Case No: C5/2009/0965

Neutral Citation Number: [2009] EWCA Civ 1035
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
[OA/31309/2008]

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Wednesday, 29th July 2009

Before:

LORD JUSTICE MOORE-BICK
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Between:

	PATEL	
Appellant	
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ENTRY CLEARANCE OFFICER	

Respondent	

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Mr M Gill QC and Mr N Ahmed (instructed by Sultan Lloyd Solicitors) appeared on behalf of the Appellant.
THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED.
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Judgment
Lord Justice Moore-Bick:

1.	This is a renewed application for permission to appeal following refusal on paper by the single Lord Justice.  

2.	The applicant is a citizen of India who is now aged 26 and was nearly 25 at the date of the decision.  Her mother came to this country in April 2007 when she was almost 24.  After that the applicant lived in India with her father, by whom she is supported financially, her grandmother and one of her brothers, who is married with a child of his own.

3.	In May 2008 the applicant and her father each applied for leave to enter this country and remain here indefinitely.  The father’s application was successful, I assume because he had applied as a spouse, but the applicant’s was not.  She had applied for entry clearance under paragraph 317(i)(f) of the Immigration Rules on the grounds that she was a dependent relative of a person settled in the United Kingdom, namely her mother.

4.	In order to obtain leave to enter and remain under paragraph 317 an applicant must show that he or she is over the age of 18, living alone outside the United Kingdom in the most exceptional compassionate circumstances and mainly dependent financially on relatives settled in the United Kingdom.  The Entry Clearance Officer was not satisfied that she met that test.  The applicant appealed against the decision and in due course her appeal was allowed, but the respondent sought and obtained an order for reconsideration.

5.	At the first stage of the reconsideration Senior Immigration Judge Warr held that the immigration judge had erred in finding that the applicant was living in the most exceptional compassionate circumstances and ordered a fresh hearing.  However, he directed that it be confined to determining whether the applicant was living in the most exceptional compassionate circumstances and to issues arising under Article 8 of the European Convention on Human Rights.  

6.	The matter came before Immigration Judge McCarthy in January 2009.  By that time the applicant’s relationship with her brother had deteriorated and as a result she had left her grandmother’s house and had gone to live with friends.  It was agreed at the rehearing that, because at the time of the Entry Clearance Officer’s decision the applicant’s father was about to leave India, she was to be treated as living alone and financially dependent on relatives settled in the United Kingdom, but the critical question was whether she was living in the most exceptional compassionate circumstances.

7.	The applicant relied on the evidence of an expert witness who described the nature of traditional joint family structures in India and East Asia generally, under which parents retain responsibility for their daughters while they remain unmarried.  However, the immigration judge found that her family did not adhere to that traditional structure, as evidenced by the fact that her parents had left her in India and that her elder brother was unwilling to take responsibility for her.  He also noted that the applicant’s parents had not visited her and appeared to have few qualms about her ability to cope on her own.  It was accepted that she was distressed at being parted from her parents, but the tribunal found that she was living with friends and was able to organise her life satisfactorily.  They did not accept that she was suffering any form of harassment or social disadvantage and therefore did not meet the requirements of paragraph 317(i)(f).  

8.	As far as Article 8 was concerned, the immigration judge recognised that if family life had existed it would have been disproportionate to require the applicant’s mother to return to India in order to be reunited with her daughter, particularly in view of what is often described as the “historic wrong” represented by the special voucher scheme which affected the applicant’s mother disadvantageously.  However, the tribunal found that the applicant is not as reliant on her parents as she would be within the traditional joint family structure.  It noted that she had been able to find her own accommodation and had achieved a level of independence.  The tribunal did not consider that the degree of her dependence on her parents was significantly greater than that of most young adults.  For those reasons it found that she did not enjoy family life with her parents.  

9.	The applicant has sought permission to appeal on the grounds that the tribunal’s decision was wrong in law both in relation to the Immigration Rules and in relation to Article 8.  The ground based on the Immigration Rules is no longer pursued and it is therefore unnecessary to say anything more about it.

10.	  In the grounds of appeal a number of points are made in relation to the tribunal’s decision in respect of the applicant’s rights under Article 8, but of these the only ground now being pursued is that it was wrong to hold that Article 8 itself was not engaged.  The submissions in a nutshell – though they extend to 15 pages of skeleton argument – are twofold: first, that the immigration judge was bound to consider the matter as it stood at the date of the decision under appeal, that is, as things stood in April 2008, whereas the tribunal has in fact taken into account later circumstances including the fact that the applicant had in 2009 left her grandmother’s house and gone to live with friends; and second, that when deciding whether she enjoyed family life with her mother in April 2008, the tribunal failed to take into account the particular circumstances of this family, not least the fact that the applicant’s mother had come to the United Kingdom at the first opportunity in 2007 and had established herself here with a view to reuniting the family in this country as soon as possible.

11.	Whether an adult son or daughter has a degree of dependence on his or her parents sufficient to support the conclusion that they enjoy family life depends on the facts of the case.  There are some similarities between the facts of this case and others which have been drawn to my attention, but there are also some significant differences.   One difficulty that this applicant may face is that even at the time of the decision she was of an age at which children are usually considered to be emotionally, if not financially, largely independent of their parents.  However, I think there is some force in Mr Gill QC’s submission that in this case the tribunal took into account various matters that had occurred since the date of the decision as evidencing independence on the part of the applicant, and for that reason, and bearing in mind the low threshold that is required to obtain permission for leave to appeal, I am satisfied that permission should be granted, limited to the ground that I have identified.  I have already raised with Mr Gill whether the notice of appeal needs to be amended and I will hear counsel further on that matter now.

Order: Application granted