Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: hu/00300/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 4 August 2016
On 16 September 2016

Before

MR H J E LATTER
(DEPUTY UPPER TRIBUNAL JUDGE)

Between

Entry clearance officer - ABU DHABI
Appellant
and

UMER BI
(ANONYMITY DIRECTION not made)
Respondent

Representation:
For the Appellant: Mr E Tufan, Home Office Presenting Officer
For the Respondent: Mr K Alim, instructed by Yaqub & Co

DECISION AND REASONS

1. This is an appeal by the Entry Clearance Officer (ECO) against a decision of the First-tier Tribunal allowing an appeal by the applicant against the decision made on 19 April 2015 refusing to grant her entry clearance as a family visitor. In this decision I will refer to the parties as they were before the First-tier Tribunal, the applicant as the appellant and the ECO as the respondent.

Background

2. The appellant is a citizen of Pakistan born on 18 July 1958. Her daughter, the sponsor lives with her husband in the UK, and both are British citizens. The appellant applied for a visit for six months. In the sponsorship declaration from the sponsor and her husband, they confirmed that they were able to support and accommodate her during the visit and provided documentary evidence to support their account of their financial circumstances. They also confirmed that the appellant had previously visited the UK in 2007, arriving on 25 June 2007 and returning to Pakistan on 27 September 2007.
3. However the respondent was not satisfied that the appellant could meet the requirements of para 41 of the Rules for the following reasons:
"I acknowledge that you have previously travelled to the UK; however, every application is based on its own merit. It is your responsibility to satisfy me that your personal circumstances in Pakistan are such that if granted leave to enter you will abide by all of the conditions attached to any such leave and that you will leave the UK on completion of the proposed visit but you have not done that because you have chosen not to submit any evidence to demonstrate what your personal and financial circumstances may be. Therefore on the balance of probabilities I am not satisfied that you are genuinely seeking entry as a visitor for a limited period not exceeding six months or that you intend to leave the United Kingdom at the end of the visit as required by paragraph 41(i) and (ii) of the Immigration Rules.
I have therefore refused your application because I am not satisfied on the balance of probabilities, that you meet all of the requirements of the relevant paragraph of the United Kingdom Immigration Rules."
4. Following the appellant filing a notice of appeal, the decision was reviewed by an Entry Clearance Manager (ECM) who concluded that the original refusal had been correct and in accordance with the law and the Immigration Rules. The ECM went on to consider the appellant's rights under article 8 and concluded that the refusal of the application would be proportionate to the need to maintain effective immigration and border control.
The Hearing before the First-tier Tribunal
5. At the hearing of the appeal the judge heard oral evidence from both the sponsor and her husband. They confirmed the contents of their joint witness statement dated 19 December 2015 which confirmed that the appellant wanted to come and spend some time, twelve weeks, with family members settled in the UK. In Pakistan she was looking after her mother-in-law and arrangements would be made for another relative to do so; she had income from land, business and animals; they were in regular contact with the appellant by telephone and would be meeting all the costs of the visit.

6. The judge found the sponsor and her husband to be credible witnesses describing them at [27] as honest, conscientious and wholly credible. He accepted the evidence that the appellant had every reason and incentive to return to Pakistan after the proposed visit of twelve weeks as she had done previously and that she intended to return to Pakistan following the visit. The judge commented that the ECM appeared to have been influenced by the view that no satisfactory reason had been put forward as to why the sponsor in the UK would be unable to travel to Pakistan to be with the appellant. The judge accepted that the requirements of the Immigration Rules were satisfied. He said at [28]:
"Having found that the requirements of paragraph 41 of the Immigration Rules are met in this case, I turn to consider the scope of that rule. In my view paragraph 41 is very far from being a complete code, sufficient to deal with all Article 8 issues. It barely touches on the necessary range of factors, and an Article 8 assessment outside the Rules is certainly warranted. There are significant relevant reasons to do so."

