Article 8 and Entry Clearance: Court of Appeal Confirms the Approach in Mostafa

Entry Clearance Officer, Sierra Leone v Kopoi [2017] EWCA Civ 1511 (10 October 2017)

In this interesting case, the Court of Appeal allowed the ECO’s appeal against the Upper Tribunal’s decision that the relationship between Edna Kopoi and her relatives in the UK amounted to family life for the purposes of article 8 of the ECHR. Overall, the outcome confirms the ratio of Mostafa [2015] UKUT 112 (IAC) where it was held that it “will only be in very unusual circumstances that a person other than a close relative will be able to show that the refusal of entry clearance comes within the scope of article 8(1).” Born in 1991, Edna Kopoi is a citizen of Sierra Leone and resides there. Her father, Edmound Kopoi had sponsored her cousin Emmanuel Kopoi to study for his O-level exams and took care of him in Freetown where he went to college. Emmanuel got a job with the UN and while working in Nepal he met a British citizen and they got married in 2008. Emmanuel has ILR and the couple have two children: it is their wish that their children should develop a proper relationship with their paternal family and cultivate Sierra Leonean roots. In October 2013, Edna applied for entry clearance to the UK as a family visitor to come stay with her cousin Emmanuel and his wife for three weeks under the couple’s sponsorship.

Her application was considered under the visit visa rules at the material time – i.e. paragraph 41 of the Immigration Rules – but the ECO refused entry clearance because was he not satisfied that she was genuinely seeking entry as a visitor for a limited period as claimed and that she intended to leave the UK after her visit. Edna, who had finished college, failed to provide evidence that she planned on further study in Sierra Leone. She was unemployed, had no money of her own and was wholly dependent on her father and her sponsors. An entry clearance manager reviewed the decision on the ground that Edna was indeed a genuine visitor and that “it is a breach of the rights of the children of the sponsors right to family life to deny them access to their paternal family members.” In February 2014, the ECM upheld the refusal because Edna’s future plans remained unclear and she had no personal financial resources. In the ECM’s view, no breach of article 8 occurred because no family life existed between the two British children concerned and their paternal family members in Sierra Leone.

Moreover, the ECM thought that even if family life existed, any interference with it was justified by the legitimate need to maintain effective immigration controls and was proportionate with the result that article 8 was not breached by the refusal.

The First-tier Tribunal

The First-tier Tribunal allowed the appeal. It noted that since the refusal Edna had become an executive trainee with the Sierra Leonean operations of GTBank, a leading African financial institution with vast business interests. This sufficed as evidence that after completing her studies Edna wished to pursue her career in her own country and intended to return there after her visit to the UK. After all, her close family lived there and she had secured employment there. The First-tier judge was persuaded by the evidence of her cousin Emmanuel’s wife – a barrister practising in the field of human rights – that she would not tolerate any breach of immigration law by her niece. On a balance of probabilities, the First-tier Tribunal determined that Edna was a genuine visitor who intended to leave at the end of her visit. There was no need to examine article 8.

The Upper Tribunal

The ECO’s appeal was dismissed because the error of law in the First-tier Tribunal’s decision was not material. Edna’s cousin’s British barrister wife’s evidence had been accepted on article 8 but there was no need to make any factual findings. The existence of family life was not in doubt and the Upper Tribunal characterised it as a “commitment of family members” which “runs deep and is of a special nature”.

Sierra Leone’s Ebola outbreak had not been discussed but palpably taking the British children to meet their relatives in Africa would expose them to a dangerous situation. So it was more convenient for Edna to come to UK for a short time. Indeed, the First-tier judge had been absolutely entitled to accept the British barrister relative’s assurances about the genuineness of her niece’s proposed visit. The Upper Tribunal found that the interference caused by the refusal of entry clearance with family life was disproportionate, especially in the context of the present case as it involved children of a young age which was a important consideration.

The Court of Appeal

Gloster, Burnett and Sales LJJ allowed the ECO’s appeal on the complaint that there was no evidence capable of supporting a finding that the relationship between Edna and her relatives in the UK amounted to family life within the meaning of article 8. Applying Beoku-Betts [2008] UKHL 39, Sales LJ reversed the finding that the evidence tendered to the First-tier judge established that Edna enjoyed “family life” with her cousin and his British wife and children in the UK within the meaning of article 8, or vice-versa that any of them enjoyed family life with her. His Lordship held that the refusal:

16. … involved no failure of respect for anyone’s family life and hence there was no interference with the respondent’s rights (or anyone else’s rights) under article 8(1) which required justification under article 8(2).

