JR-2024-LON-001069
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The decision
JR-2024-LON-001069
In the Upper Tribunal
(Immigration and Asylum Chamber)
Judicial Review
In the matter of an application for Judicial Review
The King on the application of
Theresa Chioma Ezeh
Applicant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
ORDER
BEFORE Upper Tribunal Judge Kamara
HAVING considered all documents lodged and having heard Mr A Miah of counsel, instructed by Del Solicitors, for the applicant and Mr R Evans of counsel, instructed by GLD, for the respondent at a hearing on 28 April 2025.
AND UPON considering the applicant’s application for permission to appeal to the Court of Appeal;
AND UPON judgment being handed down on 21 May 2025;
IT IS ORDERED THAT:
(1) The claim is dismissed for the reasons in the attached judgment.
(2) The applicant shall pay the respondent’s reasonable costs, to be assessed if not agreed.
(3) Permission to appeal is refused.
Signed: T Kamara
Upper Tribunal Judge Kamara
Dated: 21 May 2025
The date on which this order was sent is given below
For completion by the Upper Tribunal Immigration and Asylum Chamber
Sent / Handed to the applicant, respondent and any interested party / the applicant's, respondent’s and any interested party’s solicitors on (date): 21/05/2025
Solicitors:
Ref No.
Home Office Ref:
Notification of appeal rights
A decision by the Upper Tribunal on an application for judicial review is a decision that disposes of proceedings.
A party may appeal against such a decision to the Court of Appeal on a point of law only. Any party who wishes to appeal should apply to the Upper Tribunal for permission, at the hearing at which the decision is given. If no application is made, the Tribunal must nonetheless consider at the hearing whether to give or refuse permission to appeal (rule 44(4B) of the Tribunal Procedure (Upper Tribunal) Rules 2008).
If the Tribunal refuses permission, either in response to an application or by virtue of rule 44(4B), then the party wishing to appeal can apply for permission from the Court of Appeal itself. This must be done by filing an appellant’s notice with the Civil Appeals Office of the Court of Appeal within 28 days of the date the Tribunal’s decision on permission to appeal was sent (Civil Procedure Rules Practice Direction 52D 3.3).
Case No: JR-2024-LON-001069
IN THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Field House,
Breams Buildings
London, EC4A 1WR
21 May 2025
Before:
UPPER TRIBUNAL JUDGE KAMARA
- - - - - - - - - - - - - - - - - - - -
Between:
THE KING
on the application of
Theresa Chioma Ezeh
Applicant
- and -
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
- - - - - - - - - - - - - - - - - - - -
Mr A Miah
(instructed by Del & Co Solicitors), for the applicant
Mr R Evans
(instructed by the Government Legal Department) for the respondent
Hearing date: 28 April 2025
- - - - - - - - - - - - - - - - - - - -
J U D G M E N T
- - - - - - - - - - - - - - - - - - - -
Judge Kamara:
1. By order of the Upper Tribunal dated 2 October 2024, the applicant was granted permission to apply for judicial review in order to challenge the respondent’s decision dated 16 April 2024 to refuse her leave to enter the United Kingdom as a visitor and to set removal directions.
2. The applicant is a dual national of Nigeria and St Kitts and Nevis. The applicant was refused entry clearance to the United Kingdom as a visitor on several occasions between 2013 and 2019. From November 2019 onwards, the applicant was granted entry clearance to the United Kingdom as a visitor on a number of occasions until the impugned decision.
3. On 9 April 2022, the applicant’s spouse Emmanuel Chike Ezeh applied for entry clearance to the United Kingdom as an Overseas Business Representative, an application which was refused on 15 September 2022. On 12 August two of the applicant’s children successfully applied for entry clearance to the United Kingdom as students. The applicant’s son, C1, was granted a Student child visa valid until 10 November 2025 and her daughter, C2 was issued with a Student Child visa valid until 31 July 2025.
4. The applicant was issued with a St. Kitts and Nevis passport on 19 December 2022. Between January 2023 and April 2024, the applicant entered the United Kingdom on 20 occasions. An application she made for a Skilled Worker Migrant Health & Care visa was rejected as void on 14 August 2023. A second application on the same basis was refused on 28 August 2023 and the license of the applicant’s proposed sponsor was revoked in December 2023.
5. The applicant returned to the United Kingdom on 13 April 2024 with C1 and C2. The applicant was granted bail by Border Force officials in order to take her children to their boarding school.
