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

Article 8 proportionality requires a fact-sensitive balance between the impact of removal on family life and the public interest in immigration control. Relevant considerations include the nature and degree of family life before and after the relevant period, the circumstances in which ties developed, and the likely effects of separation. Family life formed while immigration status was precarious cannot be disregarded merely for that reason, although its duration and circumstances may be material. No single factor is decisive. The inquiry is not confined to whether there are insurmountable obstacles or more than ordinary hardship.

The appellant and his wife, Sri Lankan nationals, lived with their daughter and her two children after arriving in the United Kingdom. Their asylum claim was refused, and an initial appeal on asylum and human-rights grounds was dismissed. Following reconsideration ordered after Beoku-Betts, the Designated Immigration Judge dismissed the Article 8 appeal.

The appeal concerned whether the judge had adopted the correct proportionality approach and whether he was entitled to give reduced weight to family life formed while the appellant’s asylum claim and immigration status were unresolved.

Appeal dismissed. The Court of Appeal held that the Designated Immigration Judge made no error of law in finding removal proportionate.

1. Article 8 engagement has a low threshold. Once engaged, the focus is justification under Article 8(2). The proportionality assessment requires the appellate immigration authority to make its own judgment and strike a fair balance between the family’s interests and immigration control, as explained in R (Razgar) ([2004] UKHL 27), Huang ([2007] 2 AC 167), Miao ([2006] EWCA Civ 75) and EB (Kosovo) ([2008] UKHL 41).
2. The relevant assessment was fact-sensitive. The judge was entitled to consider the nature and degree of family life before and after the grandparents’ arrival, the circumstances in which the ties developed, and the likely impact if they were broken. No one consideration automatically prevailed.
3. Family ties formed during precarious immigration status must not be excluded or marginalised merely because of their origin. Their comparatively short duration and the circumstances of their formation remained material. The absence of cynical exploitation and the possibility of delay in processing immigration applications were also relevant considerations.
4. The judge was required to consider the likely effects of separation on the family, including the daughter and grandchildren left in the United Kingdom. The guidance in VW (Uganda) ([2009] EWCA Civ 5) recognised that a hard dilemma may sometimes be given due weight where the choices facing family members cannot be predicted. This case involved no real choice: the children were British, their mother had indefinite leave to remain, and the grandparents could return alone.
5. The inquiry was not a search for an insurmountable obstacle. The judge could recognise hardship and practical dependency while concluding that the consequences did not make removal disproportionate. His proportionality conclusion was properly read with his factual findings. The evidence of dependency and likely harm was limited, including by the absence of supporting medical evidence, and there was no further material which he was required to place in the balance.

The appeal was therefore dismissed.

1. Court of Appeal (Civil Division): appeal dismissed. The assessment by Designated Immigration Judge Shaerf disclosed no error of law.
2. Asylum and Immigration Tribunal: Immigration Judge Beg dismissed the asylum and human-rights appeal on 27 May 2008. After reconsideration was ordered on 29 October 2008, Designated Immigration Judge Shaerf dismissed the Article 8 appeal on 23 December 2008.