Article 8 and Entry Clearance: The Final Nail in the Coffin

Secretary of State for the Home Department v Onuorah [2017] EWCA Civ 1757 (03 November 2017)

Notably, the Court of Appeal has confirmed the correctness of its decision in the recent case of Kopoi [2017] EWCA Civ 1511 (see here). The court unanimously held that short visits to the UK do not engage either family life or private life within the meaning of article 8 of the ECHR. Singh LJ rejected submissions arising out of various Strasbourg authorities because they were being placed outside their context. Delivering the court’s judgment, his Lordship said that he was inescapably bound by the Court of Appeal’s previous rulings whereas Strasbourg authorities only needed to be taken into account under section 2(1) of the Human Rights Act 1998. The decision is yet another blow to individuals attempting to exaggerate the scope of family life or private life in their entry clearance cases. The judgment seems to be the final nail in the coffin of persons raising article 8 between adults in cases where there is no clear-cut evidence of dependency. Born in 1985, Chioma Goodness Onuorah is from Nigeria where she lives with her husband. Both of them are employed. She applied for a visit visa to the UK under the sponsorship of her brother Franklin Onuorah, a naturalised British citizen who is married with two children. In July 2014, the Entry Clearance Officer (ECO, Abuja) refused her application for a visit visa because of concerns about the genuineness of her intentions to enter the UK as a visitor for a limited period.

The appeal to the First-tier Tribunal was successful. Judge Manuell accepted Franklin Onuorah’s evidence and found him to be an honest witness. He was also satisfied that Onuorah did in fact intend to return to Nigeria after her brief visit to the UK. He said that he would have had no hesitation in allowing the appeal under 41 of the Immigration Rules had the option been available to him, but it was not available because family visitor visas applications made after 25 June 2013 no longer enjoyed a right of appeal. Although Onuorah had no family life in the UK, the FTT thought that the refusal directly affected her British brother and his two British children. Judge Manuell decided that the refusal was incorrect because it disregarded proportionality. In his view, Onuorah would comply with her visa conditions and the public interest under article 8(2) was satisfied because there was no evidence to show that the she was someone who would breach the law if permitted to visit the UK for short visit. The ECO, who appealed, was directed to issue her with the type of visit visa for the correct fee had been paid.

The Upper Tribunal

Deputy UT Judge Monson noted that family life pursuant to article 8 does not normally exist between adult siblings, parents and adult children. He even referred to Kugathas [2003] EWCA Civ 31 and observed that “unless something more exists than mere emotional ties” family life will not be established between an adult and other siblings. Onuorah’s strong ties to Nigeria in the form of her marriage meant that none of the criteria identified in the Kugathas line of authorities appeared to be met in her case. A thematic analysis of article 8 related domestic jurisprudence in the context of family visitors led Judge Monson to distinguish between “the restrictive approach” and “a more elastic approach”.

Purporting to draw fine distinctions in the application of Kugathas between entry clearance for the purpose of settlement and entry clearance for a limited purpose such as a short visit, the UT mixed up the concept of justification for any interference with the right to respect for family life with the logically prior question of whether an applicant is able to avail a gateway into article 8 in the first place. In the context of Onuorah’s appeal, the prior question involves considering whether it has been established that there was family life, or private life, between the relevant persons.

Judge Monson was unconvinced that the FTT misdirected itself in finding that the family and/or private life limbs of article 8(1) were engaged and rightly answered the first two questions of the Razgar [2004] UKHL 27 test in Onuorah’s favour. Judge Manuell had enough evidence before him to find that the prospective interference was not merely technical or inconsequential. Even though Onuorah did not have an established family life with her brother and his family in the UK, which was not an essential requirement, contrary to the assertions in the grounds of appeal. Significantly, without elaborating in full, the UT’s findings included both the family and private life limbs of article 8.

For Judge Monson, upon deciding that article 8 was engaged, the FTT did not err by not balancing the strength of Onuorah’s claim under article 8(1) against the public interest considerations arising under article 8(2). Onuorah’s family ties with her brother were weak because of an absence of emotional dependence but there was no countervailing public interest in excluding her from temporarily visiting the UK.

