Patel v Entry Clearance Officer

Whether an adult son or daughter enjoys family life with a parent for the purposes of Article 8 depends on the facts. The assessment is fact-sensitive and may require attention to the particular family structure and the nature of the dependence. At the permission stage, an arguable issue may arise where a tribunal relied on post-decision circumstances when assessing the position at the date of decision, or failed to consider material features of the family’s circumstances.

The appellant, an Indian citizen, applied for entry clearance under paragraph 317(i)(f) of the Immigration Rules to join her mother, who was settled in the United Kingdom. Her appeal was initially allowed, but reconsideration led to an order for a fresh hearing limited to the exceptional-compassionate-circumstances issue and Article 8.

At the rehearing, the tribunal found that she did not meet paragraph 317(i)(f) and did not enjoy family life with her parents for Article 8 purposes. She sought permission to appeal, pursuing only the contention that Article 8 was engaged. The renewed application concerned whether the tribunal had assessed the position at the decision date and taken sufficient account of the family’s particular circumstances.

1. Application granted. Permission to appeal was granted on the Article 8 ground only. The Immigration Rules ground was no longer pursued.
2. Whether an adult son or daughter is sufficiently dependent on a parent to enjoy family life under Article 8 is fact-sensitive. Similarities with other cases do not remove the need to examine significant differences in the individual family circumstances.
3. The threshold for permission to appeal was low. There was force in the submission that the tribunal had relied on matters occurring after the Entry Clearance Officer’s decision, including the appellant’s later move to live with friends, as evidence of independence. That raised an arguable issue concerning the proper date for assessing the claim.
4. The tribunal’s assessment also arguably required closer attention to the appellant’s particular family circumstances, including the mother’s move to the United Kingdom with a view to eventual family reunification.
5. The court did not finally determine whether Article 8 family life existed or whether the tribunal had erred. Permission was limited to the identified ground, with counsel to be heard on whether the notice of appeal required amendment.

• Court of Appeal (Civil Division): On a renewed application for permission to appeal, permission was granted on the Article 8 ground only: [2009] EWCA Civ 1035.
• Asylum and Immigration Tribunal: The initial appeal was allowed. On reconsideration, Senior Immigration Judge Warr found an error of law and ordered a fresh hearing, limited to the exceptional-compassionate-circumstances issue and Article 8. Immigration Judge McCarthy thereafter rejected the appellant’s case under paragraph 317(i)(f) and found that Article 8 family life was not established.