Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/05852/2014
HU/02192/2015

THE IMMIGRATION ACTS

Heard in Birmingham
Decision & Reasons Promulgated
On 21 February 2017
On 9 March 2017

Before

UPPER TRIBUNAL JUDGE SMITH

Between

(1) MRS YAYING HE
(2) MASTER XUELIN CHEN
Appellants
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellants: Mr Pipe, Counsel, instructed by Stephen & Richard, LLP
For the Respondent: Mrs Aboni, Senior Home Office Presenting Officer

Anonymity
Rule 14: The Tribunal Procedure (Upper Tribunal) Rules 2008
No anonymity order was made by the First-tier Tribunal. There is no good reason to make an anonymity direction in this case.

DECISION AND REASONS

Background
1. The First Appellant is the mother of the Second Appellant. She lives in the UK. He remains in China. The Second Appellant seeks entry clearance to join the First Appellant and his father (the First Appellant’s husband) in the United Kingdom. The First Appellant’s husband and Second Appellant’s father, Mr Chen, has indefinite leave to remain (“ILR”) in the UK. He was granted ILR on 22 December 2010, as part of the “legacy” cohort of cases.
2. The First Appellant appeals against the Respondent’s decision dated 22 July 2014 refusing her leave to enter as Mr Chen’s spouse. She appeals that decision on the basis of her family and private life and that it breaches her Article 8 rights.
3. The Second Appellant appeals against the decision of an entry clearance officer (“ECO”) dated 18 June 2015 refusing him entry clearance under paragraph 297 of the Immigration Rules (“the Rules”). He says that Mr Chen has sole parental responsibility for him and that there are compelling reasons which make his exclusion undesirable. He is now aged over eighteen but was at the date of decision aged seventeen. As his appeal post-dates the changes to the appeals provisions brought about by the Immigration Act 2014, the Second Appellant’s appeal is confined to human rights grounds and not whether the decision is in accordance with the Rules (although the question whether he can meet the Rules is relevant to the public interest when considering human rights).
4. The Appellants’ appeals were heard together following a somewhat protracted background in the First Appellant’s appeal which I do not need to mention. Their appeals were dismissed by First-tier Tribunal Judge Chohan in a decision promulgated on 27 October 2016 (“the Decision”).
5. The facts of the Appellants’ cases are not in dispute. They are both nationals of China as is Mr Chen. The First Appellant married Mr Chen in China in 1997. They have four children although all are, it seems, now adults. She entered the UK in 16 December 2004, Mr Chen having arrived previously in 2000 as an asylum seeker. She too sought asylum but her claim was rejected and her appeal dismissed in 2005. She then sought to remain on the basis of the so-called “legacy” programme by making further submissions in 2011. The three-year delay by the Respondent in determining those is one element of the First Appellant’s challenge to the Respondent’s refusal. Substantively, she challenges that decision on the basis that her husband has ILR and they should not therefore be expected to leave the UK.
6. The Second Appellant was born on 11 September 1997. He was therefore at the date of the ECO’s decision just under eighteen years. He is now aged nineteen years. He remained in China when his parents came to the UK in 2000 and 2004 respectively. He was looked after by his grandparents. He had a previous application for entry clearance refused in 2012 and his appeal was dismissed on 19 February 2013. The distinction between the situation then and now is said to be that the First Appellant seeks to remain in the UK and, if her appeal succeeds, both his parents would be in the UK for the future and that his grandfather has died. Mr Pipe provided an update on the position in his submissions indicating that the Second Appellant is now at university. He indicated however that this is in his home area and that he continues to live with his grandmother. He has not formed an independent family unit.
7. Permission was granted by First-tier Tribunal Judge Deans on 21 December 2016 on the basis that the Judge did not err in dismissing the First Appellant’s appeal under the Immigration Rules but arguably failed to consider the position of the sponsor when looking at her case outside the Rules. In relation to the Second Appellant, the Judge found no error in Judge Chohan’s finding that both parents were involved in the Second Appellant’s upbringing (so that he could not meet paragraph 297) but found it arguable that the Judge failed to take into account all the evidence when looking at the Second Appellant’s case. In particular, he considered it arguable that the Judge might have reached a different conclusion if he had taken into account a second letter from the Second Appellant’s school. The appeals come before me to determine whether there is an error of law in the Decision and if so to either re-make the decision or remit to the First-tier Tribunal to do so.
Grounds and submissions
8. Mr Pipe accepted that the grant of permission to appeal is effectively confined to the human rights claims outside the Rules. He accepted that the Judge’s finding that there are no insurmountable obstacles to the First Appellant’s family life with Mr Chen continuing in China (applying EX.1.(b)) is not open to challenge. He did note however that the Judge at [19] of the Decision had also applied the “insurmountable obstacles” test to the question whether the First Appellant could be expected to return to China to obtain entry clearance which is not the correct test.
