Tribunal decisions

The decision

IAC-FH-LW-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: HU/13774/2015
HU/13777/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 21 February 2017
On 28 February 2017

Before

UPPER TRIBUNAL JUDGE WARR

Between

zaroof begum (First Appellant)
Arsalan Ahmad kaleem (Second Appellant)
(ANONYMITY DIRECTIONs not made)
Appellants
and

ENTRY CLEARANCE OFFICER – ABU DHABI
Respondent

Representation:

For the Appellants: No appearance
For the Respondent: Mr P Armstrong, Home Office Presenting Officer

DECISION AND REASONS

1. The appellants are citizens of Pakistan. The first appellant was born on 1 January 1949 and is the mother of the second appellant born on 9 September 1998. They appeal the decision of First-tier Judge Graham to dismiss their appeal against the decision of the Entry Clearance Officer on 24 November 2015 to refuse their applications to visit the sponsor in the United Kingdom.

2. Although the relationship between the sponsor and the appellants was questioned by the Entry Clearance Manager, Judge Graham was satisfied that the sponsor was the father of the first appellant and the second appellant was the sponsor’s grandson.

3. The reasons given for the Entry Clearance Officer refusing the applications were helpfully summarised by the judge as follows:

“(i) In respect of the first Appellant, the Entry Clearance Officer acknowledged the compassionate circumstances surrounding this visit; she said that her mother had died and that she wished to visit her mother’s grave and her father, the sponsor, who was in ill-health in the UK.

(ii) The Entry Clearance Officer was not satisfied that the first Appellant had given an accurate account of her personal circumstances in Pakistan, nor was it clear how she was financially supported, which caused the Entry Clearance Officer to doubt the credibility of the application. The affidavit submitted as evidence of land; her husband’s bank statements and company registration was considered a self-declaration and little weight was placed on this document. The submitted bank statements did not reflect a sustainable income nor the origin of funds in the account therefore the bank statements did not satisfactorily demonstrate the husband’s income or whether these funds were under his personal control. There was no evidence that the land the husband owned generated an income.

(iii) The Entry Clearance Officer noted the Appellant stated the trip would cost her £2000, which was considered to be an unreasonable expense given the uncertainty about the origin of funds in the spouse’s account which led the Entry Clearance Officer to doubt that the Appellant was a genuine visitor seeing entry to the UK for a limited period.

(iv) In relation to the second Appellant, he was a student and was supported by his father, however, he provided no supporting evidence relating to his studies and presented the same documentation in relation to his father’s finances as the first Appellant produced. His application was refused for the same reasons as his mother’s.”

4. The appellants were not represented and the First-tier Judge determined the appeal on the papers that had been lodged. The judge referred to Mostafa [2015] UKUT 00112 (IAC) which she noted stated that the claimant’s ability to satisfy the Immigration Rules is not the question to be determined by the Tribunal:

“but is capable of being a weighty, though not determinative factor when deciding whether such refusal is proportionate to the legitimate aim of enforcing immigration control. I am therefore confined to considering these Appeals under the Human Rights Act.”

5. The determination concludes as follows:

“10. I have also referred to the case of Adjei (Visit visas – Article 8) [2015] UKUT 0261 (IAC), the head note of which states:

(1) The first question to be addressed in an appeal against refusal to grant entry clearance as a visitor where only human rights grounds are available is whether Article 8 of the ECHR is engaged at all. If it is not, which will not infrequently be the case, the Tribunal has no jurisdiction to embark upon an assessment of the decision of the ECO under the Rules and should not do so. If Article 8 is engaged, the Tribunal may need to look at the extent to which the claimant is said to have failed to meet the requirements of the Rule because that may inform the proportionality balancing exercise that must follow. Mostafa is not authority for any contrary proposition.

(2) As compliance with para 41 of HC 395 is not a ground of appeal to be decided by the Tribunal, any findings concerning that will carry little weight, especially if based upon arguments advanced only by the Appellant. If the Appellant were to make a fresh application for entry clearance the ECO will, if requested to do so, have regard to the assessment carried out by the judge but will not be bound by those findings to treat the Appellant as a person who, at least at the date of the appeal hearing, met the requirements of paragraph 41.

11. I have referred to the Direction made by Immigration Judge Hall dated 10th May 2016 which allows the Appellants the opportunity to address the relationship between themselves and the late Saleema Begum and the sponsor which was raised as a new issue by the Entry Clearance Manager. I am satisfied the first Appellant has submitted satisfactory documentation including a copy of her birth certificate and Family Registration certificate both documents show Saleema Begum is the mother of the first Appellant and the sponsor is the father of the first Appellant. There is no challenge to the relationship between the Appellants. Therefore I am satisfied to the required standard that the first Appellant is the daughter and the second Appellant is the grandson of the late Saleema Begum and the sponsor.

12. The first question to be asked is whether the relationship between the Appellants and the Sponsor amounts to family life within the meaning of Article 8.

