Case No: C5/2008/0129
Neutral Citation Number: [2008] EWCA Civ 530
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL 
[AIT No: AA/03049/2006]
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Monday, 14th April 2008

Before:

LORD JUSTICE PILL
- - - - - - - - - - - - - - - - - - - - -

Between:

	YG (CHINA)
	Appellant	
	- and -		
	
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT	
Respondent	

- - - - - - - - - - - - - - - - - - - - -

(DAR Transcript of 
WordWave International Limited
A Merrill Communications Company
190 Fleet Street, London EC4A 2AG
Tel No:  020 7404 1400  Fax No: 020 7831 8838
Official Shorthand Writers to the Court)

- - - - - - - - - - - - - - - - - - - - -

Mr A Berry (instructed by Malloy & Barry Solicitors) appeared on behalf of the Appellant.
THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED.

- - - - - - - - - - - - - - - - - - - - -
Judgment
Lord Justice Pill:

1.	This is an application for permission to appeal against a decision of the Asylum and Immigration Tribunal dated 1 October 2007.  The Tribunal refused the application of YG (China) to remain in the United Kingdom.  The application was made on Article 8 grounds, that is Article 8 of the European Convention on Human Rights.  
2.	The applicant was born in China on 9 March 1977 and is a Chinese citizen.  On 13 July 2001 the applicant entered the United Kingdom on a student visa.  Extensions were granted up to April 2003.  In June 2002 the applicant met Mr Matthew Stones.  They lived with each other for a short time.  In November, having moved out, there was a further night together as a result of which the applicant became pregnant, and M was born on 25 September 2003.  He was registered as a British Citizen, Mr Stones being a British Citizen, on 22 August 2005 and Mr Stones cooperated in that application.  On 6 January 2006 the applicant applied for asylum.  That was refused on 27 February 2006.  On 21 June 2006 an appeal against the first determination was allowed and a reconsideration was ordered.  The decision complained was then made and the appeal under Article 8 was dismissed.  
3.	On behalf of the applicant, Mr Berry submits first that there is family life engaging Article 8, as between the applicant, Mr Stones, and M.  He refers to the low threshold which has to be crossed in order to establish family life.  Secondly Mr Berry submits that the immigration judge misdirected himself in failing to have regard to prospective family life when considering the duties of the United Kingdom under Article 8.  He persuasively submits that it is not only the immediate future which should be borne in mind but the whole of the child’s life.  While there is no relationship at present between the applicant and Mr Stones, or the child and Mr Stones, there is an aspiration that that will change in the future.  Mr Stones had been working in Leeds.  He worked in the financial services sector, and shortly before the hearing he had handed in his resignation in Leeds and was due to move to London in the very near future to look for a new position in the financial sector.  It will be easier, Mr Berry submits, for contact to be maintained while the applicant remains in Cardiff, as she is likely to do, pending the decision of the court, and him in London.  Cardiff is of course closer to London than it is to Leeds.  
4.	Mr Berry relies on the fact that, through the Child Support Unit, Mr Stones has been paying maintenance towards the child; further, he cooperated in the registration proceedings and he appeared at two Tribunal appearances in support of the applicant’s claim.  He has also attended at court this morning.  This demonstrates, says Mr Berry, Mr Stones’ interest in maintaining his relationship with his son.  
5.	The decision of the immigration judge is comprehensive and, if I may say so, clear.  There are detailed findings of fact on the basic matters to which I have referred.  These are set out in a series of sub-paragraphs in paragraph 10 of the decision.  Apart from the court appearances, there have only been three occasions on which the applicant has been in contact with his son; that is, at is at the time of the hearing.   At sub paragraph j), the judge says:
“Matthew Stones has no other contact with the child.  He does not speak to him on the telephone; he does not write or receive cards or the like from him.  The only communication that is had is by the Appellant sending cards each month.  I noted the evidence of Matthew Stones is that ‘She’s been keeping in touch with me.  I didn’t have her address.”

