgment, with Sedley LJ and Lawrence Collins LJ agreeing. Immigration Judge Graham’s decision contained no material error of law, so there was nothing to remit to the Asylum & Immigration Tribunal.
2. Family life. Although family life will not normally exist between an adult child and a parent, it may arise where emotional dependency exceeds the natural bonds of affection between parent and child. Graham’s finding had an adequate evidential basis. A judge need not narrate the evidence in detail; that would merely provide reasons for reasons. No Wednesbury challenge could be sustained.
3. Historical discrimination. The special quota voucher scheme had prevented, or might have prevented, an earlier application by the daughters to join their mother. The relevant question was whether the sponsor might have qualified and moved with them if the scheme had applied from the outset. Its upper age limit of 25 did not answer that historical question.
4. Article 8(2) proportionality. Once potential interference with family or private life is established, the issue is whether exclusion is proportionate. The House of Lords’ decision in Huang v SSHD [2007] UKHL 1 disavowed an exceptionality test. The reference to a small minority of successful claims was a description or prediction, not a legal test or criterion. Sedley LJ stated that elevating that expectation into an exceptionality test should stop. The reasoning in NH (Female BOC’s, exceptionality, Article 8 Paragraph 317) British Overseas Citizens [2006] UKIAT 00085, upheld by the Court of Appeal [2007] EWCA Civ 1330, supported giving considerable weight to the historical wrongs and migration barriers affecting British overseas citizens.
5. Reconsideration. A substantive redetermination on reconsideration required an error of law in the original decision. Since Graham had made no such error, Senior Immigration Judge Eshun had no proper jurisdiction to interfere. Order: appeal allowed.

1. Court of Appeal (Civil Division) — Appeal allowed. The court held that the original decision contained no error of law and that nothing should be remitted to the Asylum & Immigration Tribunal.
2. Asylum & Immigration Tribunal — Immigration Judge Graham initially allowed the appeals under Article 8. Following reconsideration ordered by Immigration Judge Batiste, Senior Immigration Judge Eshun dismissed the appeals on 25 September 2007.