FAMILY REUNIFICATION AND ARTICLE 8 OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS

Article 8 of the European Convention on Human Rights provides that:

“Everyone has the right to respect for his private and family life, his home and his correspondence”.

In regards to family reunification applications, the respect for family life referred to in article 8 becomes of particular importance.

Over the course of its history, the European Court of Human Rights has established a substantial body of case law in regards to both the right to respect for family life individually and its impact on the assessment of unsuccessful family reunification applications. Importantly, the ‘family’ has been established as an autonomous concept, meaning the European Court of Human Rights is not bound by the national courts assessment of what constitutes as a family.

That is not to say that the courts handling of unsuccessful family reunification applications and article 8 is completely unfettered. In its assessment of the individual’s rights under Article 8, the court must find a balance with the host states immigration policies. Usually a wide margin of appreciation is afforded to the state. This reflects the wider policy that it is primarily for the state to ensure that the individual’s rights are upheld. In her article, ‘Family reunification in EU law and under the ECHR’ Nuala Mole points out that the key question in assessing the interplay of family reunification and Article 8 is “whether the state has overstepped this margin of appreciation in the particular case before it and so failed to respect this key right.”

In general, recognition must be given to the well established fact that the ECHR does not guarantee to individuals a choice of country of residence.

Taking a similar interpretation to its stance on family regularisation, the ECHR will generally find that a spouse resident in Europe, whose partner is not within the union, may be required to relocate as opposed to have their spouse join them, unless they show that there are “serious obstacles” preventing relocation. This will not usually constitute a breach of Article 8 as it is not preventing the couple continuing their ‘family life’, even if they are required to do so in another country.

Nuala Mole’s assessment is particularly relevant, “The Court also attaches considerable weight to the fact that the immigration difficulties, which a family is now encountering, were ascertainable at the time of the marriage, and that the couple should not therefore have had an expectation that they would be able to live together in the host country”.

In the case where it is a child who has been left behind, as often happens when families migrate, the ECHR have generally taken the same hard line approach that there is no Article 8 violation where it is possible for the family to carry out family life in their country of origin. However, sometimes a much more favourable approach may be taken. Where circumstances dictate that a different path is necessary, the ECHR may look favourably on the applicant.

Nuala Mole’s article ‘Family Reunification in EU law and under the ECHR’ can be viewed here.

Brophy Solicitors

Judicial Review Granted of Decision to Deport Individual who remained in the State under a Fake Identity on grounds of Preserving his Right to Family Life

Case Study: Sivsivadze & Ors v Minister for Justice and Equality & Ors [2012] IEHC 137

The applicants in these judicial review proceedings sought to challenge a decision by the Minster to refuse to revoke a deportation order made in respect of the fourth named applicant, Davit Arabuli.

The principal ground for this application is that s 3 of the Immigration Act 1999 is unconstitutional as it imposes a lifelong ban on a person subject to a deportation order, which amounts to disproportionate interference with the applicant's right to family life under article 41 of the Constitution. The constitutionality of s 3 has never been challenged before. The applicants also sought a declaration of incompatibility pursuant to s 5(2) of the European Convention of Human Rights in that allowing for a deportation order of indefinite duration violates the applicants right to family life under article 8 of the Convention.

The fourth named applicant, a Georgian national, entered the state in 2001. Mr Arabuli who used the alias Datia Toidze, was refused asylum and a deportation order was issued in respect of him in December 2001. He failed to report to the GNIB in respect of the order and was classified as an evader. Mr Arabuli managed to remain present in the state until November 2011. In the meantime Mr Arabuli began a romantic relationship with first named applicant in 2003. Their first child was born to them in April 2005 and their second child was born in August 2009. They married in July 2009. Their children are not classified as Irish citizens.

Mr Arabuli made a number of applications to revoke his deportation order during this time but the deportation order was affirmed. In October 2011 the applicant was arrested and detained in Cloverhill prison. During cross-examination Mr Arabuli admitted that the name Toidze that he had been consistently using throughout his time within the state was simply an alias. The applicant was deported in November 2011.

