Patel, Modha & Odedra v Entry Clearance Officer (Mumbai)

Adult children may retain family life with parents for the purposes of article 8 even where full dependency is absent. The existence of family life must be determined before the proportionality of exclusion is assessed.

Where British citizenship was obtained only after legislation sought to correct the historical treatment of British Overseas Citizens, that history may materially affect proportionality. If family life still exists, the likelihood that the family would otherwise have settled in the United Kingdom much earlier may be decisive. The history does not itself establish family life or create a presumption of admission.

These conjoined appeals concerned adult children refused entry clearance to join parents who had acquired British citizenship following legislation intended to correct the historical treatment of British Overseas Citizens. The Asylum and Immigration Tribunal dismissed or reversed the appellants’ claims under article 8 of the European Convention on Human Rights.

The Patel and Modha determinations had assessed family life using circumstances arising after the entry clearance decisions. The Odedra determination found that only financial support remained between the adult children and their parents. The central issues were whether family life existed when entry clearance was refused and, if so, how the relevant historical injustice affected proportionality.

1. The Patel appeal was allowed, the Modha appeals were allowed and remitted, and the Odedra appeals were dismissed. Sedley LJ delivered the judgment, with which Longmore and Aikens LJJ agreed.

2. Article 8 requires a sequential inquiry. The decision-maker must first decide whether refusal of entry clearance would significantly disrupt existing family life within article 8(1). Only after that threshold is crossed does proportionality under article 8(2) arise. The entry clearance officer’s standardised reasoning failed to engage meaningfully with this sequence.

3. Family life between parents and adult children does not require full dependency. It may continue where the adult child remains part of the family unit or receives substantial parental support. The historical injustice affecting British Overseas Citizens does not restore family life which has ceased. Where family life remains, however, the fact that the family would or might have settled in the United Kingdom much earlier may influence proportionality, perhaps decisively. The approach in NH (India), [2007] EWCA Civ 1330, was applied.

4. Patel retained family life with her parents when entry clearance was refused. She was a full-time student, lived in accommodation provided by them and depended upon their support. The temporary separation anticipated family reunion and did not sever the family bond. The tribunal’s contingent proportionality finding, viewed against the historical injustice, left only one tenable outcome. Entry clearance was granted without remission.

5. The Modha tribunal wrongly marginalised the historical context and treated the parents’ settlement as a simple voluntary choice. The daughters were students maintained by their parents, and the evidence located the case within article 8(1). The tribunal gave no adequate reasoning on proportionality. As the correct outcome was not certain, the appeals were remitted to a differently constituted tribunal.

6. In Odedra, the tribunal had legitimately found that the adult appellants were capable of work and that only financial support and normal emotional ties remained. Article 8(1) was therefore not engaged. The historical and proportionality questions did not arise.

1. Court of Appeal (Civil Division): In [2010] EWCA Civ 17, allowed Patel’s appeal and substituted a decision granting entry clearance; allowed the Modha appeals to the extent of remitting them for fresh second-stage reconsideration by a differently constituted tribunal; and dismissed the Odedra appeals.
2. Asylum and Immigration Tribunal: On reconsideration, reversed Patel’s successful paragraph 317 determination and dismissed her article 8 claim. It dismissed the Modha and Odedra article 8 appeals at the initial and reconsideration stages.