Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber)

Abisoye (entry clearance appeal – Tier 2) [2012] UKUT 82 (IAC)

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On 22 November 2011

…………………………………

Before

UPPER TRIBUNAL JUDGE KOPIECZEK

Between

dr adeoye emmanuel abisoye
mrs tolulope abisoye
ashley abisye abisoye

Appellants
and

ENTRY CLEARANCE OFFICER, PORT LOUIS

Respondent

Representation:

For the Appellants: Ms O Ogundipe, Solicitor
For the Respondent: Mr N Bramble, Home Office Presenting Officer

The effect of section 88A of the Nationality, Immigration and Asylum Act 2002 and the Immigration, Asylum and Nationality Act 2006 (Commencement No.8 and Transitional and Saving Provisions) Order 2008 is that a person refused entry clearance as a Tier 2 Migrant has a right of appeal limited to race discrimination and human rights grounds only.

DETERMINATION AND REASONS

1. The appellants are citizens of Nigeria and were born on 27 August 1975, 1 February 1976 and 28 December 2003, respectively. The first and second appellants are the parents of the third appellant who was aged 6 years at the date of decision.

2. The first appellant applied for entry clearance as a Tier 2 Migrant in order to take up a post as a clinical fellow in emergency medicine working for the Winchester and Eastleigh NHS Trust. The second and third appellants applied as his dependants. The applications were refused in decisions dated 27 August 2010, in respect of the first appellant with reference to paragraph 245ZD(a) and paragraphs 320(7A) and (7B) of the Immigration Rules. The appeal of the second appellant was refused with reference to paragraph 319C(b) and in relation to the third appellant under paragraph 297(i)(b), although arguably, the third appellant should have been refused with reference to paragraph 319H(b). For the purposes of the appeal however, nothing turns on this.

3. The Entry Clearance Officer was satisfied that the first appellant was entitled to the points claimed. However, the notice of decision states that the appellant entered the UK on visit visas on 9 March 2005 and on 15 October 2005, ostensibly to visit his uncle. It is apparent that he undertook the Plab (Professional and Linguistic Assessments Board) exams and took up a clinical attachment programme during his visit. He attempted to enter the UK in 2006, again on a visit visa, shortly after having been refused a student visa and just before the course for which he was refused a student visa was due to start, in January 2007. A search of his baggage revealed that he had paid fees towards the course and that he held references from his employer who had approved two years study leave for him from September 2006. There was also, apparently, a letter from Oxford Brookes University stating that the start date of his course had been postponed to January 2007. It seems that he stated at interview that he still wished to study in the UK and would appeal against the student refusal whilst in the UK. He had apparently stated to the Immigration Officer that he was coming for a holiday but his true intention was to study and he had documents suggesting that that was the purpose of his visit to the UK. The notice of decision goes on to state that he attempted to deceive the Immigration Officer and breached the conditions attached to his visit visa, following which his visa was cancelled. Furthermore, in respect of this present application, at question 6.3 of the application form he did not state that he had been refused a Tier 2 General visa in Pretoria in July 2009 or, at question 6.6, that he had been in breach of the immigration conditions on his previous visits. These were the bases for the refusal in this present application under paragraphs 320(7A) and (7B), as well as the general grounds for refusal under paragraph 245ZD(a).

4. The notice of decision in respect of the first appellant states that: “Your application does not attract a full right of appeal under section 82(1) of the Nationality, Immigration and Asylum Act 2002. Your right of appeal is limited to any or all of the grounds referred to in section 84(1)(b) and (c) of the Nationality, Immigration and Asylum Act 2002”. Those grounds are in respect of the Race Relations Act 1976 and section 6 of the Human Rights Act 1998.

5. The appeal came before Immigration Judge Miles on 8 June 2011. At paragraph 8 of the determination he concluded that the first appellant’s right of appeal was indeed limited to race discrimination and human rights grounds. In respect of the decision relating to the first appellant, he said at paragraph 9 that:

“Although the respondent’s representative did not pursue the alleged conduct of the appellant in March and October 2005, there is evidence, albeit circumstantial, which was produced to me to support the respondent’s assertion that when the appellant purported to enter the country in December 2006 as a visitor he was, in fact, intending to study. Furthermore, it is accepted that in the application form in relation to this application the appellant did not disclose the refusal of a previous application made in Pretoria in July 2009, although he submits that the respondent was aware of that matter by virtue of the production of his passport.”