6. On being interviewed by an immigration officer on 16 April 2024, the applicant was refused permission to enter the United Kingdom with directions for her removal. The removal directions were lifted following the order of the Upper Tribunal sealed on 22 April 2024 granting the applicant a stay of removal.
7. The applicant’s husband and third child were in the United Kingdom at the time she was refused entry and returned to Nigeria shortly thereafter.
8. The respondent’s reasons for refusing the applicant entry are set out in the notice of refusal, which is the decision under challenge. In short, the respondent calculated that the applicant had stayed in the United Kingdom for 8 months in 2023 and in 2024 had already stayed for 64 days. The said notice also referred to the applicant’s enrolment on an educational programme, that she had purchased a property in the United Kingdom in 2023, that her return ticket was dated 11 July 2024 and the conclusion was reached that the applicant was not seeking entry as a visitor but to reside in the United Kingdom ‘through frequent and successive visits.’
9. The respondent was not therefore satisfied that the applicant was a genuine visitor as required by paragraph V4.2(b) of Appendix V: Immigration Rules for Visitors. It was noted in the said decision notice that the applicant had not sought entry under any other provisions of the Immigration Rules.
10. Following the grant of permission, the respondent served a supplementary decision letter dated on 26 November 2024 in order to ‘elaborate’ on the reasons for refusing entry clearance. It was specifically stated that this correspondence was not a new decision.
11. The main points made in the supplementary decision letter were that the applicant’s stated reasons for her visit did not justify the length or frequency of the visits as her children were full-time boarders and the applicant’s course required her presence just twice a year. The said letter acknowledged that the applicant had spent only 45 days in the United Kingdom in 2024 and not 64 days as stated in the decision dated 16 April 2024. Emphasis was placed on the fact that the applicant had spent 220 days during 2023 as stated in the decision refusing entry. Furthermore, the respondent remarked that had the applicant stayed for a further 6 weeks as planned, she would have spent more time in the United Kingdom than in her home country. The respondent was satisfied, considering the applicant’s case in the round that her home ownership was a further indication that she intended to make the United Kingdom her main home.
The pleadings
12. The original grounds of challenge argued that the proposed removal of the applicant was unlawful as there had been a failure to consider her supporting evidence. It was further argued that there had been a failure to grant her a right to Administrative Review or appeal despite her making a ‘human rights allegation.’ Reference was made to ‘new facts’ being presented which were not considered at the border and that the decision was Wednesbury unreasonable, irrational and failed to consider Article 8 ECHR. Permission was granted on the following basis;
It is arguable therefore that the Respondent’s reasons for finding that the Applicant is not a genuine visitor and is seeking to reside in the UK for extended periods through frequent or successive visits, or to make the UK her main home, contrary to paragraph V4.2(b) of Appendix V to the Immigration Rules, are irrational and/or that the Respondent has failed to take into consideration relevant matters.
13. The applicant was permitted to file and serve amended grounds by an order of an Upper Tribunal Lawyer sealed on 9 December 2024 in order to address the supplementary decision letter of 26 November 2024. The said order also granted the respondent permission to rely on the supplementary decision.
14. The amended grounds in relation to which neither counsel nor solicitor have attached their name, do not engage with the supplementary decision nor identify any public law error and amount to mere commentary and a series of disagreements with the decision to refuse entry.
15. Mr Evans has helpfully identified the grounds at paragraph 19 of his skeleton argument, with which Mr Miah evidently agrees as these were replicated in his own skeleton argument.
i. Ground 1: the Respondent has acted unlawfully by not allowing the Applicant a right of appeal and/or administrative review under section 82 of the Nationality, Immigration and Asylum Act 2002 (41-43 of the amended grounds);
ii. Ground 2: the Respondent has failed to consider relevant factors and/or evidence in making the decision (44-45 of the amended grounds);
iii. Ground 3: the decision is Wednesbury unreasonable on the basis that the conclusions drawn by the Respondent are irrational (22-34 of the amended grounds); and,
iv. Ground 4: the decision breaches the Applicants rights under Article 8 ECHR (46-47 of the amended grounds).
Legal Framework
16. Paragraph V4.2(b) of Appendix V to the Immigration Rules states:
The applicant must satisfy the decision maker that they are a genuine visitor, which means the applicant: […]
(b) will not live in the UK for extended periods through frequent or successive visits or make the UK their main home.
