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No article 8 right to live in UK for Somalian refugee's mother

25 July 2011

There was no breach of a mother's right to family life under article 8 ECHR by refusing her request to join her daughter and seven children in the UK, the Court of Appeal has ruled.

Lord Justice Rix said there appeared to be no case law here or in Strasbourg in which a dependant parent had succeeded in using article 8 to join an adult son or daughter.

Delivering the leading judgment in AAO v Entry Clearance Officer [2011] EWCA Civ 840, he said the mother in this case, AAO, was 69 and living in Kenya since leaving Somalia.

“She has no other surviving close family apart from her daughter, having lost her husband in 2005,” Lord Justice Rix said. “Her two sons have died or disappeared in the civil fighting in Somalia.

Rix LJ said the mother was living with and helped by neighbours in Nairobi, but had health problems. AAO’s daughter came to the UK in 1997 and was given indefinite leave to remain in 2004. She was living on benefits with her seven children.

“No case approaching the circumstances of this one, namely that of a state required to admit a parent from abroad to join an adult child in circumstances where the child could not maintain the parent without recourse to public funds, has been cited to us,” Rix LJ said.

However, he referred to the leading Strasbourg case of Gul v Switzerland [1996] 22 EHRR 93, where the court said that article 8 “cannot be considered to impose on a state a general obligation to respect the choice of married couples of the country of their matrimonial residence and to authorise family reunion in its territory”.

Rix LJ said that “for 12 years there had been little contact between mother and daughter, other than the provision of the monthly $100 and the making of telephone calls, the extent of which was said by the mother to be only once a month, although put by the daughter as rising from once more recently to two to three times a week”.

He said that when consideration was given to the “weakness of family life” in this case and the lack of a positive obligation on the UK to do anything other than allowing a right of entry subject to carefully composed rules and “an overriding consideration of article 8 on a case-by-case basis” it was not possible to say there had been an interference with family life which breached the ECHR.

“As Strasbourg and domestic jurisprudence has consistently emphasised, states are entitled to have regard to their system of immigration control and its generally consistent application, and a requirement that an entrant should be maintained without recourse to public funds is an ultimately fair and necessary limitation on what would otherwise become a possibly overwhelming burden on all of its citizens.

“It is an unfortunate reality of life that states, especially one like the United Kingdom which is generally accessible and welcoming to refugees and immigrants, cannot undertake to allow all members of a family to join together here, even those members who can show emotional and financial dependency, without creating unsupportable burdens.”

Lord Justice Rix dismissed the appeal. Lord Justice Lloyd and Mr Justice Lewison agreed.

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Termination Local government