Singh & Anor v The Secretary of State for the Home Department

For adult children in immigration cases, European Convention on Human Rights Article 8 creates no presumption either for or against family life. Ordinary love and affection between adult relatives is insufficient, but there is no requirement of exceptional dependency. The question is fact-sensitive. A young adult living with parents or siblings will normally enjoy protected family life, whereas an independently living adult may not.

Whether family life is engaged may be immaterial where private life is engaged. The proportionality factors governing removal are the same in either event. A challenge founded only on the classification of the relationship therefore fails if the tribunal has considered all relevant factors and correctly concluded that removal is proportionate.

The appellants, adult brothers and citizens of India, appealed against Upper Tribunal Judge Kebede’s determination of 23 May 2013. The Upper Tribunal had dismissed their appeals against the Secretary of State’s refusal of indefinite leave to remain outside the Immigration Rules.

The brothers had entered the United Kingdom to join their father, who later died. Their mother had been granted indefinite leave to remain. The Upper Tribunal found that the brothers were independent adults and that their relationship with their mother contained no dependency beyond ordinary emotional ties. It nevertheless considered their private life and held that removal to India would be proportionate.

The appeal concerned whether the Upper Tribunal had applied an unduly stringent test for family life between an adult child and a parent under European Convention on Human Rights Article 8, and whether that issue affected proportionality.

1. Appeal dismissed unanimously. Sir Stanley Burnton, with whom Christopher Clarke and Richards LJJ agreed, held that the Upper Tribunal’s proportionality assessment could not be impugned.

2. In adult-child cases, there is no legal or factual presumption that family life either exists or does not exist for Article 8 purposes. The ordinary affection between an adult and parents or siblings is not enough by itself. There must be something more, but the governing approach does not require exceptional circumstances. The issue depends on all the facts. A young adult living with parents or siblings will normally have family life; family life does not automatically end on attaining 18. Conversely, a young adult living independently may have no protected family life.

3. The Court explained the proper effect of Kugathas v Secretary of State for the Home Department [2003] EWCA Civ 31. Subsequent Strasbourg decisions did not displace it. Properly understood, it required more than normal emotional ties, not an exceptional degree of dependency.

4. The dispute about family life was academic on these facts. Following the reasoning in AA v UK [2012] I.N.L.R. 1, the relevant factors in the proportionality assessment are the same whether the interference is characterised as affecting family life, private life, or both. The Upper Tribunal had considered all relevant factors, and no reasonable tribunal could have reached a different proportionality conclusion.

5. In any event, the Upper Tribunal was correct to find no relevant family life in the United Kingdom. The brothers were working and independent. Their mother spent as much or more time in India, their younger siblings lived there, and there was no evidence beyond ordinary affection, apart from financial support. That support did not establish family life in the United Kingdom.

• Court of Appeal (Civil Division): Dismissed the appellants’ appeal and upheld the Upper Tribunal’s conclusion that removal would be proportionate under European Convention on Human Rights Article 8.
• Upper Tribunal (Immigration and Asylum Chamber): Upper Tribunal Judge Kebede dismissed the appeals against the refusal of indefinite leave to remain outside the Immigration Rules.