Entry Clearance Officer, Sierra Leone v Kopoi

Article 8 family life between adults or extended relatives requires evidence of more than ordinary emotional ties. Blood relationship, affection and concern are insufficient without further elements such as dependency or real, committed or effective support. There is no presumption of family life even between close relatives. A refusal of entry clearance does not engage Article 8 where no existing family life is established, and Article 8 does not generally require admission merely to create such a relationship. In an assumed family-reunification case, the court must balance individual interests against immigration control, considering factors including children’s age, circumstances in the country of origin and dependence. A short proposed visit may further indicate that Article 8 is not engaged.

The respondent, a Sierra Leone citizen resident there, applied for entry clearance as a family visitor to stay for three weeks with relatives in the United Kingdom. The Entry Clearance Officer refused the application under paragraph 41 of the Immigration Rules because he was not satisfied that she was a genuine visitor who intended to leave. The Entry Clearance Manager affirmed the decision.

The First-tier Tribunal allowed the appeal after considering further evidence, including an offer of employment in Sierra Leone. The Upper Tribunal accepted that the First-tier Tribunal had acted without jurisdiction under section 88 A(3) of the Nationality, Immigration and Asylum Act 2002, but dismissed the appeal because the error was immaterial and because Article 8 family life existed. The central issues were whether the extended-family relationships amounted to family life and whether Article 8 required entry clearance for the proposed visit.

Sales LJ gave the judgment, with Burnett LJ and Gloster LJ agreeing. The appeal was allowed.

1. Article 8 family life between adults requires more than blood ties, ordinary affection or emotional concern. There must be further elements such as dependency or real, committed or effective support. There is no presumption of family life even between members of an immediate family. This was the approach in Kugathas v Secretary of State for the Home Department [2003] EWCA Civ 31; [2003] INLR 31, which remained good law and was confirmed in R (Britcits) v Secretary of State for the Home Department [2017] EWCA Civ 368.
2. The respondent was an extended relative, with no dependency on the UK relatives and no established pattern of support. The children’s emotional connection with her was weak, and only the older child had met her. The case was materially weaker than Kugathas and distinguishable from Boyle v United Kingdom (1994) 19 EHRR 179, where frequent contact, proximity and a substantial caregiving role supported family life.
3. Since no relevant family life existed, refusal of entry clearance was not an interference requiring justification under Article 8(2). The Court also noted that a short visit would not establish support going beyond normal emotional ties.
4. Alternatively, Article 8 did not impose a positive obligation to admit the respondent merely to create a family relationship. The principle in Abdulaziz, Cabales and Balkandali v United Kingdom (1985) 7 EHRR 471, para 68, recognised the state’s right to control entry. Sen v Netherlands (2001) 36 EHRR 7 confirmed that the relevant balance depends on the circumstances, including the children’s age, their situation in the country of origin and their degree of dependence. The children here were safely settled with their parents and were not dependent on the respondent. Mostofa (Article 8 in entry clearance) [2015] UKUT 112 (IAC) was correct in identifying the rarity of such cases, although the Court reserved its opinion on whether some of its broader comments were too wide.
5. By virtue of section 88 A of the Nationality, Immigration and Asylum Act 2002, the respondent had no ordinary appeal on compliance with paragraph 41 of the Immigration Rules. Any judicial review of the ECO’s factual assessment would have concerned rationality, whereas the First-tier Tribunal could make its own findings of fact. The appeal was accordingly allowed.

1. Court of Appeal (Civil Division) — allowed the Entry Clearance Officer’s appeal: [2017] EWCA Civ 1511.
2. Upper Tribunal (Immigration and Asylum Chamber) — found that the First-tier Tribunal had erred in law and acted without jurisdiction, but dismissed the appeal because the error was immaterial.
3. First-tier Tribunal — allowed the respondent’s appeal on the basis that she was a genuine visitor who intended to leave the United Kingdom.