“V 4.2 The applicant must satisfy the decision maker that they are a genuine visitor. This means that the applicant: (a) will leave the UK at the end of their visit; and (b) will not live in the UK for extended periods through frequent or successive visits, or make the UK their main home; and (c) is genuinely seeking entry for a purpose that is permitted by the visitor routes (these are listed in Appendices 3, 4 and 5); and (d) will not undertake any prohibited activities set out in V 4.5 – V 4.10; and (e) must have sufficient funds to cover all reasonable costs in relation to their visit without working or accessing public funds. This includes the cost of the return or onward journey, any costs relating to dependants, and the cost of planned activities such as private medical treatment.” (a) will leave the UK at the end of their visit; and (b) will not live in the UK for extended periods through frequent or successive visits, or make the UK their main home; and (c) is genuinely seeking entry for a purpose that is permitted by the visitor routes (these are listed in Appendices 3, 4 and 5); and (d) will not undertake any prohibited activities set out in V 4.5 – V 4.10; and (e) must have sufficient funds to cover all reasonable costs in relation to their visit without working or accessing public funds. This includes the cost of the return or onward journey, any costs relating to dependants, and the cost of planned activities such as private medical treatment.”
“(2) An appeal under section 82(1)(b) (refusal of human rights claim) must be brought on the ground that the decision is unlawful undersection 6 of the Human Rights Act 1998 .”
“1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
“100. It seems to us that all these cases point in the same direction. Whilst persons seeking to enter an ECHR state from outside the jurisdiction of the ECHR will not have their own rights under article 8, if they have pre-existing family life with a person within the territory of the ECtHR, article 8 may impose a positive obligation on a state to admit those people, if they have family life with a person within the territory. That is what is meant by family life being unitary (see para 141 under ground 2 below). The concept of unitary family life does not, however, mean that the state is under a positive obligation to admit every member of the wider family of the person within the territory of the UK.”
“64. After about five years of separation, the appellant decided to visit Gaza with her four daughters (including the sponsor) to bring her remaining children back to Jordan. She obtained visitor permits. At this point the sponsor was aged 14 or 15. However, their documents were also cancelled as soon as they crossed the border. By this point the appellant’s husband was elderly and unwell and the appellant herself was not able to work because she was lacking in education and looking after the family. The sponsor took a job in Gaza to support her family. She continued to work to support the family throughout her entire childhood and adulthood until she left Gaza. She worked whilst she was at school, whilst she completed her degree in English literature at the University of Gaza and afterwards worked in a charity in Gaza to support her mother and siblings. The only income came from the sponsor and the family were living in poverty and overcrowded conditions, often going without food. There were also bombardments at times.” 65. The appellant was very depressed and unhappy in her marriage and confided in the sponsor from when she was very young child. The appellant shared personal things with the sponsor which she did not share with her other children because the sponsor is the second oldest child and was the oldest child left with her when they were in Jordan (separated from the remainder of the family) for several years and because of the long term financial support that the sponsor has provided to her mother. The appellant continues to share intimate information with the sponsor . For instance she confided to the sponsor that she is incontinent and has confided in the sponsor about her most intimate personal feelings including her suicidal thoughts. 66. The bond between the appellant and the sponsor is stronger than that between the appellant and her other adult children although she does have a strong relationship with her daughters in Gaza and her grandchildren. 67. Eventually the appellant and her husband were divorced. He died of cancer in 2009. 68. The sponsor lived with her mother as part of her household from 1975 when she was born until 2006. 69. The sponsor assisted her mother to purchase a house in Gaza city in August 2006 for USD 35,000 raising USD 10,000 by selling her car, borrowing money and using her savings. The sponsor and appellant went house hunting together and chose the flat because it was near a market the appellant loved, in a lively area. Until they purchased the house the sponsor had always paid the rent on her mother’s property. The family intend to do up the flat after the war. 70. In 2006, the sponsor travelled to the UK to do a Master’s degree for which she had been awarded a scholarship. She was intending to return to Gaza after her degree and move back in with her mother, sisters and brother in law. She was unable to return initially because of the political situation. Hamas had taken over and the borders were blocked and then because she obtained work and met her husband. The couple met in 2008 and married in 2013. The sponsor’s husband has four adult children from a previous relationship. The sponsor and her husband do not have children together. 71. She is not currently able to visit her mother in Gaza. 73. The sponsor and appellant have not lived as part of the same household since 2006. 74. The appellant has only been able to visit her mother three times since she left Gaza. She travelled to meet her mother in Turkey twice and then organised a longer period of time to stay with her mother with extended family members in Jordan between August and November 2022. The appellant had treatment for her spinal condition in Jordan. The sponsor and appellant had daily communication by telephone prior to the current conflict. It has been more difficult to communicate but they continue to communicate as frequently as possible. 75. The family perception is that because the sponsor does not have any other children unlike her siblings and has always been the appellant’s financial provider that she has responsibility for her mother. 76. The sponsor has been providing her mother with financial support since she left Gaza in 2006. She also arranged for her to receive parcels of medication, painkillers, make up and underwear through individuals in her charity. 77. When the war started she was able to get some food and female hygiene products to the appellant and her sisters. 