Krishnapillai, R (on the application of) v Secretary of State for the Home Department

Article 8 may be engaged by the relationship between adult siblings where the facts disclose real, committed or effective personal support. Mental-health deterioration may strengthen family or private life by increasing dependency, and removal may consequently become disproportionate. The assessment must address all the circumstances, including the family relationship, health and the public interest in immigration control.

Under Rule 353 of the Immigration Rules, further submissions require additional material with some substance. An unsupported assertion made immediately before removal does not engage the rule. The Secretary of State must nevertheless remain alert to implied human-rights claims.

The claimant, a Sri Lankan Tamil who had lived in the United Kingdom since 1992, challenged her removal to Sri Lanka on human-rights and public-law grounds. She relied principally on her relationship with her sister, long residence, delay, depression, post-traumatic stress syndrome and a reported suicide attempt.

An adjudicator had previously found that she had no protected family life with her siblings, although she had established a private life. The Secretary of State later rejected her representations and removed her on 18 February 2008. The issue was whether the Secretary of State had unlawfully failed to consider the claimant’s dependency and mental health under Article 8, or irrationally failed to treat her representations as a fresh claim under Rule 353.

1. Claim dismissed. The Secretary of State did not err in considering the claimant’s Article 8 rights or in applying Rule 353 of the Immigration Rules.
2. Article 8 can be engaged between adult siblings. The question is fact-sensitive and requires examination of the relationship asserted. At least real, committed or effective personal support is required, adopting the approach in Kugathas v Secretary of State for the Home Department [2003] EWCA Civ 31.
3. Mental-health deterioration may affect the integrity of a person and the relationship between family members. It may create or strengthen the dependency necessary for Article 8 and may make removal disproportionate. Article 8 proportionality must be assessed by reference to all the facts, while recognising the state’s general power to control immigration.
4. The claimant’s evidence did not establish that position on the facts. The medical evidence was old and limited, there was no psychiatric evidence, and there was no evidence that the reported suicide attempt was serious or had received relevant medical assessment. Dependency was considered, including through referral to a senior official.
5. Rule 353 requires further submissions before the Secretary of State must apply its two-stage test. Further submissions mean additional material with some substance; an insubstantial and unsubstantiated assertion is insufficient. The material need not be elaborate, and a human-rights claim need not be expressly labelled as such.
6. The claimant’s assertion of dependency on the day of removal, unsupported by further material and made after ample opportunity to raise the issue, was not a further submission. The reported suicide attempt was already within the Secretary of State’s knowledge and added nothing materially new.
7. The legality of the decision had to be judged by the material available to the decision-maker when the decision was made. The later August 2008 letter and later evidence were therefore disregarded. Permission to appeal was refused, and legal aid taxation was ordered.

The judicial review was initially refused permission by Griffith Williams J, Sedley LJ and Buxton LJ. On further consideration, Buxton LJ granted permission, referring to delay and the family-life analysis in Beoku-Betts v Secretary of State for the Home Department [2008] 3 WLR 166. The Administrative Court dismissed the claim. Mr Justice Cranston refused permission to appeal.