Secretary of State for the Home Department v Onuorah

The Court of Appeal allowed the Secretary of State's appeal, holding that Article 8 (family and private life) was not engaged on the facts. The appeal arose from a refusal of entry clearance for a short visit under paragraph 41 of the Immigration Rules and the only available ground of appeal was that the decision was unlawful under section 6 of the Human Rights Act 1998. The First-tier Tribunal had found that the refusal interfered with family life of United Kingdom relatives and allowed the appeal; the Upper Tribunal dismissed the Entry Clearance Officer's appeal. This Court held that domestic authority (notably Kugathas and Kopoi) establishes that family life between adult siblings is not normally within Article 8 unless there is something more than normal emotional ties, and that private life does not require the state to permit entry of an alien to develop that private life. The FTT and UT erred in law in finding Article 8 engaged and so the Secretary of State's appeal succeeds.

The respondent, a Nigerian national married and employed in Nigeria, applied for a UK visit visa to see her brother, a naturalised British citizen who had lived in the United Kingdom for eleven years. The Entry Clearance Officer refused the application under para. 41 of the Immigration Rules, not being satisfied the respondent was a genuine short-term visitor. The respondent appealed to the First-tier Tribunal relying on an Article 8 HRA challenge; the FTT allowed the appeal and directed the ECO to grant a visit visa. The ECO appealed to the Upper Tribunal which dismissed the appeal. Permission to appeal to the Court of Appeal was later granted.

The central issues were (i) whether Article 8(1) ECHR was engaged by the refusal (family life and/or private life), and (ii) if Article 8 was engaged, whether the interference was justified under Article 8(2). The FTT found that the refusal interfered with the family life of persons in the United Kingdom (the sponsor and his children) and held the decision disproportionate. The UT accepted a more elastic approach to family visitors and concluded no error of law in the FTT's decision.

The Court of Appeal rejected that approach. It held that the threshold gateway question — whether there is family life or private life within Article 8 — is a logically prior enquiry and that established domestic authority (Kugathas and subsequent decisions, and Kopoi) requires more than normal emotional ties for family life to exist between adult siblings. Short visits provide little indication of family life of sufficient quality to engage Article 8. As to private life, the court followed recent authority (Abbas) which rejects an extension of Article 8 private life to require states to admit aliens to develop private life in the contracting state. The court distinguished Strasbourg authorities relied upon by the respondent as fact-sensitive and not applicable in the immigration context. The FTT and UT were found to have erred in law on both family life and private life grounds and the Secretary of State's appeal was allowed.

Procedural posture: FTT allowed respondent's appeal (22 April 2015); UT dismissed ECO's appeal (decision promulgated 7 January 2016); permission to appeal to the Court of Appeal granted 4 March 2016; Court of Appeal allowed Secretary of State's appeal 3 November 2017.

The appeal is allowed. The Court of Appeal held that there was, as a matter of law, no family life or private life for the purposes of Article 8 on the facts of this short visit application between adult siblings. The FTT and UT were in error in finding Article 8 engaged; established domestic authority requires more than normal emotional ties for family life between adult siblings, and private life does not obligate the state to admit an alien to develop private life in the forum state.

FTT allowed the respondent's appeal against refusal of entry clearance (22 April 2015). The Entry Clearance Officer appealed to the Upper Tribunal; the UT dismissed the ECO's appeal (decision promulgated 7 January 2016, Deputy UT Judge Monson [2016] UKAITUR VA051732014). Permission to appeal to the Court of Appeal was granted on 4 March 2016. The Court of Appeal allowed the Secretary of State's appeal on 3 November 2017 ([2017] EWCA Civ 1757).