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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Singh & Anor, R (on the application of) v Immigration Appeal Tribunal [2002] EWHC 2096 (Admin) (18 October 2002) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2002/2096.html Cite as: [2002] EWHC 2096 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		18 October 2002

Mr Justice Keith :

1. The Claimants applied for entry clearance to join their parents in the United Kingdom. That application was refused. They appealed to an adjudicator who dismissed their appeal. An application for leave to appeal to the Immigration Appeal Tribunal was refused. Permission to proceed with a claim for judicial review of the refusal of leave to appeal was refused on the papers. They now renew their application. Since the Claimants were both over the age of 18 when both entry clearance was refused and the appeal was dismissed, their appeal turned on whether they were “living alone outside the United Kingdom in the most exceptional compassionate circumstances” within the meaning of rule 317(i)(f) of the Immigration Rules.
2. It is no longer contended that it is arguable that it was not open to the adjudicator to conclude that the Claimants were living alone in the most exceptional circumstances. That concession was rightly made. I appreciate that the Immigration Appeal Tribunal has held that you can be living alone without necessarily living on your own, and you can be said to be living alone if you have been so psychologically isolated that you have cut yourself off from those around you. But that is not this case. Not only were the two Claimants living with each other, but they were also living with their uncle and his family, and the findings by the adjudicator about the circumstances in which they were all living together in the same household go nowhere near far enough to justify the conclusion either that they had become psychologically isolated from their uncle and his family, or that there were most exceptional compassionate grounds for no longer forcing them to live with their uncle and his family.
3. The real question which arises is whether it is arguable that the Claimants’ right to respect for their family life under Art. 8 has been infringed, it no longer being contended that their rights under Art. 14 have been. Two preliminary points should be made. First, rule 317(i)(f) has been held not to be incompatible with Art. 8. That is in part a reflection of the wide margin of appreciation which the ECHR in Abdulaziz (1985) 7 EHRR 471 said should be accorded to Contracting Parties in respect of their obligation to admit relatives of settled immigrants. It all depends on the individual circumstances, and the language of rule 317(i)(f), which is post-Abdulaziz, was designed to ensure compliance with Art. 8. Secondly, though, when an adjudicator comes to consider whether the application of rule 317(i)(f) to the facts of a particular case would amount to an infringement of Art. 8, the question is not whether the refusal of leave to enter or remain would amount to a disproportionate interference with a claimant’s right to family life, but whether the refusal would amount to a breach of the positive obligation to permit family reunion.
4. The new point which is taken is that the adjudicator overlooked an unfortunate error which had been made in 1996. By then, the Claimants’ father had been in the United Kingdom for 4 years since exceptional leave to remain had been granted to him. Normally, children under the age of 18 would then be allowed to settle in the United Kingdom with their parents. However, the Claimants were refused entry into the United Kingdom then, because it was erroneously thought that their father had to have indefinite leave to remain in the United Kingdom and that they had both then reached the age of 18. That was incorrect. Since one of the Claimants had not yet reached 18 in 1996, she should have been admitted then. It is said that the adjudicator should have put this in the balance when he addressed the question whether the dismissal of the appeal would amount to a breach of the positive obligation to permit family reunion. I do not think that that would have made a difference to the adjudicator’s view. I ignore the point that a challenge could have been made to the adverse decision in 1996, but in the end whether there was unfairness to one of the Claimants in 1996 is of little relevance to whether in 2002 the positive obligation to permit family reunion of the Claimants with their parents was infringed by the application of rule 317(i)(f) to them. In any event, the argument could only have applied to one of the Claimants, and even if she had come to the United Kingdom then, that would not have meant that the other Claimant would now have been living alone, because there is no evidence that he would not now be living with his uncle and his uncle’s family.
5. The adjudicator also held that there was not a pre-existing family unit for Art. 8 to protect, because the Claimants had been separated from their parents for 11 years. That conclusion is said to have been flawed on the ground that it ignored the 8 months which the Claimants’ father had spent in India shortly before the decision of the entry clearance officer because, as he put it, he could not bear to see the Claimants suffer. I am prepared to assume that that was capable of amounting to family life, but the adjudicator went on to conclude:

“There may well be cases where family life continues after children reach the age of 18, but it would be very rare for family life to commence after children have reached that age and here at the present time it has not done so.”

Indeed, family life had ceased a few weeks before the decision of the entry clearance officer, and had not begun again by the time of the adjudicator’s decision. But even if there had been a pre-existing family unit for Art. 8 to protect, it is, in my opinion, not arguable that the positive obligation to permit the reunion of the Claimants with their father in the light of the 8 months during which they lived together was infringed by the application of rule 317(i)(f) to them.

6. It follows that this renewed application for permission to proceed with the claim for judicial review must be refused. The Claimants are not publicly funded, and in the circumstances I make no order as to costs.