BI (Pakistan) v Secretary Of State For The Home Department (2009) EWCA Civ 834

The Appellant, originally from Pakistan, had spent a number of years in the UK raising her family before returning to Pakistan. She returned to the UK as a visitor a number of years later when her health failed and applied for leave to remain as someone dependant on a person present and settled in the UK. The application was refused and she appealed to the Immigration Appellant Tribunal [the ‘AIT’] highlighting that she was dependant on her daughters because of her failing health and that her husband, children and grandchildren resided in the UK. The AIT considered whether the refusal to grant leave to remain would breach her right to respect of family life under article 8 of the European Convention on Human Rights 1950, but determined that it did not. The AIT, highlighting that she had lived for a number of years apart from her husband, concluded that she could resume married life with her husband in Pakistan without difficulty, did not accept that she was as dependant on her daughters as she claimed. It determined that the relationship between her and the rest of her family did not amount to family life. The AIT went on to suggest that were family life to exist in these circumstances then it would be in the interest of B’s family to maintain this and that this could be achieved even with her removal to Pakistan, therefore such a removal would not be a disproportionate interference in her family life.
The court of Appeal, allowing the appeal and rejecting the AIT’s approach, pointed out that, following the ruling in Huang v Secretary of State for the Home Department (2007), the UK has a positive duty under the ECHR to show respect for family life and that in determining what constituted family life the AIT should look at a persons family or extended family as the group on which a person most heavily depends upon socially, emotionally and   financially. The AIT had erred in their approach which was to segment the family and determine for each group family life did not exist. Instead it must assess the group as a whole to consider whether family life existed and then assess B’s relationship within this. The Court of Appeal was also critical of the assessment made by the AIT of the relationship between B and her daughters. The Court found the evidence indisputable: B needed to be cared for and was dependant on her children both for this care and financially. It reminded the AIT that in applications such as this one the focus needs to be on the older relative and whether the level of dependency created more than the normal emotional ties. It also believed that the AIT should have taken into account the fact that B’s husband, seven of her children and all her grandchildren were British Citizens. All these factors taken properly into account amounted to family life for the purposes of article 8 and the AIT had been wrong to reach its conclusion that it did not.
Having found that family life did exist the Court of Appeal understandably accepted that the proposed removal would engage article 8 and, again criticised the AIT for their mistaken conclusion that the interference with family life for the exercise of immigration controls in this instance was justified as proportionate. Instead the AIT were required to take the approach of first looking at the family as a whole and considering whether family life could have reasonably been enjoyed elsewhere. Beoku-Betts v Secretary of State for the Home Department (2008) followed. As the AIT had not considered the answer to this question against the reasons for removal it could not properly come to a conclusion on whether removal was lawful bearing in mind the positive obligation imposed on the State by article 8 ECHR
Appeal Allowed

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