17. Also relevant is the extract below from Version 14.0 of the Visit Guidance published on 31 January 2024 which was in place at the time of the proposed visit.
Frequent or successive visits: how to assess if an applicant is making the UK their main home or place of work or study
See: paragraph V 4.2(b) of Appendix V: Visitor.
You should check the visitor’s travel history, including how long they are spending in the UK and how frequently they are returning. You must assess if they are, in effect, living in the UK through frequent or successive visits or making the UK their main home.
You should look at:
• the stated purpose of the visit and intended length of stay
• the number of visits made over the past 12 months, including the length of stay on each occasion, the time elapsed since the last visit, and if this amounts to the individual spending more time in the UK than in their home country
• the purpose of return trips to the applicant’s home country or trips out of the Common Travel Area and if these are used only to seek re-entry to the UK
• the links they have with their home country or ordinary country of residence - consider especially any long-term commitments and where the applicant is registered for tax purposes
• evidence the UK is their main place of residence, for example: o if they have registered with a general practitioner (GP) o if they send their children to UK schools
• the history of previous applications, for example if the visitor has previously been refused under the Family rules and subsequently wants to enter as a visitor you must assess if they are using the visitor route to avoid the rules in place for family migrants joining British or settled persons in the UK
There is no specified maximum period, which an individual can spend in the UK in any period, such as ‘6 months in 12 months’ (as long as each visit does not exceed Page 23 of 70 Published for Home Office staff on 31 January 2024 the maximum period for that visit, normally 6 months). However, if it is clear from an applicant’s travel history that they are seeking to remain in the UK for extended periods or making the UK their home you should refuse their application.
18. In addition, Mr Miah relied upon the statutory appeal decisions in Oppong (visitor – length of stay) Ghana [2011] UKUT 00431 (IAC) and Sawmynaden (Family visitors – considerations) [2012] UKUT 00161(IAC).
Submissions
19. Prior to the hearing, the respondent raised the failure of those instructed by the applicant to comply with directions in these proceedings. In particular, issue was raised with the late filing of amended grounds; the hearing bundle and skeleton argument along with the complete failure to serve an authorities bundle. The parties agreed to concentrate on the substantive matter and that the alleged lack of procedural rigour was an issue which could be addressed in due course, in connection with that of costs.
20. The substantive submissions made by the parties in relation to the amended grounds have been taken into consideration in full and are discussed below.
Discussion
Grounds one and four
21. The first and fourth grounds rely on similar points and can be taken together. In the first ground it is alleged that the respondent erred in not providing the applicant with a right of appeal and in the fourth ground it is asserted that the decision under challenge breaches Article 8 ECHR. Neither of these grounds were developed either in the applicant’s skeleton argument or during oral submissions.
22. Essentially, the applicant would only be entitled to a right of appeal against the decision to refuse her leave to enter had she made a human rights claim which had been refused. Among the material before the Tribunal, the first mention of human rights was made in the applicant’s pre-action protocol letter dated 18 April 2024 which evidently post-dates the decision under challenge. It follows that no human rights claim was made and there has, therefore, been no decision to refuse a human rights claim which might generate a right of appeal.
23. The reference to human rights made in the applicant’s PAP letter amounted to no more than a bald assertion that the decision to refuse entry amounted to a breach of the applicant’s human rights.
24. Mr Miah suggested that the information provided in the PAP letter regarding the applicant’s presence in the United Kingdom could amount to a human rights claim, yet much of that information provided on the applicant’s behalf was not before the decision maker at the time the decision was made. Mr Miah further suggested that the decision to refuse leave to enter amounted to a disproportionate interference with the family life between the applicant and her children. That argument was not accompanied by any particulars.
25. Putting aside the fact that there was no human rights claim made by the applicant, there is no substance to this argument given that it is the applicant’s preference to have her children educated in the United Kingdom and it is open to her to make other arrangements for their education or to re-apply for entry clearance to visit them. The applicant has, therefore, failed to demonstrate that the decision refusing her leave to enter amounted to a disproportionate interference with her Article 8 rights or those of her children.
Grounds two and three
26. Grounds two and three can also be considered together. The second ground is that there was a failure to consider all relevant matters in reaching the decision. There is no reason to conclude that the issues listed in paragraph 45 of the amended grounds were not, in fact, considered by the respondent. The only factors which were certainly not considered were those the applicant neglected to mention when interviewed prior to the decision to refuse entry being made.
