On 27 November 2025 the Court of Appeal handed down its judgment in IA v SHHD [2025] EWCA Civ 1516 clarifying the correct test to be used when determining whether there is ‘family life’ in immigration cases. The Court of Appeal followed the consistent line of case law from the European Court of Human Rights in stating that in cases not concerning the core family, family life will only be established where there are additional elements of dependence, involving more than the normal emotional ties. This is well-established doctrine. The judgment is, however, significant as the earlier tribunal decisions in IA have played a critical role in influencing policy making in respect of immigration and human rights law. First, the tribunal decisions in IA were cited as indicative of the problems with Article 8 ECHR in legal advice that was published by the Conservative Party in relation to withdrawing from the European Convention on Human Rights (the Wolfson Report). Second, it appears that the tribunal decisions in IA have shaped the Government’s proposal to legislate on the definition to be applied to family life (Restoring Order and Control: A statement on the government’s asylum and returns policy). Given these developments it is essential that we examine what the Court of Appeal has determined and what this might mean for reform proposals.

The Background and Facts in IA

IA concerned a family from Gaza that was seeking reunification with a family member in the UK. The family consisted of a father, mother and their four children (who were aged 18, 17, 8 and 7). They applied to enter to join the younger brother of the father (their sponsor) who had been living and working in the UK since 2007 and is now a British citizen. They were not eligible to apply for entry under the Immigration Rules and thus they sought leave for entry outside the rules. Their application was rejected by the Home Office.

In considering whether the decision to reject the application was compatible with Article 8 ECHR, the First Tier Tribunal (FTT) held that although there was family life, such that Article 8 ECHR was applicable, the right could not outweigh the weight to be attached to the public interest. The FTT’s decision was later overturned by the Upper Tribunal (UT) on the basis that there were flaws in the way in which the FTT had assessed the significance to be accorded to family life when carrying out the balancing exercise. The UT thus remade the decision and allowed the applicants’ appeal on Article 8 ECHR grounds.

It was the UT’s decision which then became the basis of  a dispute in Parliament between Kemi Badenoch and the Prime Minister, during which the Prime Minister stated:

Let me be clear: I do not agree with the decision. The Leader of the Opposition is right that it is the wrong decision. She has not quite done her homework, however, because the decision in question was taken under the last Government, according to their legal framework. However, let me be clear: it should be Parliament that makes the rules on immigration; it should be the Government who make the policy. That is the principle. The Home Secretary is already looking at the legal loophole that we need to close in this particular case.

This led to a rebuke from the Head of the Judiciary of England and Wales, Lady Chief Justice Baroness Carr, who commented that she was ‘deeply troubled’ by the exchange between Kemi Badenoch and Keir Starmer as ‘both the question and the answer were unacceptable’. She went on to state that:

It is for government to visibly respect and protect the independence of the judiciary. Where parties, including the government, disagree with the judgment they should do so through the appellate process. Of course, MPs, just like the governing body, have a duty to respect the rule of law. I have taken this up as you would imagine and expect. I have written to the prime minister and lord chancellor.

In May 2025 the Court of Appeal granted permission to appeal to enable the Court to consider whether family life could extend beyond the core family.

While the appeal was pending, IA was cited in the Conservative Party’s Wolfson Report as part of the rationale for withdrawing from the European Convention on Human Rights. The Wolfson report stated (at [45]) that:

courts have given an extremely broad interpretation to the scope of the concept of “family life” to include relationships between siblings (including adult siblings); aunts or uncles and nephews or nieces; and grandparents and grandchildren.

It then cited IA in relation to its determination (at [45]) that:

The problematic effect of this in practice is that it provides first-tier judges with a broad margin within which “family life” can be found to exist, and a similarly broad margin of discretion for finding whether there has been an interference with such right and whether that interference can be justified (particularly given that the treatment of family members outside the UK can be taken into consideration when establishing whether there has been interference with the right to family life).

