HS (Bangladesh) v The Secretary of State for the Home Department

For Article 8, family life is a binary question: it either exists or it does not. A tribunal must not impose an additional threshold of “sufficient” family life. In relationships between an adult parent and adult children, the claimant must establish something more than normal emotional ties. Regular visits, financial support and managed depression did not compel a finding of family life where the evidence showed no more than ordinary emotional support.

The appellant challenged the refusal of leave to remain on human-rights grounds after many years in the United Kingdom as an overstayer. The First-tier Tribunal dismissed his appeal on 18 May 2015, finding private life but no Article 8 family life with his adult sons, who visited and supported him. The Upper Tribunal dismissed his appeal on 6 January 2016. The central issue before the Court of Appeal was whether the Upper Tribunal had upheld an unlawful threshold of sufficient family life or failed to recognise dependency arising from financial and emotional support.

Appeal dismissed. The Court of Appeal, in the judgment of Lady Justice Thirlwall agreed by Lord Justice Simon, upheld the Upper Tribunal’s dismissal of the appeal.

1. Family life for the purposes of Article 8 either exists or does not exist. There is no separate threshold of sufficient family life. This was supported by Singh v Entry Clearance Officer New Delhi [2004] EWCA Civ 1075.
2. For an adult parent and adult children, the relevant test requires something more than normal emotional ties. The First-tier Tribunal had the correct test in mind, including the authorities and submissions placed before it. This was the test identified in Kugathas v SSHD [2003] INLR 170.
3. The Upper Tribunal’s repeated use of the word sufficient was inapt, but its context showed that it was referring to family life sufficient to engage Article 8, rather than creating an additional legal threshold.
4. The First-tier Tribunal was entitled to find that the appellant’s depression and diabetes were managed by medication, and that visits by his sons were beneficial to his morale but did not go beyond normal emotional ties. There was no medical evidence that the visits managed his depression. The findings were open on the evidence.
5. The First-tier Tribunal had assessed proportionality, including the public interest considerations in Part 5A of the Nationality Immigration and Asylum Act 2002. The Upper Tribunal was entitled to find no material error of law. The appeal was therefore dismissed.

• Court of Appeal (Civil Division): Judgment delivered on 28 February 2019; appeal dismissed.
• Upper Tribunal (Immigration and Asylum Chamber): Deputy Upper Tribunal Judge Zucker dismissed the appeal on 6 January 2016.
• First-tier Tribunal: FtTJ Clarke dismissed the appeal on 18 May 2015.
• Secretary of State: Application for leave to remain refused on 7 August 2014.