Secretary of State for the Home Department v Onuorah

Article 8 requires a prior gateway inquiry into whether family life or private life exists between the relevant persons. That question comes before interference, positive obligations and proportionality, and cannot depend on the purpose of an entry-clearance application.

Between adult siblings, blood ties and ordinary emotional ties are insufficient without further dependency or real, committed or effective support. A short proposed visit points against family life. Article 8 private life does not require entry clearance for an adult outside the state who seeks entry to develop private life. Strasbourg cases involving coercive restrictions in prison, burial or property contexts do not alter those principles.

The respondent, a Nigerian national, applied for entry clearance to visit her adult brother in the United Kingdom for four weeks. The Entry Clearance Officer refused the application under para. 41 of the Immigration Rules (HC 395). The First-tier Tribunal allowed the appeal on Article 8 grounds and directed that a visit visa be issued.

The Upper Tribunal dismissed the Entry Clearance Officer’s appeal, holding that the First-tier Tribunal had not erred in finding that Article 8 was engaged. The Secretary of State appealed to the Court of Appeal. The central issue was whether family life or private life existed between adult siblings where the applicant sought entry for a short visit.

The Court of Appeal unanimously allowed the Secretary of State’s appeal. Singh LJ gave the leading judgment, with which Sales LJ and Gloster LJ agreed.

1. Article 8 involves a prior gateway question. The court must first establish family life or private life between the relevant persons. Only then can it consider interference, any positive obligation on the state, or justification under Article 8(2). Immigration-control considerations cannot establish the gateway, and the purpose of an entry-clearance application cannot alter it.
2. The principle in Kugathas v Secretary of State for the Home Department [2003] EWCA Civ 31 remained authoritative. Between adult siblings, normal emotional ties, blood ties and ordinary affection do not suffice. There must be further dependency or real, committed or effective support. The proposed short visit was, if anything, an indication against a want of respect for family life, consistent with Entry Clearance Officer, Sierra Leone v Kopoi [2017] EWCA Civ 1511.
3. The ratio of Secretary of State for the Home Department v Abbas [2017] EWCA Civ 1393 was binding. In the immigration context, Article 8 private life did not impose a positive obligation to grant entry clearance to an adult outside the United Kingdom seeking entry to develop private life. The Strasbourg decisions relied upon concerned materially different situations, including coercive prison restrictions, severe interference with burial rites, or inability to access a former home and graves.
4. Relevant decisions of the European Court of Human Rights must be taken into account under section 2(1) of the Human Rights Act 1998, but they are not binding on domestic courts. The domestic doctrine of precedent continued to apply. The precise application of the per incuriam exception in this context did not need to be decided because the Strasbourg authorities did not assist the respondent.

There was no family life or private life for Article 8 purposes on the facts. The First-tier Tribunal and Upper Tribunal had therefore erred in law. Sales LJ and Gloster LJ agreed, while reserving their views on the correctness of Abbasi v Entry Clearance Officer of Karachi.

• Court of Appeal (Civil Division) — [2017] EWCA Civ 1757: allowed the Secretary of State’s appeal and held that the lower tribunals had erred in finding Article 8 engaged.
• Upper Tribunal (Immigration and Asylum Chamber) — Deputy Upper Tribunal Judge Monson, [2016] UKAITUR VA051732014: dismissed the Entry Clearance Officer’s appeal against the First-tier Tribunal’s decision.
• First-tier Tribunal — Judge Manuell, 22 April 2015: allowed the respondent’s appeal against refusal of entry clearance and directed the issue of a visit visa.