Article 8 family life outside the rules

In a recent case in the Outer House of the Court of Session the Home Office were chastised for their close minded approach to family life under Article 8 of the European Convention on Human Rights. The Home Office invariably consider family life exclusively within the parameters of the Immigration Rules. Although there is usually a consideration of whether there are any exceptional circumstances which justify a grant of leave to remain outside the rules, the full circumstances of the case are not always considered and it is often unclear whether the Home Office is, at this stage, considering the family life or private life aspect of Article 8.

Under Appendix FM of the Immigration Rules those with a British or settled partner or child (under the age of 18) can apply for leave to remain in the UK. However, what if you enjoy family life with other family members; such as the relationship between adult children and their parents, between siblings, or between minor children and grandparents? In such circumstances, in order for the right to family life to be engaged, you must be able to show that you have more than normal emotional ties with your family member i.e. dependency or committed, real or effective support (Kugathas v Secretary of State for the Home Department [2003] EWCA Civ 31 at paragraph 17) This is difficult, however not impossible.  

Unfortunately, the Home Office rarely engage with the question of dependency/support and often seem to suggest that where there is no spouse or minor child, there can be no family life. This approach is of such prevalence that in a recent case entitled Valentya Yakovleva v Secretary of State for the Home Department [2016] CSOH 139, Counsel for the Secretary of State felt the need to present a joint note to the court containing a concession on behalf of the Home Office (the respondent) in the following terms: 

“The respondent accepts that the relationship between a parent and adult child and grandparent and grandchild can in principle engage Article [8] ECHR” (at paragraph 12)

The court concluded (at paragraph 53) that, although Counsel for the respondent accepted during the course of proceedings that the petitioner could be viewed as enjoying Article 8 family life with her adult daughter and granddaughters, there was no indication in the decision letter that the case was decided by the Home Office with this assumption in mind. There was no evaluation of the petitioner’s family life and no full consideration of proportionality. The family life claim was refused simply because the petitioner did not have a partner or dependent child under the age of 18 in the UK. As a result of this “flawed analysis” (paragraph 54), the decision could not be maintained and was reduced by the court. The petitioner’s claim will now need to be considered by the Home Office again.

This case highlights the importance of conducting a family life assessment outside the rules as, where the Home Office have failed to do this properly, their decision may be quashed by the court.