Following which it appears that IA, and the discourse surrounding it, fed into the Government’s proposal in November 2025 to set out in primary legislation the meaning of ‘family life’ for the purposes of Article 8 ECHR. This is the political backdrop to the Court of Appeal judgment.

The Court of Appeal’s Judgment

Before the Court of Appeal, the SSHD argued, amongst other things, that there was no family life for the purposes of Article 8 ECHR and that, even if the Convention right applied, the UT had erred in conducting the proportionality analysis. The SSHD succeeded on both those grounds. The Court of Appeal held that the proper test had not been applied by the tribunals and that applying the correct test there was no family life for the purposes of Article 8 ECHR. Though this would have been sufficient to allow the appeal, the Court of Appeal also agreed that even if there had been family life that the UT had made several errors in undertaking the balancing exercise. Essentially, too much weight had been given to the family’s interests, while insufficient weight had been accorded to the Government’s immigration policies. The Court of Appeal thus concluded that the UT should not have determined that the balance was struck in favour of entry.

Given the Government is proposing to introduce legislation on the definition of family life it is necessary to examine what the Court of Appeal said about the test for family life and how this aligns with the policy proposals.

Prior to clarifying the test for family life, the Court of Appeal conducted a thorough review of both the ECHR authorities and the domestic authorities. It concluded (at [60]) that:

the consistent jurisprudence of the ECtHR from S v UK [a 1984 Commission case] onwards has been that family life, within the autonomous meaning of article 8(1), is only to be found between adult siblings where “additional elements of dependence involving more than the normal emotional ties” are demonstrated.

The Court of Appeal was thus clear that the ECHR case law is not ambiguous on this point. In respect of the domestic case law, the Court of Appeal noted that while there may have been some twists and turns ‘the domestic courts have been consistently attempting to follow that ECtHR jurisprudence’ (at [61]). Consequently, ‘[e]ven if some of the domestic decisions may have provided divergent interpretations of the additional elements of the dependency test, none has suggested that they wanted to depart from the ECtHR jurisprudence’ (at [117]). The Court of Appeal therefore held that the correct test is that set out by the ECtHR in Kumari and the House of Lords in Beoku-Betts (at [116]), namely that in cases not concerning the core family, family life will only be established where there are ‘additional elements of dependence, involving more than the normal emotional ties’ ([at 119]). The Court of Appeal also confirmed that this is a fact-sensitive exercise (at [119]), that ‘financial dependency and dependency created by physical or mental disability both play a part in the evaluation’ but that it is not necessary to demonstrate ‘exclusive or complete dependency’ (at [120]). Applying this to the facts, the Court found that although there were close emotional ties that additional elements of dependency had not been demonstrated in this case.

How then does the dependency test identified and used by the Court of Appeal in IA compare with the Government plans for reform? The Government’s policy document states that family life ‘should not normally go beyond immediate family members; unless, for example, other family members are acting in a parental capacity or there is a different, exceptionally close link’. As I observed in an earlier blog post some confusion arises from the fact that when the Home Secretary announced the policy in Parliament she stated that the Government will define ‘what, exactly, a family is – narrowing it down to parents and their children’, an approach which is narrower than that stated in the policy document. We can therefore identify three ways in which the Government might seek to legislate in respect of the definition of family life: (i) an additional elements of dependence test (i.e. following the wording of the case law) ; (ii) an exceptionally close link test (i.e. following the wording of the policy document) and (iii) a parents and children only test (i.e. following the statement of the Home Secretary).

(i) Additional Elements of Dependence Model

The first option is that the ‘additional elements of dependence’ test, as confirmed by the Court of Appeal in IA, will be placed on a legislative footing. If future legislation simply replicates this test, then this would be no substantive change at all. It is, however, possible that any legislation might also purport to specify the criteria that the courts should apply in determining whether that dependency threshold is met. Those criteria might reflect those that have been identified in case law i.e. factors such as physical or mental dependency or financial dependency (as acknowledged by the Court of Appeal in IA). However, as the Court of Appeal observed in IA the dependency test is a fact-sensitive exercise, and the examples are non-exhaustive. Consequently, to remain compatible with Article 8 ECHR any legislation would need to both encompass what is in the existing case law while also not limiting the interpretation of dependency to those circumstances. In this regard it is worth observing that the Court of Appeal opined that ‘[i]n our judgment it is undesirable to lay down hard and fast rules as to how the additional elements of dependency test should be applied’ (at [125]).

