Tribunal decisions

The decision

IAC-FH-LW-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/12057/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 17 March 2017
On 28 March 2017

Before

UPPER TRIBUNAL JUDGE RINTOUL

Between

moiz Ishtiaq
(ANONYMITY DIRECTION not made)

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: No appearance
For the Respondent: Ms J Isherwood, Presenting Officer

DECISION AND REASONS

1. The appellant appeals with permission against the decision of First-tier Tribunal Judge Lebasci promulgated on 10 August 2016.
2. The appellant is a citizen of Pakistan born on 7 August 1998. The basis of the appeal is a challenge to a decision of the Secretary of State made on 16 October 2015 to refuse him leave to enter the United Kingdom as the dependant of his father, Muhammad Ishtiaq, who is present in the United Kingdom as a Tier 1 (General) Migrant who had leave at that point until 17 June 2018. The decision was made pursuant to paragraph 319 of the Immigration Rules. The refusal was on the basis that the appellant had not met all the entry requirements of a dependent child and the Entry Clearance Officer was not satisfied that refusing entry clearance would be in breach of the appellant’s rights pursuant to Article 8 of the Human Rights Convention, or that having had regard to the duty to safeguard children under Section 55 of the Borders, Citizenship and Immigration Act 2009 that there is any reason why entry clearance should be granted.
3. The refusal under paragraph 319 was on the basis that the appellant was seeking to join his father in the United Kingdom, whereas his mother was remaining in Pakistan, was not travelling to the United Kingdom on the same occasion and on that basis the requirements of 319HF were not met, given that the Entry Clearance Officer was not satisfied that the appellant’s father has had sole responsibility for his upbringing, or that there were serious or compelling family or other considerations which made it desirable not to refuse the application.
4. The appeal was determined on the papers and the judge took into account the material that had been provided. The judge found that he was not satisfied that the appellant met the requirements of paragraph 319HF of the Immigration Rules as he was not satisfied his father had sole responsibility for his upbringing, and noting that the appellant lived with his mother and siblings in Pakistan and the grandmother is helping to care for them as the mother suffers with high blood pressure and breathing problems, and in the absence of any medical evidence to support that, he was not satisfied that there are serious and compelling reasons or other family considerations, or that the father had responsibility.
5. What the judge did not, however, do, is make any findings with respect to human rights. The appellant sought permission to appeal on the basis that the judge had erred in his approach to the findings with respect to sole responsibility and had failed properly to take into account all the relevant material which is set out in the grounds of appeal. A further complaint is made of bias on the part of the Tribunal on the basis that it had waited over eight months deliberately and intentionally such that the appellant would hit the 18 years’ age limit and thus could not apply for entry clearance as a dependant of his father
6. In this case permission was granted by Acting Resident Judge Appleyard sitting as a judge of the First-tier Tribunal on 29 December 2016. He noted that the judge dealt with the appeal on the basis of the failure of the appellant to meet the requirements of the Immigration Rules and that as the respondent’s decision was dated 16 October 2015 it was incumbent on the judge to consider the failure to meet the requirements of the Immigration Rules and the context of the breach of the appellant’s human rights. He noted the judge simply dealt with the appeal on the basis of the failure to meet the requirements of the Immigration Rules and accordingly had made an obvious arguable error of law noting that whether this in fact makes any difference is moot.
7. Neither the appellant nor the sponsor, who is the appellant’s father, has instructed, it appears, anyone to appear in this hearing. No proper explanation has been given for the failure for a lack of representation or for the sponsor to attend. I am satisfied that due notice of the date, time and venue of the hearing has been given and that there is no good reason why I should not proceed to determine this appeal.
8. I am satisfied that the decision of the First-tier Tribunal did involve the making of an error of law in that the judge failed to take into account Article 8, or to make any findings for that matter in respect of human rights, which is a serious error given that this is precisely what the appeal was about.