Under s 3 if a deportation order is made, it must be for an indefinite duration save that the Minister can revoke the order pursuant to s 3(11) at any time. The real question is whether the existence of a sanction that is potentially life long in duration is essential in circumstances where the applicants have real and substantial ties with the state

The European Court of Human Rights regards deportation orders of unlimited duration as raising serious Article 8 issues. The grant of humanitarian leave to Ms Sivsivadze amounts a tacit acceptance that it would be unfair to expect her to go back to Georgia. The Minister’s decision acknowledged that implementing the deportation order would not be in the best interests of the two children, but failed to expressly weigh it in the balance. The High Court noted previous decisions in which it was stated that such an order of unlimited duration was an overly rigorous measure.

Overall the High Court found that the applicant made out substantial grounds that the application of a deportation order of potentially indefinite duration would infringe Article 8 ECHR, especially having regard to the circumstances of this case.

On the constitutional question, the court applied the three-pronged test of proportionality propounded by Costello J in Heaney v Ireland. Firstly, legislation that provides for the deportation of persons who have abused immigration laws through deception is connected to important state interests. Secondly, while the deportation order did impair the Article 41 rights of the other family members, it is recognised that it is not possible to have effective control of immigration without the sanction of deportation. The third limb requires the court to consider whether the effect on rights is proportionate to the objective. The question is whether the states interests in effective immigration law requires that a deportation order have indefinite effect.

The High Court found that the applicants raised substantial grounds in respect of both the Constitutional and ECHR grounds in the manner indicated and granted the applicants leave.   

Brophy Solicitors

23.05.12 

Deportation Order issued against Third Country National on basis of Failure to Establish ‘Family Life’ Within the State

Case Study: K.A (Nigeria) v Refugee Appeals Tribunal [2012] IEHC 109

This case concerned an application for leave to seek judicial review of a decision to issue a deportation order against the applicant. The applicant argued that the Minister erred in law in failing to assess the manner in which the deportation order would affect the applicant’s entitlement to respect for her family life under Article 8 of the European Convention of Human Rights.

The applicant, a Nigerian national, arrived in the state in November 2007 as an unaccompanied minor just before her fifteenth birthday. The applicant then resided with her aunt who was already living in the state with her two children. The applicant claimed she had been living with her grandparents before leaving Nigeria and she came to Ireland for a ‘better life’. Following the failure of her asylum claim and the rejection of her application for subsidiary protection, the Minister considered representations made for leave to remain in the state and then issued a deportation order against the applicant, which is now sought to be challenged.

The essential basis of the applicant’s application for leave to remain was that her aunt and two daughters had come to regard her as a member of their family, which is protected under Article 8 of the Convention. This argument was supplemented by information such as the fact that she was preparing to sit the leaving certificate and she was an active member of her church and youth group. The essential basis the Minister relied on in deciding that her Article 8 family rights would not be infringed was the fact that the applicant was now an adult aged eighteen, had been living in the state for a relatively short period of time during which she was pursuing an asylum application and was living with non-direct relatives.

The issued raised is thus whether the assessment made by the Minister is a rational one having regard to the information available as to the applicant’s circumstances and whether it is compatible with the criteria required to be applied by law in assessing ‘family life’ for the purposes of Article 8.

The High Court considered a number of previous judgments of the European Court of Human Rights on the question of expulsion.  A clear approach emerged that to constitute family life for the purposes of Article 8, mere legal residence over a period is insufficient. There must be evidence that the individual established personal roots in the contracting state through personal relationships, education, employment or other indicators such that the contracting state has become the real centre of the individual’s way of life.

The High Court applied these criteria to the circumstances of the case. It was found that the conclusion reached by the Minister was not wrong in relation to family life.   The Court outlined the applicant’s position.

