PT (Sri Lanka) v Secretary of State for the Home Department

Permission to appeal should be granted where an asylum claim raises an important unresolved question about the application of Article 8 to family life formed during the processing of that claim. Family life is not necessarily excluded merely because it developed after an asylum claim that proved unsustainable. The court must consider the genuineness and present reality of the family unit, the period and circumstances in which it formed, and any delay or unexpected event materially affecting the Article 8 assessment. A case founded only on the relatively short passage of time during an expedited and unsuccessful asylum claim may not have a better than even prospect of success, but it may nevertheless warrant consideration by the Court of Appeal.

A Sri Lankan national and his wife arrived in the United Kingdom in August 2007 and claimed asylum. Their claim was processed without undue delay and was refused. An appeal heard in December 2008 was unsuccessful. The Immigration Judge accepted that the couple had joined their daughter and grandchildren, and that the wife had become an integral part of the family unit by helping care for the children and supporting the daughter, who was effectively abandoned by her husband.

The Immigration Judge rejected the Article 8 claim, holding that more than hardship or difficulty was required and that the interference with family life was insufficiently serious. Permission to appeal was initially refused by Longmore LJ on the papers. On renewal, the central question was whether an Article 8 claim could succeed where the family life relied upon had arisen during the relatively brief processing of an asylum claim which had proved ill-founded.

1. Permission granted. The determination raised a question of principle concerning the development of Article 8 jurisprudence after Beoku-Betts.
2. The Immigration Judge accepted that the couple’s daughter had been effectively abandoned by her husband and that the wife had become an integral member of the family unit by caring for the grandchildren and reducing the burden on the daughter. The genuineness of the family unit was therefore not in doubt.
3. The Immigration Judge may have approached the issue incorrectly by treating the case as turning only on whether there was sufficiently serious interference with family life. The underlying question was whether full weight had been given to the jurisprudence before and after Beoku-Betts, and whether an Article 8 claim could be founded on family life formed during the processing of an asylum claim which later proved unsustainable.
4. The point was not necessarily determinative in every case. Where asylum processing was unjustifiably prolonged, reliance on the passage of time might carry greater weight. Likewise, an unforeseen and catastrophic event, such as the orphaning of grandchildren, might create a family relationship which had to be addressed under Article 8 even where the asylum claim had been processed expeditiously.
5. This was a paradigm case in which the family unit was genuine but had developed during the relatively short period required to process an unsustainable asylum claim. Although the appeal did not necessarily have better than an even chance of success, the question of principle warranted the Court of Appeal’s consideration.

• Asylum & Immigration Tribunal: The asylum appeal, heard in December 2008, was unsuccessful. The Immigration Judge rejected the Article 8 claim. The judgment identifies the matter as [AIT No: AA/12935/2007].
• Court of Appeal (Civil Division): Longmore LJ refused permission to appeal on the papers in July 2009. On renewal, Sedley LJ granted permission to appeal.