United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments

 

 

Upper Tribunal

(Immigration and Asylum Chamber) Appeal Number: HU/01846/2018

 

 

THE IMMIGRATION ACTS

 

 

Determined at Field House	Determination Promulgated
On 22 nd February 2019	On 11 th March 2019

 

 

Before

 

DEPUTY UPPER TRIBUNAL JUDGE SAINI

 

 

Between

 

Mustafa Milad

(ANONYMITY DIRECTION not made)

Appellant

and

 

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

 

Respondent

 

Representation :

 

For the Appellant: Mr C Mannan, Counsel, Synthesis Law Chambers

For the Respondent: Mr S Walker, Senior Presenting Officer

 

 

DECISION BY CONSENT AND DIRECTIONS

1.              Pursuant to Rule 39 of the Tribunal Procedure (Upper Tribunal) Rules 2008 and by the consent of the parties the following order is made:

(i)             Upon the parties' agreement that the decision of the First-tier Tribunal promulgated on 26 ^th September 2018 discloses a material error of law, it is hereby ordered by consent as follows:

(ii)          The First-tier Tribunal Judge made an error of law in relation to the complaint made in the Grounds of Appeal concerning the assessment of whether family life was engaged or not under Article 8 of the European Convention on Human Rights in the following respects as agreed between the parties:

(a)           As highlighted in the sole ground upon which permission to appeal has been granted at §19 of the decision, when turning to the Appellant's Article 8 family life, the judge states as follows:

"With regards to any additional factors, I have considered Razgar [2004] UKHL 27. The Appellant has not established family life. He lives with his sister and is supported by her but he is an adult and she wishes him to be independent. The ties between them not transgress the usual bonds that exist between adult siblings."

(b)          As the grounds point out the question of financial dependency or support would result in something that is more than the normal ties held between adult relatives pursuant to the decision in Kugathas v the Secretary of State for the Home Department [2003] EWCA Civ 31 at [17] wherein Lord Justice Sedley described the support necessary to engage family life between adults as needing to be support which is "real" or "effective" or "committed".

(c)           The Grounds of Appeal further highlight the decision of AA v the United Kingdom [2011] ECHR 1345 at [46] to [49] wherein - in the context of deportation proceedings and as historically cited in Maslov at [62] - the European Court of Human Rights stated that in the case of an applicant who had reached the age of majority, it was accepted that the relationship between young adults who had not founded a family of their own and their parents or other close family members, also constituted family life for the purposes of Article 8 ECHR. This passage was cited with approval by Lord Justice Stanley Burnton at [16] of Singh & Anor v Secretary of State for the Home Department [2015] EWCA Civ 630. In the light of those authorities which are binding upon the lower courts and tribunals, given that the First-tier Tribunal Judge had found at §19 of the decision that the Appellant lived with his sister and was supported by her, this is arguably real, effective or committed support which goes beyond normal adult emotional ties and also given that they had not established their own independent lives as adults, the First-tier Tribunal Judge failed to give reasons why that evidence of dependency failed to engage Article 8 family life and why it did not demonstrate that family life existed between these two adult siblings.

2.              As a consequence of the above agreed error(s), the decision is set aside in respect of §§19 to 21 and is to be remitted to be heard by a differently constituted bench in relation to the sole remaining issue of Article 8 family life between the Appellant and his adult sister.

3.              The Appellant's appeal to the Upper Tribunal is therefore allowed.

4.              The decision of the First-tier Tribunal is set aside for legal error by consent and is to be remitted to be heard by a differently constituted bench.

5.              The decision is set aside only in relation to §§19 to 21, other than that §§1 to 18 are hereby affirmed, as they were not challenged by the Appellant.

Directions

6.              I make the following directions for the continuation of a remitted hearing that is to follow before the First-tier Tribunal.

7.              The appeal is to be remitted to Hatton Cross.

8.              No interpreter is required.

9.              The Appellant and one further witness are to give evidence.

10.          The time estimate given is two hours.

11.          No special directions are given.

12.          No anonymity direction is made.

 

 

Signed Date

 

Deputy Upper Tribunal Judge Saini