HU/11812/2015
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The decision
.
IAC-fH-nl-V1
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/11812/2015
THE IMMIGRATION ACTS
Heard at Field House
Decision & Reasons Promulgated
On 13th March 2017
On 21 March 2017
Before
UPPER TRIBUNAL JUDGE FRANCES
Between
ENTRY CLEARANCE OFFICER
Appellant
and
MISS RACHEL SARA ARGYLE GARBUTT
(anonymity direction not made)
Respondent
Representation:
For the Appellant: Mr P Singh, Home Office Presenting Officer
For the Respondent: No appearance
DECISION AND REASONS
1. I shall refer to the parties as in the First-tier Tribunal. The Appellant is a citizen of Canada born on 5th February 1992. Her appeal against the refusal of entry clearance was allowed under the Immigration Rules by First-tier Tribunal Judge Samimi in a decision promulgated on 26th September 2016.
2. Permission to appeal was granted by First-tier Tribunal Judge Brunnen on 24th January 2017. It was arguable that the only ground of appeal open to the Appellant was that the Respondent’s decision was unlawful under section 6 of the Human Rights Act 1998. The judge did not give any consideration to this ground.
Submissions by the Respondent
3. Mr Singh queried whether there was jurisdiction to hear the appeal given that the Entry Clearance Officer [ECO] had written to the Appellant, on 28th June 2016, withdrawing the decision refusing entry clearance. The appeal was heard on 25th June 2016 and therefore the letter withdrawing the decision post-dated the First-tier Tribunal decision.
4. On that basis Mr Singh pursued the Respondent’s appeal on the ground that the judge had erred in law in allowing the appeal under the Immigration Rules. The Appellant’s application was made on 23rd October 2015. Under Section 82, as amended, the right of appeal was restricted to a protection claim, a human rights claim or a decision to revoke protection status. Accordingly, the judge had erred in law in failing to make any findings on whether the refusal of entry clearance breached Article 8.
5. Mr Singh submitted that the Respondent’s decision did not interfere with the Appellant’s human rights. Although she produced further evidence in support of her appeal it was submitted that this was not before the ECO and the date of decision was the relevant date for considering Article 8. Accordingly, the Appellant could not succeed under the Immigration Rules. The judge, had she gone on to consider Article 8, could not have allowed the appeal on human rights grounds because there was no evidence of any interference with family or private life. The Appellant had sought entry to the UK to work, not to join her family. Since she could not satisfy the Immigration Rules, it could not be said that the decision refusing entry clearance was disproportionate.
Discussion and Conclusions
6. I find that the judge erred in law in allowing the appeal under the Immigration Rules. The appeal was restricted to human rights grounds and there was no human rights claim raised before the judge. There was insufficient evidence to show that the refusal interfered with the Appellant’s family and private life and, following Mostafa (Article 8 in entry clearance) [2015] UKUT 00112 (IAC), it would only be in very exceptional circumstances that the refusal of entry clearance would breach Article 8.
7. Accordingly, I set aside the decision of First-tier Tribunal Judge Samimi promulgated on 26th September 2016 and I remake it as follows: The Appellant’s appeal is dismissed on human rights grounds.
8. The Appellant was not represented at the hearing before me. This may well be because she has a letter informing her that there will be a further decision on her application. Accordingly, she has not suffered any prejudice and it will be open to her, should she receive an unfavourable decision, to exercise her right of appeal on human rights grounds against any subsequent decision made by the Respondent.
Notice of Decision
The Respondent’s appeal is allowed.
The Appellant’s appeal against the refusal of entry clearance is dismissed on human rights grounds.
No anonymity direction is made.
J Frances
Signed Date: 20th March 2017
Upper Tribunal Judge Frances
IAC-fH-nl-V1
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/11812/2015
THE IMMIGRATION ACTS
Heard at Field House
Decision & Reasons Promulgated
On 13th March 2017
On 21 March 2017
Before
UPPER TRIBUNAL JUDGE FRANCES
Between
ENTRY CLEARANCE OFFICER
Appellant
and
MISS RACHEL SARA ARGYLE GARBUTT
(anonymity direction not made)
Respondent
Representation:
For the Appellant: Mr P Singh, Home Office Presenting Officer
For the Respondent: No appearance
DECISION AND REASONS
1. I shall refer to the parties as in the First-tier Tribunal. The Appellant is a citizen of Canada born on 5th February 1992. Her appeal against the refusal of entry clearance was allowed under the Immigration Rules by First-tier Tribunal Judge Samimi in a decision promulgated on 26th September 2016.
2. Permission to appeal was granted by First-tier Tribunal Judge Brunnen on 24th January 2017. It was arguable that the only ground of appeal open to the Appellant was that the Respondent’s decision was unlawful under section 6 of the Human Rights Act 1998. The judge did not give any consideration to this ground.
Submissions by the Respondent
3. Mr Singh queried whether there was jurisdiction to hear the appeal given that the Entry Clearance Officer [ECO] had written to the Appellant, on 28th June 2016, withdrawing the decision refusing entry clearance. The appeal was heard on 25th June 2016 and therefore the letter withdrawing the decision post-dated the First-tier Tribunal decision.
4. On that basis Mr Singh pursued the Respondent’s appeal on the ground that the judge had erred in law in allowing the appeal under the Immigration Rules. The Appellant’s application was made on 23rd October 2015. Under Section 82, as amended, the right of appeal was restricted to a protection claim, a human rights claim or a decision to revoke protection status. Accordingly, the judge had erred in law in failing to make any findings on whether the refusal of entry clearance breached Article 8.
5. Mr Singh submitted that the Respondent’s decision did not interfere with the Appellant’s human rights. Although she produced further evidence in support of her appeal it was submitted that this was not before the ECO and the date of decision was the relevant date for considering Article 8. Accordingly, the Appellant could not succeed under the Immigration Rules. The judge, had she gone on to consider Article 8, could not have allowed the appeal on human rights grounds because there was no evidence of any interference with family or private life. The Appellant had sought entry to the UK to work, not to join her family. Since she could not satisfy the Immigration Rules, it could not be said that the decision refusing entry clearance was disproportionate.
Discussion and Conclusions
6. I find that the judge erred in law in allowing the appeal under the Immigration Rules. The appeal was restricted to human rights grounds and there was no human rights claim raised before the judge. There was insufficient evidence to show that the refusal interfered with the Appellant’s family and private life and, following Mostafa (Article 8 in entry clearance) [2015] UKUT 00112 (IAC), it would only be in very exceptional circumstances that the refusal of entry clearance would breach Article 8.
7. Accordingly, I set aside the decision of First-tier Tribunal Judge Samimi promulgated on 26th September 2016 and I remake it as follows: The Appellant’s appeal is dismissed on human rights grounds.
8. The Appellant was not represented at the hearing before me. This may well be because she has a letter informing her that there will be a further decision on her application. Accordingly, she has not suffered any prejudice and it will be open to her, should she receive an unfavourable decision, to exercise her right of appeal on human rights grounds against any subsequent decision made by the Respondent.
Notice of Decision
The Respondent’s appeal is allowed.
The Appellant’s appeal against the refusal of entry clearance is dismissed on human rights grounds.
No anonymity direction is made.
J Frances
Signed Date: 20th March 2017
Upper Tribunal Judge Frances