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Court of Appeal Dismisses appeal of the relationship between parents and their adult dependent child

In Butt v SSHD [2017] EWCA Civ 184 the Court of Appeal considers the weight to be given to the relationship between parents and their adult dependent children in the Article 8 balancing exercise. It is notable – and this was the principle reason it managed to reach the Court of Appeal – because of the original decision of the First-Tier Tribunal (FTT) to make separate findings in relation to parents and those adult dependent children: allowing the appeals of the latter, while rejecting the former.

Background of Case:

The appellant and his family are citizens of Pakistan. He is now aged 64. His wife is now aged 54 and is his dependant. They have four adult children, Adeel, Sehar, Smaher, and Abeer, now respectively aged 32, 31, 29 and 25 who are all in the United Kingdom. Sehar is married to an EU national exercising treaty rights in the United Kingdom and Adeel has indefinite leave to remain. Because the appeals of Smaher and Abeer were allowed in the tribunals they are not parties to this appeal, but, as I have stated, the way the Deputy Upper Tribunal judge assessed their position is an important factor in the determination of the issue that is before us. The appellant, his wife, Smaher, and Abeer arrived in the United Kingdom on 7 July 2004. They had entry clearance as visitors which was valid until 12 August 2004. When their entry clearance expired, they did not leave the United Kingdom. They made no attempt to regularise their stay for over 8 years until 10 February 2012. On that date, they applied for leave to remain on human rights grounds relying on article 8 of the ECHR. Jumping forward in the chronology, the First-tier Tribunal ("FtT") rejected the appellant's explanations and excuses for not regularising his status which included that he had been acting on advice and had received threats from Pakistan including threatening phone calls in the United Kingdom[1] but found that, in not taking steps to regularise their position and making the claims they subsequently made, Smaher and Abeer were "subject to parental direction".[2]The family's human rights application was refused in a decision dated 20 November 2012. On 10 December 2012, they made the claims that were refused in the decision that, together with the decision to remove them pursuant to the Secretary of State's power under section 10 of the Immigration and Asylum Act 1999, has given rise to these proceedings. The section 10 decision carried a right of appeal to the Tribunal which the appellants exercised. The FtT, in a decision promulgated on 14 January 2013, dismissed the appellant's appeal but allowed an appeal on article 8 grounds by Smaher and Abeer. The appellant and the Secretary of State both appealed to the UT.I

n a decision promulgated on 29 January 2013, the UT allowed the appeal by the appellant. The issue before the UT was precisely the same issue as that before us. UT Judge Kopieczek considered that, in the light of what the FtT judge had said in his determination about the extent of the dependency of the two daughters, it was not clear that he had considered the effect on them of their parents' removal. He set aside the FtT's decision and directed that it be remade and the parties make submissions as to what findings of fact could be preserved.As to Smaher and Abeer, the FtT judge considered (at [30]) that they were "young people likely to make a positive contribution to the UK economy and the retention of their skills is in the public interest would be a real benefit to the United Kingdom". He stated (at [32]) that the time they had spent in the United Kingdom, "their Westernised development over eight years and what they have to offer the United Kingdom militate in favour of them remaining at present". He had earlier (at [13]) described Smaher's first class degree in Medicinal Chemistry with Pharmacology as an outstanding achievement and stated that she had also published work for the wider benefit of others, and referred (at [15]) to Abeer's statement where she set out her life in this country in terms of education and achievements, including a university place near her home to study Mathematics. The Secretary of State's appeal against that decision was dismissed by UT Judge Kopieczek.

In Para 30 Lord Beatson gave reasons of dismissal.

In my judgment, the submissions on behalf of the appellant amount to no more than a disagreement with the judge's assessment of proportionality. I have referred to the statement of Lady Hale in AH (Sudan)'s case about the caution courts should exercise in relation to the decisions of expert tribunals. She stated the decisions of tribunals as to the facts should be respected unless it is quite clear they have misdirected themselves in law and that appellant courts should not rush to find such a misdirection simply because they might have reached different conclusions on the facts or expressed themselves differently. I consider that the courts' reluctance to attempt to give prescriptive guidance as to the weight to be given to particular factors and the need for a careful and informed evaluation of the facts of the particular case and the role of an appellant court when considering an assessment of proportionality by a lower court to which I referred at [19] and [20] above suggests that the assessment of the specialist tribunal as to proportionality should also be respected unless it is clear it has misdirected itself in law.

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