ZB (Pakistan) v Secretary of State for the Home Department

For the purposes of ECHR article 8, an immigration tribunal must assess the relevant family unit as a whole. It should not divide family relationships into separate bilateral segments and reject each in isolation.

Family life between an older parent and adult children requires dependency beyond normal emotional ties. Where the parent claims to depend on adult children in the United Kingdom, the inquiry is into the extent of that dependency and whether it creates more than normal emotional ties.

If article 8 is potentially engaged, the tribunal must make a fact-sensitive proportionality assessment. It must ask whether family life can reasonably be enjoyed elsewhere and balance that answer against the public interest in effective immigration control.

The appellant, a Pakistani national, applied for indefinite leave to remain as the parent of a person settled in the United Kingdom. The Secretary of State refused the application under the Immigration Rules and concluded that refusal did not breach article 8.

An Asylum and Immigration Tribunal initially upheld the refusal without deciding the article 8 issues. On reconsideration, a differently constituted tribunal dismissed the appeal. It held that the appellant had no article 8 family life with her husband, adult daughter, or wider family in the United Kingdom, and that removal would in any event be proportionate.

The appellant appealed on a point of law. The central issue was the proper article 8 approach where an older parent says that ill-health and financial circumstances make her dependent on adult children and an extended family settled in the United Kingdom.

1. Appeal allowed and remitted. The tribunal erred in law in concluding that article 8 was not engaged and in its proportionality assessment. The matter was remitted to a differently constituted tribunal.

2. The tribunal should have used the structured questions in R (Razgar) v Secretary of State for the Home Department [2004] 2 AC 368, as confirmed in EB (Kosovo) v Secretary of State for the Home Department [2008] 2 WLR 178. The first two questions required an assessment of whether removal would interfere sufficiently seriously with the appellant’s family life to engage article 8.

3. The tribunal wrongly divided the family into separate relationships and found no protected family life in each segment. Article 8 required it to consider the family group as a whole and then the appellant’s place within it. It also failed to give proper weight to the appellant’s husband, children and grandchildren being in the United Kingdom.

4. Although an adult parent and adult child require more than normal emotional ties before article 8 family life arises, the inquiry must fit the asserted dependency. For an older relative claiming dependence on younger relatives in the United Kingdom, the tribunal must determine how far the older relative depends on them and whether that dependency creates the required additional element. The appellant’s need for care and her apparent financial dependence could support such a finding.

5. The concession that the tribunal had wrongly found no family life with the appellant’s husband was correct. Its proportionality reasoning was also inadequate. It had to ask whether the family’s life could reasonably be enjoyed elsewhere, then balance that answer against all considerations favouring removal, including any non-compliance with the Immigration Rules or deception on entry. Only that evaluative exercise could determine proportionality under article 8(2).

• Court of Appeal (Civil Division) Allowed the appeal and remitted the article 8 issue to a differently constituted tribunal: [2009] EWCA Civ 834.
• Asylum and Immigration Tribunal On reconsideration, dismissed the appeal in a determination promulgated on 12 November 2008, holding that removal would not breach article 8.
• Asylum and Immigration Tribunal Initially upheld the Secretary of State’s refusal but did not consider article 8; reconsideration on that issue was ordered.