Court of Appeal clarifies test for adult family life in Entry Clearance Officer v BB and others

The Court of Appeal has allowed an appeal by the Entry Clearance Officer, reinstating a First-tier Tribunal decision that refused entry clearance to six family members of an Afghan refugee, in a judgement that applies a recently tightened test for establishing family life between adults under Article 8 of the European Convention on Human Rights.

Lord Justice Singh, with whom Lord Justice Baker and Lord Justice Newey agreed, considered the case of BB and her adult children and grandchildren, who sought to join her son, referred to as the Sponsor, following his flight from Afghanistan after being targeted for forced recruitment by the Taliban. The Sponsor was granted refugee status and later indefinite leave to remain in the UK, but developed post-traumatic stress disorder, severe depression and generalised anxiety, for which he received extensive therapy.

The First-tier Tribunal had dismissed the family's appeal, finding that although family life had existed before the Sponsor left Afghanistan, it had not been re-established despite regular contact and two visits to Turkey, where the family had fled. Applying the established test from Kugathas v Secretary of State for the Home Department, the tribunal found the evidence showed only the ordinary emotional ties between adult relatives rather than the real, effective or committed support required to engage Article 8.

The Upper Tribunal subsequently set aside that decision, finding the First-tier Tribunal had wrongly searched for "exceptionality" in the facts and had reached an irrational conclusion given evidence from a consultant psychiatrist and the Sponsor's psychotherapist. Having remade the decision, the Upper Tribunal allowed the appeals, concluding that refusal of entry clearance amounted to a disproportionate interference with family life.

Between the Upper Tribunal's decisions and the present appeal, the Court of Appeal handed down its judgement in IA and others v Secretary of State for the Home Department, disapproving the Kugathas formulation and holding that the correct test requires additional elements of dependence going beyond the mere existence of support, however that support is characterised. Lord Justice Singh noted this was a lower threshold than the one the tribunals below had actually applied, since dependence requires more than support alone.

Assessing the First-tier Tribunal's reasoning afresh, Lord Justice Singh found no error of law. Read fairly and as a whole, the tribunal had properly directed itself on the applicable test and reached conclusions reasonably open to it on the evidence, including oral testimony from the Sponsor and his psychotherapist. The tribunal had not imposed a stricter requirement of exceptional circumstances, but had correctly distinguished ordinary emotional ties, including grief at separation and joy at reunion, from the real, committed or effective support necessary to establish family life. The Upper Tribunal, by contrast, had failed to exercise the judicial restraint expected of an appellate tribunal reviewing a specialist fact finding body, wrongly treating a permissible evaluative conclusion as an irrational one.

Since the test applied by the tribunals below was, following IA, more generous to the family than the law requires, any error in the First-tier Tribunal's approach could not have been material to its detriment. The Court of Appeal therefore allowed the appeal on the first ground, restoring the First-tier Tribunal's original decision and finding it unnecessary to address the remaining grounds concerning the merits of the family life finding or the proportionality assessment.

The judgement provides the Court of Appeal's first substantive application of the dependence test set out in IA, offering guidance on how tribunals should approach claims involving adult relatives separated by conflict and displacement.