9. It appears that the judge had not engaged with the fact that as at the date he had signed his decision the appellant was already aged 18. That is important and relevant because unlike appeals previously against entry clearance decisions under the Immigration Rules the position is that in an appeal on Human Rights grounds the judge is to consider the position as at the date of the hearing or if later, the date on which a decision of the First-tier Tribunal is made.
10. In this case because of his age the appellant could no longer meet the requirement of the Immigration Rules. That therefore means that there would had to have been a considerably more nuanced approach to the issue of human rights than could be dealt with by a simple assessment of the Immigration Rules. That is because had the appellant been under the age of 18 the judge’s findings with respect to sole responsibility and the lack of any other reasons as to why entry clearance should be granted would in reality have covered if not all the scope of debate over Article 8, certainly a very great part of it, and it is difficult to see how in an Article 8 case where there had been sustainable findings that the parent it was sought to join did not have sole responsibility for the appellant and where there were no other compelling reasons why the child should be allowed to come to the United Kingdom, and particularly in the fact of this case where the mother and siblings remain in Pakistan that it would be possible to find, bearing in mind the need to maintain immigration control which includes treating like cases as like cases and applying the Rules that any application could have succeeded in showing that the decision in this case was disproportionate. It is not a case in which it is said of course that the appellant could not visit his father in the United Kingdom or that the father could not visit the family in Pakistan.
11. I do not consider that it could be said that there was any bias whatsoever in the delay in this case being dealt with. It is well-known that there are significant pressures on the immigration appeals system in the United Kingdom and whilst it may be unfortunate that no decision was made in this case until after the appellant had reached the age of 18, there is insufficient evidence on which it could be said that there was any bias or that the appellant had been in any way treated even arguably unfairly or treated differently from anybody else. There is, for example, no proper indication that a request was made to expedite matters.
12. Nonetheless, for the reasons set out above, I consider that the decision must be remade.
13. In remaking the decision, I have considered the material which has been supplied in bundles by the appellant and sponsor, these bundles being under cover of letters dated 7 February 2017 and received here again in the case of two other bundles on 3 February 2017 and 3 March 2017. Much of this material is directed towards the legal position of the appellant as a minor in Pakistan and the extent to which at Pakistani law, and under Muslim law in general, the father has legally sole responsibility for the child. I have no doubt that that is the law in Pakistan, but that is not the law which is being applied here. What is to be considered here, in the assessment of sole responsibility, is set out in the decision of the Tribunal in TD (Paragraph 297(i)(e): "sole responsibility") Yemen [2006] UKAIT 0004. The issue of legal guardianship is a factor, but it is in no means determinative of the situation, not least where, as in this case, one of the parents remained in Pakistan and the other parent was in the United Kingdom. In any event, I am remaking this decision as at 17 March 2017. The appellant is now well over the age of 18. The question I must ask is whether refusal to grant him entry clearance to the United Kingdom is in breach of the United Kingdom’s obligations pursuant to the Human Rights Convention. A consideration of the applicable Immigration Rules forms a part of that and would in this case, following the five-stage analysis identified in Razgar form part of the consideration of the fourth and/or fifth steps.
14. I am satisfied for the purposes of this appeal that the appellant does continue to have a family life with his father, albeit a tenuous one. He is an adult, but I accept that he is to a considerable extent dependent on his father financially, if not also emotionally, and I am prepared to accept for these purposes that a family life exists.
15. The next matter which I must consider is whether the refusal of entry clearance does on the facts of this case amount to an interference with his right to respect for that family life. I am not satisfied that that is so. Even accepting there is a family life in this case there is no basis on which the Immigration Rules would permit the appellant to come in as a dependent of his father on the basis of the evidence before me. Second, the appellant and his father have been living separately for a number of years. The appellant is now an adult and there is no proper indication in the evidence that the appellant could not come to the United Kingdom to visit his father or that the father could not return to Pakistan to visit. If, however, I am wrong on either of those considerations, I have gone on to consider in the alternative whether the fourth and fifth questions set out in the Razgar analysis can be answered in the affirmative.