The Court of Appeal

Gloster, Sales and Singh LJJ held that the FTT and the UT both erred in law by finding that either family life or private life within the meaning of article 8 was in existence between Onuorah and her British brother. Delivering the judgment of the court, Singh LJ addressed the issues as they arose under both limbs of article 8. He simultaneously addressed issues connected to the doctrine of precedent in the English legal system.

(i) Family Life

The tightness of the authoritative decision in Kopoi meant that the concept of family life did not include the situation in Onuorah’s case. The scope of the concept of family life under article 8 was considered in Kugathas where a 38-year old Sri Lankan asylum-seeker living in the UK was held not to enjoy “family life” with his mother, brother and sister, who were living in Germany as refugees. Sedley LJ accepted the guidance imparted in S v United Kingdom (1984) 40 DR 196 as the right approach 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 provided coverage 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 blood ties, such 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. The court remained undivided and Arden LJ and Simon Brown LJ concurred with Sedley LJ’s approach. Moreover, 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 approach in Kugathas. Holding the result to be “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). Evaluating all this against the situation evidenced in Kopoi, Sales LJ rejected the Sierra Leonean respondent’s pleas because he judged that – in navigating through the minefield of article 8 jurisprudence – she impulsively sought to use gut instinct rather than proving her point by applying the germane authorities. He therefore held that “in my view, by no stretch of the imagination can the present case be brought within the principles set out in these authorities.”

Onuorah nevertheless submitted that, as endorsed in Kugathas, the Strasbourg authority of S v United Kingdom held that adult relationships are not necessarily protected by article 8 without evidence of dependency, involving more than normal emotional ties. The submission was rejected and Singh LJ said:

37. In my view, the legal position has now been authoritatively settled by this court. Although this court has an obligation under section 2(1) of the HRA to take into account any relevant decision of the European Court of Human Rights or the former European Commission for Human Rights, we are normally bound by former decisions of this court, in accordance with the domestic law principle of precedent.

Other strands of Strasbourg jurisprudence invoked by Onuorah told a different story altogether. Innovative arguments based on Khoroshenko v Russia [2015] ECHR 637 did not assist her case because of contextual differences. After pleading guilty to banditry, robbery and aggravated murder, Khoroshenko had been sentenced to death but the Russian president commuted his sentence and he served life imprisonment instead. During the first 10 years he was detained in a highly restrictive environment in a correctional colony where the length and frequency of family visits were minimal. However, he still had family life with his relations including his brother despite there being no relationship of dependency owing to the fact of imprisonment.

Onuorah argued that if Kugathas and the Strasbourg jurisprudence informing it are so black and white then it is difficult to see how family life could have existed in the case of Khoroshenko. However, Singh LJ opined that Khoroshenko needed to be understood in its particular context. Russia did not dispute that imprisonment interfered with his private and family life. Onuorah was entitled to argue that the ECtHR did implicitly accept that there was family life. Yet what was said in the context of coercive measures preventing normal contact with a prisoner’s family “has nothing to do with the context of immigration control.” The UK had not disallowed Onuorah from maintaining contact with her brother and only refused her leave to enter for the purpose of visiting him. Since Singh LJ was not provided any evidence to show why they could not meet in Nigeria or on a holiday another third country, his Lordship explained that:

41. … In the present context, I can see no reason to think that the state has shown the “want of respect”, as this court put it in Kopoi, that is required for the purpose of article 8.

Sabanchiyeva v Russia (2014) 58 EHRR 14 involved insurgents killed by security forces during or soon after a terrorist attack in Nalchik. The authorities told the insurgents’ relatives that the deceased would not be returned for burial at least until the investigation had been completed. Notably, the court found that one of the applicants formed a “private life” with one of the deceased despite only one month of cohabitation and occasional secret meetings for the next 8 months. Strasbourg held that whilst the situation lacked the stable traits of family life, there was little doubt that a “private life” existed between them. But for Singh LJ, Sabanchiyeva was different and Onuorah’s reliance on it was off target because the state’s actions were “particularly severe” in that case. A ban was imposed on the disclosure of the location of the grave. The applicants were completely precluded from participating in their relatives’ funerals causing a permanent termination of links between the applicants and the location of the deceased insurgents’ remains.