Her family life for fifteen years was that spent with her grandparents and other relatives in Nigeria. Her aunt had had no involvement in the Applicants life prior to her coming to Ireland. There was doubt as to the family ties between the applicant and her aunt as her aunt had never mentioned the applicant in her application for permission to remain. Finally, although the applicant asserts that her aunt regards her as her daughter, the practical quality of the relationship has not been expanded on or explained in evidence.

In these circumstances, the High Court was satisfied that no stateable case had been made that the Minister erred or reached an unreasonable conclusion in deciding that the these circumstances did not amount to "family life" in the sense of a settled way of life in an established family group, in which there are subsisting emotional ties between the applicant and her aunt and younger cousins. For all of these reasons the application for leave was refused.

Brophy Solicitors
11.05.12

EU Treaty Rights & Article 8 : new UK decision on the application of Zambrano principles

The UK Immigration and Asylum Chamber last week determined Sanade and Others (British children - Zambrano  Dereci ) [2012] UKUT 00048 (IAC)  giving consideration to a number of highly relevant and fluid areas including the rights of British citizen children in light of the recent UK decision of  ZH (Tanzania) v SSHD [2011] UKSC 4 and the reliance on EU citizenship rights following the decisions of the Court of Justice of the European Union in Zambrano   and Dereci.  Of particular interest is the application of the so-called Zambrano principle as clarified in the more recent decision in Dereci where the parties involved have not exercised their Treaty rights. See our previous posting on the decision in Dereci.

The decision arose out of three linked cases that shared similar facts. Each appellant is married to a British woman and each have minor British citizen children who were either born in the UK or have lived there since an early age. Each appellant had been convicted of a criminal offence such that the Secretary of State sought to deport them. Notably, the citizen spouses and children had never exercised Treaty rights to move and reside in another Member State. They are British and have remained there throughout.

The appellants each put forward the argument, among others, that their removal would impair the rights of their citizen spouses and children to genuine enjoyment of the substance of their rights as EU citizens, relying on Article 20 TFEU. That is, that their family life would be infringed on by removal of the non-nationals spouse/father, and this would amount to a deprivation of proper enjoyment of the substance of EU citizenship rights of the remaining family members.

The Tribunal recognised that citizenship of the Union is intended to be the fundamental status of nationals of the Member States, as reiterated in Zambrano. However, citing Dereci, the decision concludes that removal of the father in these cases, while it would have an adverse economic impact on all the families and would impact on the interests of each child living in a household with their father, it would not actually require the spouses or children to leave the UK. In short, economic reasons for maintaining family unity are not sufficient and the effectiveness of Union citizenship does not risk being undermined.

The Tribunal stated that the focus instead should be on the application of Article 8 stating at paragraph 90: “in our judgment, if on the facts removal of the appellant will not require the children or spouse to follow because they have no capacity for exercising their Treaty rights independent of the person facing removal, what is being impaired is not the right to reside in the EU but the right to enjoy family life whilst so residing.” 

The cases therefore fell to be determined on an assessment of Article 8, the protection afforded to family and private life by the European Convention on Human Rights. The Tribunal applied a balancing and proportionality assessment to the facts of each of the three cases, taking into account in particular, the best interests of the child. Following ZH (Tanzania), the Tribunal emphasise that the fact of the British citizenship of the children is held to be of particular relevance when balancing the interests of the State against those of the family, especially where the children have spent a considerable portion of their childhood in the UK and risk losing the advantages of growing up and being educated in their country of nationality, their own culture and their own language.

This decision is helpful for its summary of the principles in the highly significant cases of ZH (Tanzania), Zambrano, and Dereci. It is also instructive in showing the potentially limiting effect of the decision in Dereci. In cases where there is no exercise of EU Treaty Rights, it may be difficult to rely on EU citizenship rights and applicants may be better advised to focus on their family and private life protections under Article 8 of the ECHR.

Brophy Solicitors

17.02.12

Zambrano Update! Decision of the Court of Justice in Dereci

The Court of Justice yesterday issued its judgement in Dereci and Others v Bundesministers fur Inneres .