6. The judge goes on to state that because the appellant's appeal is limited it is not necessary for him to determine those issues one way or the other but says as follows at paragraph 9:

“However, I make these observations to clarify that the respondent’s concerns in this regard are supported by evidence and are therefore neither mere suspicions nor fanciful allegations.”

7. Permission to appeal was granted on the basis that it was arguable that there was an error of law in the Immigration Judge’s decision in his finding that the first appellant only had a limited right of appeal. The grant of permission goes on to refer to the Immigration Judge’s consideration of paragraph 320(7A) and (7B) in terms of the evidence that was before him on those issues.

8. At the hearing before me, Ms Ogundipe, who also appeared before the First-tier Tribunal, contended that the first appellant’s right of appeal was not limited in the way described. Her submissions on that issue were as follows: that it was in the interests of justice for a full right of appeal to be permitted otherwise there was no way for the appellants to challenge the decision; that the legislative provisions are unclear; that in granting permission to appeal the First-tier Tribunal Judge had concluded that the right of appeal was not limited; that directions were given by the First-tier Tribunal prior to the proceedings before the First-tier Tribunal in terms of requiring the respondent to produce evidence in support of the allegations under paragraphs 320(7A) and (7B) which again suggested that previous judges had concluded that the right of appeal was not limited. I did not find those submissions persuasive and Ms Ogundipe did not identify how it was suggested that the relevant legislative provisions are unclear.

9. Section 82(2) of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”) includes, at (b), amongst the list of immigration decisions, a refusal of entry clearance. Section 84 of the same Act sets out the grounds of appeal. Section 88A reads as follows:

“88A Entry clearance

(1) A person may not appeal under section 82(1) against refusal of an application for entry clearance unless the application was made for the purpose of—
(a) visiting a person of a class or description prescribed by regulations for the purpose of this subsection, or
(b) entering as the dependant of a person in circumstances prescribed by regulations for the purpose of this subsection.

(2) Regulations under subsection (1) may, in particular—
(a) make provision by reference to whether the applicant is a member of the family (within such meaning as the regulations may assign) of the person he seeks to visit;
(b) provide for the determination of whether one person is dependent on another;
(c) make provision by reference to the circumstances of the applicant, of the person whom the applicant seeks to visit or on whom he depends, or of both (and the regulations may, in particular, include provision by reference to—

(i) whether or not a person is lawfully settled in the United Kingdom within such meaning as the regulations may assign;
(ii) the duration of two individuals' residence together);

(d) make provision by reference to an applicant's purpose in entering as a dependant;
(e) make provision by reference to immigration rules;
(f) confer a discretion.

(3) Subsection (1)—

(a) does not prevent the bringing of an appeal on either or both of the grounds referred to in section 84(1)(b) and (c), and
(b) is without prejudice to the effect of section 88 in relation to an appeal under section 82(1) against refusal of entry clearance.”

10. Section 88A is an amendment to the 2002 Act introduced by the Immigration, Asylum and Nationality Act 2006, section 4(1). It was brought into force by the Immigration, Asylum and Nationality Act 2006 (Commencement No.8 and Transitional and Saving Provisions) Order 2008 (‘the Commencement Order’) by virtue of article 3 of that Order. This states that section 4 (entry clearance) of the 2006 Act shall come into force on 1 April 2008. Article 4 of the Order states as follows:

“Saving and Transitional Provision

4. Notwithstanding the commencement of section 4 of the 2006 Act and the substitution of section 88A of the 2002 Act and section 23 of the 1999 Act, section 4(1) (appeals: entry clearance) and section 4(2) of the 2006 Act (monitoring refusals of entry clearance) shall have effect only so far as they relate to applications of a kind identified in immigration rules as requiring to be considered under a “Points Based System”.”

11. Thus, the limitation under section 88A of the 2002 Act on entry clearance appeals is confined to applications under the Points-Based System.

12. However, as can be seen above, section 88A(3) of the 2002 Act provides that grounds of appeal in terms of race discrimination and human rights are available. Put simply, a person who has made a points-based application for entry clearance whose application has been refused only has a limited right of appeal, that limited right of appeal being on race discrimination or human rights grounds. That, it seems to me, is precisely the situation which prevails in respect of the appellants here.