Even if family life existed, article 8 did not oblige the ECO to grant Edna entry clearance. The scope of family life under article 8 was considered in Kugathas [2003] EWCA Civ 31 where a 38-year old man who lived in the UK was held not to enjoy “family life” with his mother, brother and sister, who were living in Germany as refugees. Guidance imparted in S v United Kingdom (1984) 40 DR 196 was accepted as the right approach by Sedley LJ and family life was taken to mean cohabiting dependents, such as parents and their dependent, minor children. Relationships between adults, such as a mother and her adult son, are covered only where there is “evidence of further elements of dependency, involving more than the normal emotional ties.”

In Kugathas, the court held that an absolute requirement of economic dependency is not needed for family life to exist but that real, committed or effective support between family members is necessary. Sedley LJ explained that despite the fondness that accompanies them, blood ties alone are insufficient to be regarded as family life. But self-evidently the case of a parent and an infant is special because of the natural tie between them. Arden LJ and Simon Brown LJ concurred with this analysis.

Arden LJ construed S v United Kingdom to mean that no presumption as to person’s family life could be made even with members of his immediate family. Her Ladyship added that, in the case of an adult child and his surviving parent or other siblings, family life is not established in the absence of ties of dependency and normal emotional ties do not suffice in that regard.

In Britcits [2017] EWCA Civ 368 (see here), Etherton MR upheld the validity of the lamentable approach in Kugathas and finding it good law his Lordship remarked that “there must be something more than normal emotional ties” for family life to exist in the context of article 8(1). Applying this to the instant case, Sales LJ held:

20. In my view, by no stretch of the imagination can the present case be brought within the principles set out in these authorities.

The situation was different because Edna’s article 8 claim was weaker than Kugathas’s and she was not even a member of her cousin’s immediate family. She had no dependence on them and had not routinely benefitted from their financial support. The situation could be distinguished from Boyle v United Kingdom (1994) 19 EHRR 179 where family life was said to exist between an uncle, “a good father figure”, and his nephew because they were in close proximity and met on a regular basis. Despite the emotional ties in this case, there was no trace of anything more than normal emotional ties between family members concerned. Sales LJ rejected the argument that emphasis needed to be given to the children’s perspective. His Lordship opined that they were not in any relationship of dependency with Edna and:

21. … It may be that some emotional ties exist between them, but it has to be said that in the case of the children they appear to be very weak ties.

There had been no substantial contact between Edna and the children. Any emotional connection they had was significantly weaker than the connection between the family members in Kugathas, where no family life existed for the purposes of article 8. Therefore Sales LJ held that:

22. In my view, there plainly is no existing “family life” between the respondent on the one hand and any of Emmanuel, Ms Wilson and the children on the other. The Upper Tribunal was wrong to hold that there is.

The proposition that the ECO was under an obligation of “some sort” to grant Edna entry so as to facilitate the development of her relationship with the children was stingingly rebuked by Sales LJ who said that no authority was put before him supporting that submission. Since family did not exist, the state had not interfered with it by refusing entry into its jurisdiction to someone “to try to bring it into existence.” In the court’s analysis, article 8 does not create any implied positive obligation to admit Edna to facilitate a substantial relationship with the children with a view to create a family life which was not in existence. According to Sales LJ:

23. … That would be an implied right of extraordinary width affecting the ordinary right of states to control their borders in a profound and far-reaching way: it clearly cannot be spelled out of the terms of article 8(1).

Furthermore, the decision in Abdulaziz, Cabales and Balkandali v United Kingdom (1985) 7 EHRR 471 confirmed the court’s position because even though the ECtHR found that article 8 was engaged in entry clearance cases involving husbands wanting to join their wives in the UK, that finding was not synonymous with the idea that the individuals concerned had a right to choose where to live together. As shown by Sen v Netherlands (2001) 36 EHRR 81, the point of principle articulated in Abdulaziz extends to claims for family reunification involving children. Affirming Abdulaziz, the ECtHR held that subject to their treaty obligations states have the right to control the entry of non-nationals into their territory.

Equally, the present case was distinguishable from Sen a case involving a nine-year-old Turkish child whose Turkish parents wanted her to be admitted to the Netherlands so as to live with them. The bond of family life united them because the child was a product of their marital union or an ipso jure part of that relationship. To conflate that with the present context was incorrect as the persons involved failed to convince Sales LJ that “family life” exists between them regardless of the relative remoteness of their relationship. Whilst in Sen there was a breach of article 8, the ECtHR nonetheless distinguished Ahmut v Netherlands (1997) 24 EHRR 62 where no breach of article 8 was found in a family reunification case involving a minor.