As you may recall from our previous posting this referral by an Austrian court sought clarification on the findings of Zambrano and the interpretation of the Union citizenship provisions in Article 20 TFEU. 

In brief, the facts of the case involve Mr Dereci, the first named applicant, a Turkish national who arrived in the Member State without permission in 2001 and unsuccessfully applied for asylum. He then married an Austrian citizen in 2003 and had three children, all citizens of the Union and all still minors. Mr Dereci did not enjoy permission to work and reside in the State and his spouse was reliant on state welfare payments to support the family. The Union citizens had not exercised their right of free movement and resided in Austria throughout.

The question being determined by the Austrian courts was whether Mr Dereci had a right of residency in Austria. In order to determine this, a preliminary reference was made to the Court of Justice asking, in summary, whether Article 20 TFEU precludes a Member State from refusing a national of a non-member country – whose spouse and minor children are Union citizens – residence of that Member State even where the Union citizens are not dependent on the national of the non-member country for their subsistence. 

In its decision, the Court firstly notes that the ‘free movement directive’, Directive 2004/38 does not apply to the situations at issue because the beneficiaries have not exercised their rights of free movement and continue to reside in Austria. 

The Court then goes on to consider whether the Union citizens may rely directly on the provisions of the Treaty itself concerning citizenship of the Union. The Court notes that such reliance does not require an exercise of free movement and cannot be viewed as purely internal and untouched by EU law, stating at paragraph 61: “the situation of a Union citizen who, like each of the citizens who are family members of the applicants in the main proceedings, has not made use of the right to freedom of movement cannot, for that reason alone, be assimilated to a purely internal situation”.

 

The Court reiterates as stated in Zambrano, that citizenship of the Union is intended to be the fundamental status of nationals of the Member States and finds that as nationals of a Member State, family members of the applicants in the proceedings enjoy and may rely on their Union citizen rights under Article 20(1) TFEU, including against their Member State of origin, in this case Austria. 

Returning again to the wording used in Zambrano, the Court finds that Article 20 TFEU precludes national measures which have the effect of depriving Union citizens of the genuine enjoyment of the substance of the rights conferred by virtue of the status. There is seemingly an obligation on the Member State to observe the genuine enjoyment of the substance of rights as a Union citizen.

So what then, qualifies as genuine enjoyment of the substance of those rights?

The Court here refers again refers to the logic of Zambrano: denial of the genuine enjoyment of the substance of the rights refer to “situations in which the Union citizen has in fact, to leave not only the territory of the Member State of which he is a national but also the territory of the Union as a whole.” Economic reasons, or desire to keep a family together in the territory of the Union, are not found here to be sufficient reason without prejudice to the question of whether the protection of family life is threatened.

With respect of the protection of family life, the Court refers to the protections afforded by Article 7 of the Charter of Fundamental Rights and Article 8 of the European Convention on Human Rights. The Court notes the obligation on the Member State to observe the right to respect for private and family life but does not elaborate greatly on how those protections may apply in the situations referred. The Court states that should the referring court where it considers that the situation is covered by European Union Law, it must consider Article 7 of the Charter and if it considers that the situation is not covered, it must undertake an examination under Article 8 of the ECHR. Either way, an examination of the right to family and private life is necessary but there is no guidance offered by the Court on where such family protections rank in the genuine enjoyment of the substance of Union citizens rights.

  

The Court then concludes with respect of the question referred:

“In the light of the foregoing observations the answer to the first question is that

European Union law and, in particular, its provisions on citizenship of the Union, must be

interpreted as meaning that it does not preclude a Member State from refusing to allow a third country national to reside on its territory, where that third country national wishes to reside with a member of his family who is a citizen of the Union residing in the Member State of which he has nationality, who has never exercised his right to freedom of movement, provided that such refusal does not lead, for the Union citizen concerned, to the denial of the genuine enjoyment of the substance of the rights conferred by virtue of his status as a citizen of the Union, which is a matter for the referring court to verify.”

