SA v Secretary of State for the Home Department

An appellate tribunal should read a First-tier Tribunal's Article 8 assessment as a whole. A finding that an adult has no family life with a foster carer may be sustainable where the evidence supports maturity, independence and no particular vulnerability, even if the relationship is strong and forms a significant part of private life.

Temporary foster care does not itself prevent family life from arising. An omitted finding is not material unless it could have affected proportionality. A previous failure to trace a former unaccompanied asylum seeker's family does not require an Article 8 appeal to succeed, particularly where the decision under appeal records compliance with the tracing duty and the individual's circumstances do not make return disproportionate.

The appellant, an Afghan national who arrived in the United Kingdom as a child, appealed against First-tier Tribunal Judge Andrew's determination of 10 July 2014. The First-tier Tribunal had accepted his protection account but dismissed his protection and Article 8 appeals.

Before the Upper Tribunal, the challenge was confined to Article 8. It alleged inadequate reasons for rejecting family life with the appellant's foster carer, a failure to determine contact with family in Afghanistan, and a failure to give weight to an earlier breach of the respondent's tracing duty under Asylum Seekers (Reception Conditions) Regulations 2005.

The issue was whether any of those matters disclosed a material error of law in the proportionality assessment.

1. The appeal was dismissed. The First-tier Tribunal's decision contained no material error of law and was to stand.
2. The First-tier Tribunal was entitled to find that the appellant, then an adult, did not enjoy Article 8 family life with his foster carer. Its observations that the relationship was strong, and a significant part of private life, had to be read with its reasoned findings that he was mature, capable, and without particular physical or psychological vulnerability. Those findings made the conclusion available on the evidence.
3. The observation that foster care is intended to be temporary was problematic if treated as determinative. A foster-care relationship can nevertheless amount to family life for Article 8 purposes. It did not undermine this decision because the Tribunal had independently and sustainably assessed the appellant's maturity and independence.
4. No material error arose from the absence of a clear finding about continuing contact with family in Afghanistan. In light of the sustainable findings on the appellant's capacity to live independently in Kabul, a positive finding that contact had been lost could not have altered the proportionality outcome.
5. The respondent's earlier failure to comply with the tracing duty under Regulation 6(1) was not addressed in the First-tier Tribunal's Article 8 analysis. That omission was immaterial. The decision under appeal showed that efforts to trace the family had subsequently been made. Further, even if the failure-to-trace principle derived from DS (Afghanistan) v SSHD, KA (Afghanistan) v SSHD and EU (Afghanistan) v SSHD could give positive weight in proportionality, the appellant's mature and independent profile meant that it could not render removal disproportionate.

• Upper Tribunal (Immigration and Asylum Chamber): dismissed the appellant's appeal on Article 8 grounds and upheld the First-tier Tribunal's determination.
• First-tier Tribunal: on 10 July 2014 dismissed the appellant's protection and Article 8 appeals.