9. In relation to the First Appellant, Mr Pipe challenged the Judge’s consideration of the position outside the Rules as set out at [25] of the Decision. He submitted that the paragraph discloses an inadequate consideration of the position of Mr Chen who has ILR to remain in the UK and runs his own business here and/or that the reasoning for rejecting the Article 8 claim is insufficient. I asked Mr Pipe to explain why, if there were no insurmountable obstacles to family life continuing in China, the First Appellant should be able to succeed. After all, if Mr Chen were a British citizen, unless there were insurmountable obstacles, it would not be suggested that, simply because of his citizenship, he could not return to China. Mr Pipe accepted that proposition but said that Mr Chen is in a somewhat more vulnerable position because he is liable to lose his right to be in the UK if he leaves for more than two years. It is the First Appellant’s case, accepted by the Judge, that, because she left China illegally, she would be unable to obtain a passport and apply for entry clearance for three years, during which time, she says, she and Mr Chen would be separated because he would have to remain in the UK to avoid losing his ILR status.
10. The other factor which Mr Pipe submitted is missing from the Judge’s consideration in the Decision is the Respondent’s delay in dealing with the First Appellant’s further submissions made in 2011 until 2014. Those submissions were made on the basis that she should be allowed to stay because of her length of residence. He submitted that part of her stay, albeit unlawful, was tolerated by the Respondent by reason of the Respondent’s own delay. He relied on the case of EB (Kosovo) v SSHD [2008] UKHL 41 (“EB (Kosovo)”). He submitted that the delay in resolving the First Appellant’s case diminishes the public interest in removal. He also relied on the recent case of Kaur (children’s best interests / public interest interface) [2017] UKUT 00014 (IAC) in support of the proposition that, although the First Appellant’s family and private life is to be accorded little weight due to her unlawful presence (applying section 117B Nationality, Immigration and Asylum Act 2002 – “section 117B”), that did not mean that it was to be accorded no weight. He submitted therefore that the error of law in the consideration of the First Appellant’s case outside the Rules is material.
11. Turning then to the Second Appellant’s case, he accepted that the point on which permission was granted relates mainly to the case under the Rules. The Second Appellant put forward two letters from his school (at that time) in relation to the issue of whether Mr Chen has sole responsibility. The first letter is dealt with at [29] of the Decision. The Judge there criticised the letter as it was not on headed paper and did not refer to Mr Chen’s contact with the school. The second letter is not mentioned. The Respondent in her rule 24 response says that the Judge should not have taken the second letter into account as it is “post-decision evidence”. I accept however Mr Pipe’s submission that this is no longer of relevance as a restriction because this is a post-Immigration Act 2014 appeal and, as such, section 85 Nationality, Immigration and Asylum Act 2002 does not prevent the Tribunal from considering post-decision evidence albeit the reason for this is that the appeal is no longer against the decision under the Rules but confined to human rights (which is therefore no doubt why the restriction is removed). The second letter dated 1 September 2016 is on letterhead, is from the Second Appellant’s (then) schoolteacher and says that Mr Chen calls her on a regular basis to discuss the Second Appellant’s schooling.
12. The difficulty with the Second Appellant’s reliance on this letter is that the Judge, at [30] and [31] of the Decision, rejects the legal basis for the Second Appellant’s case that Mr Chen has sole responsibility. That is because he regards it as “inconceivable” that the First Appellant, his mother, would not have been involved with the Second Appellant’s upbringing. Although that is challenged as “speculative” in the Appellants’ grounds, it is not said what evidence there was before the Judge that the First Appellant had effectively abdicated all responsibility for the Second Appellant. As the Judge noted at [30] of the Decision, “…where both parents are involved in a child’s upbringing, it will be exceptional that one of them will have sole responsibility”. Mr Pipe did not press this point. He recognised that the permission grant precluded it. He focussed instead on the Second Appellant’s case outside the Rules which he accepted depends on the First Appellant’s case.
13. I explored with Mr Pipe the position if I considered myself obliged to re-make the decision in relation to the Second Appellant, bearing in mind that he is no longer a child. Mr Pipe submitted that the position is without authority in terms of the date at which human rights are to be considered where the appeal is against a refusal of an application made under the Rules and where the Rules therefore dictate the outcome in relation to that aspect of the Respondent’s decision. He submitted however that, in his view, the appropriate date for consideration of a human rights claim is the date of the hearing before me, as it would be in other contexts. Although the Second Appellant is now an adult and therefore his best interests do not fall to be considered, Mr Pipe submitted that there is no bright line rule precluding the taking into account of a person’s age in an Article 8 assessment and it is relevant that the Second Appellant continues to live with his grandmother and has not formed an independent life.