27. Contrary to what is said in the amended grounds, in the original and supplementary decisions the applicant’s assertions when interviewed as to living and working in Nigeria were taken into consideration, albeit the respondent considered that these assertions were outweighed by other factors. The applicant mentioned that her husband and youngest child live in Nigeria during her interview and there is no reason to conclude that this was not taken into consideration.
28. The grounds wrongly assert that the respondent did not consider that the applicant owned a mortgage-free property. This issue was directly referred to in both decisions but was treated as a factor which undermined the applicant’s claim that she was not residing in the United Kingdom. Likewise, that the applicant had entered the United Kingdom on fourteen occasions since January 2023 was considered, along with the total duration of those visits to demonstrate that she was spending the majority of her time in the United Kingdom, pointing to residence-like behaviour.
29. The grounds further state that there was a failure to take account of the applicant’s part-time research studies and that her parents were in transit in the United Kingdom at the time of the applicant’s proposed visit. The studies were acknowledged and considered in both the decision letters and Mr Miah did not make any submission in respect of the relevance of the fleeting presence of the applicant’s parents in the United Kingdom.
30. Mr Miah relied on passages from Oppong and Sawmynaden. The headnote in Oppong states:
An application for a visit visa which, if granted, could result in permission to spend more than 6 of 12 months in the United Kingdom is likely to be scrutinised rigorously but it is wrong to refuse someone entry clearance as a general visitor just because they have spent more than six of the last twelve months in the United Kingdom. In certain circumstances a person can utilise paragraph 41 in order to visit the United Kingdom to provide temporary care for a person present here.
31. Mr Miah argued that there was good reason for the applicant’s repeated visits to the United Kingdom, relying on a schedule of visits which was set out in the PAP letter. He acknowledged that the applicant’s many visits for the purpose of finding a property and renovating that property were not brought to the attention of the Border Force official who interviewed her.
32. Oppong and Sawmynaden do not assist the applicant in this case. Firstly, these are statutory appeal decisions dating from more than a decade ago whereas this case concerns a public law challenge.
33. Secondly the Immigration Rule in question in those appeals was paragraph 41(i) which made no reference to the issues in paragraph V 4.2(b) of Appendix V.
34. With reference, to Oppong, it cannot be said in the instant case, that the applicant was refused leave to enter ‘just because’ she had spent more than half of the last twelve months in the United Kingdom. It is apparent from the decisions that other factors were also taken into account, including the applicant’s purchase of a property and previous attempts to seek leave to remain on a different basis.
35. It is asserted in the third ground that the respondent’s decision was irrational. Mr Miah was not able to amplify this ground and indeed the skeleton argument contains little more than an assertion that the factors set out in the respondent’s guidance were not considered.
36. The decision letters refer to all the relevant matters raised in the bullet points at page 22 of the Guidance, replicated above. Essentially, the grounds amount to no more than disagreement with outcome reached by the respondent after a consideration of all material factors.
37. The respondent provided sound reasons for concluding that the reasons given by the applicant for spending around 220 days in the United Kingdom during 2023 and more than half her time here in the last twelve months, did not justify the length or frequency of the visits.
38. The respondent was entitled to point to the fact that the applicant’s children were in boarding school and that the applicant saw them at holiday times and at school events. The respondent was further entitled to take into consideration that the applicant’s course only required her presence on two days.
39. Much was made by Mr Miah of the number of visits set out in the schedule which were said to be for the purpose of locating a property and renovating it. He argued that the applicant’s circumstances on entry in April 2024 were not the same as in 2023 now that the property had been purchased and could be occupied. There would be some substance to this argument had the applicant provided this information when interviewed. The applicant was interviewed in detail and had every opportunity to provide a full explanation of the reason for the number and duration of her previous visits and yet did not mention that she required several visits to look for a property and to renovate it. The respondent cannot be said to have erred in not considering information which was never before her at the time of the original decision.
40. On the evidence available at the time of the decision, the respondent was entitled to conclude that the applicant was not genuinely seeking entry as a visitor but to reside in the United Kingdom through frequent and successive visits.
