PT (SRI LANKA) v ENTRY CLEARANCE OFFICER, CHENNAI (2016)

 

The appellant Sri Lankan national appealed against a decision to refuse him entry clearance.

The appellant had lived in Sri Lanka with his parents and three siblings. His father came to the UK and obtained indefinite leave to remain in 2010. Shortly afterwards his brother entered the UK on a student visa. The appellant’s two sisters, who were minors, and his mother were granted entry clearance in 2012. The appellant’s application for entry clearance was refused. He was the only member of his family left in Sri Lanka. He was aged 20 and was reliant on money sent to him by his father while he completed his studies. His appeal to the First-tier Tribunal was rejected. The judge concluded that the appellant had not demonstrated that clearance should be granted on “most exceptional compassionate circumstances” under the terms of the Immigration Rules. He also found that the appellant’s relationship with his family did not fall under ECHR art.8, but even if it did, the decision was a proportionate means of achieving the legitimate aim of immigration control. The Upper Tribunal upheld that decision.

The appellant submitted that the judge had failed to engage with the fact that he had lived his entire life with his family, and he had failed to take account of the South Asian family tradition for children to remain with their family until marriage.

HELD: (1) Some tribunals appeared to have read Kugathas v Secretary of State for the Home Department [2003] EWCA Civ 31, [2003] I.N.L.R. 170 as establishing a rebuttable presumption against any relationship between an adult child and his parents or siblings being sufficient to engage article 8. That was not correct. Kugathas required a fact-sensitive approach, and should be understood in the light of the subsequent case law summarised in Ghising v Secretary of State for the Home Department [2012] UKUT 160 (IAC), Kugathas and R. (on the application of Gurung) v Secretary of State for the Home Department [2013] EWCA Civ 8, [2013] 1 W.L.R. 2546 applied, Ghising approved (see paras 23-26 of judgment).

 

(2) The First-tier Tribunal’s decision that art.8 was not engaged was unsustainable. Even on the skeletal facts available to the tribunal, the probability must have been that the appellant enjoyed a family life with his mother and sisters of the kind protected by art.8. The appellant was a single student, living with his family, who had attained adulthood less than two years previously. As was stated in Singh v Secretary of State for the Home Department [2015] EWCA Civ 630, [2016] Imm. A.R. 1, “a child enjoying a family life with his parents does not suddenly cease to have a family life at midnight as he turns 18 years of age”, Singh applied. That conclusion could be reached without reference to South Asian cultural norms (para.30).

 

(3) The tribunal’s error about whether art.8 was engaged would not vitiate its decision if its alternative decision on proportionality was one which was open to it. The judge found that the appellant had been able to make the transition to independent living, notwithstanding a degree of financial dependence. There was no evidence of any special impact from his separation from his mother and sisters. The judge’s findings were an adequate basis for his conclusion that the separation of the family was proportionate in the interests of a consistent system of immigration control. There was no right for adult children to always join their parents or siblings in their country of residence. It was also relevant that the family had chosen to move to the UK, and were not facing persecution in Sri Lanka. Accordingly, even though the judge was wrong to find that art.8 did not apply, he was entitled to find that the refusal of entry clearance was a justifiable interference with art.8 (paras 34-38).

 

Appeal dismissed

 

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