7. The judge then went on to consider article 8 finding at [29] that plainly family life existed between the appellant and her sponsors. There was ample evidence of contact and affection between them. He commented that the ECM did not really dispute the existence of family life and the ECO failed to address it at all. He found that the refusal of entry clearance would interfere with that family life sufficiently to engage article 8. On the issue of whether the interference would be in accordance with the law he found that it was not because contrary to the conclusions of the ECO and ECM the requirements of the Immigration Rules were met in this case. He went on to consider proportionality and found that the respondent's decision was disproportionate to its legitimate aim on the facts of this case. The appellant would be in the UK for twelve weeks and no more; there was no particular cost to the public purse that had been identified and that would be minimal; there was no realistic prospect that the appellant would overstay; she would be accommodated and financially supported while she was here. He commented that English language requirements were of no consequence and carried no real weight for a visit of such short duration and that while, on the one hand, the interference with family life was at a relatively low level, the justification of the interference was flawed and carried very little weight and that in these circumstances the refusal of entry clearance was wholly disproportionate. Accordingly, the appeal was allowed on article 8 grounds.

The Grounds and Submissions

8. In the grounds it is argued that the judge erred by finding that article 8 was engaged on the basis of family life. It is further argued that the proportionality assessment was inadequate, failing to explain why the refusal of a visa which only allowed the parties to be together temporarily was a disproportionate interference with article 8 rights and that the judge erred by failing to undertake a proper balancing exercise taking into account the factors set out in s.117B of the Nationality, Immigration and Asylum Act 2002 and that, having found that the appellant met the requirements of the Immigration Rules, the judge in substance used the appeal under article 8 as a general dispensing power.

9. The appellant has submitted a rule 24 reply in which the Upper Tribunal is invited to give further guidance as to the role of article 8 when clear and uncontested findings are made that the relevant Immigration Rule is met within the context of an appeal limited to human rights grounds. The grounds refer to Adjei (visit visas - Article 8) [2015] UKUT 00261, Kaur (visit appeals: Article 8) [2015] UKUT 00487 and Bossade (ss.117A-D - interrelationship with Rules) [2015] UKUT 00415. The reply argues that the judge had not fallen into error in trying to follow the case law but had considered all relevant factors and reached a lawful decision given the clear finding that the appellant met the requirements of the relevant Immigration Rule. If the appellant met the requirements of the Rules, then there was no question of consideration outside the Rules. The respondent's grounds were therefore, so it was agreed, misconceived in focusing on article 8 outside the Rules.

Assessment of whether the First-tier Tribunal erred in law

10. There have been a number Upper Tribunal reported decisions dealing with a human rights appeal based on article 8 where a visit application has been unsuccessful and there is no right of appeal against the decision under the Rules. The head note in Mostafa (Article 8 in entry clearance) [2015] UKUT 112 is as follows:

"In the case of appeals brought against refusal of entry clearance under Article 8 ECHR, the claimant's ability to satisfy the Immigration Rules is not the question to be determined by the Tribunal, but is capable of being a weighty, though not determinative, factor when deciding whether such refusal is proportionate to the legitimate aim of enforcing immigration control."

The point being made in this decision is that the appeal on human rights grounds is a separate and distinct appeal from an appeal on the merits from what would have been an appeal on immigration grounds until the abolition of that right of appeal taking effect on 25 June 2013.

11. The issue of whether there has been a breach of article 8 must be assessed in the light of the five step approach set out in Razgar [2004] UKHL 27 as considered in subsequent judgments of both the Supreme Court and the Court of Appeal and not simply by whether the judge as opposed to the ECO is satisfied that the requirements of the Rules are met. This approach is confirmed by the decision in Adjei where the Tribunal held that the first question to be addressed in an appeal against the refusal to grant entry clearance as a family visitor where only human rights grounds were available was whether article 8 of the ECHR was engaged at all and, if not, the Tribunal had no jurisdiction to embark upon an assessment of the decision of the ECO under the Rules and should not do so. But if article 8 was engaged, the Tribunal might then need to look at the extent to which the claimant was said to have failed to meet the requirements of the Rules because that may inform the proportionality exercise that must follow, a view endorsed in Kaur.