41. This application is refused.
~~~~0~~~~
In the Upper Tribunal
(Immigration and Asylum Chamber)
Judicial Review
In the matter of an application for Judicial Review
The King on the application of
Theresa Chioma Ezeh
Applicant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
ORDER
BEFORE Upper Tribunal Judge Kamara
HAVING considered all documents lodged and having heard Mr A Miah of counsel, instructed by Del Solicitors, for the applicant and Mr R Evans of counsel, instructed by GLD, for the respondent at a hearing on 28 April 2025.
AND UPON considering the applicant’s application for permission to appeal to the Court of Appeal;
AND UPON judgment being handed down on 21 May 2025;
IT IS ORDERED THAT:
(1) The claim is dismissed for the reasons in the attached judgment.
(2) The applicant shall pay the respondent’s reasonable costs, to be assessed if not agreed.
(3) Permission to appeal is refused.
Signed: T Kamara
Upper Tribunal Judge Kamara
Dated: 21 May 2025
The date on which this order was sent is given below
For completion by the Upper Tribunal Immigration and Asylum Chamber
Sent / Handed to the applicant, respondent and any interested party / the applicant's, respondent’s and any interested party’s solicitors on (date): 21/05/2025
Solicitors:
Ref No.
Home Office Ref:
Notification of appeal rights
A decision by the Upper Tribunal on an application for judicial review is a decision that disposes of proceedings.
A party may appeal against such a decision to the Court of Appeal on a point of law only. Any party who wishes to appeal should apply to the Upper Tribunal for permission, at the hearing at which the decision is given. If no application is made, the Tribunal must nonetheless consider at the hearing whether to give or refuse permission to appeal (rule 44(4B) of the Tribunal Procedure (Upper Tribunal) Rules 2008).
If the Tribunal refuses permission, either in response to an application or by virtue of rule 44(4B), then the party wishing to appeal can apply for permission from the Court of Appeal itself. This must be done by filing an appellant’s notice with the Civil Appeals Office of the Court of Appeal within 28 days of the date the Tribunal’s decision on permission to appeal was sent (Civil Procedure Rules Practice Direction 52D 3.3).
Case No: JR-2024-LON-001069
IN THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Field House,
Breams Buildings
London, EC4A 1WR
21 May 2025
Before:
UPPER TRIBUNAL JUDGE KAMARA
- - - - - - - - - - - - - - - - - - - -
Between:
THE KING
on the application of
Theresa Chioma Ezeh
Applicant
- and -
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
- - - - - - - - - - - - - - - - - - - -
Mr A Miah
(instructed by Del & Co Solicitors), for the applicant
Mr R Evans
(instructed by the Government Legal Department) for the respondent
Hearing date: 28 April 2025
- - - - - - - - - - - - - - - - - - - -
J U D G M E N T
- - - - - - - - - - - - - - - - - - - -
Judge Kamara:
1. By order of the Upper Tribunal dated 2 October 2024, the applicant was granted permission to apply for judicial review in order to challenge the respondent’s decision dated 16 April 2024 to refuse her leave to enter the United Kingdom as a visitor and to set removal directions.
2. The applicant is a dual national of Nigeria and St Kitts and Nevis. The applicant was refused entry clearance to the United Kingdom as a visitor on several occasions between 2013 and 2019. From November 2019 onwards, the applicant was granted entry clearance to the United Kingdom as a visitor on a number of occasions until the impugned decision.
3. On 9 April 2022, the applicant’s spouse Emmanuel Chike Ezeh applied for entry clearance to the United Kingdom as an Overseas Business Representative, an application which was refused on 15 September 2022. On 12 August two of the applicant’s children successfully applied for entry clearance to the United Kingdom as students. The applicant’s son, C1, was granted a Student child visa valid until 10 November 2025 and her daughter, C2 was issued with a Student Child visa valid until 31 July 2025.
4. The applicant was issued with a St. Kitts and Nevis passport on 19 December 2022. Between January 2023 and April 2024, the applicant entered the United Kingdom on 20 occasions. An application she made for a Skilled Worker Migrant Health & Care visa was rejected as void on 14 August 2023. A second application on the same basis was refused on 28 August 2023 and the license of the applicant’s proposed sponsor was revoked in December 2023.
5. The applicant returned to the United Kingdom on 13 April 2024 with C1 and C2. The applicant was granted bail by Border Force officials in order to take her children to their boarding school.
6. On being interviewed by an immigration officer on 16 April 2024, the applicant was refused permission to enter the United Kingdom with directions for her removal. The removal directions were lifted following the order of the Upper Tribunal sealed on 22 April 2024 granting the applicant a stay of removal.