13. It follows from that, notwithstanding what is said in the detailed manuscript grounds of application for permission to appeal or in the appellant’s skeleton argument submitted for the hearing before the Upper Tribunal, that the first appellant’s arguments in terms of why this present application should not have been refused under the general grounds for refusal are irrelevant to any exercisable right of appeal. The appellants do not have a right of appeal in respect of the Immigration Rules. That is so, notwithstanding that part of the basis of the refusal was with reference to paragraphs 320(7A) and (7B). Those grounds for refusal are brought into play by paragraph 245ZD(a) which provides that an applicant for entry clearance as a Tier 2 Migrant “must not fall for refusal under the general grounds for refusal”. The first appellant’s application is undoubtedly caught by article 4 of the Commencement Order, being an application “of a kind identified in immigration rules as requiring to be considered under a ‘Points Based System’.”

14. Although Ms Ogundipe sought to persuade me that it would be unfair for the first appellant to be deprived of a general right of appeal under the Immigration Rules, he is in my view only entitled to the Administrative Review, which, it appears, is contained in Home Office guidance only. The Administrative Review is the forum for the first appellant to raise the issues argued in respect of paragraphs 320(7A) and (7B). In this respect however, there appears to be a 28 day time limit for making such an application.

15. So far as race discrimination is relied on as a ground of appeal under section 84(1)(b) of the 2002 Act, the Immigration Judge found that there was no evidence to indicate that there was race discrimination. It was not contended that there was any error of law in the Immigration Judge’s decision in this respect.

16. So far as human rights are concerned, this is limited to private life under Article 8 of the ECHR. However, although it appears that the first appellant is a doctor and has been offered employment in the UK by the Winchester and Eastleigh NHS Trust, the Immigration Judge gives sustainable reasons for concluding that Article 8 is not engaged. The skeleton argument before me contends that the refusal of the application by the Entry Clearance Officer has caused the first appellant “misery and untold hardship”. It states that he is unable to find employment in Nigeria that would provide him with the desired level of “exposure” in terms of his career. At the date of the decision, it appears that all the appellants were in the Seychelles. In any case, in my view there is simply no basis from which the Immigration Judge could have concluded that the respondent’s decision amounts to a breach of the appellant’s human rights under Article 8 in terms of his private life. The first appellant may not have the same opportunities in Nigeria or in the Seychelles to develop his career, but that is a far cry from the conclusion that refusing entry clearance interferes with, or shows a lack of respect for, his private life.

17. The skeleton argument before me also maintains an argument that was put before the Immigration Judge in terms of the decision amounting to a breach of the first appellant’s human rights with reference to Article 3 of the ECHR. That is plainly an unsustainable argument and was inevitably rejected by the Immigration Judge.

18. Similarly, it has been suggested that because the appellant’s daughter is an Irish citizen, the appellant is able to rely on her EEA rights. The decision of Ruiz Zambrano (European citizenship) [2011] EUECJ Case C-34/09 is relied on. However, the Immigration Judge at paragraph 16 states that there are serious doubts about whether the appellant’s daughter is in fact a national of Eire in the light of “contradictions” in the documentary evidence. Although he does not identify what those contradictions are, there is no challenge to his finding in that regard. In any event, he, correctly in my view, points out that the limitation on the right of appeal to race discrimination and human rights grounds excludes consideration of rights under the Community Treaties which is itself a distinct right of appeal under the 2002 Act (section 84(1)(d)). Further, the appellant’s daughter is not in the UK. The application is by the first appellant for entry clearance as a Tier 2 Migrant and in respect of the second and third appellants as his dependants. This is not an application in any sense in connection with the exercise of Treaty rights. The decision in Zambrano has no application.

19. In conclusion therefore, I am satisfied that the first appellant’s right of appeal was limited in the way described, to race discrimination and human rights grounds. There is no error of law in the First-tier judge’s decision in that regard or in relation to his conclusions as to the merits of the appeal on those grounds.

20. Although the second and third appellants’ applications, and consequent appeals, are not caught by paragraphs 320(7A) and (7B), their appeals must necessarily fail under paragraphs 319C and 319H, they being dependent on the first appellant’s application with no distinct human rights or race discrimination issues arising for consideration in their cases.

Decision

The decision of the First-tier Tribunal does not involve the making of an error on a point of law. The decision to dismiss the appeals stands.

Signed Date

Upper Tribunal Judge Kopieczek
Immigration and Asylum Chamber