14. I also explored with Mr Pipe how it could be said to be disproportionate to refuse the Second Appellant leave to enter based on his family and private life with his parents when that family and private life has been conducted for many years in the way it is now (i.e. with the Second Appellant living in China and his parents in the UK). Mr Pipe repeated his submission that much depends on the outcome of the First Appellant’s appeal. He also submitted that Article 8 is not confined to protecting and respecting family life but includes the promotion of family life. He relies in this regard on the case of Quila v SSHD [2011] UKSC 45 (“Quila”).
15. Mrs Aboni submitted that there is no error or no material error of law in the Decision. In relation to the First Appellant, the Judge gave her case appropriate consideration under the Rules and provided adequate reasons as to why she could not satisfy paragraph EX.1. ([25] of the Decision). The Judge was not obliged to go into detail in relation to the case outside the Rules as there were no factors to consider in that context, all relevant factors having been taken into account in the Rules based consideration. The Judge decided the appeal on the alternative bases that the First Appellant could return to China and live there with Mr Chen or that she could return without Mr Chen and seek entry clearance to return. The delay by the Respondent in considering the First Appellant’s further submissions was not inordinate and did not render the Respondent’s decision disproportionate. On any view, Mrs Aboni submitted, the appeal could not succeed outside the Rules once the public interest is taken into account.
16. In relation to the Second Appellant, she agreed with Mr Pipe’s submission that his appeal could not succeed unless the First Appellant’s appeal succeeds (and I did not understand her to concede that it would inevitably succeed even if I allowed the First Appellant’s appeal). The finding that Mr Chen does not have sole responsibility given the First Appellant’s continued presence in the Second Appellant’s life was clearly open to the Judge. The Second Appellant could not therefore meet the Rules in the category in which he sought to enter. His contact with his parents would remain as it has been in the past, namely continued by visits and other long-distance contact. She also submitted that even if the appeal were to succeed, the Second Appellant would be obliged to make another entry clearance application as his circumstances have changed. As to that latter point, I accept however Mr Pipe’s submission that this would not be the case as the only basis on which I could allow the Second Appellant’s appeal would be on the basis that Article 8 is breached.
17. In reply, Mr Pipe summarised his submissions as follows:-
(1) Consideration of the First Appellant’s family and private life was not exhausted by application of the Rules. There were two matters, namely whether she could succeed in an application for entry clearance and the Respondent’s delay in deciding the further submissions which were not taken into account by the Rules. Further, he relied on the point on which permission was granted that Mr Chen’s rights were not taken into account.
(2) He relied on the error at [19] of the Decision where the Judge applied the “insurmountable obstacles” threshold to the question whether the First Appellant should be required to return to obtain entry clearance. He referred me to the case of R (on the application of Chen) v Secretary of State for the Home Department) (Appendix FM – Chikwamba – temporary separation – proportionality) IJR [2015] UKUT 00189 (IAC) (“Chen”) which confirmed this to be the wrong test.
(3) In relation to the Second Appellant, he submitted that the right to respect for family and private life is not to be read as confined to the question whether that life can be maintained but also includes promotion of family life.
(4) He also submitted that the Second Appellant would not have to make a further entry clearance application due to his changed circumstances. As I have already indicated at [14] above, I accept that submission.
18. At the end of the hearing, I indicated that I reserved my decision in relation to whether there is an error of law in the Decision and would issue my decision in writing. Both representatives agreed that if I found a material error of law, I could re-make the decision based on the evidence before Judge Chohan. The relevant evidence is that referred to in the skeleton argument.
Discussion and conclusions
19. I begin with the First Appellant’s appeal since it is accepted that the Second Appellant cannot succeed if I find that it is reasonable to expect the First Appellant and Mr Chen to continue their family life in China.
20. I begin by recording the acceptance that the First Appellant cannot succeed under the Rules. It is however necessary to recite what the Judge decided in that regard as without that consideration the assessment outside the Rules cannot properly be understood.
21. The Judge prefaces his consideration under the Rules by taking into account (and accepting) the evidence that the First Appellant would be unable to obtain a passport for three years following return due to her illegal exit from China. He then continues as follows:-
