Decision letter reduced as Home Secretary applied wrong "family life" test

There is no legal test of "unusual or exceptional dependency" in considering what constitutes family life in the case of adult children, for the purposes of article 8 of the European Convention on Human Rights, and a decision letter of the Home Secretary that referred to such a test fell to be reduced, a Court of Session judge has held.

Lady Scott in the Outer House granted a petition for judicial review by BC, a Chinese national, who challenged the Home Secretary's decision to refuse to treat further submissions in a human rights claim as a fresh claim for asylum.

BC, born in 1990, arrived in the UK in 2010 and claimed asylum. A refusal was confirmed on appeal. He then lodged further submissions; his petition was brought to challenge the refusal to treat these as a fresh claim. 

He had been brought up by his grandparents as his parents had moved to the UK. Only his grandfather (aged 83) was left in China. He was financially dependent on his family and now also claimed to be dependent on them for care and emotional support, due to mental health difficulties, a neurological condition which caused chronic motor and vocal tics including grunting, squeaking and twitching, which had led to deteriorating mental health difficulties of depression and anxiety.

The decision letter stated: "Family life does not usually engage article 8, in relationships between adult family members, such as parents and their adult children... except in cases of unusual or exceptional dependency. It is not considered that there is an unusual or exceptional dependency in your case.”

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

Lady Scott rejected this. "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."

It followed that the Home Secretary had erred in her assessment of proportionality, as this involved the weighing of factors already rejected as insufficient to engage article 8. It could also not be said that the same decision would inevitably have been reached absent the error. Accordingly the decision letter should be reduced.

Click here to view the opinion.