Protecting the Rights of Family Members

Statutory framework

Immigration appeals are now governed by the amended Pt 5 of the Nationality, Immigration and Asylum Act 2002 (NIAA 2002). Under the previous appeals regime, that of the Immigration Act 1999, the tribunal and courts held repeatedly that it was only the appellant’s own human rights that could be litigated, as is discussed below. There are differences between the way the right of appeal is framed under the 1999 and 2002 Acts, but the differences have not generally been considered to be substantive in nature and there has certainly been no change of approach on the part of the tribunal or courts. 1

Under the 2002 Act, s 82 gives rise to most appeals and all human rights appeals. It confers a right of appeal to the Asylum and Immigration Tribunal on the person who is the subject of an immigration decision. Section 82(1) provides that ‘[w]here an immigration decision is made in respect of a person he may appeal to the Tribunal’. Section 82(2) then goes on exhaustively to define ‘immigration decision’ and all of the decisions there listed relate to personal immigration status. The implication is that only the person who is the direct subject of the immigration decision can appeal. It is just about arguable that an immigration decision on the personal immigration status of an immigrant is ‘made in respect of’ both the immigrant and a profoundly affected family member such as Mr Brown in AB (Jamaica) v SSHD. Under s 84 of NIAA 2002 this would give rise to direct consideration of Mr Brown’s rights alongside those of the immigrant as Mr Brown would be an appellant. This interpretation requires something of a stretch of the apparent meaning of the words of Pt 5 of NIAA 2002. Given that Strasbourg case law requires consideration of the family’s collective rights and given the requirement at s 3 of the Human Rights Act 1998 to interpret legislation ‘so far as it is possible to do so’ ‘to be given effect in a way which is compatible with Convention rights’, some would say that this sort of stretch is entirely appropriate.

Section 84 of NIAA 2002 goes on to provide two potential grounds of appeal at sub-ss 84(1)(c) and (g) on the basis of a breach of ‘the appellant’s Convention rights’, the Convention in question being the European Convention on Human Rights. If only the immigrant can appeal, it is only the immigrant’s rights that form the basis of one of these two grounds of appeal at s 84(1)(c) and (g). Alternatively, the ‘otherwise not in accordance with the law’ ground at s 84(1)(e) could be brought into play in order to permit consideration of the effect on an affected family member.

Case law

The Asylum and Immigration Tribunal and its predecessors are not amongst those favouring a stretch of meaning in order to embrace consideration of the rights of family members. From the starred determination in Kehinde [2001] UKIAT 00010 (19 December 2001) onwards, the immigration tribunal has adopted a restrictive approach. 2 The High Court grappled with the same issue in the case of R (AC) v SSHD [2003] EWHC 389 (Admin). 3 In this case the mother, AC, was appealing a deportation decision and her representatives had argued that AC’s child, who was not to be deported, should be permitted to play an active role in proceedings and that the child’s rights had to be considered in determining the appeal. The child had in fact instructed a representative who attended the tribunal hearing but was not permitted to participate. Mr Justice Jack heard a challenge to a preliminary ruling by the tribunal that it was only the rights of the mother that were relevant. He held that the rights of the child were relevant and must be considered, but he also accepted that it was only the rights of the mother that were to be considered under the statutory framework. Mr Justice Jack valiantly attempts to square a circle, and while the outcome is that the rights of a third party family member are considered to be relevant, it is not clear by what means this is so and it is therefore difficult to see exactly how the rights are relevant or how they might influence the outcome of an appeal.

The Secretary of State explicitly argued in AC that the family life of the mother with the child was exactly equivalent to the family life of the child with the mother. Most child psychologists would be rather surprised by this proposition, as would most family lawyers and judges, one suspects. The relationship might be between the same two people, but it can be likened to looking through different ends of a telescope. One of the parties, the child, is far more dependent on the relationship than the other, the mother.

This issue arose in another case, EM (Lebanon) v SSHD [2006] EWCA Civ 1531. The mother appealed against an immigration decision and claimed that her child, aged around ten and present with her in the UK, would automatically be taken away from her and residence awarded to the father if she was returned to the Lebanon. The rights and representation of the child seemingly troubled no-one involved in the case other than Mr Justice Bodey, who normally sits in the Family Division of the High Court. His judgment included an examination of the case from the child’s perspective, but it would seem that he was without submissions or child-centered evidence on this point. The appeal was dismissed by the Court of Appeal but permission was granted to the mother to appeal to the House of Lords. At this stage, the child obtained legal representation and successfully applied to intervene in his mother’s appeal to the House of Lords. The hearing is pending.

EM (Lebanon) rather resists characterisation as a third party rights case as the child was subject to immigration control and was due to be removed alongside his mother (although an appeal had seemingly not been lodged on his behalf). Nevertheless, the successful intervention on behalf of the child is a notable development in this area of law, it is a reminder of the importance of the rights of those affected by an immigration decision and the House of Lords may have some interesting things to say about both the effect of immigration decisions on children and the representation of children affected by immigration decisions.