(ii) Exceptionally Close Link Model

A second possibility is that legislation may replicate the language from the Government’s policy document i.e. introducing the concept of an ‘exceptionally close link’. As I have indicated previously, this could encompass a broader category of persons than those who currently fall within the dependency test and certainly introducing a new concept is likely to result in further ambiguity. This is evident if we consider the approaches to family life that were examined in IA. In IA the applicants argued that the ‘additional elements of dependency’ test is the ‘other side of the coin’ of a ‘real, committed or effective support’ test. The reference to ‘real, committed or effective support’ derives from dictum of Sedley LJ in Kugathas v SSHD [2003] EWCA Civ 31 at [17], which had been used by the FTT in IA as a means of determining whether there was family life. The applicants thus argued that where there is ‘real, committed or effective support’, which the FTT had found that there was on these facts, that the dependency test is satisfied and Article 8 ECHR is applicable. This was rejected by the Court of Appeal on the basis that it is possible for there to be ‘real support’ without there being any ‘serious dependency’ (at [122]). Consequently, it observed that while:

it would be going too far to say that it is wrong to test whether there are additional elements of dependency by reference to real, committed or effective support provided’ the fact of ‘real, committed and effective support is not the test itself, because the level of real support, for example, may be minor or insignificant, whereas the word “dependency” denotes a significant relationship. This is not a semantic point. (at [123] emphasis in original)

Indeed, the fact that this was not a semantic point was borne out by IA itself as the Court of Appeal found that the FTT had applied the ‘real committed and effective support test’ and that this was a ‘less exacting standard’ (at [128]). It went on to observe:

The FTT had said expressly that the support test was a lower one than the dependence test and that there was no need to establish dependency. As we have explained, dependency is different from support. Establishing real, committed or effective support by itself may or may not be sufficient to establish additional elements of dependency for the existence of family life between adult siblings. (at [128]).

If we consider the Government’s approach in light of this then it appears that while an ‘exceptionally close link’ can be interpreted as requiring ‘additional elements of dependency’, it can also be read as encompassing cases where there is ‘real, committed and effective support’. Bringing forth legislation based on the concept of an ‘exceptionally close link’ may thus run the risk of reintroducing the very approach that was rejected by the Court of Appeal in IA. This is clearly not what the Government intends. Yet the adoption of different language in legislation from that which is currently used in the case law inevitably raises the spectre of further ambiguity, and consequently litigation, in respect of the meaning of family life. Again, this is clearly contrary to what the Government intends.

(iii) Parents and Children Only Model

As I have observed previously, a final possibility is that the legislation might reflect the approach stated by the Home Secretary ie. purporting to narrow ‘family life’ to ‘parents and their children’. If this approach is adopted, then the legislative provision would be incompatible with the Convention unless it is framed in a manner which enables the courts to read it compatibly using section 3 of the Human Rights Act 1998. Introducing legislation that needs to be read compatibly using section 3 in order to ultimately arrive at a position that is already established in the case law is clearly convoluted and undesirable.

It will therefore be interesting to see what happens to the Government’s proposal in the light of the Court of Appeal’s judgment in IA. One possibility is that this aspect of the reform proposal will quietly fall away. If, however, legislation is brought forward then it will be necessary to examine whether it simply reflects the current law or whether there will be an attempt to redefine family life, a prospect that currently appears to be neither necessary nor desirable.

Dr Kirsty Hughes, University of Cambridge

(Suggested citation: K. Hughes, ‘The Implications of the Court of Appeal’s Judgment on ‘Family Life’ for the Government’s Immigration Proposals’, U.K. Const. L. Blog (10th December 2025) (available at https://ukconstitutionallaw.org/))