JB (India) & Ors v Entry Clearance Officer

Family life protected by article 8 will not normally exist between a parent and an adult child without further elements of dependency beyond ordinary emotional ties. Partial financial support, regular telephone contact and repeated attempts at family reunion do not, without more, establish the necessary dependency.

A historic injustice affecting a family's immigration position may be relevant, and sometimes highly relevant, when assessing proportionality. It does not establish the prior requirements of protected family life and sufficiently serious interference. Unless those requirements are met, the proportionality assessment under article 8(2) does not arise.

Three adult siblings sought entry clearance to settle in the United Kingdom with their mother. An Immigration Judge dismissed their appeals under the Immigration Rules but allowed them under article 8 of the European Convention on Human Rights, finding family life and disproportionate interference.

On reconsideration, the Asylum and Immigration Tribunal found no protected family life between the adult children and their mother and dismissed the appeals. The siblings appealed, contending that the original Immigration Judge had been entitled to find family life.

The central issue was whether the relationship contained elements of dependency beyond the normal emotional ties between a parent and adult children, so as to constitute family life under article 8.

1. Appeal dismissed. Sullivan LJ, with whom Mummery and Lawrence Collins LJJ agreed, held that the Tribunal had been plainly correct to find no family life for the purposes of article 8(1) of the European Convention on Human Rights.

2. Protected family life will not normally exist between a parent and adult children unless there are further elements of dependency beyond normal emotional ties. Kugathas v SSHD [2003] EWCA Civ 31 supplied the applicable approach. The principle concerning the inherent family bond between parents and a child in Sen v The Netherlands [2003] EHRR 81 arose where the applicant was a minor and did not establish that the same bond necessarily remains protected family life after the child becomes an adult.

3. The original Immigration Judge had failed to apply that distinction. The mother's expectation or hope that the appellants might join her, together with their repeated applications, could not establish protected family life. Financial dependence “to some extent”, weekly telephone calls and strong affection likewise did not demonstrate the additional dependency required. On the evidence, there was no rational basis for finding protected family life between the adult siblings in India and their mother in the United Kingdom.

4. Entry Clearance Officer Mumbai v NH (India) [2007] EWCA Civ 1330 was distinguishable. The child there was just over 18, in full-time education, living with both parents and wholly dependent upon them. AG (Eritrea) v SSHD [2007] EWCA Civ 801 did not address family life between an adult child and a parent. The Immigration Judge in RO (India) v Entry Clearance Officer [2008] EWCA Civ 1525, by contrast, had correctly asked whether there was emotional dependency exceeding ordinary parental affection.

5. A historic injustice may be relevant, and sometimes highly relevant, to proportionality under article 8(2). It has no bearing on whether protected family life and sufficiently serious interference first exist. As those threshold requirements were not met, proportionality did not arise.

1. Court of Appeal (Civil Division): The appeal was dismissed. The Tribunal had correctly held that protected family life did not exist between the adult appellants and their mother.

2. Asylum and Immigration Tribunal on reconsideration: The Tribunal found no family life for the purposes of article 8 of the European Convention on Human Rights and dismissed the appeals.

3. Immigration Judge: The appeals were dismissed under the Immigration Rules but allowed on article 8 grounds. The judge found protected family life and disproportionate interference.