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Foster families and human rights

In an important judgment, the Court of Appeal has confirmed the general application of Article 8...

In an important judgment, the Court of Appeal has confirmed the general application of Article 8 of the European Convention (right to family life) in the context of foster care.

In very simple terms, the Upper Tribunal (Immigration and Asylum Chamber) had concluded that the appellant, a Bangladeshi national who had left his birth parents at the age of six and had been placed with foster carers in the UK from age 13, was refused further leave to remain after his eighteenth birthday. It held that he had not established that his relationship with his foster family constituted family life for the purposes of Article 8. Seemingly, and somewhat surprisingly, central to the Upper Tribunal’s reasoning was the commercial element of foster care and an analysis that focused on the concept of financial dependency.

The Court of Appeal unanimously allowed the appeal and remitted the case to be decided by a new constitution of the First-tier Tribunal. In doing so, the court affirmed the following legal principles:

  • The test for the establishment of Article 8 family life is one of effective, real or committed support (per Kugathas v Secretary of State for the Home Department [2003] EWCA Civ 31). There is no requirement to prove exceptional dependency.
  • The test for family life within the foster care context is no different to that of birth families: the court or tribunal looks to the substance of the relationship and no significant determinative weight is to be given to the formal commerciality of a foster arrangement. It is simply a factual question to be considered, if relevant, alongside all others.
  • The continued existence of family life after the attainment of majority is also a relevant question of fact. No negative inference should be drawn from the mere fact of the attainment of majority, while continuing cohabitation after adulthood will be suggestive of ongoing real, effective or committed support which is the hallmark of a family life. The tribunal’s task is to assess whether the family life that existed in the run up to a child’s attainment of majority continues to exist afterwards i.e. based upon the factual findings: what is the substance of the relationship?

The Court of Appeal based its judgment on established principles relating to Article 8 and family life in the context of foster care. However, it is a useful reminder of the manner in which the question of family life needs to be addressed.

It also confirms the potential reach of Article 8 in appropriate circumstances. This is something we have seen recently in a different context. In Husson v Secretary of State for the Home Department [2020] EWCA 329 the Court of Appeal confirmed that Article 8 was potentially engaged where an individual was wholly or substantially deprived of the ability to work (in this case as a result of a delay in the defendant providing the claimant with a residence permit).

If this case raises any issues or you would like to discuss further please liaise with Peter Wake, Partner at peter.wake@weightman.com.

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