“[16] Whilst I acknowledge that according to the Chinese legislation the appellant would not be able to obtain a passport for a period of three years because she left China illegally, however, there is nothing to prevent her husband from going to China and to live with the appellant as husband and wife. On that point, it has been argued that the husband has indefinite leave to remain and therefore he would have to return to the United Kingdom within a period of two years and upon return establish that he intends to reside in this country. That may well be the case but that does not stop the appellant’s husband from visiting the appellant in China or alternatively residing in China permanently with his wife, the appellant.
[17] Mr Pipe made the point that the respondent took three years in making a decision in this case and questioned as to why the appellant should be required to make an entry clearance application bearing in mind such a delay. Ms Banks submitted that the husband knew of the appellant’s precarious status in the United Kingdom. She further pointed out that the husband was not a British citizen and that he could return to China with the appellant.
[18] I appreciate that the appellant’s husband has been in the United Kingdom since 2000 and has had indefinite leave to remain since 2010, however, that does not prevent him from returning to China or supporting the appellant’s application for entry clearance. Indeed, during his oral evidence, the appellant’s husband stated that if his wife did go back to China in order to make an application for entry clearance he would support her. It must also be remembered that both the appellant and her husband are Chinese citizens and they do have family in China. I appreciate that there are obstacles if the appellant were to return to China but they are of a temporary nature. I further appreciate that if the appellant were to return to China, there will be some disruption in her family life and indeed some inconvenience but as held in Agyarko, the “insurmountable obstacles” test imposes a high hurdle.
[19] Based on the documentary and oral evidence before me, there is nothing to suggest that that high hurdle has been overcome. The appellant’s husband stated during his oral evidence that if the appellant were required to return to China to make an entry clearance application, it would tear apart the family. With respect, that is not necessarily true. Much will depend on the decision or decisions made by the appellant and her husband. As stated above, the appellant could return to China and make an application for entry clearance and it may well take a period of three years but in that time the husband could visit her periodically. Alternatively, the husband could return to China to live with his wife and pursue a family life in their home country. Whatever decision they make is a matter for them. The bottom line is that the “insurmountable obstacles” hurdle has not been overcome.”
22. I accept Mr Pipe’s submission that the test under EX.1. whether there are “insurmountable obstacles” to family life continuing in the home country of the First Appellant does not encompass the separate question whether it might still be disproportionate to require her to go back and get entry clearance. This point is neatly explained in Chen as follows:-
“[39] In my judgement, if it is shown by an individual (the burden being upon him or her) that an application for entry clearance from abroad would be granted and that there would be significant interference with family life by temporary removal, the weight to be accorded to the formal requirement of obtaining entry clearance is reduced. In cases involving children, where removal would interfere with the child’s enjoyment of family life with one or other of his or her parents whilst entry clearance is obtained, it will be easier to show that the balance on proportionality falls in favour of the claimant than in cases which do not involve children but where removal interferes with family life between parties who knowingly entered into the relationship in the knowledge that family life was being established whilst the immigration status of one party was “precarious”….”
23. The difficulty in interpretation of the passage of the Decision cited at [21] above arises from the Judge’s conflation of the two questions whether it would be disproportionate to require the First Appellant and Mr Chen to continue their family life in China on a permanent basis and whether it would be disproportionate so to require on a temporary basis. That is in recognition of the fact that Mr Chen, as a person who holds ILR, cannot be removed forcibly and that whether the couple return permanently or the First Appellant does so temporarily in order to apply for entry clearance (with or without Mr Chen) is a matter of choice for them. The test under the Rules is only whether there are “insurmountable obstacles” to the couple relocating permanently. In this case, the Judge found that there are not and that is not challenged.
24. As is recognised in Chen, the secondary issue of whether it would nonetheless be disproportionate turns on whether there is a significant interference with family life occasioned by the temporary removal such that the requirement to make an application from outside the UK (which would be a mere formality) cannot be justified. Albeit that is not a consideration to be made applying paragraph EX.1. of the Rules, and the threshold is not therefore that of “insurmountable obstacles”, it is still the case that the test is a high one. The question is whether there is a significant interference in the short-term and whether the public interest is diminished by the fact that an application from outside the UK is bound to succeed.