13. In the Strasburg case of Advic v The United Kingdom [1995] ECHR 57 the Commission said “...in accordance with the Commission's case-law, the exclusion of a person from a country in which his close relatives reside may raise an issue under Article 8 of the Convention. However, in examining cases of this nature the Commission's first task is to consider whether a sufficient link exists between the relatives concerned to give rise to the protection of Article 8 of the Convention. Although this will depend on the circumstances of each particular case, the Commission has already considered that the protection of Article 8 did not cover links between adult brothers who had been living apart for a long period of time and who were not dependent on each other. Moreover, the relationship between a parent and an adult child would not necessarily acquire the protection of Article 8 (Art. 8) of the Convention without evidence of further elements of dependency, involving more than the normal, emotional ties ...”

14. The Court also stated in Mokrani v France [2003] 40 EHRR 123 that “relationships between adults do not necessarily benefit from protection under Article 8 of the Convention unless the existence of additional elements of dependence other than normal emotional ties can be proven”. In Kugathas [2003] EWCA Civ 31 the Court of Appeal reiterated the dicta of the Strasburg cases but added that the further element of dependency did not have to be economic and stated that it would be necessary to show that ties of support, either emotional or economic were in existence and go beyond the ordinary and natural ties of affection that would accompany a relationship of that kind. In the Court of Appeal case of JB (India) [2009] EWCA Civ 234 it was said that the approach in Kugathas must be applied to the question whether “family life” for the purposes of Article 8 subsists between parents and their adult children. There must be “elements of dependency going beyond the normal emotional ties”. If such dependency is not found then the refusal to admit members of the family simply does not constitute interference with family life. In the later case of AAO [2011] EWCA Civ 840 the Court of Appeal gave guidance on the point and stated that family life would not normally exist between parents and adult children within the meaning of Article 8 in the absence of further elements of dependency which went beyond normal emotional ties.

15. I am satisfied that each case must be determined on its facts. In these appeals the first Appellant has clearly established an independent life in Pakistan with her husband and children, and without further evidence of emotional dependency, I am bound to find that Article 8 is not engaged. Given this finding, I am unable to look at the Immigration Rules or further, the compassionate element of these appeals outside the Immigration Rules. There is nothing preventing these Appellants reapplying for entry clearance, I would advise them to fully document and fully address the matters raised in the refusal notices in any future application.

16. Accordingly I find that Article 8 ECHR is not engaged in these Appeals which must therefore be dismissed.”

6. The first appellant applied for permission to appeal referring to the case of Abbasi (visits – bereavement – Article 8) [2015] UKUT 463 (IAC). Permission was granted on the basis that there had been no reference to the case of Abbasi which was directly on point and the circumstances in the instant appeal were similar. It was not apparent that the decision had been brought to the attention of the First-tier Judge.

7. The respondent filed a response on 19 January 2017. It was submitted that the First-tier Judge had been entitled to find that there was no family life between the first appellant and her family in the UK. The first appellant had been living an independent life in Pakistan with her husband and child and the findings of fact were open to the judge, even applying Abbasi.

8. The appellants were not represented before me and there were no members of the family of the sponsor in attendance. I was satisfied that notice of the hearing had been properly given. It appeared appropriate to proceed under Rule 38 of the Procedure Rules.

9. Mr Graham submitted that the case of Abbasi made it clear in paragraph 2 of the italicised words that “The question of whether Article 8 applies and, if so, is breached will depend upon the fact sensitive context of the particular case.” It was further made clear that a structured and sequential approach to the Article 8 issues was required. This was what the judge had done and the grounds simply amounted to a disagreement with the decision. The appellants had an independent life in Pakistan and could reapply for entry clearance. It was unclear why no-one had been instructed to represent them at the hearing. The failure to refer to Abbasi was not material in all the circumstances. The appeal should be dismissed.

10. At the conclusion of the submissions I reserved my decision. I remind myself that I can only interfere with the judge’s decision if it was materially flawed in law.

11. In the grounds of appeal, apart from the case of Abbasi reference was made to the decision of Kaur (visit appeals; Article 8) [2015] UKUT 00487 (IAC) which it was submitted held that in visit visa appeals based upon human rights the starting point was the ability of the appellant to comply with the visit visa requirements of the Immigration Rules and that the restriction of the grounds of appeal in visitor cases to human rights still required judges to find the facts and resolve resultant disputes. First-tier Judge Graham had not considered the cases of Kaur and Abbasi. One of the main purposes of the visit of the appellants was to see the first appellant’s elderly father, perhaps for the last time. He was too ill to travel. The first appellant wished to visit her mother’s grave and grieve with other family members.

