Asylum decision letter reduced as Home Secretary applied wrong ‘family life’ test

A Chinese asylum seeker whose application was refused has successfully challenged the Home Secretary’s decision to refuse to treat further submissions in a human rights claim as a “fresh claim” after a judge ruled that the wrong legal test had been applied.

The further submissions were based upon the petitioner’s family life, in particular his dependency on his family in the United Kingdom, but the decision letter stated that there was no “unusual or exceptional dependency” in this case which would engage his rights under article 8 of the European Convention on Human Rights (ECHR).

However, a judge in the Court of Session granted the petition for judicial review by “BC” after ruling that the Secretary of State for the Home Department erred in law by introducing a “higher legal test” to be met which was “not justified” in the case law.

Lady Scott heard that the petitioner, 26, arrived in the UK in 2010 and claimed asylum, but his claim was refused and an appeal against that decision was also rejected.

He then lodged further submissions, which in terms of Immigration Rule 353 will amount to a fresh claim if they are “significantly different” from the material that has previously been considered.

The petitioner was raised by his grandparents in China as his parents had moved to the UK, but only his 83-year-old grandfather remained in his homeland.

He had been living with his parents and sister, who were settled within the UK, for about two-and-a-half years.

He was financially dependent on his family and claimed in his further submissions that he was “dependent” for care and emotional support from them, due to his mental health difficulties.

He had long suffered from a neurological condition, which caused chronic motor and vocal tics including grunting, squeaking and twitching, and was receiving appropriate treatment, but the symptoms had led to deteriorating mental health difficulties of depression and anxiety.

It was not disputed that there was no legal test of unusual or exceptional dependency which fell to be applied, but the respondent’s primary submission was that the expression was used as no more than a reference to the usual position in case law which suggested for adult children there was a “requirement for dependency” or more than the usual family ties.

However, the judge did not accept that submission and therefore reduced the decision.

In a written opinion, Lady Scott said: “In my view the plain reading of the decision letters… is that the basis of refusal of the claim is the absence of the criterion of ‘unusual or exceptional’ dependency. This suggests those criteria are being applied as a requirement or at least a critical factor and as such an elevated legal test is being applied. It fails to approach family life as fact sensitive…

“It introduces a higher legal test to be met which is not justified in the case law. That is an error of law. Accordingly I am satisfied that the Secretary of State has misdirected herself in law in her evaluation as to whether or not the right to family life under Article 8 is engaged which goes to the root of the decision.”

The petitioner submitted that the assessment of proportionality also fell into error because of the respondent had already decided family life was not engaged and this decision was at the forefront of the Secretary of State’s reasoning in her determination, but the respondent argued that where, as here, family life is precarious a very strong or compelling claim is required to outweigh the public interest in immigration control.

But the judge held that the Home Secretary had erred in her assessment of proportionality.

Lady Scott explained: “Whilst I accept that the weighing up of the relevant factors within the assessment of proportionality requires a compelling claim I also have to be satisfied a proper assessment of proportionality was undertaken by the Secretary of State. That assessment of proportionality follows from the engagement of Article 8.

“It involves weighing the nature and strength of family ties and the mental health dependency, factors already rejected as not being sufficient to engage Article 8. I accept the petitioner’s submission that it is difficult to see how the initial decision could be said to have no material effect on that assessment.”

Once the error of law had been identified the question for the court was whether the Secretary of State would inevitably reach the same decision, and the judge concluded that that could not be said here.

Lady Scott added: “In respect of the proportionality assessment, assuming it was not tainted by the initial error, I recognise the weighing up of the competing interests may fall toward rejection of the claim, but not inevitably so. There is substance in the argument that the dependency here is significant in view of the support for the vulnerabilities of the petitioner’s mental health received from the family in the UK.”

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