7. The applicant’s husband and third child were in the United Kingdom at the time she was refused entry and returned to Nigeria shortly thereafter.
8. The respondent’s reasons for refusing the applicant entry are set out in the notice of refusal, which is the decision under challenge. In short, the respondent calculated that the applicant had stayed in the United Kingdom for 8 months in 2023 and in 2024 had already stayed for 64 days. The said notice also referred to the applicant’s enrolment on an educational programme, that she had purchased a property in the United Kingdom in 2023, that her return ticket was dated 11 July 2024 and the conclusion was reached that the applicant was not seeking entry as a visitor but to reside in the United Kingdom ‘through frequent and successive visits.’
9. The respondent was not therefore satisfied that the applicant was a genuine visitor as required by paragraph V4.2(b) of Appendix V: Immigration Rules for Visitors. It was noted in the said decision notice that the applicant had not sought entry under any other provisions of the Immigration Rules.
10. Following the grant of permission, the respondent served a supplementary decision letter dated on 26 November 2024 in order to ‘elaborate’ on the reasons for refusing entry clearance. It was specifically stated that this correspondence was not a new decision.
11. The main points made in the supplementary decision letter were that the applicant’s stated reasons for her visit did not justify the length or frequency of the visits as her children were full-time boarders and the applicant’s course required her presence just twice a year. The said letter acknowledged that the applicant had spent only 45 days in the United Kingdom in 2024 and not 64 days as stated in the decision dated 16 April 2024. Emphasis was placed on the fact that the applicant had spent 220 days during 2023 as stated in the decision refusing entry. Furthermore, the respondent remarked that had the applicant stayed for a further 6 weeks as planned, she would have spent more time in the United Kingdom than in her home country. The respondent was satisfied, considering the applicant’s case in the round that her home ownership was a further indication that she intended to make the United Kingdom her main home.
The pleadings
12. The original grounds of challenge argued that the proposed removal of the applicant was unlawful as there had been a failure to consider her supporting evidence. It was further argued that there had been a failure to grant her a right to Administrative Review or appeal despite her making a ‘human rights allegation.’ Reference was made to ‘new facts’ being presented which were not considered at the border and that the decision was Wednesbury unreasonable, irrational and failed to consider Article 8 ECHR. Permission was granted on the following basis;
It is arguable therefore that the Respondent’s reasons for finding that the Applicant is not a genuine visitor and is seeking to reside in the UK for extended periods through frequent or successive visits, or to make the UK her main home, contrary to paragraph V4.2(b) of Appendix V to the Immigration Rules, are irrational and/or that the Respondent has failed to take into consideration relevant matters.
13. The applicant was permitted to file and serve amended grounds by an order of an Upper Tribunal Lawyer sealed on 9 December 2024 in order to address the supplementary decision letter of 26 November 2024. The said order also granted the respondent permission to rely on the supplementary decision.
14. The amended grounds in relation to which neither counsel nor solicitor have attached their name, do not engage with the supplementary decision nor identify any public law error and amount to mere commentary and a series of disagreements with the decision to refuse entry.
15. Mr Evans has helpfully identified the grounds at paragraph 19 of his skeleton argument, with which Mr Miah evidently agrees as these were replicated in his own skeleton argument.
i. Ground 1: the Respondent has acted unlawfully by not allowing the Applicant a right of appeal and/or administrative review under section 82 of the Nationality, Immigration and Asylum Act 2002 (41-43 of the amended grounds);
ii. Ground 2: the Respondent has failed to consider relevant factors and/or evidence in making the decision (44-45 of the amended grounds);
iii. Ground 3: the decision is Wednesbury unreasonable on the basis that the conclusions drawn by the Respondent are irrational (22-34 of the amended grounds); and,
iv. Ground 4: the decision breaches the Applicants rights under Article 8 ECHR (46-47 of the amended grounds).
Legal Framework
16. Paragraph V4.2(b) of Appendix V to the Immigration Rules states:
The applicant must satisfy the decision maker that they are a genuine visitor, which means the applicant: […]
(b) will not live in the UK for extended periods through frequent or successive visits or make the UK their main home.
17. Also relevant is the extract below from Version 14.0 of the Visit Guidance published on 31 January 2024 which was in place at the time of the proposed visit.
