Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/02031/2016
HU/02035/2016

THE IMMIGRATION ACTS

Heard at Birmingham
Decision & Reasons Promulgated
On 24th January 2017
On 25th January 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE MANDALIA

Between

MRS. FARooq bi (1)
mr. khawaja muhammad shabir tabassum (2)
(anonymity direction not made)
Appellants
and

entry clearance office - abu dhabi
Respondent

Representation:

For the Appellants: Mrs. S Kauser, Solicitor, Kausers Solicitors
For the Respondent: Mr. D Mills, Home Office Presenting Officer

DECISION AND REASONS

1. This is an appeal against the decision of First-tier Tribunal Judges Lodge and Parkes promulgated on 19th July 2016. The underlying decisions that were the subject of the appeals before the First-tier Tribunal were the decisions of the respondent dated 23rd December 2015 to refuse the appellants entry clearance to the UK.
2. The appellants are husband and wife. They applied for entry clearance in December 2015 to spend time with Mr. Abdul Majid, the father of the second appellant and the father-in-law of the first appellant, who was at the time suffering from ill health. The applications for entry clearance were refused because the entry clearance officer was not satisfied that the appellants are genuine visitors and would leave the United Kingdom at the end of their visits. The applications for a visit visa were therefore refused under paragraphs 4.2(a) and (c) of the Immigration Rules.
3. I record at this juncture that Abdul Majid passed away on 3rd June 2016. The appellants appeal was heard on 22nd June 2016. By the time the appeal was heard, the focus of the visit was, understandably, to enable the appellants to visit the United Kingdom to be with their family and share in the sorrow and grief at the death of their father. The appellants also wished to attend and participate in a religious ceremony that would take place 40 days after the date of death.
The decision of the First-tier Tribunal
4. The decision of the panel of First-tier Tribunal Judges sets out at paragraphs [4] to [10], the background to the appeal and the evidence before the Tribunal. The Tribunal's consideration of the evidence and its findings are set out at paragraphs [11] to [19] of the decision. In particular, the Tribunal states:
"13. The Respondent's position is that the Appellant's having no employment in Pakistan, having no children or grandchildren or siblings, having all their extended family living in the UK the Appellants are unlikely to return and that this application is in reality an application for Entry Clearance to settle in the UK.
14. The Sponsor in evidence said that his parents intended to return and if they said that they would not go back he would make sure they did go back when their visa expired.
15. I have regard to Abbasi and Another. Looking at the factual matrix. The first and second questions (paragraph 12 Abbasi) are met. The decision we find interferes with the family and private life rights of the Appellants and other family members. We next to consider the legitimate aim. Following Abbasi we recognise that as the maintenance of a firm policy of immigration control; 117B(1) of the Nationality, Immigration and Asylum Act 2002. The fourth and final question to address is therefore proportionality. We find that notwithstanding that the interference is substantial and profound (it is on all fours in this respect with Abbasi) nonetheless there are features of this case that distinguish it from Abbasi and which mean that in the balance, weighed against the maintenance of firm immigration control, the decision is not disproportionate.
16. On the Appellant's behalf it is stated that all the Appellant's children, grandchildren and and siblings are resident in the UK lawfully. What is not stated is that the deceased was lawfully resident in the UK. We cannot see how he can have been. He has only been in the UK two years prior to his death and cannot have been a dependant of the grandchildren or his siblings given that his son and daughter-in law (the Appellants) are in Pakistan. On the balance of probabilities and having no evidence to the contrary we find that he was here in the UK illegally (and accessing medical care without entitlement).
17. On the Sponsor's evidence he last saw the Appellants three years ago in Pakistan. They have on his evidence only made one visit to the UK some ten years ago. There is therefore no history of compliance with visit visas and in the absence of evidence that there is we are unable to draw positive inferences.
18. The Appellants have little, or at least we have been presented with little, to tie them to Pakistan, a modest income which one can only presume will be accessible here in the UK and they have no close family in Pakistan, their entire extended family is in the UK.
19. On the balance of the evidence we are satisfied the Entry Clearance Officer was correct in reaching the conclusion that the Appellants do not intend to return to Pakistan. We do not find, pace Abbasi that the Appellants sojourn in the UK will be for a modest and finite period. Balancing that conclusion against the wish to visit their father's grave and participate in a religious ceremony we cannot find that the decision of the Entry Clearance Officer is disproportionate."
The grounds of appeal and the appeal before me
5. The appellant's grounds of appeal are twofold. First, the Judges erred in speculating at paragraph [16] of the decision, as to the immigration status of the appellants' father and father-in-law. In fact, Abdul Majid was a British Citizen who was registered as a Citizen of the United Kingdom on 1st February 1974. Contrary to what the Judges assumed, he was therefore in the UK lawfully and entitled to access the medical care that he received. The appellants submit that this mistake of fact discloses an error of law and taints the remaining findings and conclusions reached by the Tribunal. Second, the decision of the Tribunal discloses an inconsistency in that at paragraph [17], the Tribunal Judges appear to accept that the appellants visited the UK some ten years ago, but the Tribunal then states "There is therefore no history of compliance with visit visas and in the absence of evidence that there is, we are unable to draw positive inferences.".
6. Permission to appeal was granted by First-tier Tribunal Judge Peart on 7th November 2016. The matter comes before me to consider whether the decision of the First-tier Tribunal involved the making of a material error of law, and if so, to remake the decision.
7. Ms Kauser submits that the First-tier Tribunal erroneously proceed upon an assumption that is plainly wrong. That in itself undermines the decision of the First-tier Tribunal and the Judges' consideration of proportionality. The consideration is vitiated by the Judges' view that the appellant's father and father-in-law, had been in the United Kingdom unlawfully. Having formed that view, it is reasonable to assume that the Judges' considered that the appellants would also remain in the United Kingdom unlawfully. She submits that the Tribunal has failed to set out its reasons as to why the decision of the Court of Appeal in Abbasi can be distinguished.
8. As to the conclusions at paragraphs [17] to [20] of the decision of the First-tier Tribunal, Ms Kauser submits that the First-tier Tribunal failed to have proper regard to the positive immigration history that weigh's in favour of the appellants and failed to have any proper regard to the actual purpose of the visit. She submits that the decision shows a lack of compassion.
9. The respondent has filed a Rule 24 response. The respondent accepts that the First-tier Tribunal may have erred in relation to the nationality of the deceased. However, the respondent submits that that mistake, does not undermine the findings at paragraphs 17 and 18 of the decision, that are fact sensitive.
10. Before me, Mr Mills quite properly accepts that the First-tier Tribunal did speculate as to the immigration status of the appellants' father and father-in-law, and it is now accepted that he was in fact a British citizen. He reminds me that although this is not an appeal under the immigration rules, whether or not the appellants can satisfy the requirements of the rules, is relevant to the assessment of proportionality. Mr Mills submit that at paragraphs [17] to [20], the Judges' make findings and reach conclusions that were properly open to them on the evidence. He submits that it is obvious why the Judges' reached those findings and conclusions. The appellants are not in employment and rely upon limited rental income. All of their children and family are now in the United Kingdom. When the appellants had last visited the UK, Abdul Majid was still living in Pakistan. That tie that they previously had to Pakistan, in the form of the appellants' father and father-in-law, who has now sadly passed away, represents a change in the appellants' circumstances such that it was properly open to the First-tier Tribunal to ultimately conclude that the entry clearance officer was correct in reaching the conclusion that the appellants do not intend to return to Pakistan and that the decision to refuse leave to enter, is therefore not disproportionate.
Discussion
11. The First-tier Tribunal was obliged to assess the evidence to decide whether the appellants met the substance of the immigration rules. Although that question did not arise directly as a result of the limited ground of appeal available, it was the context in which the decision upon the Article 8 appeal was to be made; Mostafa (Article 8 in entry clearance) [2015] UKUT 112 and Kaur (visit appeals; Article 8) [2015] UKUT 487.
12. In Abbasi and another (visits - bereavement - Article 8) [2015] UKUT 00463 (IAC) a Presidential panel of the Upper Tribunal held that the refusal of a visit visa to foreign nationals seeking to enter the UK for a finite period for the purpose of mourning with family members, the recent death of a close relative and visiting the grave of a deceased person, is capable of constituting a disproportionate interference with the rights of the persons concerned under Article 8, and that the question is fact-sensitive.
13. In Abbasi, the two appellants were Pakistani nationals, aged 29 and 21 respectively. They applied for a visa to enter the UK for 4 weeks to visit their grandfather's grave and mourn with family members. The First-tier Tribunal had found that whilst it is understandable that the appellants' may wish to visit family members in the UK during a period of mourning for their grandfather, not being able to do so, does not amount to a breach of right to family life under Article 8. The Upper Tribunal held that the First-tier Tribunal's decision that the appellants appeal did not fall within the ambit of Article 8, was unsustainable. On the facts, the Upper Tribunal concluded that the impugned decisions represented a disproportionate interference with the right to respect for both private and family life enjoyed by the appellants and the other family members and relatives concerned. The Upper Tribunal stressed that cases of this kind, will inevitably be the fact sensitive.
14. At paragraph [15] of its decision here, the First-tier Tribunal found, in line with the authorities, that the decisions of the respondent interfere with the family and private life rights of the appellants' and other family members. The First-tier Tribunal found that the legitimate aim is the maintenance of a firm policy of immigration control. The Tribunal then turned to the question of proportionality. The Tribunal found that the decision to refuse leave to enter is not disproportionate when weighed against the legitimate aim of the maintenance of firm immigration control. The reasons for that conclusion are set out at paragraphs [16] to [19] of the decision.
15. Turning then to the reasons given by the Tribunal, it is now common ground that at paragraph [16] of its decision, the First-tier Tribunal wrongly speculated that Abdul Majid was not lawfully in the UK, and was accessing medical care without entitlement. That was undoubtedly a mistake as to fact, but that in itself cannot assist the appellants unless that mistake of fact amounts to a material error of law affecting the outcome of the appeal. The question for me therefore is whether, but for that mistake of fact, the Tribunal would have reached the same decision and dismissed the appeal, for the reasons identified at paragraphs [17] to [19] of the decision.
16. I reject the submission by Mrs Kauser that the First-tier Tribunal failed to have proper regard to the appellants' immigration history. At paragraph [17], the First-tier Tribunal Judges note that the sponsor's evidence that the appellants made a visit to the UK some ten years ago. In my judgment, properly read, the First-tier Tribunal noted that the appellants have previously visited the UK, whilst also noting that there is no history of regular compliance with visit visas such that the Tribunal could draw positive inferences. As Mr Mills submits, the position when the appellants visited previously was somewhat different, not least because they were younger and at the time, the appellants father and father-in-law was still living in Pakistan. They plainly had an incentive to return. That incentive is no longer there.
17. In my judgement, it was properly open to the First-tier Tribunal to conclude, on the evidence, that the appellants have little to tie them to Pakistan. They have a modest income that will be accessible here in the UK, and they have no close family in Pakistan. Their entire extended family, as the Tribunal notes, is in the UK. The matters advanced on behalf of the appellants' in relation to the findings at paragraphs [17] and [18] of the decision of the First-tier Tribunal amount to nothing more than a disagreement with the findings of the Judges.
18. It is now well established that what is required in a decision is that the reasons provided must give sufficient detail to show the parties and the appellate Tribunal, the principles upon which the lower tribunal has acted, and the reasons that led it to its decision, so that they are able to understand why it reached its decision. The reasons need not be elaborate, and need not deal with every argument presented. The Court of Appeal in R & ors (Iran) v SSHD [2005] EWCA Civ 982 held that a finding might only be set aside for error of law on the grounds of perversity if it was irrational or unreasonable in the Wednesbury sense, or one that was wholly unsupported by the evidence. In my judgment, the findings at paragraphs [17] to [19] of the First-tier Tribunal were properly open to the Tribunal.
19. I accordingly find that, in finding Article 8 to be applicable, the First-tier Tribunal did not err in law. The Tribunal's assessment of proportionality followed the Razgar paradigm, was structured, and reasoned. Whilst it erred in fact at paragraph [16] of the decision, that mistake as to fact was not material to the outcome of the appeal. It was open to the Tribunal to conclude that, weighed against the maintenance of firm immigration control, the decision is not disproportionate for the reasons set out at paragraphs [17] to [19] of the decision.
20. The appeal is dismissed.
Notice of Decision
21. The appeal is dismissed and the decision of the First-tier Tribunal shall stand.
22. No anonymity direction is made.

Signed Date

Deputy Upper Tribunal Judge Mandalia

TO THE RESPONDENT
FEE AWARD
I have dismissed the appeal and so there can be no fee award.

Signed

Deputy Upper Tribunal Judge Mandalia