OA063852014 & Ors.

The case of AAO [2011] EWCA Civ 840 to which the judge referred was decided before section 117 had come into force, and was an entirely different factual scenario involving an adult dependent where a weak family life had been found. In summary, the decision was inadequately reasoned and the Appellants had a strong Article 8 case.

Mr. Bramble accepted that a large proportion of the decision consisted of a setting out of the requirements of the approach to be taken. However, the judge was entitled to take into account the financial circumstances and the fact that the Sponsor was unable to support the Appellants. He submitted there was nothing wrong in the approach and the assessment was not unbalanced. The judge was aware of the vulnerability of the Appellants. Although paragraph [15] was brief, all the relevant factors had been taken into account. The best interests were not set out in one particular paragraph, but they were listed and had been taken into account. The judge had come down against the Appellants having considered all of the relevant factors.

In response Ms Mellon submitted that the findings were not disputed, but only the proportionality exercise. There was no indication that the judge had taken all of the Appellants' circumstances into account when carrying out the proportionality exercise. The best interests of the children in the United Kingdom had not been taken into account. Paragraph [8] was no answer to the criteria set out in JO and Others (section 55 duty) Nigeria [2014] UKUT 517 (IAC) .

I was referred to paragraph [19] of the skeleton argument. The fact that the Appellant's Sponsor was a refugee and therefore that family life could not be enjoyed elsewhere had not featured in paragraph [8] at all.

Although the findings are set out from paragraphs [8] to [15], as agreed by Mr. Bramble, much of this is taken up with a rehearsal of the approach to be taken in such cases with reference to case law, rather than findings specific to the Appellants. The main paragraphs which contain specific findings are paragraphs [8] and [15].

Paragraph [8] states as follows:

Paragraph [15] states as follows:

Paragraph [15] contains the entire analysis of the Appellants' position and the proportionality exercise. I find that it is an inadequate assessment of their circumstances, and inadequate reasons are given for the finding that the interference is proportionate and justified. Paragraph [15] contains no reference to any of the factors set out in paragraph [8]. The judge refers to the factors in section 117B(2) and (3), the inability of the Appellants to speak English and the fact that they are not financially independent, but he has not referred to any of the factors in favour of the Appellants when giving reasons for his decision that interference with the family life rights of the Appellants and Sponsor is not disproportionate.

Further, there is no assessment in the decision of the best interests of the Appellants or the children in the United Kingdom, and accordingly no factoring of their best interests in the proportionality exercise in paragraph [15]. Although the judge has referred to the family living in the United Kingdom [8], there is no identification of the best interests of the children who form part of this family.

Further there is no reference in paragraph [15] to the fact that family life could not be enjoyed elsewhere, and the weight to be given to that. Although the judge has found in paragraph [8] that the Appellants are living in "undesirable exceptional compassionate circumstances" there is no consideration of the weight to be attached to this. Paragraph [15] is an inadequate assessment of the circumstances of the Appellants and an inadequate proportionality assessment. The judge has placed weight on the fact that the Sponsor cannot maintain the Appellants, but has not given reasons for why the weight to be attached to this outweighs the weight to be attached to the factors in favour of the Appellants.

I find that the decision is inadequately reasoned, and the Article 8 proportionality assessment is inadequate. There has been a failure properly to consider the best interests both of the Appellants and of the children living in the United Kingdom.