25. In this case, what is prayed in aid is that the First Appellant would be unable to leave China for three years as she would be precluded from applying for a passport. As the Judge records in the passage set out above, that does not prevent Mr Chen from coming to visit her or even returning permanently (and returning periodically to the UK if he wishes to preserve his status). As is also recorded, the First Appellant has family in China. All her children are there. The Second Appellant’s grandmother still lives there. It is therefore difficult to see what, other than the period of absence, the First Appellant relies upon as showing any significant interference. Furthermore, although there is no finding by the Judge about whether an application from outside the UK would succeed, given the First Appellant’s immigration history and having regard to the general grounds of refusal, it is far from clear to me that an application would succeed let alone that it would be bound to do so, particularly in circumstances where there is no obvious barrier to family life continuing to be enjoyed in China.
26. For those reasons, I am satisfied that even if the Judge has erred in applying the “insurmountable obstacles” threshold to the question whether the First Appellant could return temporarily to do so, such error cannot be material.
27. I turn then to look at the Judge’s assessment of Article 8 outside the Rules ([25]) which reads as follows:-
“[25] In respect of both family and private life, there is not much more I can say than what I have stated above in respect of paragraphs EX.1 and 276ADE. Clearly, the appellant fails to meet the requirements of the relevant immigration rules. Considering the evidence as a whole and my findings above, I find that if the appellant were to be removed to China it would not be a disproportionate interference in her family and private life. Certainly, the appellant has not established any compelling circumstances to justify a consideration of her family and private life outside the immigration rules. I take the matter no further.”
28. Contrary to Mr Pipe’s submissions and the reason why permission was granted, that assessment does not fail to take into account the additional factors raised in this case. It simply does so in a summary fashion because, as the Judge observes, he has already considered those factors in his findings about family (and private life) under the Rules. He has taken into account the impact of Mr Chen having ILR ([16] and [18]). He has also taken into account the point made about the delay in the Respondent’s decision making ([17]). That he may (wrongly) have done so in the context of an assessment under the Rules (if the earlier section is to be interpreted as Mr Pipe suggests) does not undermine the fact that the Judge has taken those considerations into account in his assessment outside the Rules.
29. I also raise two points about the relevance and importance of the two factors which are raised by the First Appellant as reasons why her case should succeed outside the Rules when she cannot meet the Rules. First, Mr Pipe says that Mr Chen’s situation may require a different assessment than that of a British citizen because he is vulnerable to losing his status if he remains outside the UK for more than two years. However, that is a double-edged sword. He should not be placed in a better position than a British national spouse simply because his situation is more precarious. If anything, the public interest would tend towards the opposite conclusion.
30. Second, the relevance of delay (as explained in EB (Kosovo)) is fact sensitive and depends largely on the impact of delay. That is summarised in the speech of Lord Bingham as follows:-
“[14] It does not, however, follow that delay in the decision-making process is necessarily irrelevant to the decision. It may, depending on the facts, be relevant in any one of three ways. First, the applicant may during the period of any delay develop closer personal and social ties and establish deeper roots in the community than he could have shown earlier. The longer the period of the delay, the likelier this is to be true. To the extent that it is true, the applicant’s claim under article 8 will necessarily be strengthened…..
[15] Delay may be relevant in a second, less obvious, way. An immigrant without leave to enter or remain is in a very precarious situation, liable to be removed at any time. Any relationship into which such an applicant enters is likely to be, initially, tentative, being entered into under the shadow of severance by administrative order. This is the more true where the other party to the relationship is aware of the applicant’s precarious position. This has been treated as relevant to the quality of the relationship….. A relationship so entered into may well be imbued with a sense of impermanence. But if months pass without a decision to remove being made, and months become years, and year succeeds year, it is to be expected that this sense of impermanence will fade and the expectation will grow that if the authorities had intended to remove the applicant they would have taken steps to do so. This result depends on no legal doctrine but on an understanding of how, in some cases, minds may work and it may affect the proportionality of removal.
[16] Delay may be relevant, thirdly, in reducing the weight otherwise to be accorded to the requirements of firm and fair immigration control, if the delay is shown to be the result of a dysfunctional system which yields unpredictable, inconsistent and unfair outcomes….”