12. In Kaur the Tribunal considered both Mostafa and Adjei and found there was no tension between the two decisions. The judge in Adjei had simply bypassed the Entry Clearance Officer’s reasons for refusing the application. In Abbasi the appellants were brothers who had applied to visit their grandfather’s grave. Their mother had made a similar application which had been refused but was granted upon review by the Entry Clearance Manager. Her appeal to the First-tier Tribunal had not been pursued. The only issue under the Rules was a doubt expressed by the Entry Clearance Officer about the appellants’ father’s intention and capacity to finance the travel of the appellants and their mother to the United Kingdom and back. The Tribunal records in paragraph 14 of its decision that consideration was not advanced with any force in argument before the Tribunal. In the case of Abbasi, therefore, the respondent on review had reviewed favourably one of the family’s refusals and argument in respect of the others had not been maintained before the Tribunal. In the instant appeal the issues are very different. Apart from the question of the relationship between the sponsor and the appellants there have been no concessions about the basis for the refusal under the Rules.

13. As Mr Graham points out the appellants have not instructed representatives at either stage of the appeal process.

14. The First-tier Judge does refer to Mostafa which states that the claimant’s ability to satisfy the Immigration Rules was capable of being a weighty, though not determinative factor when deciding whether refusal was proportionate.

15. The judge is criticised for not referring to Abbasi and for failing to consider the appellants’ case under the Immigration Rules. The judge applied Adjei which she refers to in paragraph 10 of her decision, which I have set out above.

16. The judge was plainly not assisted by the absence of representation and no representative has been instructed on the part of the appellants before me and there has been, for example, no skeleton argument submitted.

17. Given the findings of the judge that Article 8 was not engaged she deemed it unnecessary to go further and look at the Immigration Rules. However, it is implicit in paragraph 15 of her decision that she would have required some persuasion to find that the appellants complied with the Rules. She advised them to fully document and fully address the matters raised in the refusal notices in any future application.

18. In the case of Abbasi the first paragraph of the italicised words reads:

“The refusal of a visa to foreign nationals seeking to enter the United Kingdom for a finite period for the purpose of mourning with family members the recent death of a close relative and visiting the grave of the deceased is capable of constituting a disproportionate interference with the rights of the persons concerned under Article 8 ECHR.”

19. As I have observed, there was no serious dispute with the facts in that case about compliance with the Rules – the appellants were coming for a finite period. In the instant appeal the First-tier Judge summarised the respondent’s reasons for refusal. The respondent was not satisfied that the first appellant was a genuine visitor seeking entry to the UK for a limited period and the same applied to the second appellant. The respondent has never resiled from these reasons unlike the case of Abbasi. Abbasi makes it clear also that the question whether Article 8 applied and if so was breached would depend upon the fact-sensitive context of the particular case. In the instant appeal the judge reminded herself that each case must be determined on its facts. The judge found that the first appellant had clearly established an independent life in Pakistan with her husband and children and that Article 8 was not engaged without further evidence of emotional dependency. I note that the first appellant stated in her Visa Application Form that she had not travelled to the UK in the last ten years in answer to question 26. She refers in her grounds to previous visits in the mid 1990s. In her comments on the Entry Clearance Officer’s decision she refers to material considered by the Entry Clearance Officer and makes other representations. It was said that she has a disabled young daughter in Pakistan and would definitely return to her and her husband

20. Even if the judge had gone on to hold that Article 8 was engaged the Rules would then have come into play and the problem with this application is that the findings of the Entry Clearance Officer were not at all helpful to the first appellant’s claim about the purpose of her visit. He did not accept that he had been given an accurate account of the first appellant’s personal and financial circumstances in Pakistan and the credibility of the application was in doubt. The Entry Clearance Officer makes it plain that he was not satisfied that the first appellant’s circumstances were as had been indicated, nor of her intentions in wishing to travel to the UK now. He was not satisfied that she was genuinely seeking entry as a general visitor for a limited period as stated by her, nor that she intended to leave the UK at the end of the visit. He was further not satisfied that she had sufficient funds. This was a comprehensive refusal on the facts of the case.

21. It appears to be argued in the grounds that the Entry Clearance Officer had made some concession about the compassionate circumstances of the first appellant’s application. However, the refusal makes no concession, rather the reverse. The Entry Clearance Officer did not find in favour of the first appellant in relation to her intentions. He did not accept that the purpose of the visit was as stated. In other words, it was not a case where the Entry Clearance Officer accepted the appellants were seeking to enter the United Kingdom “for a finite period for the purposes of mourning with family members ...”.

22. The appellants chose not to be represented either before the First-tier Tribunal or before me. They did not properly address the reasons for the refusal of the visit visa. I do not find that the First-tier Judge materially erred in failing to make reference to Abbasi in the particular circumstances of this case. It is implicit in her decision that had she gone on to consider the question of whether the appellants could bring themselves within the Immigration Rules that she would have found against them. However, as she says, there is nothing preventing them from reapplying for entry clearance and I would reiterate her advice that they fully document and fully address the matters raised in the refusal notices in any future application.

23. The decision of the First-tier Judge is not affected by a material error of law and this appeal is dismissed.

24. The First-tier Judge made no anonymity direction and I make none.

25. The First-tier Judge made no fee award and I make none.

Signed Date 28 February 2017

G Warr, Judge of the Upper Tribunal