12. The first question therefore is whether article 8 is engaged and this is the respondent's primary ground of appeal. The grounds argue that it is established case law that family life within the meaning of article 8 will not normally exist between adult siblings, parents and adult children. In Kugathas v Secretary of State for the Home Department [2003] EWCA Civ 31 the Court of Appeal held that family life was not established between an adult and his surviving parent or other siblings unless something more existed than normal emotional ties and that neither blood ties nor the concern and affection that ordinarily went with them were by themselves or together enough to constitute family life. In PT (Sri Lanka) v ECO Chennai [2016] EWCA Civ 612, the Court of Appeal confirmed that whether family life existed in a particular case was always a fact sensitive question and that each case must be analysed on its own facts.

13. In Mostafa, the Tribunal said:

"It is the very essence of Article 8 that it lays down fundamental values that have to be considered in all relevant cases. It would therefore be extremely foolish to attempt to be prescriptive, given the intensely factual and contextual sensitivity of every case. Thus we refrain from suggesting that, in this type of case, any particular kind of relationship would always attract the protection of Article 8(1) or that other kinds of relationship would never come within its scope. We are, however, prepared to say that it will only be in very unusual circumstances that a person other than a close relative will be able to show that the refusal of entry clearance comes within the scope of Article 8(1). In practical terms this is likely to be limited to cases where the relationship is that of husband and wife or other close life partners or a parent and minor child and even then it will not necessarily be extended to cases where, for example, the proposed visit is based on a whim or will not add significantly to the time that the people involved spend together...".
14. In the present appeal the judge found that family life "plainly" existed between the appellant and her sponsors. He noted there was ample evidence of contact and affection but has failed to carry out any assessment of whether in the particular circumstances of this case there was family life between parents and adult children in accordance with the guidance set out in the jurisprudence. The judge noted that the ECM did not really dispute the existence of family life and the ECO had failed to address it at all but that, without more, does not amount to a concession that family life existed. This was an issue of fact for the judge to resolve. There was nothing in the evidence that something more existed than normal emotional ties. It was common ground that the appellant's visit would be funded by her family in this country but on the other hand the judge noted at [25] that the appellant had means of financial support in Pakistan from land, business and animals and took that into account when assessing whether she was likely to return at the end of the visit. He also noted that the appellant had her own caring responsibilities in Pakistan looking after her mother-in-law. These factors are relevant as far as assessing the appellant's intentions to return at the end of the visit but they also have a bearing on the nature and extent of whether there is family life with the sponsor and her husband. I am therefore satisfied that the judge erred in law by failing to apply the correct jurisprudence when considering whether there was family life within article 8.
15. In these circumstances, I do not need to consider the argument that the proportionality assessment was inadequate or that the judge did not take proper account of the provisions of s.117B of the 2002 Act.
16. Although the point is not made in the grounds I am also satisfied that the judge erred by finding that the interference was not in accordance with the law because the judge took the view that the requirements of the Rules were met. There was no right of appeal on immigration grounds against the decision under the Rules. The respondent's decision was a lawful decision in the sense that it was made in accordance with the law and the Rules even though there was no right of appeal against the respondent's adverse decision.
Re-making the Decision
17. I am satisfied therefore that the First-tier Tribunal erred in law such that the decision should be set aside. It was agreed at the hearing before me that in these circumstances the proper course would be for me to re-make the decision. When assessing an appeal on human rights grounds under article 8 as I have already indicated the first issue to resolve is whether the appeal engages family life within article 8(1). For the reasons I have already given I am not satisfied that there are any factors which justify a finding that there was family life in the absence of some additional elements of dependency going beyond the normal emotional ties between a mother and her daughter and son-in-law. I note that in Kaur, the Upper Tribunal was satisfied on the particular facts of that case that there were such factors: the evidence was that the applicant had played a central role in bringing up the two grandchildren. However, there is no evidence of any such factors in the present case.
18. It follows that as article 8 is not engaged the appellant could not succeed on article 8 grounds. Had article 8 been engaged, the other factors would have had to have been considered including, where necessary, making relevant findings of fact as indicated in the decision in Kaur. I am not satisfied that there is any need to give further guidance as sought in the reply as the issues relevant to this appeal have been fully covered in the reported decisions to which I have referred.
Decision
19. The First-tier Tribunal erred in law and the decision is set aside. I re-make the decision by dismissing the appeal on human rights grounds.

Signed H J E Latter Date: 15 September 2016
Deputy Upper Tribunal Judge Latter