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Reported Case

Uddin v The Secretary of State for the Home Department [2020] EWCA Civ 338 (12 March 2020) (7 July 2020)

Date: 07/07/2020
Duncan Lewis, Reported Case Solicitors, Uddin v The Secretary of State for the Home Department [2020] EWCA Civ 338 (12 March 2020)

The question raised in this case was whether family life can be established for the purposes of Article 8 between an asylum seeker who was placed in foster care arrangement from a minor up until an adult. The First-tier Tribunal and Upper Tribunal both concluded that such relationship is a commercial arrangement and there is no emotional dependency to satisfy Article 8. The Court of Appeal unanimously agreed that family life can be enjoyed in such case.

Background

AU is a national of Bangladesh who was born on 8 December 1999. He lived with his parents until the age of six but left home after he was mistreated. He was found by a woman who cared for him and brought him to London in early 2013. On 20 February 2013, he was abandoned and treated as a trafficked child who was placed with foster carers by the responsible local authority.

He made an application for asylum on 27 February 2013. The application was refused on 22 April 2013 but he was granted leave to remain as an unaccompanied asylum-seeking child until 8 June 2017. As his period of leave was expiring, AU applied for further leave to remain on 18 May 2017. His application relied in part on his family life with his foster carers and their family. The application was refused and became the subject of this appeal and judgement.

In his appeal to the First-tier Tribunal (FtT), the Appellant challenged only the decisions made in respect of his case under Articles 3 and 8 ECHR. In his subsequent appeal to the Upper Tribunal (UT), the Appellant was granted permission only in relation to his Article 8 case. He argued that the FtT had a) given inadequate reasons for its findings, b) defined family life too narrowly and contrary to authority and c) erred in finding that there was insufficient dependency. The UT later found no error of law.

The matter was then appealed to the Court of Appeal.


The Court of Appeal

The Court of Appeal made the following assessment/findings.

11. I note in that regard the conventional warning which judges give themselves that a person may be untruthful about one matter (in this case his history) without necessarily being untruthful about another (in this case the existence of family life with the foster mother's family), known as a 'Lucas direction' (derived in part from the judgment of the CACD in R v Lucas [1981] QB 720 per Lord Lane CJ at 723C). The classic formulation of the principle is said to be this: if a court concludes that a witness has lied about one matter, it does not follow that he has lied about everything. A witness may lie for many reasons, for example, out of shame, humiliation, misplaced loyalty, panic, fear, distress,
confusion and emotional pressure. That is because a person's motives may be different as respects different questions. The warning is not to be found in the judgments before this court. This is perhaps a useful opportunity to emphasise that the utility of the self direction is of general application and not limited to family and criminal cases.

15. The deputy Judge also held that the FtT's determination was carefully prepared by a very experienced judge who made a meticulous and balanced assessment of the evidence in the round. I entirely concur with the import of his observation in so far as it recognises that tribunal judges are specialist judges who are expected to know the expert materials in their field such that an appellate court should have appropriate regard for that specialist experience. That is quite different from an implication that there is a factor to be considered in an appeal that experienced judges should not be expected to make a mistake. In commenting that it "would have been an elementary and unlikely error for any judge in a jurisdiction which revolves around Article 8 ECHR issues" he was applying an
assumption which is an inappropriate approach to an appeal.

31. Dependency, in the Kugathas sense, is accordingly not a term of art. It is a question of fact, a matter of substance not form. The irreducible minimum of what family life implies remains that which Sedley LJ described as being whether support is real or effective or committed.

32. Subsequent case law has built upon but not detracted from Kugathas. In Ghising [2012] UKUT 00160 (IAC), Lang J sitting with Upper Tribunal Judge Jordan in the UT considered the authorities since Kugathas. They observed that family life between adult children and their birth parents will readily be found without evidence of exceptional dependence. In so far as it has been suggested that Kugathas had ever described a rigid test of exceptional dependency, this was dispelled and I respectfully agree with
their conclusion that each case is fact sensitive.

34. The Secretary of State goes further and submits that foster care is a "special category", in which it is incumbent upon an appellant to prove family life in a way that would otherwise be presumed in a birth family. I can find no support for this proposition in the case law. The principles in Kugathas, as described in the judgments to which I have referred, are of general application. I can discern no intention, articulated or implied, to
limit the test of real or effective or committed support to birth families. Rather, at paragraph [18] of Kugathas the court describes the special case which is the converse of that asserted by the Secretary of State, namely that in some cases a natural tie between parent and infant may displace the principle of general application that a family life will need to be proved based on the substance of the relationship asserted.

36. The existence of family life after a young person has achieved his or her majority is a question of fact. There is no presumption, either positive or negative, for the purposes of Article 8. Continued cohabitation will be a highly material factor to be taken into account and while not determinative, a young adult still cohabiting with a family beyond the attainment of majority is likely to be indicative of the continued bonds of effective, real or committed support that underpin a family life.

40. Accordingly, the following principles can be described from the authorities:
i. The test for the establishment of Article 8 family life in the Kugathas sense is one of effective, real or committed support. There is no requirement to prove exceptional dependency.
ii. The test for family life within the foster care context is no different to that of birth families: the court or tribunal looks to the substance of the relationship and no significant determinative weight is to be given to the formal commerciality of a foster arrangement. It is simply a factual question to be considered, if relevant, alongside all others.
iii. The continued existence of family life after the attainment of majority is also a relevant question of fact. No negative inference should be drawn from the mere fact of the attainment of majority, while continuing cohabitation after adulthood will be suggestive of ongoing real, effective or committed support which is the hallmark of a family life.



Outcome

Upon considering the established facts of the case – that the Appellant was an orphaned young man, abandoned at the age of 13 with no known family – the judge came to the conclusion that through the support, protection and upbringing of his foster family, the Appellant has transformed from a destitute thirteen-year-old who spoke no English, to an accomplished young man engaged in his community and education.

It was decided that a new tribunal should consider all of the relevant evidence afresh and come to a conclusion about the Appellant’s family life.

The judge allowed the appeal and set aside the orders of the FtT and the UT.


Representation

The Appellant was represented by immigration solicitor Kennisia Allen with trainee solicitor Hong Lee assisting. Gordon Lee of Garden Court Chambers and Amy Childs of Lamb Building were instructed.


 

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