Arun Dasgupta v Entry Clearance Officer, New Delhi

In an Article 8 immigration appeal, the existence of family life between adult relatives, including grandparents and grandchildren, requires something beyond normal emotional ties. The inquiry is intensely fact sensitive.

A First-tier Tribunal's failure expressly to find family life does not itself establish an error of law where family life was not contested below and the decision was otherwise lawfully sustainable. On an error of law appeal, the Upper Tribunal asks whether the challenged conclusion was one properly open to the tribunal under the Edwards v Bairstow standard.

The ultimate issue in a human-rights appeal remains whether the interference is proportionate. A tribunal deciding such an appeal must determine proportionality on the merits.

The appellant, an elderly Indian national, was refused entry clearance as an adult dependent relative under Appendix FM of the Immigration Rules. The First-tier Tribunal dismissed his appeal under the Rules but allowed it under Article 8 ECHR, finding that refusal would disproportionately interfere with family life involving his daughter and grandchildren in the United Kingdom.

The Entry Clearance Officer appealed, contending that the First-tier Tribunal had wrongly found Article 8 family life and had inadequately justified exceptional circumstances and proportionality. The appellant's cross-appeal, concerning the lawfulness of the Rules, was severed and was not determined in this decision.

The central issues were whether the First-tier Tribunal had made an error of law concerning family life and whether its proportionality conclusion was lawfully open to it.

1. The Entry Clearance Officer's appeal was dismissed. The Upper Tribunal affirmed the First-tier Tribunal's decision allowing the appellant's appeal on Article 8 grounds.

2. The First-tier Tribunal had not erred merely because it did not make fully structured and explicit findings on family life. Family life among the appellant, his daughter and his grandchildren had not been contested before that tribunal or in the entry-clearance decision. The available and unchallenged evidence described close, enduring relationships, regular lengthy visits, mutual affection and increasing dependency linked to age and ill health. Applying Kugathas v Secretary of State for the Home Department [2003] INLR 170, the finding or assumption of family life was properly open to the judge.

3. In an error of law appeal, the relevant question was not whether the Upper Tribunal would have reached the same factual conclusion. Applying Edwards v Bairstow [1956] AC 14, it was whether the conclusion was irrational, unsupported by evidence, or otherwise not open to a properly directed tribunal. The First-tier Tribunal's conclusion survived that review.

4. The First-tier Tribunal's exceptional-circumstances and proportionality assessment was also sustainable. Its reasons were not confined to the grandchildren and cultural considerations. It had considered the appellant's deteriorating health, loneliness and emotional needs, the practical limits of care in India, the sponsor's likely response, and the children's best interests under Borders, Citizenship and Immigration Act 2009. Taken as a whole, those matters had an adequate evidential basis and could rationally outweigh the public interest.

5. The tribunal's function in a human-rights appeal was to decide the ultimate proportionality question on the merits, consistently with Huang v Secretary of State for the Home Department [2007] 2 AC 167. No defect in either the First-tier Tribunal's process or outcome established an error of law.

• Upper Tribunal (Immigration and Asylum Chamber): dismissed the Entry Clearance Officer's appeal and affirmed the First-tier Tribunal's Article 8 decision.
• First-tier Tribunal: by a determination promulgated on 6 August 2014, dismissed the appeal under the Immigration Rules but allowed it under Article 8 ECHR.
• Cross-appeal: the appellant's challenge concerning the lawfulness of the Rules was severed and was not determined in this decision.