In Butt v Secretary of State for the Home Department [2017] EWCA Civ 184 the Court of Appeal considers the weight to be given to the relationship between parents and their adult dependent children in the Article 8 balancing exercise. It is notable – and this was the principal reason the case reached the Court of Appeal – because of the original decision of the First-tier Tribunal to make separate findings in relation to the parents and to the adult dependent children: allowing the appeals of the latter, while rejecting the former.

The facts

The Butt family arrived in the UK on 7 July 2004. They had been granted visit visas for a six-month stay but did not leave. They attempted to regularise their position with an asylum application made to the Home Office on 10 February 2012, while also relying on their rights to family and private life under Article 8 of the European Convention on Human Rights.

By the time of the application, two of the four Butt children had permission to remain in their own right, meaning that the application for asylum was made on behalf of the parents and remaining two adult daughters, S and A, aged 29 and 25 respectively at the date of the latest hearing.

During their time in the UK, the Butt daughters had acquitted themselves well: S obtained a first-class degree in Medicinal Chemistry with Pharmacology and was published in her chosen subject. A had been awarded a place to study Mathematics at university. They remained at home with their parents with whom they maintained a close relationship constituting, so found by the courts, “family life” for the purposes of Article 8.

The Home Office rejected the claim for asylum (which does not appear to have been pursued during the course of the appeal) and found, unsurprisingly, that the claims in respect of family and private life were outweighed by the importance of maintaining immigration control. The Butt family, they argued, made no earlier attempt to regularise their status during their eight-year stay in the UK.

Head-tilter

During the appeal, the First-tier Tribunal took the slightly unusual step of allowing the appeals of the two daughters, while dismissing those of the parents. The daughters, the judge found, were

young people likely to make a positive contribution to the UK economy and the retention of their skills is in the public interest would be a real benefit to the United Kingdom [and that] their Westernised development over eight years and what they have to offer the United Kingdom militate in favour of them remaining at present

On the other hand, the tribunal rejected the parents’ explanations and excuses for not regularising their status earlier, including the argument that they had been acting on advice. The court also found, importantly, that S and A were “subject to parental direction”.

An appeal was mounted to the Upper Tribunal where it was argued that the First-tier judge had misdirected himself in respect of the Article 8 proportionality balancing exercise, and in particular, questioned whether the court had properly taken into consideration the impact on the daughters of their separation from their parents as a result of the decision. The Upper Tribunal agreed that the decision had not adequately dealt with this issue and it was set aside as a result. However, upon a full re-hearing of the case the Upper Tribunal reached exactly the same conclusion. Permission to appeal was granted to the Court of Appeal on the basis that

the unusual facts of this case are such that the Deputy Upper Tribunal Judge arguably has not given proper consideration to article 8 factors relating to the daughters even though they are now adults.

The Butt Four test?

The judgment of the Court of Appeal finally laid to rest efforts of the Butts to reverse the decision of the Home Office.

The key issue identified was the weight to be attached to the bonds between adult dependent children and their parents. The court found that the tribunal had properly approached the Article 8 balancing exercise, reviewing some of the recent case law, before finding that the Upper Tribunal was entitled to attach the weight to these relationships that it did.

In dismissing the appeal, the court emphasised the “strength of the public interest in maintaining immigration control”, referring to the Supreme Court decision in R (Agyarko) v SSHD [2017] UKSC 11 as it did so:

Where the immigration status of the family… would from the outset be unlawful or “precarious” …particularly where the individuals know this, and absent protracted delay by the immigration authorities … “it is likely only to be in exceptional circumstances” that the removal of a non-national family member will constitute a violation of article 8”

Although providing little solace to the appellants in this case, practitioners should note that the private lives of both Butt daughters, in two separately constituted tribunals, were held to meet the “exceptional circumstances” envisaged by the Supreme Court.