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When is Article 8 private and family life engaged?

The question of when family and private life exists in a legal sense is an increasingly important one in immigration law as it effectively determines whether a person has a right of appeal against refusal on an immigration application. The Court of Appeal addresses this issue in the case of Singh v The Secretary of State for the Home Department [2015] EWCA Civ 630, albeit not in a case that directly addresses rights of appeal.

The context is that the Home Office and some judges take an extreme approach to family life which refuses to countenance that family life might exist between adults other than in exceptional circumstances. Home Office policy is particularly extreme, stating that human rights cannot be engaged outside spouses and minor children and even then might not be engaged if a visit can occur in a third country (Considering human rights claims in visit applications). This hardline approach is to an extent reflected in the recent Mostafa and Adjei cases from the Upper Tribunal, particularly the latter. As Singh shows, though, the focus on family life has been too narrow and has distracted the tribunal from the real question, which is whether Article 8 is engaged, which protects private and family life together.

The leading judgment is delivered by Sir Stanley Burnton. He reviews all of the authorities on the meaning and extent of family life, dwelling in particular on Kugathas v SSHD [2003] EWCA Civ 31, Kaya v Germany [2008] INLR 139 and AA v UK (Application no. 8000/08). It is a thorough review and recommended reading if you want to gem up on this important area of law.

The conclusion emphasises that the question of whether family life exists is a fact sensitive one and there is no presumption either way as to whether it exists or not between adults:

I do not think that the judgments to which I have referred lead to any difficulty in determining the correct approach to Article 8 in cases involving adult children. In the case of adults, in the context of immigration control, there is no legal or factual presumption as to the existence or absence of family life for the purposes of Article 8. I point out that the approach of the European Commission for Human Rights cited approvingly in Kugathas did not include any requirement of exceptionality. It all depends on the facts. The love and affection between an adult and his parents or siblings will not of itself justify a finding of a family life. There has to be something more. A young adult living with his parents or siblings will normally have a family life to be respected under Article 8. 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. On the other hand, a young adult living independently of his parents may well not have a family life for the purposes of Article 8.

He continues, though, and points out that this debate risks missing the main point:

However, the debate as to the whether an applicant has or has not a family life for the purposes of Article 8 is liable to be arid and academic. In the present case, in agreement with Sullivan LJ’s comment when refusing permission to appeal, the issue is indeed academic, and clearly so. As the European Court of Human Rights pointed out in AA, in a judgment which I have found most helpful, the factors to be examined in order to assess proportionality are the same regardless of whether family or private life is engaged. The question for the Secretary of State, the Tribunal and the Court is whether those factors lead to the conclusion that it would be disproportionate to remove the applicant from the United Kingdom.

This is a point made here on this blog in the write up of the Adjei case. In Singh the claimants lose because their case relied on showing that there was a distinction between private and family life, a contention that the Court of Appeal rejects.

Extent of private life

We know that private life is a very wide concept. In Razgar [2004] 2 AC 368, Lord Bingham considered the scope and extent of the private life dimension to Article 8 and held:

Elusive though the concept is, I think one must understand “private life” in article 8 as extending to those features which are integral to a person’s identity or ability to function socially as a person.

He quoted from Pretty v United Kingdom (2002) 35 EHRR 1:

Article 8 also protects a right to personal development, and the right to establish and develop relationships with other human beings and the outside world.

There is a long line of authority on this point. As long ago as X. v Iceland (Application no. 6825/74) the Commission to the European Court of Human Rights commented critically on the narrow approach of “numerous anglo-saxon and French authors” and held:

In the opinion of the Commission, however, the right to respect for private life does not end there. It comprises also, to a certain degree, the right to establish and to develop relationships with other human beings, especially in the emotional field for the development and fulfilment of one’s own personality.

Do check out the Daily Mail friendly pet ownership related factual background to that one, by the way. Article 8 does not extend to protect pet ownership, it turns out.

In Niemietz v Germany (Application no. 13710/88) the European Court of Human Rights commented that Article 8 private life is a very wide concept:

The Court does not consider it possible or necessary to attempt an exhaustive definition of the notion of “private life”. However, it would be too restrictive to limit the notion to an “inner circle” in which the individual may live his own personal life as he chooses and to exclude therefrom entirely the outside world not encompassed within that circle. Respect for private life must also comprise to a certain degree the right to establish and develop relationships with other human beings.

The factual background to all these cases is different, of course, but the central point is that private life includes the right to maintain and even develop family and personal relationships. Family visits between adults separated by immigration law surely must engage that right, although refusal of entry would be no doubt be proportionate if the visitor immigration rules were not met.

Extent of family life

Singh reminds us that there is no presumption that family life does or does not exist and that it is a fact sensitive question. The Court did not, however, consider the case of Khoroshenko v Russia (Application no. 41418/04), which was only handed down on 30 June 2015.

Khoroshenko involves family visits of a rather different nature: to a serving prisoner. The Court takes a wide view of what constitutes family life. At paragraph 19 we see that the case concerns visits from the prisoner’s wife, son, parents, siblings and a total of 17 members of his extended family. In fact he later divorced his wife and at paragraph 89 the Court makes clear that no Article 8 right arises from that relationship. At paragraph 106 the Court discusses the right to a relationship with “close family” and specifically refers at paragraph 107 to the applicant’s parents, brother, and son. The Court concludes

Regard being had to its case-law and the above-mentioned circumstances of the case, the Court finds that the measures in question constituted an interference with the applicant’s “private life” and “family life” within the meaning of Article 8 of the Convention.

The case is useful for confirming that family life is not restricted merely to spouses and minor children and that, in any event, contact with relatives will fall within private life if not family life and that both are protected by Article 8.

This does not mean that interference will always be disproportionate and thereby unlawful, of course, but it does mean that Article 8 is engaged — and therefore that there is a right of appeal at least — in a wider range of cases than the tribunal has hitherto recognised in the Mostafa and Adjei cases.

Colin Yeo
Colin Yeo A barrister specialising in UK immigration law at Garden Court Chambers in London, I have been practising in immigration law for 15 years. I am passionate about immigration law and founded and edit the Free Movement immigration law blog.

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