ASYLUM AND IMMIGRATION TRIBUNAL

NM (“leading an independent life”) Zimbabwe [2007] UKAIT 00051

THE IMMIGRATION ACTS

Heard at: Field House 				          Date of Hearing:  13 March 2007

Before

Mr C M G Ockelton, Deputy President of the Asylum and Immigration Tribunal
Senior Immigration Judge Grubb

Between

NM
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant:	Ms S Naik instructed by Dexter Montague and Partners, Solicitors
For the Respondent: 	Mr P Tranter, Home Office Presenting Officer

Where a child (who may be over 18) is seeking limited leave to remain as the child of a parent with limited leave, in order to establish that he is not “leading an independent life” he must not have formed through choice a separate (and therefore independent) social unit from his parents’ family unit whether alone or with others.  A child who, for example, chooses to live away from home may be “leading an independent life” despite some continuing financial and/or emotional dependence upon his parents. 

DETERMINATION AND REASONS

1.	The appellant is a citizen of Zimbabwe who was born on 4 February 1984.   On 12 April 2006, the respondent refused to vary her leave to enter as the child of a person with limited leave to enter or remain in the UK.    Her appeal against that decision was dismissed by Immigration Judge Scobbie in a determination promulgated on 13 June 2006.  On 28 June 2006 Senior Immigration Judge Waumsley made an order for reconsideration of her appeal.  Thus, the matter comes before us.

The facts
2.	The relevant facts of this appeal can be stated shortly.  Until January 1999, the appellant lived in Zimbabwe with her parents, her older brother and her younger sister.  In that year, the family emigrated to the USA because of the difficulties created for the family by the situation in Zimbabwe.  In January 2002, the appellant’s father obtained a visa on the basis of his UK ancestry and together with the other members of the family, the appellant obtained entry clearance to come to the UK with her parents.  At that time, she was 17 years old.  The appellant came to the UK on 31 January 2002, ahead of her parents who remained behind whilst her younger sister completed her academic year in the USA, and she was granted leave until 14 January 2006.  In March 2002, the appellant’s brother came to the UK and on 26 June 2002 the appellant’s parents and sister came to the UK.   Her father was initially given leave until 14 January 2005 and that was subsequently extended until 26 June 2006.  We were told that the appellant’s father still has limited leave to remain on the basis of his UK ancestry and will, in due course, apply for indefinite leave to remain under the Immigration Rules.  The appellant’s current application is for an extension in line with the leave of her father.
3.	On her arrival in the UK in January 2002, the appellant went to live with her aunt where she remained (subsequently with her brother from March 2002) until her parents came to the UK in June 2006.  She then moved in with them in a two-bedroomed flat.  Her parents occupied one bedroom and the appellant and her sister the other.  Her brother also lived in the flat with the family and he slept in the lounge.  In September 2005, the appellant’s brother purchased his own property and he moved out of the family home.  The appellant moved in with him because of the lack of space in the family flat and to help him with the mortgage – which she did by defraying some household expenses.  This, she says was only on a temporary basis, until her parents acquired a larger home.  On 5 April 2006, they did just that and the appellant moved in with them again into their newly rented four bedroom house where she occupied her own bedroom.
4.	Since March 2002, the appellant has had a number of jobs, including part-time work in her father’s business and from May 2004 she worked full-time for him.  He is an independent financial advisor and she is training to be a mortgage advisor.  The business is run from the family home.  In a statement dated 16 April 2007, the appellant sets out her present situation.  She has given up her work for the moment in order to concentrate on her full-time studies on a course to qualify as a mortgage advisor.