In Abbasi v ECO, Karachi [2015] UKUT 463 (IAC), McCloskey J identified Sabanchiyeva as an authority where Strasbourg held “without making any distinction between the private life and family life dimensions” that article 8 was in breach. Acknowledging the existence of cases where making a distinction between private life and family life is immaterial because an interference exists with at least one of them, reiterating the importance of context Singh LJ stressed the need for clarity about the “gateway” available to a person prior to arriving at the stage when later questions need to be answered regarding the possibility of an interference with article 8 rights or a lack of respect pursuant to a positive obligation sometimes imposable on the state so as to give effect to article 8 rights.

Notably, McCloskey J did not refer to Kugathas during the course of his judgment in Abbasi. But this did not surprise Singh LJ because factual differences set the two cases apart and Abbasi concerned death, burial, mourning and associated rites. The correctness of Abbasi was not in question but its outcome did not impact upon the context of Onuorah’s case because it was governed by the sharply defined principle in Kugathas.

(ii) Private Life

Onuorah’s reliance on private life presented an even more uphill battle than family life. The outcome in Abbas [2017] EWCA Civ 1393 (see here) – where a Pakistani national had sought leave to enter to visit his uncle and grandmother – meant that the slope was even slipperier in relation to private life because in that judgment the court remained undivided on the inapplicability of article 8 in an entry clearance case where no relevant family life existed. Burnett LJ held at para 18 that accepting that private life obliges “a contracting state to allow an alien to enter its territory would mark a step change in the reach of article 8 in the immigration context.” To do so would be unprincipled and equally impermissible as a matter of binding authority regarding the expansion of ECHR rights.

Onuorah submitted that Burnett LJ was confused and Abbas was wrongly decided because the Home Office was heavily represented and Abbas was neither present nor represented which meant that the authority of Sargsyan v Azerbaijan [2015] ECHR 588 had gone unnoticed. The ECtHR had held that article 8 was applicable on the facts and that there had been a continuing breach of the applicant’s rights but the facts were distinctly unique. Minas Sargsyan was ethnically Armenian. He was born in Gulistan (Azerbaijan) in 1929 and was married there in 1955 but he was forced to move to Armenia in 1992 after the USSR collapsed. Owing to his forced displacement, his article 8 claim entailed a denial of (i) a right access his home in Gulistan, and (ii) access to the graves of his relatives. Sargsyan’s claim was accompanied by detailed evidence in the form of a Soviet passport, his marriage certificate, photographs and legal documents.

The ECtHR held that Sargsyan’s inability to return to the place of his birth, upbringing and work affected his private life. Similarly, his cultural and religious attachment with his late relatives’ graves in Gulistan also potentially amounted to private and family life. Singh LJ held that Sargsyan involved completely different facts from Onuorah’s case or from Abbas. Consequently, no assistance could be gained from the Grand Chamber’s judgment even if “this court were free to depart from its own decision in Abbas in accordance with the principle of per incuriam.” The applicability of that principle to Onuorah’s situation was “not straightforward” and Singh LJ found it “unnecessary to decide that point in the present case.”

(iii) Precedent

Pursuant to the third exception in Young [1944] KB 718, Onuorah submitted that Singh LJ was free to depart from Abbas on the ground that it was given per incuriam (wrongly decided) but his Lordship observed that Evershed MR held in Wakeling [1955] 2 QB 289 that as a rule of thumb only decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some binding authority should be held to have been given per incuriam so that a demonstrable error in the legal rationale is established. Importantly, a relevant decision of the ECtHR is not binding on domestic courts but must be taken into account under section 2(1) of the 1998 Act. This created complexities regarding the applicability of the per incuriam principle and Singh LJ highlighted two important House of Lords’ decisions, after legal transition to the 1998 Act, which examined the relationship between the domestic doctrine of precedent and the relevance of Strasbourg jurisprudence.

