Judgments - Beoku-Betts (FC) (Appellant) v Secretary of State for the Home Department

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34.  NG (Pakistan) v Secretary of State for the Home Department [2007] EWCA Civ 1543 concerned a Pakistani mother, with two young children, who was to be deported after separating from her husband, a British citizen of Pakistani origin. Contact between father and children would thereby be broken. Although it may well not have been decisive the Court of Appeal stated at para 9:

“There was no prospect of the father actually caring for the children. The children would travel with their mother if she were removed. It was the mother’s article 8 rights that were under scrutiny, not the father’s or even the children’s (see the decision of the IAT in Kehinde).”

35.  AB (Jamaica) v Secretary of State for the Home Department [2007] EWCA Civ 1302 concerned a Jamaican woman who overstayed here, was thereafter joined by her two daughters, then met and married a British citizen who had lived here all his life. Allowing the appeal against mother’s deportation the Court of Appeal said at para 20:

“In substance, albeit not in form, [the husband] was a party to the proceedings. It was as much his marriage as the appellant’s which was in jeopardy, and it was the impact of removal on him rather than on her which, given the lapse of years since the marriage, was now critical. From Strasbourg’s point of view, his Convention rights were as fully engaged as hers. He was entitled to something better than the cavalier treatment he received . . . It cannot be permissible to give less than detailed and anxious consideration to the situation of a British citizen who has lived here all his life before it is held reasonable and proportionate to expect him to emigrate to a foreign country in order to keep his marriage intact.” (Sedley LJ)

Again no mention was made of the present issue.

36.  Most recently the issue was raised in VN (Uganda) v Entry Clearance Officer [2008] EWCA Civ 232 when again it was found unnecessary to resolve it. The Court of Appeal dismissed the appeal on the basis that even if the immigration judge had taken full account of the appellant’s brother’s separate article 8 rights it could not have affected the outcome.

The Strasbourg case law

37.  Plainly the present issue could not arise on a Strasbourg application: as Sedley LJ pointed out in AB (Jamaica), from Strasbourg’s point of view the husband’s Convention rights were as fully engaged as the wife’s. Time and again the Strasbourg case law emphasises the crucial importance of family life.

38.  Sezen v Netherlands (2006) 43 EHRR 621 is a case in point. Noting that the case concerned “a functioning family unit where the parents and children are living together", para 49 of the judgment continued:

“The Court has previously held that domestic measures which prevent family members from living together constitute an interference with the right protected by article 8 of the Convention and that to split up a family is an interference of a very serious order. Having regard to its finding . . . that the second applicant and the children cannot be expected to follow the first applicant to Turkey, the effect of the family being split up therefore remains the same [as when a 10 year exclusion order remained in force] as long as the first applicant continues to be denied the right to reside in the Netherlands.”

39.  True, unlike Sezen, the present case is not concerned with young children. But the dependency between the appellant and his mother here clearly engages article 8. As the Court stated in Mokrani v France (2003) 40 EHRR 123, para 33:

“[R]elationships between adults do not necessarily benefit from protection under article 8 of the Convention unless the existence of additional elements of dependence, other than normal emotional ties, can be proven.”

On the adjudicator’s findings of fact, such additional elements of dependence can properly be said to exist in the present case.

40.  All of this, moreover, is entirely consistent with the approach taken by the House in Huang v Secretary of State for the Home Department [2007] 2 AC 167, 186:

“[T]he main importance of the [Strasbourg] case law is in illuminating the core value which article 8 exists to protect. This is not, perhaps, hard to recognise. Human beings are social animals. They depend on others. Their family, or extended family, is the group on which many people most heavily depend, socially, emotionally and often financially. There comes a point at which, for some, prolonged and unavoidable separation from this group seriously inhibits their ability to live full and fulfilling lives. Matters such as the age, health and vulnerability of the applicant, the closeness and previous history of the family, the applicant’s dependence on the financial and emotional support of the family, the prevailing cultural tradition and conditions in the country of origin and many other factors may all be relevant.”


41.  Whilst it is no doubt true that only infrequently will the present issue affect the outcome of an appeal, clearly on occasion it will and in any event that could provide no reason for maintaining the present narrow approach if it is wrong—indeed, quite the contrary.

42.  Ouseley J in AC’s case (para 29 above) envisaged as a disadvantage of the wider construction that the appellant might make claims relating to other family members which they might not agree with. To my mind the risk of this is small: generally the appellant would be advised to adduce signed statements from other affected family members if not indeed to call them. The greater risk surely arises upon the narrower construction: if the impact of removal on other family members is relevant only in so far as it causes the appellant distress and anxiety, that puts a premium on the appellant exaggerating his feelings.

43.  The disadvantages of the narrow approach are manifest. What could be less convenient than to have the appellant’s article 8 rights taken into account in one proceeding (the section 65 appeal), other family members’ rights in another (a separate claim under section 7 of the Human Rights Act)? Is it not somewhat unlikely that the very legislation which introduced “One-stop” appeals—the shoulder note to section 77 of the 1999 Act—should have intended the narrow approach to section 65? Surely Parliament was attempting to streamline and simplify proceedings. And would it not be strange too that the Secretary of State (and the Strasbourg Court) should have to approach the appellant’s article 8 claim to remain on one basis, the appellate authorities on another? Unless driven by the clearest statutory language to that conclusion, I would not adopt it. And here the language seems to be far from decisive. Once it is recognised that, as recorded in the eventual consent order in AC’s case (para 31 above), “there is only one family life", and that, assuming the appellant’s proposed removal would be disproportionate looking at the family unit as a whole, then each affected family member is to be regarded as a victim, section 65 seems comfortably to accommodate the wider construction.

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