The immigration judge’s decision
5.	At her appeal, the immigration judge accepted all the primary facts.  It was accepted by the parties that the respondent had wrongly applied paragraph 317 of HC 395 to the appellant.  She was not seeking an extension of leave as a dependent relative of a person present and settled in the UK.  Rather, she was seeking matching limited leave to that of her father under paragraph 197.  It was also accepted that the only issue was whether the appellant satisfied the requirement under para 197(iii), namely that:
“[she] is unmarried and is not a civil partner, has not formed an independent family unit and is not leading an independent life;…”
6.	Clearly the appellant was unmarried and had not formed an independent family unit of her own.  However, in paragraphs 22 to 24 of his determination, the immigration judge concluded that she was “leading an independent life”.    As a result, the immigration judge dismissed the appeal under the immigration rules.  He reached his conclusion in the following way:
“22. There is no question that the Appellant is part of a close family.  However, this is different from the question of whether she is living an independent life.  I concluded that the Appellant was living an independent life.  I regarded it as perfectly possible to do so while still staying with her family.  I will return to this particular point later.  The Appellant has worked in the United Kingdom for a number of years.  She presently works for her father but it is clear from her witness statement that she has worked for other people from as long ago as 2002.  She has worked with Lloyds TSB, Barclays Bank, Comet, London Scottish and R and R Lettings.  It may suit the Appellant to be working for her father but she has demonstrated in the past that she is not dependent on her father for employment.  The Appellant is an adult.   She comes over as extremely intelligent and in my view totally able to look after herself.
23. With regard to the question of where the Appellant lives she did live with her brother outwith the family home for a period from September 2005 to April 2006.  This was a decision she made herself.  She made the decision firstly to help the financial affairs of her brother and secondly to give herself some more space.  She has now returned to the family home.  There has to be a question as to whether or not this was inevitable.  The family now have a larger house where she has a bedroom of her own.  However, I had to be concerned as to whether or not the Appellant would have moved back into the family house if she had not discovered that her application for further leave to remain was in difficulty because of the fact that she was living with her brother.  She says that the plan was that she would not live with her brother indefinitely.  However, be that as it may, she made a decision to move out the family house of her own volition and while she may be living with the family now she is capable of living out with the family house and has done so.
24. In all these circumstances, notwithstanding the fact that the Appellant lives with her parents and works for her father at the present time, there is no doubt that as an intelligent adult her actions have shown her totally capable of living her own life independently.  I did not regard the circumstances of this case as amounting to the Appellant leading a life which was dependent on her family.  Given her past actions, she was living an independent life notwithstanding her current place of abode.”