77. The sponsor continues to provide ongoing financial support. When the war first started she made transfers into her sister’s bank account which could be collected through an exchange office for a large fee. She is now sending money through “Wise” which goes through a bank account in Europe and then Jordan to a transfer agency in Gaza. The agency takes a large fee. The sponsor also occasionally sends some money to her sister’s bank account. She also sends money to an individual who has an exchange business in Gaza but has family members in Europe. After the money is deposited in Europe, the exchange in Gaza is notified and he gives the money to the appellant minus the fee. The sponsor is sending increasing amounts because the price of food has increased. The sponsor is currently the only person providing her mother with financial support. Her sister based in Jordan has lost her employment. 78.In the past, the sponsor used to telephone the appellant every week on a Saturday. After the arrival of the internet she called her mother every day until the start of the war in October 2023. The sponsor currently texts the appellant every day even if she cannot respond. She also talks to the appellant as often as possible which is currently difficult as the appellant has to go to a local shop to charge her phone. 79. The sponsor provides her mother with emotional support. Her mother shares with her private and intimate information about her health problems which she does not share with her other children. The sponsor provides her mother with reassurance. 80. The appellant is currently living in her old home in Gaza city with two daughters, one son-in-law and grandson. The building is bomb damaged and there is no electricity or running water. Food is in short supply. Conditions are very poor. The appellant is close to her daughters in Gaza but is closer emotionally to the sponsor. 81 Another daughter is in Turkey, two daughters are in Jordan and her son is in Greece. Two further daughters live in the Al Mawasi camp. They are married with families. After the war started the appellant and her two daughters left their home in Gaza city and moved to the Al Mawasi camp and lived in a temporary shelter.”
“I note that the ‘Letter before Claim’ provided by Bindmans LLP on your behalf states thatArticle 8 of the European Convention on Human Rights is relevant to your application. I have considered statements made in the ‘Letter before Claim’ provided by Bindmans LLP regarding human rights when considering your application and I am satisfied that your application is not capable of engaging human rights and therefore a human rights claim has not been made. To engage Article 8, the claim must demonstrate a family relationship and the relationship in question must be one that can engage the right to respect for family life. Home office guidance “Considering human rights claims in visit applications” states that the only relationship scenarios that may engage Article 8 in visit applications are spouse, parent to a minor or a minor child. Therefore, I am not satisfied that your application can engage the right to respect for family life as the relationship in question is that of a parent (yourself to and adult (your sponsor). Consequently, this decision to refuse your visa application is not a refusal of a human rights claim and there is no right of appeal against this refusal. The additional information provided by Bindmans LLP received by us on17/05/2024 states that they are of the view that discretion is appropriate and should be exercised in your case. It has been considered whether the particular circumstances set out in your application constitute exceptional circumstances which might warrant a grant of leave to the UK outside the requirements of the Immigration Rules. In support of your application, you have raised circumstances such as your medical condition and conflict. These circumstances have been carefully considered, but your application does not fall for a grant of leave on a discretionary basis. I acknowledge the statements made as a part of your application, however, it is also noted that you have applied to visit the UK and therefore the maximum period of stay would be 6 months. Given that the circumstances laid out in your application appear to be pre-existing and indefinite in length, I am not satisfied that the grant of a temporary visa with limited leave is appropriate regarding the circumstances laid out in your application.”
“However, this is not analogous to the decision in MY. It was not a refusal to engage with the claim but a refusal to accept that the application was capable of engagingArticle 8 ECHR . In other words, the decision maker did not accept that Article 8(1) was met. The appellant was not told that it was open to her to make an application on another form or in another way. Instead, the decision maker considered whether the relationship between appellant and Sponsor amounted to family life and decided that it was not capable of doing so. This is in effect a decision that the first stage of the “Razgar” test was not met. That is as much a refusal of a human rights claim as if the decision maker had decoded that there was family life and had then gone on to consider whether interference with it was proportionate. The decision is for that reason a refusal of a human rights claim.”
“107. Taking into account the evidence in the round, we are satisfied that the relationship between the appellant and sponsor exceeds the normal emotional ties between adult family members and that there is effective, real and committed support both in terms of financial and emotional support. There is the existence of close personal ties. 108. Gathering all of these facts and principles together, on the unique and exceptional facts of this appeal we find that family life exists between the sponsor and the appellant despite them being adult relatives and, despite them not living in a family unit for many years and the small number of visits. We find that the consequences of ongoing separation are of sufficient gravity to engage Article 8 (1) ECHR because of the deteriorating mental health of the sponsor in the UK, and the real possibility that they may never be able to have family life in person together in the future.”
“117. We find that the appellant is a genuine visitor who will leave at the end of her visit and that she can therefore meet paragraph 4.2 of Appendix V of the Immigration Rules. 118. In our view this is determinative of the appeal as submitted by Mr Chirico in accordance with TZ(Pakistan) and PG (India)[2018] EWCA Civ 1109 . The appellant can meet the requirements of the immigration rules and there is therefore no public interest in refusing her entry to the UK. 119. Given that we find that this is determinative of the appeal we see no need to address any of the other submissions made in respect of the wider proportionality exercise.”
