Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/00456/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 22 September 2016
On 30 September 2016

Before

UPPER TRIBUNAL JUDGE PERKINS

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

SADIA SADAF
(ANONYMITY DIRECTION not made)
Respondent

Representation:
For the Appellant: Mr S Whitwell, Home Office Presenting Officer
For the Respondent: No appearance

DECISION AND REASONS
1. This is an appeal by the Secretary of State acting for the Entry Clearance Officer Abu Dhabi against a decision of the First-tier Tribunal allowing an appeal on the papers brought by a citizen of Pakistan, the present respondent, herein after "the claimant" against the decision of the Entry Clearance Officer to refuse her entry clearance as a family visitor.
2. The First-tier Tribunal allowed the appeal on human rights grounds having decided that the claimant wanted to visit the United Kingdom for a purpose that engaged Article 8 of the European Convention on Human Rights and that refusal was a disproportionate interference with her right to a private and family life.
3. The First-tier Tribunal reminded itself, correctly, of the importance of following the five step approach identified in R (Razgar) v SSHD [2004] UKHL 27 but if it then followed that direction it certainly did not do it in a way that satisfied the Secretary of State.
4. The claimant wanted to visit her brother and her grandmother and the Entry Clearance Officer was not satisfied with aspects of the case including the evidence about the grandmother's ill health. The scepticism on that point now appears regrettable because there is good evidence that, sadly, the grandmother died before the visit could be arranged and the First-tier Tribunal, prompted by the grounds of appeal, purported to follow the decision in Abbasi and Another (Visits - bereavement - Article 8) [2015] UKUT 00463 and allowed the appeal.
5. The first ground raised by the Entry Clearance Officer is not impressive. It refers to a material misdirection in law of facts appertaining to the date of decision and is based on the premise that the First-tier Tribunal was prevented from taking note of events that had happened since the date of decision. I would like to have had the benefit of more argument on this point but I reject the submission made by Mr Whitwell in support of this ground.
6. Section 85(4) of the Nationality, Immigration and Asylum Act 2002 says:
"On an appeal under Section 82(1) against a decision the Tribunal may consider any matter which it thinks relevant to the substance of the decision including a matter arising after the date of the decision."
7. A plain reading would suggest that the Tribunal may consider a matter arising after the date of decision. This approach was restricted by an earlier version of Section 85(5) of the 2002 Act. It introduced a caveat that disapplied Section 84(4) to entry clearance appeals but that section has now gone. The present Section 85(5) says "But the Tribunal must not consider a new matter unless the Secretary of State has given the Tribunal consent to do so" and the subsequent section tells us the meaning of a "new matter" and one of its essential characteristics is that it constitutes a ground of appeal of a kind listed in Section 84. This is clearly not a new matter within the meaning of the Act. It is a new fact and one which in my judgement the Tribunal had to consider.
8. However it does not follow from the fact that it was considered that it was considered properly. In my judgement it was not. As I thought this Tribunal had made clear in the decision of Mostafa (Article 8 in entry clearance) [2015] UKUT 112 (IAC), in cases involving applications for entry clearance as a visitor, Article 8 is only engaged in particular circumstances and although it is very likely to be engaged in visits between husband and wife and parent and minor child it will be unusual for it to be engaged in other cases.
9. The decision of the President of this Tribunal in Abassi and Another is a reminder of the broad scope of Article 8 and is an illustration of the sort of circumstances were, exceptionally, there might be a duty on the Secretary of State to promote a person's private and family life. It certainly does not mean that everyone who wants to visit the grave of close relatives or enter the United Kingdom for the purpose of mourning can say the United Kingdom has an obligation under Article 8(1) to promote that desire because that is simply not the law.
10. There is nothing in the evidence produced in this case that I have been able discern which shows any particular reason such as cultural or religious expectation that makes it more than ordinarily desirable to visit the grave of a loved one, or that the relationship between the appellant and her brother in the United Kingdom was anything more than a healthy respectful relationship between adult siblings.
11. In my judgement in those circumstances there is not enough evidence to say the case comes within the protection of Article 8(1). These relationships are not relationships the United Kingdom is obliged to promote. Rather such people are expected to live independent lives and although it is pleasing when adult siblings get on, and understandable that they might want to meet to mourn the death of their grandmother, there is no general obligation to promote these things.
12. In my judgement the Tribunal was wrong not to set out the steps required by Razgar and if they had been set out they would have failed the first hurdle. I note that the judge finds as a fact that the requirements of the Rules are met and that is a significant but not determinative feature when Article 1 is engaged, but for the reasons I have given that is not the case here.
13. It follows that I find that the First-tier Tribunal should not have made the decision it did and I set aside the decision and I substitute a decision dismissing the claimant's appeal.
14. I make it plain before hearing the appeal I considered carefully whether it was right to continue with the hearing in the absence of any representation from the claimant. My hesitation comes from the fact that she has barely had time to respond to the notice of hearing because it was sent by airmail to the correct address on 22 August 2016 notifying her of a hearing on 22 September 2016. Notices are deemed to take 28 days to arrive by airmail. The claimant has just about had enough time if not to have prepared her case to have notified the Tribunal that she was in receipt of the notice and wanted more time. Nothing of that kind was done.
15. It follows therefore that I am satisfied she had good service in accordance with the Rules and it was right to continue with the hearing in her absence.
Decision
16. Secretary of State's appeal is allowed. The decision of the First-tier Tribunal is set aside and a decision substituted dismissing the appeal against the Secretary of State's decision.

Signed

Jonathan Perkins
Judge of the Upper Tribunal

Dated 30 September 2016