7.	Before us, Ms Naik, who represented the appellant, submitted that the reasoning in these paragraphs is legally flawed.  In essence, she submitted that he had approached the issue of whether the appellant is “leading an independent life” in the wrong way and reached a conclusion on the facts that could not be sustained.  
8.	First, the immigration judge was wrong to emphasis the issue of whether the appellant was capable of leading an independent life: the issue was whether at the date of hearing she actually was leading an independent life.  Secondly, he was wrong to place emphasis upon the fact that the appellant worked and, at least financially, could support herself.  Employment, Ms Naik reminded us, is permitted for someone with leave under para 197.  It was not inconsistent, therefore, with compliance with the rule.  Thirdly, the immigration judge wrongly placed undue reliance upon his view that the appellant was not dependent upon her parents.  This, Ms Naik, submitted was not the crucial issue.  A child’s emotional and financial dependency upon her parents was relevant but, even if she were not (which was not the case on the facts), its absence did not necessarily mean that the appellant was leading an “independent life”.  Fourthly, the immigration judge placed too much weight upon the fact that the appellant lived with her brother between September 2005 and April 2006.  He was wrong to infer that the appellant moved back into the family home in April 2006 because she knew her application was in difficulty because she was living with her brother.  She moved back to live with her parents, Ms Naik, pointed out, before the adverse decision was made by the respondent.  
9.	On the facts, Ms Naik submitted, the appellant was, and is, part of her parents’ family unit.  She was part of a family which migrated together from Zimbabwe, first to the USA and then to the UK.  She only lived with her brother temporarily and always intended to return once her parents acquired a larger property.  She is dependent upon them for accommodation and for her work and was (until she began full-time study) paid by her father.  On these facts, Ms Naik submitted, the only proper view was that she was “not leading an independent life”.
10.	We have concluded that in paragraphs 22–24 of his determination, the immigration judge did not approach the issue of whether the appellant was “leading an independent life” in the correct way and that he reached a conclusion on the facts that was not open to him.   As a result, he materially erred in law.    He should have concluded that she was not leading an independent life and allowed her appeal under paragraph 197.  We now substitute a decision to that effect.  These are our reasons.
Leading an independent life
11.	What is the correct legal approach to the phrase “leading an independent life” in paragraph 197(iii)?  We were surprised to discover at the hearing that neither the research endeavours of Ms Naik nor those of Mr Tranter had been able to turn up any relevant authorities on its meaning.   That, indeed, does appear to be the position.  The Tribunal is also not aware of any relevant authorities in the field of immigration law although we suspect the phrase may also feature in social security or community care legislation.  However, we were no referred to such provisions and thus we undertake our interpretative task unaided. It seems to us that there are two helpful indications within the Immigration Rules themselves which provide insight into the meaning of the phrase “leading an independent life”.   
12.	First, there is the underlying purpose of para 197 (and other similar rules such as paras 243, 274 and 298) which is to maintain the family unit between parents and their children when the former come to the UK with limited leave to enter or remain.   It allows children to remain part of the family unit in which they lived abroad with their parents (or sole surviving parent or one with sole responsibility).  At least at the point of application (and most likely decision) the child must by virtue of para 197(ii) be under the age of 18.  As such, the rule clearly contemplates the situation where, usually at any rate, the applicant (on entry) is a child who is naturally part of the family unit headed by its parent or parents.  Thus, paragraph 197 is properly seen as a rule providing for the continuation of “family unity”.   The difficulty arises when applying the provision post-entry to a child who is now an adult but to whom the rule can still be applied providing he is unmarried, has not formed an independent family unit and is not leading an independent life.  However, the underlying purpose of the rule is the same - the continuation and maintenance of the “family unit” with the parents.
13.	Second, there is the context of the phrase itself as it appears in para 197(iii).   The child must be “unmarried”, have not formed an independent family unit” or, as are concerned with in this appeal, “not [be] leading an independent life”.  Clearly, these are three distinct possibilities but, in our view, they have a common feature.  A child who has married or formed his own independent family has separated from the family unit of his parents.  He has formed his own social unit with others.  It seems to us that the third possibility also requires the same element of “separation”; the formation of a separate (and therefore independent) social unit from his parents’ whether alone or with others, for example a girlfriend or boyfriend.  The rule does not require that the child must be independent of everyone; just that he must be independent of his parents.  At that point, the underlying purpose of para 197 of maintaining the family unit with the parents is no longer engaged.  Further leave to remain should now be a matter of the child satisfying the Immigration Rules on his own right rather than as a component of the social unit of which he is no longer part.   
14.	Mr Tranter submitted that it was a matter of assessing the nature of the choices made by the child.  To an extent we agree.  It is not enough that the child does make choices about his life, for example to take up employment.  This, like other choices made by the child, may be factors to be taken into account but the crucial issue is always to ask whether the child has, through choice, separated from his parents’ family to form his own social unit, whether alone, by marrying or as part of his own independent social unit.   Consequently, a child who leaves his parents’ home and sets up home alone can properly be said to be “leading an independent life”.   This is not the same as saying he must no longer be dependent upon his parents or is no longer part of their family.  He clearly is the latter even if living alone and “independently” of them.  The family ties remain even if the family unit headed by the parents has now split up.  Likewise, even if living his own independent life he may be financially dependent (at least in part) on his parents, for example they may help him set up his separate home and, perhaps, even help him with his rent or mortgage for a period until he has found his feet financially.  But, in our view such a person may still be seen as “leading an independent life”.  Financial or emotional dependence is not, in this context, the antithesis of “independence”.   Again, these are relevant factors to be taken into account but no more.  