Moreover, even if family life was presumed the effect of Sen was to point strongly against any violation of article 8 because the children in the present case had no dependence on Edna and were instead “already safely settled in secure family life with their parents in the UK.” Thus no pressing article 8 interest arose in the context of the children in the sense contemplated in Sen – i.e. striking a fair balance between the competing interests of the individual and the community as a whole – and so there was no need to override the general principles of weighty jurisprudence by granting entry to Edna.

The presidential decision in Mostafa [2015] UKUT 112 (IAC)(see here), which addressed article 8 in entry clearance cases, rightly held that only in “very unusual circumstances” is someone other than a close relative able to demonstrate that the refusal of entry clearance falls within article 8’s scope. Affirming the approach, but nonetheless reserving his opinion on the width of the language used by McCloskey J and UTK Perkins, Sales LJ confirmed the the correctness of the reasoning in Mostafa that only relationships such as husband and wife or other close life partners or a parent and minor child trigger article 8 rights and even then coverage is not necessarily extended to cases where a trip is whimsically proposed or will not add significantly to the time spent together by those involved. On that approach, Edna’s case fell outside the scope of article 8(1).

For Sales LJ, the better reading of her case exposed that the shortness of her proposed visit of three weeks was also stacked against her and she struggled to show that refusing her entry clearance involved a lack of respect for family life. She would not be able to significantly contribute to family life and nothing beyond normal emotional ties would be established even if it were assumed for the family’s convenience that article 8 creates a positive obligation to try to develop a family life which does not exist.

Notably, the refusal did not give rise to a right of appeal on the question of whether Edna was a genuine visitor who would leave at the end of her visit under the requirements of paragraph 41 of the Immigration Rules as applied in this case at the material time. Distinct from a statutory appeal where the tribunal makes findings of fact on the evidence, judicial review remained the only option in order to challenge the rationality of the ECO’s decision. Sales LJ ultimately thought that even though the First-tier judge was entitled to make his own findings, as a judicial review claimant Edna might have struggled to demonstrate that the ECO’s decision was irrational on the evidence available to him.

Comment

It is crystal clear that ECOs are rather thick-skinned creatures. Together with the recent case of Abbas [2017] EWCA Civ 1393 (see here) and the earlier decision in MW (United States of America) & Ors [2016] EWCA Civ 1273 (see here), the outcome in Kopoi confirms the resilience of the ECO community because in all three decisions they went on to win in the Court of Appeal after losing twice in the tribunal system.

Because of his fondness of stringency, Sales LJ has built up quite a reputation for strictness and is thus a feared judge. Indeed, those making the challenge to the adult dependant relative rules in Britcits count him among the personalities who are bound to side with the government. Conversely, not long ago, as a consequence of the judgment in Miller [2016] EWHC 2768 (Admin), Sales LJ was accused of being an enemy of the people because along with Etherton MR and Lord Thomas CJ (as he then was) he held that the executive was not able to use the prerogative to trigger article 50 of the Lisbon Treaty in order to give notice for the UK to withdraw from the EU.

For the avoidance of doubt, in comparison to Abbas who was neither present nor represented, in Kopoi not only was Edna’s British sponsor a practising barrister – namely Rebekah Wilson – Edna was also represented by Colin Yeo; none other than the founder of the free movement blog. It shall be interesting to learn whether they have accepted the Court of Appeal’s strident ruling? Or will they instead advise Edna to endeavour to appeal to the Supreme Court for justice to be done?

About Asad Ali Khan, BA, MSc, MA, LL.B (Hons), LL.M

Senior Partner, Khan & Co, Barristers-at-Law
This entry was posted in Africa, Article 8, Brexit, Children, Court of Appeal, ECHR, Human Rights Act, Immigration Rules, Judicial Review, Miller, Proportionality, Tribunals, UKSC, Visitors and tagged , , , , , , , , . Bookmark the permalink.

One Response to Article 8 and Entry Clearance: Court of Appeal Confirms the Approach in Mostafa

  1. Secretary of State for the Home Department v Onuorah [2017] EWCA Civ 1757 (03 November 2017) makes the prospects of appealing very weak:

    http://www.bailii.org/ew/cases/EWCA/Civ/2017/1757.html

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