In Kay [2006] UKHL 10, the doctrine of precedent was held to be “a cornerstone of our legal system.” Lord Bingham stressed that the normal domestic rule should continue to apply even where the Court of Appeal opines that a decision of the House of Lords (now the Supreme Court) conflicts with a subsequent ECtHR decision. The partial exception to that rule was found in JD & Ors [2004] QB 558 where the Court of Appeal refused to follow the House of Lords’ prior ruling in X (Minors) [1995] UKHL 9 because it had been given before the 1998 Act and the House’s opinion contained no trace of the ECHR and the claimants ultimately emerged triumphant in the ECtHR in Z v United Kingdom (2001) 34 EHRR 97.

In RJM [2008] UKHL 63, Lord Neuberger addressed circumstances where a potential conflict arises between a House of Lords/Supreme Court decision and a Strasbourg ruling. His Lordship refused to “go against what Lord Bingham decided” and reiterated that as a matter of practice it was clear from Animal Defenders [2008] UKHL 15 that ECtHR decisions “are not always followed as literally as some might expect.” Importantly, as a matter of principle, it was not within the Court of Appeal’s remit to determine whether a decision of the ECtHR has overtaken an earlier decision of the House of Lords.

Lord Neuberger also examined a scenario where potential conflict arose between a decision of the Court of Appeal and a later ECtHR decision. Applying Young, the Court of Appeal is freer to depart from one of its own decisions but it cannot hold a decision of the House of Lords was wrongly decided. Contextually, the rule in Young was pronounced at a time when ECtHR judgments lacked the domestic force they late came to enjoy under section 2(1) of the 1998 Act. Therefore, Lord Neuberger’s clear-cut approach in RJM supported the “free” but “principled and cautious” development of precedent by keeping abreast of modern day peculiarities. This led his Lordship to hold that “where it concludes that one of its previous decisions is inconsistent with a subsequent decision of the ECtHR, the Court of Appeal should be free (but not obliged) to depart from that decision.”

The situation was different in Onuorah’s case because the Grand Chamber’s judgment in Sargsyan was delivered prior to Abbas and was therefore not a “subsequent decision”. Singh LJ found it pointless to further examine in greater depth the applicability of the doctrine of precedent or the concept of per incuriam in such cases. The reason was that, even if the principle of per incuriam applied to Onuorah’s case, he had no doubt that he would inevitably reject her submissions based on the Strasbourg jurisprudence.

(iv) Gloster and Sales LJJ

Her Ladyship and his Lordship agreed with Singh LJ but wished to add that they preferred to reserve their individual opinions on the correctness (or otherwise) of the UT’s decision in Abbasi.

Comment

Significantly, Singh LJ’s bulletproof judgment emphasises the importance of precedent and focuses on keeping things in context. From that angle, the first member of the Sikh community to rise to the godlike status of a judge of the Court of Appeal appears to have made a gesture of goodwill to help persons adversely affected by his uncompromising judgment.

On the other hand, unless some miracle occurs, this judgment seems to be the final nail in the coffin of those entry clearance cases where adult siblings and other relatives hollering about their family and private life were able to triumph in their tribunal appeals. Given that this judgment casts no doubt on the correctness of Abbas and Kopoi, the chances of appealing to the Supreme Court look quite bleak in any of these cases.

Overall, the rigmarole of the appeals process seems to have done very little to solve Abbas, Kopoi and Onuorah’s entry clearance problems. With the benefit of hindsight, it would probably have been more advantageous for them to pursue judicial review proceedings challenging the reasonableness of the decisions to deny them entry clearance to the UK rather than relying on article 8 grounds in their respective tribunal appeals.

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

Senior Partner, Khan & Co, Barristers-at-Law
This entry was posted in Appeals, Article 2, Article 8, Court of Appeal, ECHR, Entry Clearance, Human Rights Act, Immigration Rules, Proportionality, Tribunals and tagged , , , , , , . Bookmark the permalink.

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