“….Where the application necessarily involves a human rights claim, in the sense discussed above, a refusal of the one must involve the refusal of the other. But where that is not the case there is nothing illogical in the Secretary of State choosing to refuse the application but to defer a decision on the human rights claim.”
“46. Of course the fact that the application and the human rights claim are distinct does not mean that the Secretary of State could not in principle have made a decision simultaneously to refuse both, albeit that that would have involved a departure from her one-application-at-a-time policy. But the terms of decision make it quite clear that she did not do so: rather, consistently with that policy, she refused the domestic violence application and said that she would deal with any human rights claim if a separate application were made…..”
“10. First, the consistent jurisprudence of the European Court of Human Rights (“the ECtHR”) has been that “family life for the purpose of article 8 … is normally limited to the core family and that there will be no family life between parents and adult children or adult siblings unless they can demonstrate ‘additional elements of dependence, involving more than the normal emotional ties’” (see Kumari v The Netherlands (Application No 44051/20) (unreported)10 December 2024 (“Kumari ”) at para 35 and Beoku-Betts v Secretary of State for the Home Department[2009] AC 115 (“Beoku-Betts”) at para 39). The FTT did not apply that test, but instead asked itself whether the sponsor had provided “real, effective or committed support” to his brother and the family (see paras 18 and 25 of the FTT decision). The real, effective or committed support test is lower than the additional elements of dependence test. Applying the proper test, neither the brother nor his family had shown that they had family life with the sponsor for the purposes of article 8(1).”
“117. First, this is an area in which the domestic courts have universally demonstrated their willingness to follow the consistent jurisprudence of the ECtHR. Even if some of the domestic decisions may have provided divergent interpretations of the additional elements of dependency test, none has suggested that they wanted to depart from ECtHR jurisprudence. 118. Secondly, many of the cases, both ECtHR and domestic, actually concern family life between parents and adult children, rather than between adult siblings. No case has suggested that the legal test is different in the two types of case. 119. Thirdly, all the cases make clear that the exercise of deciding whether there are the necessary additional elements of dependence involving more than the normal emotional ties is a fact-sensitive exercise that is to be decided on a case-by-case basis. 120. Fourthly, financial dependency and dependency created by physical or mental disability both play a part in the evaluation. It is not, however, necessary to show that one sibling is completely reliant on their care and support in their daily life. In other words, none of the cases go so far as to require exclusive or complete dependency. 121. All these points are, in our judgment, pretty well self-explanatory from our summary of the cases at paras 42–84 above. But there are two points that merit a little more explanation: (a) the meaning and function of what we have described as the “real, committed or effective support” test taken from Sedley LJ’s judgment in Kugathas [2003] INLR 170 at para 17 , and (b) why exclusive or complete dependency is not required. 122. The real, committed or effective support test is, in our judgment, as we have already intimated at para 68, on a proper analysis different from the additional elements of dependency test. Dependency may in one sense be the other side of the support coin. But “real support” may be provided without any serious dependency. Even “effective support” might be provided without there being meaningful dependency. As Sedley LJ himself acknowledged in Kugathas, the real, committed and effective support test was a reading down of the additional elements of dependency test. The FTT said the same at para 25 where it acknowledged that the sponsor’s real, committed and effective support of family was short of the family being dependent on the sponsor. 123. In our judgment, it would be going too far to say that it is wrong to test whether there are additional elements of dependency by reference to the real, committed or effective support provided. But real, committed and effective support is not the test itself, because the level of real support, for example, may be minor or insignificant, whereas the word “dependency” denotes a significant relationship. This is not a semantic point. The ECtHR used the word “dependence” in S v UK (1984) 40 DR 196 in the context of “cohabiting dependents”, which were its starting point (see para 42 above). 124. The domestic cases (eg PT (Sri Lanka)[2016] EWCA Civ 612 at [30]) were not wrong, for example, to point out that a cohabiting child would not necessarily lose their family life with its parents or even their siblings on their 18th birthday. But that is because the relationship of dependence would subsist at that point. 125. In our judgment, it is undesirable to lay down hard and fast rules as to how the additional elements of dependency test should be applied. It obviously requires some dependence, and dependence is more than the existence of support, even if that support is qualified by the adjectives real, committed or effective. Kumari (unreported)10 December 2024 makes clear that it is harder for adults to demonstrate the necessary dependency because family life is normally limited to the core cohabiting family. The examples in Kumari at paras 38–39 (see para 50 above) make clear the kinds of physical or mental dependency that might qualify. They are not exhaustive, and dependency may take many forms, as Kumari at paras 37 and 41–43 also reminds us. So far as exclusive dependency is concerned, on the particular facts of that case, Alvarado (unreported)10 December 2024 made clear that it was not always required to establish family life. Moreover, whilst one person being completely dependent on another might normally satisfy the additional elements of dependency test, it is not the only way that the test can be satisfied as the cases we have cited demonstrate.”