The decision has therefore provided some clarity on the circumstances in which a non-national may rely on the rights of a Union citizen spouse or child: the basic premise is that the Union citizen must not denied the genuine enjoyment of the substance of their Union citizen rights and can rely on the citizenship provisions in the Treaty directly, despite not exercising their free movement rights.

However, the decision appears to be lacking in detail on the circumstances in which there is likely to be a denial of genuine enjoyment of the substance of those citizenship rights enjoyed by the Union citizen. On the one hand, it appears that the Court has given some leeway to the Member State to refuse a third country residence where their arguments for the rights of residence centre on convenience, economic reasons and a wish to keep the family together. A real threat of relocation outside the Member State and the Union as a whole must be established. However, on the other hand, the Court spells out that it is incumbent on Member State to examine family and private life protections and where spousal ties and relationships with minor children are at question, it appears that such protections may weigh in favour of a right of residence.

We intend to further digest this decision and post updates on its likely impact here in Ireland. As always, we welcome any question or comments you might have.

Brophy Solicitors

16.11.11

ECHR DECISION: SERIOUS OFFENCES, FAMILY LIFE AND RELIANCE ON ARTICLE 8

A recent decision of the European Court of Human Rights in AA v United Kingdom (8000/08) [2011] ECHR 1345 (20 September 2011) determined that a young Nigerian applicant’s return to Nigeria would violate his Article 8 right to respect for his private life as a young adult. The decision provides helpful consideration on the proportionality exercise where a serious offence has been committed but appears to be less instructive on whether relationships between adult children and their parents/siblings may constitute family life for the purposes of Article 8.  

The facts in brief were as follows: a Nigerian had arrived lawfully in the UK at 13 years to join his mother and two sisters. At the age of 15, he was convicted of raping a 13 year old girl for which he was sentenced to 4 years youth detention. On completion of his sentence, the applicant achieved academically, maintained family ties with his mother and adult sisters, and did not re-offended and was found to be at low risk of re-offending. The UK Home Office sought to deport the applicant, relying on the serious criminal offence committed and the absence of any family life within the terms of Article 8. The Strasbourg Court held that the deportation of the applicant would violate his Article 8 right to respect for his private life.

The majority of the Court’s considerations were with respect of whether deportation was necessary for the “prevention of disorder or crime” as was contended by the UK government. The Court noted a number of factors that mitigated against the seriousness of the original offence. Of particular importance was the fact that since his release from detention seven years ago - and the court took the date of its own consideration as the relevant date in line with its approach in Article 3 cases - the applicant had done nothing to support the UK government's contention that his deportation was necessary for the 'prevention of disorder or crime'. The Court noted that the offence was committed whilst the applicant was a minor and the best interest of the child were not furthered by severing family ties necessary for reintegration of a child offender. The Court placed reliance on the significant period that had elapsed since the offending behaviour and the impressive achievements of the applicant during this time. Reliance was also placed on the fact that the UK Asylum and Immigration Tribunal had previously accepted that the applicant presented a low risk of re-offending. Overall, the likelihood of the applicant engaging in further criminal behaviour was held to be a key consideration where risk to public order was being relied on as the legitimate aim justifying expulsion.

With respect of the Applicant’s family life, the Court noted that the applicant had spent half his life in the UK maintaining relationship with his mother and sisters and had not had contact with his father, residing in Nigeria, since 1991. The Court’s conclusions with respect of the Applicant’s family life in the UK were brief and stated as follows:
"Finally, as regards the applicant's ties with the United Kingdom and with Nigeria, the Court observes that the applicant continues to reside with his mother and has close relationships with his two sisters and an uncle, all of whom reside in England. He has completed the majority of his high school and further education in the United Kingdom and has now commenced a career with a local authority in London. He is also a member of a church community. While he spent a significant period of his childhood in Nigeria, he has now not visited the country for eleven years. He has had no contact with his father since 1991."

