In Onwuje v The Secretary of State for the Home Department [2018] EWCA Civ 331 (01 March 2018) the Court of Appeal considered the human rights appeal of a Tier 1 Entrepreneur and his family.
One of the issues which arose was how the Appellant's involvement with his business related to his Article 8 private life. Whilst the appeal ultimately was dismissed on proportionality grounds, the following observations of Underhill LJ will be useful to practitioners:
25. As regards private life, the position has arguably been unnecessarily complicated by the emphasis placed by the FTT on the Appellant's involvement with his business. Mr Mustafa made it clear that the Appellant had always relied also on conventional private life grounds. In his witness statement in the FTT he gave evidence, albeit in fairly general terms, about the friendships and social life that he and his wife and children had developed in their local community and how fully integrated they were, particularly through church and school. It is fair to say that those general statements were not supported by very much in the way of independent evidence: the letters from the Appellant's church and his daughter's school are perfunctory. Nevertheless, the general proposition is entirely plausible. I would therefore be prepared to hold that the FTT was entitled to find that the right to respect for the private lives of the Appellant and his wife and children was engaged by their liability to removal, even without any reference to his business.
26. Having said that, I have no difficulty with the proposition that in some circumstances an entrepreneur's ownership of, and involvement in, his or her business may also be regarded as an aspect of their private life for the purpose of article 8. In a well-known passage of its judgment in Niemietz v Germany (1993) 16 EHRR 97, the ECHR said, at para. 29:
"The Court does not consider it possible or necessary to attempt an exhaustive definition of the notion of 'private life'. However, it would be too restrictive to limit the notion to an 'inner circle' in which the individual may live his own personal life as he chooses and to exclude therefrom entirely the outside world not encompassed within that circle. Respect for private life must also comprise to a certain degree the right to establish and develop relationships with other human beings. There appears, furthermore, to be no reason of principle why this understanding of the notion of 'private life' should be taken to exclude activities of a professional or business nature since it is, after all, in the course of their working lives that the majority of people have a significant, if not the greatest, opportunity of developing relationships with the outside world."
There are certainly cases where the work that a person does can properly be described as integral to their "physical and social identity" (to use the language of the ECHR in Pretty v United Kingdom (2002) 35 EHRR 1, at para. 61); and a case where an individual has established a business in which he or she remains actively involved may well come into this category. As regards this particular case, the Appellant's witness statement does not explicitly rely on the business as an aspect of his identity. Rather, it focuses on its importance to the local economy and to its clients, neither of which has anything to do with article 8; and that is likewise the focus of the FTT's reasoning. Since I would in any event find that article 8 was engaged on the more conventional basis discussed above, it is unnecessary to decide definitively whether on the basis of that evidence the Judge was entitled, to the extent that he did, to take the Appellant's involvement in Casgo into account when addressing the first two Razgar questions; but I am inclined to think that, despite its deficiencies, he was.