A full-on challenge to the refusal of the tribunal to consider third party rights has been heard by the House of Lords in the case of Betts v SSHD [2005] EWCA Civ 828. Judgment is eagerly awaited at the time of writing. The facts of the case do not involve the strength of family life that practitioners will often have encountered in other cases; it concerns the relationship of a 24 year old man with his mother and siblings in the UK rather than, for example, a relationship between an adult and a minor child or two spouses or partners.

Litigation culture

Lastly, we return to the point made at the start of the article: that immigration lawyers deal with immigrants and can sometimes overlook the wider aspects of a case. A family lawyer would approach child rights in a very different way to an immigration lawyer and a family judge would approach a case involving child welfare in a radically different way to an immigration judge. Children lie right at the heart of family law proceedings and it is almost too obvious to be worth stating that a statutory obligation is enshrined in the Children Act 1989 that in taking decisions on the upbringing of a child or a child’s property the child’s welfare shall be the court’s paramount consideration. Not only that, but the obligation is very much a live one of which family lawyers and professionals are keenly aware; it totally permeates through family law proceedings.

In contrast, immigration lawyers and judges can be all but blind to the effect of decisions on children, for example in deportation appeals. Very few if any immigration lawyers would commission expert evidence of a kind routinely presented in family law proceedings regarding the effect of the deprivation of a parent on the particular child affected. One suspects that if such evidence were presented to most immigration judges, it would receive short shrift, which becomes a reason not to commission the evidence in the first place.

This selective view of the world is underpinned by the immigration control opt-out from the Children Act and the UN Convention on the Rights of the Child, a statutory framework that has so far been interpreted to focus exclusively on the human rights of the appellant and on a general lack of awareness of the rights of children, the potential effects on children or of the voice of the child. In immigration law, children are neither seen nor heard.

Irrespective of the outcomes of Betts and EM (Lebanon), the comments of Lord Justice Sedley in AB (Jamaica), the introduction of the exclusion tariffs in the new immigration rule 320(7B) and the abolition of DP3/96 and DP2/93 strongly suggest the effect of the removal of an immigrant on the family members affected must be more carefully considered in future. 4 The effect of immigration decisions on third parties will become crucial to the success or otherwise of in-country Article 8 family life cases.

Reasonableness of relocation

At the moment, a strange legal fiction operates in which it is universally acknowledged that the appellant is the immigrant and it is the appellant’s rights that are under consideration, yet the reasonableness of expecting family members to relocate with the appellant is critical to the outcome of the appeal. As set out in Boultif v Switzerland (2001) 33 EHRR 50 and Uner v Netherlands [2007] Imm AR 303, one important factor in deciding proportionality is whether it is reasonable to expect the family member or members to relocate. There is no gloss nor any further guidance on the reasonableness test, though. There is certainly no requirement that a family member demonstrate ‘insurmountable obstacles’ to his or her relocation abroad. This misguided test appears to have arisen from the use of those words in the case of Poku, mentioned above, and repeated in Mahmood. As is discussed elsewhere in this issue, what is actually said is in those cases is that if there was an insurmountable obstacle, it probably would not be reasonable to expect relocation; this is not the same as requiring that there be an insurmountable obstacle as a prerequisite to a finding relocation is unreasonable. Even the Secretary of State for the Home Department has now conceded that the ‘insurmountable obstacles’ test is not the correct one. 5

Even the correct test is by no means an easy one to meet. Poku demonstrates that there have to be good reasons why the family members should not be expected to relocate. A further example can be found in Abdulaziz, Cabales and Balkandali v United Kingdom (1985) 7 EHRR 471. The case failed on Article 8 grounds alone, although it famously succeeded on a combination of arts 8 and 14. None of the following arguments against relocating family life were deemed by the Court to be sufficient:

… Mr. Abdulaziz said that his wife could not be expected to live in Portugal because she had always been close to her family and because her sick father – who in fact died in September 1980 – needed her company. Before the Commission and the Court, she claimed that her health was under strain because of her husband’s settlement problems and that humanitarian considerations prevented her going to Portugal, a country where she had no family and whose language she did not speak…

… Mrs. Cabales submitted that there would have been real obstacles to her returning to live in the Philippines: she was too old, her qualifications were not recognised there and, by working in the United Kingdom, she was able to support financially her parents and other members of her family…

… Mrs. Balkandali submitted that there would have been real obstacles to her going with her husband to live in Turkey: she cited her strong ties to the United Kingdom and alleged that as an educated woman and the mother of an illegitimate child she would have been treated as a social outcast in Turkey…

It can be seen that something more than inconvenience or hardship is required. An example can be found in Amrollahi v Denmark (Appl no 56811/00; 11 October 2002), where the applicant was a convicted drug trafficker. On the following facts, at para 42, the court did find that it was not reasonable to pursue family life abroad:

‘The applicant’s wife, A, is a Danish national. She has never been to Iran, she does not know Farsi and she is not a Muslim. Besides being married to an Iranian man, she has no ties with the country. In these circumstances the Court accepts even if it is not impossible for the spouse and the applicant’s children to live in Iran that it would, nevertheless, cause them obvious and serious difficulties. In addition, the Court recalls that A’s daughter from a previous relationship, who has lived with A since her birth in 1989, refuses to move to Iran. Taking this fact into account as well, A cannot, in the Court’s opinion, be expected to follow the applicant to Iran.’