Essentially, there was no clarification by the Court in this decision on whether relationships between adult children and parents/siblings can amount to family life in deportation cases. The majority of the Court’s considerations related to whether deportation served a legitimate aim of the “prevention of disorder and crime”.

Lourdes Peroni, in her recent blog post on the UK Human Rights blog provides an extremely instructive overview and discussion of the Court’s decisions on the status of relationships between adult children and parents/siblings and family life for the purposes of Article 8, with a starting point as the Court’s decision in this case of AA. Ms Peroni notes that while in Maslow v. Austria such family ties were accepted as constituting family life, where the young adult did not yet have family of their own, in the earlier decision of Slivenko v. Latvia it was held that an additional element of dependence would be needed for such relationships to constitute family life.

While the decision in AA therefore does not provide clarity on the status of relationships between adult family members for the purposes of Article 8, it does assist in clarifying what factors are to be accorded weight in the proportionality exercise where a serious criminal offence has been committed.  Finding that removal of the applicant to Nigeria would constitute a violation of Article 8 of the Convention, the Court concluded:
"The foregoing considerations are sufficient to enable the Court to conclude that the applicant's deportation from the United Kingdom would be disproportionate to the legitimate aim of the "prevention of disorder and crime" and would therefore not be necessary in a democratic society. There would accordingly be a violation of Article 8 of the Convention if the applicant were deported to Nigeria."

Brophy Solicitors

04.10.11

THE BEST INTEREST OF THE CHILD PRINCIPLE

RECENT UK CASE LAW ON THE BEST INTEREST OF THE CHILD PRINCIPLE

In assessing a right of residence for the parent/guardian of a child, the “Best Interests of the Child” principle is of core importance in reaching a fair and proportionate decision.  The "best interests of the child" broadly means the well being of the child. A consideration of where these best interests lie will involve the decision maker assessing whether it is reasonable to expect the child to live in another country.

In a sequence of cases before the Irish High Court involving deportations of parents of Irish citizen children, (see case of Alli and Isobor and the Minster for Justice), the “Best Interests of the Child” principle became overshadowed by a different legal principle, which one could call the “legitimate aims and obligations of the State” principle.  Theses cases set a precedent that an Irish citizen child’s rights to family life is not breached by a deportation order against the child’s parent unless there is “insurmountable obstacles” preventing the family moving to the home country of the parents and carrying on their family life there.

The UK Supreme Court have set a very different threshold for the assessment of such cases in focussing first and foremost on the best interests of the child, whatever the nationality of that child. The case of ZH (Tanzania)[1] (concerning the removal of a non-British parent of a UK citizen child) held that the over-arching issue is the weight to be given to the best interests of children who are affected by the decision to remove or deport one or both of their parents from the UK.

Lady Hale in the above case provided the leading judgment:

‘In making the proportionality assessment under article 8, the best interests of the child must be a primary consideration. This means that they must be considered first.”

Following ZH (Tanzania), the obvious question became how far can the “Best Interest of the Child ” principle be extended? Could it be argued that it is always in the best interest of a child to remain in a relatively wealthy and socially protected State such as the UK/Ireland, by way of comparison to the State of nationality of the child? Could the “Best Interest of the Child ” principle be successfully applied therefore to children of non EEA nationality seeking to remain in the UK/Ireland on the grounds of  better standard of living perhaps?

In the case of  E-A (Article 8 – best interests of child) Nigeria, judgement issued on the 22^nd July 2011, Mr Justice Blake, (President of the Upper Tribunal, Immigration and Asylum Chamber) shed light of these queries while assessing the rights of a family of Nigerian citizens to remain in the UK pursuant to Article 8 of the European Convention of Human Rights. The family were residing in the UK on the basis of student/ dependant temporary permission, and arguments were made on behalf of the children that it was in their best interest to remain in the UK rather than be returned to Nigeria.  It was interesting to see how Mr Justice Blake interpreted the Supreme Court’s case of ZH (Tanzania) in light of the facts before him, ultimately finding that neither Article 8 or the “Best Interest of the Child ” principle was infringed by returning the family to Nigeria. The following are the principles points highlighted in the judgment;

(i)              The correct starting point in considering the welfare and best interests of a young child would be that it is in the best interests of a child to live with and be brought up by his or her parents, subject to any very strong contra-indication. Where it is in the best interests of a child to live with and be brought up by his or her parents, then the child’s removal with his parents does not involve any separation of family life.