31. In this case, the First Appellant’s family life with Mr Chen dates back to before they came to the UK. Although their respective presence may have been tolerated whilst their asylum claims were under consideration (albeit they did not have leave to remain), that situation came to an end at the latest in 2005 when the First Appellant’s appeal was dismissed. Thereafter, she continued without any leave and with no expectation of being able to remain. Her further submissions were made at a time when she had been in the UK, without leave, for some seven years. Until 2010 when he was granted ILR, Mr Chen had similarly remained without any leave. This was then quite obviously a relationship begun and continued when neither had any expectation of being able to remain in the UK. The period of delay did not therefore have the effect of diminishing the public interest in removal based on a false hope being given to the First Appellant that she would be allowed to remain to form and continue that relationship. Nor can it be said that the period of delay by the Respondent in this case (three years) is so excessive as to diminish the public interest in the maintenance of immigration control, particularly in circumstances where the Appellant has herself failed to return to China for a period of some six years after dismissal of her asylum claim before then attempting to regularise her stay (until after Mr Chen was granted ILR).
32. For those reasons, I am satisfied that there is no material error of law in the assessment of proportionality outside the Rules. There is no material error of law in the Decision so far as concerns the First Appellant’s appeal. The Decision is therefore upheld with the result that the First Appellant’s appeal is dismissed.
33. Mr Pipe accepted that if I found no error of law in the Decision in relation to the First Appellant’s case, with the effect that it would remain reasonable to expect the First Appellant to return to China, the Second Appellant could not succeed as his Article 8 claim would be weakened by the fact that his mother would be returning to live in China. In case, I am wrong about my conclusions about the First Appellant’s appeal, though, I make some short observations on the submissions made to me in the Second Appellant’s appeal.
34. Permission was granted in this appeal on the basis that the Judge failed to have regard to a second letter from the Second Appellant’s school and that this may be relevant to his case outside the Rules. The letter is dated 1 September 2016 and reads as follows:-
“I am a class teacher of Xuelin Chen. I am responsible for dealing with his tuition fees and his performances in school. I hereby certify that Xuelin Chen’s tuition fees are provided and paid off by his father – Wenhul Chen. Xuelin Chen’s father also greatly concerns for Xuelin. He often calls me to ask about Xuelin Chen’s school life and his studies. Though he is abroad, he still cares a lot for Xuelin Chen. This indicates how much he hopes Xuelin Chen to be able to stay with him.
I hereby certify above as a class teacher.”
35. The Judge’s failure to have regard to the second letter from the school cannot on any view constitute a material error of law. The relevance of that letter is only to the question of Mr Chen’s involvement with the Second Appellant’s upbringing. As Mr Pipe (rightly) accepted, the content of that letter is immaterial in light of the findings at [30] and [31] of the Decision that Mr Chen does not have sole responsibility because of the First Appellant’s continued involvement. Judge Deans accepted when granting permission that the Judge was entitled to the finding that both parents are involved in the Second Appellant’s upbringing and therefore Mr Chen could not show that he has sole responsibility.
36. It is difficult to see how the content of the letter can impact on the Article 8 findings in the Second Appellant’s case. The letter shows only that Mr Chen pays for the Second Appellant’s education and maintains an interest in it. It is difficult to see how those factors could strengthen the Second Appellant’s family life to the extent that he should be allowed to come to live in the UK. I note also that Article 8 falls to be considered as at the date of the hearing before me and matters have moved on. The Second Appellant is now an adult and studying at university in China.
37. Nevertheless, I deal with Mr Pipe’s submission that the Judge has erred in his consideration of the Second Appellant’s Article 8 rights. He says that the right to respect for family life involves also promotion of family life, relying on what was said by the Supreme Court in Quila. That arises from the Supreme Court’s analysis of the positive obligations of a State under Article 8. Paragraphs [40] to [43] of the Supreme Court’s judgment cited in Mr Pipe’s skeleton argument are authority only for the proposition that it should no longer be assumed in an entry clearance case involving positive obligations that Article 8 is not engaged.
38. As the Judge found at [32] of the Decision, refusal of entry clearance in the Second Appellant’s case amounts to an interference in his family life. The question, (as it was in Quila) is the proportionality of the interference. There is no challenge to the Judge’s reasoning in this regard. This is a case where the Second Appellant has lived apart from his mother and father for at least the past twelve years. Family life has continued through infrequent visits and long-distance contact. In those circumstances, it is unsurprising that the Judge found the decision to refuse entry clearance was proportionate.
39. For those reasons, I am satisfied that the Decision does not disclose a material error of law and I uphold the Decision.

DECISION
The First-tier Tribunal Decision did not involve the making of an error on a point of law. I therefore uphold the First-tier Tribunal Decision of Judge Chohan promulgated on 27 October 2016 with the consequence that the Appellants’ appeals are dismissed.

Signed Dated: 2 March 2017

Upper Tribunal Judge Smith