New Human Rights (article 
case : The extent of the emotional dependency for the purposes of Article 8
Mamaniat, R (on the application of) v Secretary of State for the Home Department [2011] EWHC 157 (Admin) (24 January 2011)
This case concerns a judicial review application before the Administrative Court from the claimant, a Malawi national against the Secretary of State's decision finding his claim that removal would breach his article 8 rights as clearly unfounded. The effect of certifying his claim meant that the claimant had no in country right of appeal. Therefore, he pursued a judicial review action.
The Court referred to the cases of ZT (Kosovo) and R (Princely) where the legal approaches to be taken was defined.
Where a case is certified as clearly unfounded, this is because it is deemed to lack in substance and does not have any realistic prospect of success. As the threshold is quite high, a decision maker must give it anxious scrutiny.
The claimant's immigration history
In this case, the claimant resided with his family in Malawi. His mother passed away when he was only five years of age and his father passed away thereafter when he was aged 14, of a terminal illness. The claimant was cared for by his paternal grandmother. She is a British Citizen and came to reside in the UK in 2006. The claimant arrived in the UK in 2005, before his grandmother.
The claimant was invited to the UK by his aunt, a British citizen, to live with her. He was a minor when he arrived (at the age of 17) and his passport was endorsed with 6 months leave to remain (as a visitor). The claimant is now 22 years of age.
The claimant subsequently overstayed on his visa, remaining in the UK unlawfully. He lived with family members for a few years before moving in with a friend. He did not work or claim benefits and was supported by family members. The claimant, at the time of this hearing, had returned to his aunt's home and was living with her. He did not have any formal education and was slow of leaning. The claimant was said to be suffering from depression and has suicidal thoughts when thinking of the memory of his father.
Courts conclusion
The case law stipulates that for the purposes of article 8, there must be ties beyond normal ties and financial and emotional dependency amongst other factors could be determinative of this. The Home Office representative argued that the fact that the claimant's only living relatives were based in the UK was not sufficient under article 8 to grant him leave to remain here on that basis. They also argued that it was not sufficient that his sole carer when he was a child was also present in the UK and that he needed to show more than that to establish his case under article 8.
The court applied the article 8 tests in the case of R (Huang) when considering the claimants article 8 rights.
The court accepted that the claimant had an existing family life in the UK. The issue was whether his removal would amount to a disproportionate interference with his article 8 rights under the ECHR. The Immigration Judge commented that the evidence in respect of his depression was lacking (as there was no medical evidence to confirm his condition). However, there was no reason for his family members to lie about his condition. The court has some evidence of dependency before it which needed to be considered by a Tribunal.
Ultimately, the Judge was unable to reasonably conclude whether the claimant would have a reasonable chance of persuading a Tribunal as to whether there would be a disproportionate interference with his article 8 rights is removed from the UK. The case was said to be borderline.
However, the Judge quashed the order in order to allow the claimant the opportunity to bring his case before a Tribunal where his article 8 rights would be further explored.
For further updates please visit our facebook page at http://www.facebook.com/pages/Ergen-Sharif-Immigration-Specialists/302543360318