(ii)            Absent other factors, the reason why a period of substantial residence as a child may become a weighty consideration in the balance of competing considerations is that in the course of such time roots are put down, personal identities are developed, friendships are formed and links are made with the community outside the family unit. The degree to which these elements of private life are forged and therefore the weight to be given to the passage of time will depend upon the facts in each case

(iii)          During a child’s very early years, he or she will be primarily focused on self and the caring parents or guardian.  Long residence once the child is likely to have formed ties outside the family is likely to have greater impact on his or her well being.

(iv)               Those who have their families with them during a period of study in the UK must do so in the light of the expectation of return.

(v)                The Supreme Court in ZH (Tanzania) [2011] UKSC 4 was not ruling that the ability of a young child to readily adapt to life in a new country was an irrelevant factor, rather that the adaptability of the child in each case must be assessed and is not a conclusive consideration on its own.

We hope to see the Irish Immigration process moving in similar line to the UK, that is to make the “Best Interest of the Child ” principle a matter or primary consideration is cases involving the residence rights of children and their parents, what ever the nationality of the child. 

31.8.11

Brophy Solicitors

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[1] ZH (Tanzania)  (FC) (Appellant) v Secretary of State for the Home Department (Respondent) [2011] UKSC

ARTICLE 8 AND THE RIGHT TO COMPANY OF FINANCIALLY DEPENDANT NON EU NATIONAL PARENT

UK Court of Appeal Judgement, AAO and The Entry Clearance Officer, 22^nd July 2011

An interesting judgement was delivered by the Court of Appeal (England and Wales) last week in the case of AAO and The Entry Clearance Officer. The Court assessed the relationship of adult British citizen and their financially dependant non EU parent under Article 8 of the European Convention of Human Rights. We are very interested in the Court’s findings as we are working on number of similarly factual cases for our clients.

The case involved an application by 69 year old Somalia national who had been living in Kenya to enter the UK to join her British national daughter. The Applicant was financially dependant on her daughter, who sent her monthly payments of approximately $100. She was also in poor health, and dependant on neighbours for daily care. The British national daughter had seven children and was herself dependant on State welfare.  The Clearance Officer refused her application for indefinite leave to join her daughter as a relative and financial dependant. The Asylum and Immigration Tribunal upheld this decision, and the Applicant appealed on the basis that this was a breach of her Article 8 rights. The argument was made on her behalf that financial dependency could constitute family life within the meaning of Article 8.

The Court of Appeal (England and Wales) found that family life within the meaning of Article 8 would not normally exist between parents and adult children in the absence of further elements of dependency which go beyond normal emotional ties. Lord Justice Rix states as follows;

“although the money sent to her mother by the daughter raises an element of dependency, it is not one which in my judgment takes the matter very far. The provision of such money can be as much an insulation against family life as evidence of it. In any event, there is nothing to prevent the daughter continuing with the provision of money to her mother in Kenya: therefore to this extent there is no interference with family life”

We believe that financial dependency alone may not meet the Article 8 threshold, but it is a very relevant and indicative factor in the assessment of family life. The financial factor is often coupled with many other factors which would bring a case within this threshold, for example emotional dependency, frequency of contact evidencing a close relationship, obstacles prevent family life to be maintained outside the State.  We have a similar case coming up for hearing before the High Court next October, which we believe includes all these factors, and which we believe falls within the ambit of Article 8 and Article 41 of the Irish Constitution. We will keep you updates as to the outcome of this case.