YG (China) v Secretary of State for the Home Department

Whether family life exists for Article 8 is essentially a factual question, assessed by the real existence in practice of close personal ties. Potential family life may be relevant, particularly between a child and a natural father, or where some family life already exists. A future possibility or genuine wish cannot establish Article 8 where no degree of family life is present. The appellate court should respect factual findings made by the specialist tribunal. Alternatively, where Article 8(1) is engaged, removal must be assessed by proportionality; on the facts, the decision could not be quashed.

The appellant, a Chinese national, entered the United Kingdom on a student visa and later had a child with a British citizen. The Asylum and Immigration Tribunal dismissed her Article 8 appeal against refusal of leave to remain in a decision dated 1 October 2007. She sought permission to appeal, arguing that family life existed between herself, the child and the child’s father, and that the immigration judge had failed to consider prospective family life. She also argued that the judge’s observations about future contact in China were inconsistent with findings about the prospects of contact in the United Kingdom. The Tribunal refused permission, as did a single Lord Justice on the papers. The issue before the Court of Appeal was whether there was a real prospect of relief or of quashing the Tribunal’s decision.

1. Disposition. The renewed application for permission to appeal was refused. The immigration judge’s decision was comprehensive and clear, and there was no real prospect that further consideration would result in relief or in the decision being quashed.
2. Family life under Article 8. The approach in Singh v ECO (New Delhi) [2004] EWCA Civ 1075 was correct. The existence of family life depends essentially on whether close personal ties exist in practice. Potential family life may be relevant in the context of a child and natural father, and the potential for development may matter where some family life already exists. A future possibility or genuine wish cannot establish family life where no degree of family life has been established.
3. Application to the facts. The Tribunal was entitled to find that contact between the child and his father had been minimal. There had been three occasions of face-to-face contact and two court appearances, but no telephone calls, correspondence or other continuing relationship. Maintenance payments, cooperation with registration and attendance at hearings did not require a different conclusion. The Tribunal had considered the father’s future plans, and its factual findings were for the Tribunal rather than the Court of Appeal.
4. Future contact in China. The immigration judge’s observation that contact was not excluded by removal to China was not inconsistent with the findings about the limited prospects of contact between London and Cardiff. It merely recognised that future entry and contact were not impossible.
5. Alternative proportionality conclusion. Even if family life existed so as to engage Article 8(1), the Tribunal was entitled to conclude, applying proportionality, that the Secretary of State’s decision was in accordance with the law and pursued immigration control and could not be quashed on the facts.

• Court of Appeal (Civil Division): Renewed application for permission to appeal refused in [2008] EWCA Civ 530.
• Asylum and Immigration Tribunal: Appeal under Article 8 dismissed in a decision dated 1 October 2007. Permission to appeal was refused by the Tribunal and subsequently by a single Lord Justice on the papers.