15.	In order to satisfy the requirement in para 197(iii), it will usually be the case that the child makes his home with the parents.  That is likely to be the starting point and expectation for a child who is said to be part of the parents’ family unit.  It is, of course, a separate requirement under paragraph 197(iv) that the child is accommodated in property owned or occupied exclusively by his parents.  Nevertheless, where the child lives is no more than a factor (albeit a potentially significant one) to be taken into account in assessing whether a child is “leading an independent life”.  We can readily foresee situations where the child may live away from that home whilst still remaining part of the parents’ social unit, for example whilst temporarily away studying at college.  On the other hand, although no doubt not frequently, a child may be living independently yet still be resident in its parents’ home but, in effect, be no more than a lodger paying to live there.  
Application to the appeal
16.	There is no doubt that the immigration judge was attempting to apply the relevant phrase in paragraph 197(ii) as best he could in the absence of any further guidance on its meaning.  It is clear to us, however, that he did not reach a sustainable view on the facts.  When applying the correct approach to the issue under para 197(iii), it is plain to us that the immigration judge erred in three principal ways.  
17.	First, the immigration judge placed considerable weight upon the appellant’s employment record and her financial lack of dependence upon her father in reaching his view that she was leading “an independent life” (para 22 of his determination).   Whilst both of these may be relevant factors, for the reasons we have given above, they are not the central issue in determining whether an individual is leading “an independent life” which is whether or not the appellant remains part of her parents’ family unit.  In our view, the immigration judge misdirected himself by placing unwarranted weight upon these factors.
18.	Secondly, the immigration judge placed considerable weight upon the appellant’s capacity to be independent which he considered to be demonstrated by her employment record and the fact that she had been living with her brother between September 2005 and April 2006 (paras 22, 23 and 24 of his determination).  That was the wrong approach.  The relevant issue is not an individual’s capacity to lead an independent life but rather whether she is leading such a life.  If it were otherwise, few adults could meet the requirement in para 197(iii) since, in ordinary circumstances, every adult will have that capacity.  It is only if a person actually separates from his parents’ family unit that he will not satisfy the requirement in para 197(iii).  
19.	Thirdly, the immigration judge drew an improper inference from the fact that the appellant had moved out of the family home between September 2005 and April 2006 (para 23 of his determination).  Her evidence was that it was temporary and due to overcrowding and with a view to helping her brother to pay his mortgage.  She intended to move back as soon as her parents obtained a larger property which they did in April 2006 and she then moved back.  If this account were believed, her temporary absence from her parents’ home would not, in our view, establish that she had been leading an independent life.  The immigration judge did not accept her account.  He inferred that she only moved back because of the damage it was doing her application.  Ms Naik readily accepted at the hearing that the way this was challenged in the grounds for review, based upon the appellant not having at the relevant time received the refusal letter, could not stand.  At the time the appellant moved back into her parents’ home, the appellant had not received the refusal letter from the respondent.  However, she had received a letter from the Home Office dated 10 March 2006 enquiring whom she lived with at the address which is that of her brother (at C3 of the Home Office bundle).  The appellant replied on 16 March 2006 that she lived with her brother at that address and had done so since 15 September 2005 (D2 of the Home Office bundle).   In her application form the appellant gives her current address as her brother’s home.  But, she gives her parents’ home as a return address for any documents to be sent by the Home Office.   In our view, the appellant clearly saw her parents’ home as her base.  We do not consider it to be a sustainable inference that the appellant returned to her parents’ home in order to avoid any damage her absence was doing to her application.   She had always been open about the fact that she was living with her brother both in her application form and in her response in the letter of 16 March 2006.  The immigration judge did not refer to the fact that she identified her parents’ home in her application as the place to which correspondence should be sent.  Had the immigration judge had regard to this, he could not have reached the conclusion that her evidence (which was not otherwise challenged) was not to be believed on the specific issue of why she moved out. 
20.	For these reasons, the immigration judge materially erred in law. 
21.	On the facts, we accept Ms Naik’s submission that the appellant succeeds.  On the basis of the evidence before the immigration judge (and us today) the correct finding is that the appellant is not leading an independent life.  The appellant always has been part of her father’s family unit since the family left Zimbabwe.  The immigration judge acknowledged that the appellant is part of a close family.  They emigrated to the USA and then to the UK together.  She is integrated into the family unit having only left the family home for seven months in 2005-2006.  We accept her evidence that this was only on a temporary basis until her parents obtained suitable accommodation for all the family.   Even then, the appellant’s evidence is that she spent most of her time at the family home.  Once her parents acquired a larger property in April 2006, she moved back to live with them and her sister.  The fact that she has been employed, either by third parties or her father, and thus may be said to be financially self-sufficient does not lead us to conclude that she is leading an independent life.  She is now, of course, not employed but is a full-time student.  In our view, as one might expect of an adult, she is pursuing her own life but it is as part of her parents’ family unit.  She has not yet formed a separate social unit, anymore than she has married or has formed her own independent family unit.  
22.	Thus, we are satisfied on a balance of probabilities that the appellant meets the requirement in para 197(iii).  No other requirement of the rule being in issue, we substitute a decision allowing the appeal under para 197 of HC 395.  We need say no more about the Art 8 ground of challenge which was overlooked by the immigration judge because Ms Naik did not press it before us unless we were against her under para 197.   
Decision 
23.	In the result, we conclude that the Immigration Judge materially erred in law and we substitute a decision allowing the appeal under paragraph 197 of HC 395.

A GRUBB
SENIOR IMMIGRATION JUDGE
							
							Date: