Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/08435/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 24 November 2016
On 01 December 2016

Before

LORD MATTHEWS, SITTING AS AN UPPER TRIBUNAL JUDGE
UPPER TRIBUNAL JUDGE KEBEDE

Between

miss yashal muhammad younus
(ANONYMITY DIRECTION not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr A Chohan of Counsel
For the Respondent: Mr P Armstrong, Home Office Presenting Officer

DECISION AND REASONS

1. This is an appeal against a determination of First-tier Tribunal Judge Siddiqi promulgated on 7 June 2016 refusing the appellant's appeal against the respondent's decision made on 8 September 2015 to refuse the appellant entry clearance to the UK as a child of a person present and settled here under Appendix FM of the Immigration Rules. It is said in paragraph 3 of the determination that the appeal related to the appellant being refused leave to remain but it must be a refusal to grant entry clearance. The determination in the FtT was considered by reference to Appendix FM of the Rules under Article 8 of the European Convention on Human Rights. It is to be noted that the determination was on the basis of the papers, there being no appearance by either party. In addition the respondent's appeal bundle had not reached the FtT by the time the judge determined the appeal.

The Background
2. The appellant was born on 24 May 1997 in Pakistan. Before her 18th birthday she sought entry clearance to join her father who is present and settled in the UK. The application was under paragraph 297 of the Immigration Rules. The relevant parts of that paragraph are as follows:
"297. The requirements to be met by a person seeking indefinite leave to enter the United Kingdom as the child of a parent, parents or a relative present and settled or being admitted for settlement in the United Kingdom are that he:
(i) is seeking leave to enter to accompany or join a parent, parents or a relative in one of the following circumstances:
(a) both parents are present and settled in the United Kingdom; or
(b) both parents are being admitted on the same occasion for settlement; or
(c) one parent is present and settled in the United Kingdom and the other is being admitted on the same occasion for settlement; or
(d) one parent is present and settled in the United Kingdom or being admitted on the same occasion for settlement and the other parent is dead; or
(e) one parent is present and settled in the United Kingdom or being admitted on the same occasion for settlement and has had sole responsibility for the child's upbringing?
(ii) is under the age of 18 ?"
3. No argument was presented either to the First-tier Tribunal or to us in relation to Rule 297(f).
4. The appellant's sponsor is her father, who is present and settled in the UK. It appears plain that the appellant, her mother and her brother all intended to join the sponsor but the appellant's mother, it is said, was having problems with her TB test and with the English language test. The appellant's application was therefore submitted in advance of those of her mother and brother. The appellant claims that she informed the Entry Clearance Officer that her mother and brother would subsequently be submitting applications for leave to enter but, as paragraph 19 of the determination makes clear, they had not submitted their applications as at the date of the ECO's decision. A decision of the Entry Clearance Manager dated 19 April 2016 also makes the position clear. Although the appellant's mother and brother had since applied to join the sponsor in the UK they did not apply until 21 October 2015 which was four months after the appellant applied. The ECM found that the ECO was correct to consider the application under paragraph 297 because, at the time, the appellant was travelling alone to join her father in the UK as her mother had not yet applied and there was no indication when this would happen. They should all have applied together then she would have been assessed under Appendix FM. It was noted that by then, 19 April 2016, the mother's entry clearance had been issued. It is not said but it is apparent that the brother's had also. The Entry Clearance Manager considered the appellant's rights under Article 8 but was satisfied the decision was proportionate. He also considered whether there were any exceptional circumstances which might warrant a grant of entry clearance outwith the Rules but was satisfied that there was no basis for that.
5. The First-tier Tribunal Judge pointed out that the appellant did not refer to any policy or guidance which suggested that the appellant was entitled to have her application held in abeyance until her mother and brother had submitted their applications and there was no evidence before her to show the basis upon which the respondent could have dealt with the application differently. The judge found therefore that the appellant did not meet the requirements of the Rules as at the date of decision and that the decision was therefore in accordance with the law.
6. Before us it was not argued that that finding was wrong. This was however a human rights application. Even if the ECO did not know of the intention that the whole family should come to the UK, the ECM certainly knew that and the FtT knew it also. The FtT in particular failed to take account of the interests of the family and did not conduct a proper balancing exercise in terms of Article 8.
7. In reply Mr Armstrong submitted that the FtT Judge came to a decision which was open to her. The mother had made an application four months after the appellant had made hers. If it had been intended to make one application as a unit the mother had had plenty of opportunities to meet the appropriate requirements. He accepted that the ECM was aware that the rest of the family had made applications but was unsure what the position was as far as the ECO was concerned. Nonetheless the decision whether or not to exercise any discretion in favour of the appellant was not in breach of any policy or guidance. It could not be faulted.
8. As far as Article 8 was concerned, the FtT plainly gave full consideration to the question and she had made no material error in law. Amongst other things, at paragraph 26 the judge noted that the family were well aware of the importance of submitting complete applications in sufficient time to enable them to be considered together, there having been previous refusals.
9. The appellant could still apply in a different category, for example as a student.
10. Mr Chohan submitted that while the previous applications were refused the mother was not educated. The ECO would have been aware that the whole family had been refused before, another application would not be as a dependent child and the FtT had failed to carried out a balancing exercise.
Decision and Reasons

11. We are unable to find that there is any error of law in the determination of the First-tier Tribunal. As we have said, no issue is taken with the decision that the application could not succeed under the Rules. The judge plainly thereafter went on to consider the position under Article 8. At paragraph 4 she made it plain that that was what she was doing. At paragraph 5 she indicated that she was following the approach set out within the case of Razgar [2004] UKHL 27. She referred to the appropriate principles at paragraphs 12 and 13. In paragraph 21, having considered the matter under the Rules, she reverted to the human rights issues and dealt with Sections 117A, 117B and 117D of the 2002 Act.
12. In the light of these considerations she then went on to discuss the limited evidence which was before her in a manner which showed that she properly took into account all of the factors for and against the appellant's Article 8 claim. The balancing exercise which was carried out cannot be faulted.
Notice of Decision
13. It follows that we can find no error of law in the determination of the First-tier Tribunal and the appeal must be refused.

LORD MATTHEWS
Sitting as an Upper Tribunal Judge
(Immigration and Asylum Chamber)

Date: 25 November 2016