The protection provided by Article 8 does not cover all family relationships. In the case of Mostafa (which dealt with an application for entry clearance as a visitor by a wife) at paragraph 24 the court said
"Thus we refrain from suggesting that, in this type of case, any particular kind of relationship would always attract the protection of Article 8(1) or that other kinds of relationship would never come within its scope. We are, however, prepared to say that it will only be in very unusual circumstances that a person other than a close relative will be able to show that the refusal of entry clearance comes within the scope of Article 8(1). In practical terms this is likely to be limited to cases where the relationship is that of husband and wife or other close life partners or a parent and minor child and even then it will not necessarily be extended to cases where, for example, the proposed visit is based on a whim or will not add significantly to the time that the people involved spend together." (my bold)
These principles were found in the earlier case of Kugathas a case which concerned an adult's relationship with his mother and adult siblings, the Court of Appeal thought that the following passage in S v United Kingdom [1984] 40 DR 196 was still relevant:
"... generally, the protection of family life under Article 8 involves cohabiting dependants, such as parents and their dependent minor children. Whether it extends to other relationships depends on the circumstances of the particular case. Relationships between adults ... would not necessarily acquire the protection of Article 8 of the Convention without evidence of further elements of dependency, involving more than the normal emotional ties."
However, the Court of Appeal considered that the further element of dependency did not have to be economic. Accordingly, in the case of the "other relationships" referred to, it will be necessary to show that ties of support, either emotional or economic, are in existence and go beyond the ordinary and natural ties of affection that would accompany a relationship of that kind.
The Law
Finding on Material Error
Having heard those submissions, I reached the conclusion that the Tribunal made a material error of law.
While the Judge correctly set out the law and the questions he was bound to address where Article 8 was in issue he failed to address and give reasons for why he accepted that family life existed in this case given that this was an adult Appellant in Pakistan and her parents and siblings in the UK. No factual findings were made to demonstrate the basis on which the Judge asserted in paragraph 18.1 of the decision that family life existed.
The failure of the First-tier Tribunal to address and determine whether family life exited between the adult Appellant and her family in the UK constitutes a clear error of law. This error I consider to be material since had the Tribunal conducted this exercise the outcome could have been different. That in my view is the correct test to apply.
I therefore found that errors of law have been established and that the Judge's determination cannot stand and must be set aside in its entirety and I remake the decision.
Remaking the Decision.
This was an application for entry clearance as a general visitor by the Appellant who wished to visit her family who are currently living in the UK as the father is a Tier 1 Investor with his family as dependents.
I am satisfied that there is no presumption that a person has a family life, even with the members of a person's immediate family. The court has to scrutinise the relevant factors. In relation to the issue of family life I could have course have considered oral evidence from family members. Given the importance of the relationship to the facts in issue I am very troubled by the fact that neither the Appellants father who is the sponsor or her mother attended court in the First-tier or before me to give evidence in support of her appeal.
The Appellant is 20 years old so in law is an adult. She is attending University and lives with another family member, an uncle in Islamabad. The Appellants parents have been living in the UK since 2013 and therefore by choice the family have lived apart since then. Whether they were living together prior to 2013 I am unable determine as there is no evidence relating to it on file. While there is of course no prohibition on the family seeing the Appellant in Pakistan she states in her witness statement that she only sees her father 'from time to time' but has not seen her mother and siblings since February 2013 when they came to the UK. There was no evidence of any other form of contact before me; no evidence of contact by letter, telephone or via the internet.
While the Appellants asserted in her visa application that she was dependent on her father no evidence of financial dependency, or indeed any other form of dependency, was provided. The evidence produced showed that the father had funds in the UK but there was no evidence that any was sent to the Appellant. There was evidence that the Appellant had funds in her own name, the equivalent of over £8000 and while it is possible the funds came from her father there was no documentary or oral evidence to establish that before me.
On the basis of the evidence before me that the Appellant is an adult student who has her own funds and has not demonstrated that she is financially supported by her family and has had very limited contact with her father and none with her mother and siblings for 3 years the Appellants has failed to meet the evidential burden of establishing that her relationship extends beyond the normal emotional ties of an adult child and her parents.
Decision
I set aside the decision of the First-tier Tribunal as containing a material error of law. I substitute the following decision:
This appeal is also dismissed on human rights grounds (Article 8)
Signed Date 23.1.2016
Deputy Upper Tribunal Judge Birrell
Fee Award
There can be no fee award as I have dismissed the appeal.
Signed Date 23.1.2016
Deputy Upper Tribunal Judge Birrell