6.	I would agree with the submission that it does appear somewhat unrealistic for Mr Stones to have telephone conversations with a 4-year-old whom he has seen only on three occasions; but now that I have seen the more recent statement of Mr Stones and his reference there to lack of telephone conversations, that warrant is merely picked up by the immigration judge and does not appear to me to discredit in any way the immigration judge’s general findings.   
7.	The judge referred in detail to the plans which Mr Stones has, to his busy work in the financial sector and to the easier communication possible between London and Cardiff.  Reference is also made to the increased expenses which, as compared with Leeds, Mr Stones is likely to have to meet in London.  At paragraph 26 the judge posed the question: does the appellant have a protected family life?  And he stated the conclusion: “I do not find that she has”.  The reasoning is at paragraph 29 and 30:  
“29. I do not find that family life exists between the Appellant, [M] and the child’s father Matthew Stones.  There has been minimal contact between the child and his father: three occasions of face to face contact and twice when Matthew Stones has come to Court to give evidence.  I accept there has been payment of maintenance but this is following a decision made in this regard by the CSA.  Other than this all there have been are notes to thank Mr Stones for the payment of maintenance from the Appellant.  Indeed it would seem that for some time Mr Stones did not even have an address for the Appellant and his son.  I am told there will be contact in the future but this assertion is so vague that I cannot find there is any real likelihood of it taking place.  The fact remains that as at the date of hearing there were no plans for any further meetings or at least if there were I heard no evidence about them.”
30. Accordingly, and on the evidence that is before me I cannot find that family life exists and that even if I were wrong about this that any interference with it would have consequences of such gravity as to potentially engage the operation of Article 8. However, if am wrong about this then once again the removal of the Appellant would be in accordance with the law and for the purposes of maintaining immigration control.”

8.	A further point made by Mr Berry is that, having stated those conclusions, the judge goes on to state at paragraph 32, that “there are no insurmountable obstacles to Mathew Stones visiting the Appellant and [M] in China”.
9.	That, Mr Berry submits, is inconsistent with his findings about the lack of real prospect of contact between London and Cardiff.  That point does not, in my judgment, assist the applicant.  The essential point is the first one, dealt with in the findings of fact and at paragraphs 29 and 30.  All the immigration judge was doing at paragraph 32 was to say that this was not a decision which would eliminate all possibility of contact between the applicant and his son.  The judge was not making a comparison between Cardiff and China.  He was merely saying by way of some reassurance to the parties that possible further entry and possible further contact with the son was not excluded by the current decision.
10.	Mr Berry has stressed the long-term approach which, he submits, a court should take and the possibilities of contact are not excluded by the current lack of means of Mr Stones.  I have regard to that point, but it does appear to me that the immigration judge in his findings of fact -- and of course those findings are for the Tribunal to make and not for this court to make -- has kept that point in mind.  
11.	Reference is properly made in the written submissions of Mr Berry to the decision of this court in Singh v ECO (New Delhi) [2004] EWCA Civ 1075.  Dyson LJ, referring to a decision of the European Court of Human Rights, stated at paragraph 20:
“The existence or non-existence of ‘family life’ for the purposes of article 8 is essentially a question of fact depending upon the real existence in practice of close personal ties.”

12.	Dyson LJ goes on to consider the future potential for family life and at paragraph 38 Dyson LJ stated:
“The European Court [of Human Rights] has recognised that ‘potential’ family life may be relevant in determining whether family life exists for the purposes of article 8 only in the context of a child and his natural father… But as we have seen… the decision in Pini v Romania … shows that the potential for development of family life is relevant in determining whether family life already exists...”

However, in the same paragraph, Dyson LJ commented on the principle:
“I acknowledge, however, that unless some degree of family life is already established, the claim to family life will fail and will not be saved by the fact that at some time in the future it could flower into a full-blown family life, or that the applicants have a genuine wish to bring this about.”

13.	It appears to me that the immigration judge adopted the correct approach to the law.  On the evidence the judge was entitled to find that Article 8 was not engaged in this case.  The judge had in mind, it seems to me, the future prospects and carefully noted Mr Stones’ evidence about plans for the future in reaching that decision.  He did not breach the principle stated in Singh, by reference to the jurisprudence of the European Court of Human Rights.  The judge was also entitled to find, as a fall back position, that even if family life was present so as to engage Article 8(1), then on the facts of this case, applying the proportionality test, the decision of the Secretary of State, upheld by the Tribunal, cannot be quashed.  
14.	This is a renewed application.  Leave was refused by the Tribunal itself and it was refused on a consideration of the papers by a single Lord Justice.  I have considered the material and the helpful submissions of Mr Berry, but I am quite unable to hold that there is a real prospect that upon further consideration this court would offer relief to the applicant or quash the decision of the Tribunal.   For those reasons this application must be refused.

Order: Application refused