Butt v Secretary of State for the Home Department

Whether family life exists between adults for article 8 purposes is highly fact-sensitive. Adult relationships are not excluded merely because the parties are adults, but love and affection alone are insufficient. Proportionality requires a careful evaluation of the particular facts. Dependency, family ties and educational aspirations are relevant factors, not automatic entitlements. On appeal, a specialist tribunal’s assessment should be respected unless it contains a clear error of law. Where family life has been unlawful or precarious from the outset, and there has been no protracted immigration delay, removal will generally breach article 8 only in exceptional circumstances.

The appellant and his wife, Pakistani nationals, appealed against the Upper Tribunal’s remade dismissal of their challenge to removal from the United Kingdom. Their claims included asylum and human-rights claims under articles 2, 3 and 8 of the European Convention of Human Rights. Their two adult daughters’ appeals under article 8 had been allowed, but the parents’ appeals were dismissed.

The Upper Tribunal had preserved findings that the daughters remained dependent on their parents and were subject to parental direction. The issue before the Court of Appeal was whether the Upper Tribunal had properly assessed the effect of removing the parents on the daughters, including their dependency, cultural background and educational circumstances. Permission to appeal was granted on that issue: [2015] EWCA Civ. 574.

The Court of Appeal unanimously dismissed the appeal. Beatson LJ gave the judgment, with King LJ and Henderson LJ agreeing.

1. Article 8 family life between adults is fact-sensitive. There is no general rule excluding family life between adult children and parents or between adult siblings living together. Love and affection alone are insufficient, but a young adult living with parents will normally have family life to be respected. The approach in Ghising and Gurung was consistent with that analysis: [2012] UKUT 00160 (IAC); [2013] EWCA Civ. 8.
2. Proportionality is an evaluative exercise involving a value judgment for the court. The court should avoid prescriptive guidance about the weight to be given to particular factors and should make a careful, informed assessment of the individual facts. Dependency, educational achievement and the wish to continue education may be important, but they do not operate as automatic entitlements or outweigh the public interest without further assessment.
3. When reviewing a specialist tribunal, an appellate court should exercise caution and respect findings of fact and proportionality unless the tribunal clearly misdirected itself in law. The appeal is not a fresh proportionality assessment. A failure expressly to mention a relevant matter does not, without more, establish that it was ignored. The relevant authorities included [2007] UKHL 49, [2010] UKSC 49 and [2013] UKSC 33.
4. The strong public interest in effective immigration control was material. In circumstances where family life was unlawful or precarious from the outset, and absent protracted delay by the immigration authorities, removal would generally violate article 8 only in exceptional circumstances: [2017] UKSC 11.

The Upper Tribunal had considered the daughters’ dependency, family relationship, ability to maintain contact, educational circumstances, the parents’ poor immigration history and the public interest. It was entitled to conclude that the public interest outweighed the private and family rights relied upon. The challenge amounted to disagreement with the evaluative assessment, not a legal error.

1. Court of Appeal (Civil Division): the appeal from the Upper Tribunal was dismissed under [2017] EWCA Civ 184.
2. Upper Tribunal (Immigration and Asylum Chamber): the First-tier Tribunal decision was set aside and remade; the appellant’s appeal was dismissed. The Upper Tribunal’s decision was dated 30 April 2013.
3. First-tier Tribunal: the parents’ appeals were dismissed, while the two adult daughters’ article 8 appeals were allowed.
4. Court of Appeal permission stage: permission was granted on the sole article 8 ground concerning the effect of removal on the adult daughters: [2015] EWCA Civ. 574.