Article 8 - rights of Appellant's family members in UK count

In B v Secretary of State for the Home Department [2008] UKHL 39 (one of four highly significant judgments issued by the House of Lords’ Appellate Committee on 25-6-2008) the issue was whether when somebody appeals against a decision to remove him or her from the UK and says that the decision violates his right to respect for family life protected by Article 8 of the European Convention on Human Rights (the “ECHR”) – is the effect of his removal on other members of his family relevant to the question of whether the decision is contrary to Article 8?  

This has been a highly controversial issue ever since the introduction, in October 2000, of the right of appeal on human rights grounds against what are now called immigration decisions.  The Immigration Appeal Tribunal held in a starred decision called Kehinde v Secretary of State for the Home Department [2001] UKIAT 00010 that the words of section 65 of the Immigration and Asylum Act 1999 made it clear that it was only the rights of the appellant himself or herself which were relevant to the appeal.  This was because the section referred to the Appellant’s rights and not to anyone else’s.  Similarly section 84 (1) of the Nationality Immigration and Asylum Act 2002, which replaced section 65 makes it possible for someone to appeal against a decision on the ground:

“that the decision is unlawful [or that “removal of the appellant would be unlawful”] under section 6 of the Human Rights Act 1998 as being incompatible with the appellant’s Convention rights”

The Tribunal in Kehinde said that if other members of the appellant’s family said they were affected by the decision they could bring a case in the Administrative Court under section 7 of the Human Rights Act 1998.    

Then in R (AC) v Immigration Appeal Tribunal [2003] EWHC 389 Mr Justice Jack appeared to express the view that the affect of the proposed interference on everyone who shared the family life should be taken into account. The judgment was however unclear.   This case went back to the Tribunal, which, chaired by its then President Mr Justice Ouseley, reiterated that Kehinde was correct and once again said that anyone else affected should challenge the decision in the Administrative Court.  The extent of the relevance of the rights of others was limited as follows:

“although the right to family life and the effective interference in it is examined, under section 65, from the viewpoint of the appellant, the impact of separation on another may cause distress or anxiety to the appellant and that indirect impact on the appellant should be taken into account.”

Challenges to correctness of this approach didn’t really get anywhere until the Court of Appeal’s judgment in R (Ahmadi) v Secretary of State for the Home Department [2005] EWCA Civ 1721.  That case involved the removal of young man who looked after his schizophrenic brother.  Although it remitted the appeal for a different reason the Court expressed its confidence that when the appeal was heard again the Asylum and Immigration Tribunal would consider the effect of the Appellant’s removal “on both brothers” – otherwise “any factual consideration in this case would be hopelessly blinkered”.

The House of Lords has now ended the debate by making it clear that in appeals under section 65 of the Immigration and Asylum Act 1999 and in those under section 82 (1) of the Nationality Immigration and Asylum Act 2002, the rights of family members in the UK are to be taken into account when the proportionality of the decision appealed is being assessed.  

This judgment  (which needless to say from the point of view of those representing people before the Asylum and Immigration Tribunal is extremely welcome) puts the Asylum and Immigration Tribunal on the same footing as the Secretary of State. The Secretary of State has to act in a manner which is compatible with the European Convention on Human Rights.  From now on the Asylum and Immigration Tribunal can’t ignore the rights of the people left behind.  

Lord Brown of Eaton-under-Heywood (with whose opinion all the other members of the Appellate Committee agreed) does say that it will only be infrequently that this issue will affect the outcome of an appeal but given that the Courts have got so used to taking no account of people other than the Appellant it seems likely that on the contrary many cases will take a different course.

It’s perhaps worth noting that B is an adult – and the family life involved in the case is between himself and his mother and sisters.   There isn’t any financial dependency between B and his other family members – but this did not matter for the adjudicator who initially allowed his appeal, or for the House of Lords to uphold his decision to allow the appeal.   The emotional dependency between them was enough for Article 8 (1) to be engaged.  The acknowledgement that this is family life chimes with the following two sentences of the House of Lords’ judgment last year in Huang v Secretary of State for the Home Department [2007] 2 AC 167:

“Human beings are social animals.  They depend on others.  Their family, or extended family, is the group upon which many people most heavily depend, socially, emotionally and often financially”