16. In assessing whether the decision in accordance with law, I am guided by R (Munjaz) v Ashworth Hospital [2005] UKHL 58 at [34] per Lord Bingham:
34. Mr Gordon, on behalf of Mind, submits that the interference is not "in accordance with the law" because not prescribed by a binding general law. I cannot for my part accept this. The requirement that any interference with the right guaranteed by article 8(1) be in accordance with the law is important and salutary, but it is directed to substance and not form. It is intended to ensure that any interference is not random and arbitrary but governed by clear pre-existing rules, and that the circumstances and procedures adopted are predictable and foreseeable by those to whom they are applied. This could of course have been achieved by binding statutory provisions or binding ministerial regulations. But that was not the model Parliament adopted. It preferred to require the Secretary of State to give guidance and (in relation to seclusion) to call on hospitals to have clear written guidelines. Given the broad range of institutions in which patients may be treated for mental disorder, a matter on which Mr Gordon places special emphasis, it is readily understandable why a single set of rules, binding on all, was thought to be undesirable and perhaps impracticable. It is common ground that the power to seclude a patient within the hospital is implied from the power to detain as a "necessary ingredient flowing from a power of detention for treatment": see Auld LJ in R v Broadmoor Special Hospital Authority, Ex p S, H and D (5 February 1998, unreported) [ [1998] EWCA Civ 160 ] and the Court of Appeal judgment in the present case, para 40. The procedure adopted by the Trust does not permit arbitrary or random decision-making. The rules are accessible, foreseeable and predictable. It cannot be said, in my opinion that they are not in accordance with or prescribed by law.
17. Here, the decision was taken according to the Immigration Rules which are, on this point, clear and pre-existing. The circumstances and procedures were predictable, as well as foreseeable, given the existence also of published guidance.
18. The question then remains whether, assuming there is an interference of the right to respect for private and family life, that interference was disproportionate. As I have already indicated, the requirements of the Immigration Rules paragraph 391H are no longer relevant to this case, given the appellant’s age. In assessing proportionality I bear in mind that this is a case in which there is no basis on which the appellant can now travel to the United Kingdom to be joined with his father on a permanent or semi-permanent basis, such as the dependant of a Tier 1 Migrant, which would ultimately lead to settlement.
19. There is in reality nothing in the material of a compelling nature such that an adult who is without any apparent medical problems should be allowed to enter the United Kingdom to remain with a parent. This is not a case in which it can be said that his life is at risk to a significant degree, nor is there any real evidence that there is a lack of funds or that he would be in any way destitute. On the contrary, the evidence is that the father is a wealthy individual and is capable of providing for his family and also giving contributions outside the family to support people in the local area.
20. I bear in mind also that there is a significant and substantial weight to be attached to the public interest in maintaining immigration control. The maintenance of immigration control includes the maintenance of an identifiable system of rules by which people may or may not enter the United Kingdom. Article 8 is not a way of dispensing with that system of control. What in effect the applicant is arguing in this case is that although he cannot meet the requirements of the immigration control and the United Kingdom’s policies not to permit people to enter at his age to join parents in this condition, he should nonetheless be treated differently from everybody else in that position. Yet, he fails properly to set out any basis why that is so for the reasons I have already given. Accordingly, I am not satisfied that any interference if there is interference in this case would be disproportionate.
21. In conclusion therefore, I find that the appellant has not satisfied me that the refusal to grant immigration control in this case is in breach of the United Kingdom’s obligations pursuant to the Human Rights Convention.

Summary of conclusions
1. The decision of the First-tier Tribunal involved the making of an error of law, and I set it aside
2. I remake the decision by dismissing it on all grounds.
3. No anonymity direction is made.

Signed Date: 24 March 2017

Upper Tribunal Judge Rintoul