AAO v Entry Clearance Officer

Article 8 does not ordinarily require a state to admit an elderly parent from abroad to join an adult child merely because emotional or financial ties exist. Family life between adult parents and children normally requires dependency beyond ordinary emotional ties. Financial support may be relevant, but may add little where it can continue abroad. If Article 8 is engaged, refusal may nevertheless be proportionate to legitimate immigration control, including a requirement that the entrant be maintained without recourse to public funds. Decision-makers should identify the nature of the asserted family life and explain succinctly why Article 8 is engaged. Remission is unnecessary where the facts permit only one lawful conclusion.

A Somali mother living in Nairobi applied for entry clearance to join her adult daughter in England. The application was refused under paragraph 317 of the Immigration Rules and under Article 8. The entry clearance officer doubted the mother’s age and dependency, and found that she could not be maintained without recourse to public funds.

Immigration Judge Khan accepted that the mother was 67, but found only weak family life and concluded that she could not be maintained without additional public funds. On reconsideration, Senior Immigration Judge McGeachy found no material error of law and held alternatively that any interference would be proportionate. The central issue before the Court of Appeal was whether the tribunals had adequately and lawfully addressed the Article 8 claim in an out-of-country application.

The Court of Appeal unanimously dismissed the appeal.

1. Financial dependency. The failure of the tribunals to repeat the precise wording of paragraph 317(iii) did not establish a material error. The findings that the daughter sent her mother $100 per month and that this was the mother’s only income dealt sufficiently with the dependency issue. The decisive finding was that the mother could not be maintained in the United Kingdom without additional recourse to public funds.
2. Family life. Family life between adult parents and children will not normally exist without additional dependency beyond ordinary emotional ties. Financial dependency may be relevant, but the payment of money did not take the case far, particularly because the payments could continue in Kenya. The twelve-year separation, limited contact, the mother’s accommodation and care in Nairobi, and the absence of a life-threatening illness justified the finding that any family life was weak.
3. Positive obligations and proportionality. The Court found no support in the Strasbourg or domestic authorities for a general positive duty to admit a parent from abroad to join an adult child where public funds would be required. The Immigration Rules represented a systematic scheme, but Article 8 remained an overriding, case-specific safeguard. Even assuming that refusal interfered with family life or failed to respect it, immigration control and the avoidance of an obligation to maintain the entrant from public funds made the refusal proportionate. The appeal therefore failed on the final Razgar questions. The Court also confirmed that exceptionality is not a separate legal test under Article 8.
4. Quality of reasoning. The tribunal determinations were not ideal, but the facts had been found and the Article 8 issue had been addressed sufficiently. There was no requirement to reproduce a checklist of factors. The case was materially different from ZB (Pakistan) v. SSHD [2009] EWCA Civ 834, where clear family life and serious analytical failings required remittal. Remission would serve no purpose because no other conclusion was realistically open on these facts.

1. Court of Appeal (Civil Division): dismissed the appeal on 22 July 2011.
2. Asylum and Immigration Tribunal: Immigration Judge Khan dismissed the appeal in a determination promulgated on 2 September 2009. Senior Immigration Judge McGeachy, on reconsideration promulgated on 20 January 2010, found no material error of law and upheld the result.