Other than the facts of previous cases, though, there is no framework for deciding whether it is or is not reasonable for the family member to relocate abroad. The courts are notoriously shy of providing guidance that risks excessively constraining the discretion of the decision maker or which might be rendered redundant or inappropriate by unusual facts. However, something more than a bare reasonableness test has been laid down in other domestic contexts, such as in judicial review proceedings or in internal relocation in refugee law. Whether Strasbourg might be tempted to provide greater clarity is perhaps doubtful, and in Ullah and Do [2004] 2 AC 323 the House of Lords decided that it was not for them (and certainly not for the Court of Appeal) to venture beyond established Strasbourg jurisprudence. The prospects for more detailed guidance are therefore somewhat uncertain.

In AB (Jamaica), Sedley LJ referred to the proportionality of expecting Mr Brown to emigrate to another country to keep his marriage intact. Whether he intended it to advance this proposition or not, there is much to be said for applying art 8 to the situation of the family member or members – or even better the family unit as a whole – and using that as the test for reasonableness. This approach would provide a framework for deciding these difficult issues. It would also be amenable to a more child-centered approach to immigration decisions. For example, despite the occasional attempts to do so of some Home Office officials, a child cannot be accused of entering into a relationship with his or her parent in the knowledge that their immigration status was precarious, one of the key factors that can militate against a finding that a decision to expel is disproportionate.

Protecting the rights of family members

The so-called third party rights of family members could and should be more actively pursued in immigration law. There are a number of mechanisms available for doing so, some more established than others.

The most simple means of protection is simply to be prepared vigorously to assert that it is not reasonable to expect the family member or members concerned to relocate and to demonstrate with as much evidence as possible that those family members are deeply rooted in the United Kingdom. This should include child-centred evidence where appropriate. Many deportation decisions effectively deprive a child of one of its parents, a decision that should only be made after the most careful consideration of the effect on the child concerned.

Given what has happened in EM (Lebanon), interventions should be considered on behalf of affected children or other family members, or if the family member is also in receipt of a personal immigration decision an appeal should be lodged and actively pursued on behalf of that family member. There is no explicit mechanism in the procedure rules for intervention in the Asylum and Immigration Tribunal other than by UNHCR, but that is not necessarily the case in the higher courts. If an intervention in the higher courts is to be attempted, it would be wise to have attempted to do so early even if rebuffal was all but inevitable.

Separate representation for children should be considered in appropriate cases, where the child might have distinct arguments to advance of his or her own or perhaps does not want to be tainted by what a court might find are cynical attempts by a parent to obtain status in the UK. There are circumstances where it is not necessarily in the child’s best interests for a parent to be advocating those best interests.

It would be something of an understatement to say that the Legal Services Commission might be less than co-operative with these last two suggestions, but this is a point that can and should be argued.

Judgment in Betts will need to be awaited before joint appeals can be contemplated on behalf of a settled family member or members.

The final mechanism available for litigating the rights of family members is s 7 of the Human Rights Act 1998. This enables free-standing challenges to the acts of public authorities by the victims of the act in question. In the case of art 8 family and private life, this must be taken to include at the very least the close family members of the immigrant facing removal. Remedies to request could include a declaration that removal would be unlawful and even an injunction preventing removal. Some practitioners have made successful applications in this way, but report that Treasury Solicitors have (unsuccessfully) sought wasted costs orders against the lawyers involved, despite having argued themselves in AC v SSHD that this was the appropriate remedy. It has also been the means by which the tribunal has sought to sidestep the issue of third party rights in a number of cases. 6

It is arguable that even this is insufficient adequately to protect art 8 family life. As discussed above, Strasbourg has on several occasions considered the collective rights of the whole family unit. Requiring the immigrant and the family members to pursue separate legal actions effectively fragments the rights of the family unit; each fragment of the family must then independently argue that its interests outweigh the need to maintain a system of immigration control and is therefore less likely to succeed. This point could be used as the basis for a joint s 7 judicial review by the immigrant and family members. Although it might be said in resisting a s 7 application that the immigrant had or has an alternative remedy in an appeal to the Asylum and Immigration Tribunal (or fresh claim under immigration rule 353) it can be argued that this is not an adequate remedy as it provides no means of litigating the rights of the family as a whole. For this reason, to be fully effective a s 7 application would need to be made before the rights of the immigrant had been litigated, as a dismissed appeal would be highly prejudicial to a later joint application.

Colin Yeo

Renaissance Chambers