Frequent or successive visits: how to assess if an applicant is making the UK their main home or place of work or study
See: paragraph V 4.2(b) of Appendix V: Visitor.
You should check the visitor’s travel history, including how long they are spending in the UK and how frequently they are returning. You must assess if they are, in effect, living in the UK through frequent or successive visits or making the UK their main home.
You should look at:
• the stated purpose of the visit and intended length of stay
• the number of visits made over the past 12 months, including the length of stay on each occasion, the time elapsed since the last visit, and if this amounts to the individual spending more time in the UK than in their home country
• the purpose of return trips to the applicant’s home country or trips out of the Common Travel Area and if these are used only to seek re-entry to the UK
• the links they have with their home country or ordinary country of residence - consider especially any long-term commitments and where the applicant is registered for tax purposes
• evidence the UK is their main place of residence, for example: o if they have registered with a general practitioner (GP) o if they send their children to UK schools
• the history of previous applications, for example if the visitor has previously been refused under the Family rules and subsequently wants to enter as a visitor you must assess if they are using the visitor route to avoid the rules in place for family migrants joining British or settled persons in the UK
There is no specified maximum period, which an individual can spend in the UK in any period, such as ‘6 months in 12 months’ (as long as each visit does not exceed Page 23 of 70 Published for Home Office staff on 31 January 2024 the maximum period for that visit, normally 6 months). However, if it is clear from an applicant’s travel history that they are seeking to remain in the UK for extended periods or making the UK their home you should refuse their application.
18. In addition, Mr Miah relied upon the statutory appeal decisions in Oppong (visitor – length of stay) Ghana [2011] UKUT 00431 (IAC) and Sawmynaden (Family visitors – considerations) [2012] UKUT 00161(IAC).
Submissions
19. Prior to the hearing, the respondent raised the failure of those instructed by the applicant to comply with directions in these proceedings. In particular, issue was raised with the late filing of amended grounds; the hearing bundle and skeleton argument along with the complete failure to serve an authorities bundle. The parties agreed to concentrate on the substantive matter and that the alleged lack of procedural rigour was an issue which could be addressed in due course, in connection with that of costs.
20. The substantive submissions made by the parties in relation to the amended grounds have been taken into consideration in full and are discussed below.
Discussion
Grounds one and four
21. The first and fourth grounds rely on similar points and can be taken together. In the first ground it is alleged that the respondent erred in not providing the applicant with a right of appeal and in the fourth ground it is asserted that the decision under challenge breaches Article 8 ECHR. Neither of these grounds were developed either in the applicant’s skeleton argument or during oral submissions.
22. Essentially, the applicant would only be entitled to a right of appeal against the decision to refuse her leave to enter had she made a human rights claim which had been refused. Among the material before the Tribunal, the first mention of human rights was made in the applicant’s pre-action protocol letter dated 18 April 2024 which evidently post-dates the decision under challenge. It follows that no human rights claim was made and there has, therefore, been no decision to refuse a human rights claim which might generate a right of appeal.
23. The reference to human rights made in the applicant’s PAP letter amounted to no more than a bald assertion that the decision to refuse entry amounted to a breach of the applicant’s human rights.
24. Mr Miah suggested that the information provided in the PAP letter regarding the applicant’s presence in the United Kingdom could amount to a human rights claim, yet much of that information provided on the applicant’s behalf was not before the decision maker at the time the decision was made. Mr Miah further suggested that the decision to refuse leave to enter amounted to a disproportionate interference with the family life between the applicant and her children. That argument was not accompanied by any particulars.
25. Putting aside the fact that there was no human rights claim made by the applicant, there is no substance to this argument given that it is the applicant’s preference to have her children educated in the United Kingdom and it is open to her to make other arrangements for their education or to re-apply for entry clearance to visit them. The applicant has, therefore, failed to demonstrate that the decision refusing her leave to enter amounted to a disproportionate interference with her Article 8 rights or those of her children.
Grounds two and three
26. Grounds two and three can also be considered together. The second ground is that there was a failure to consider all relevant matters in reaching the decision. There is no reason to conclude that the issues listed in paragraph 45 of the amended grounds were not, in fact, considered by the respondent. The only factors which were certainly not considered were those the applicant neglected to mention when interviewed prior to the decision to refuse entry being made.
27. Contrary to what is said in the amended grounds, in the original and supplementary decisions the applicant’s assertions when interviewed as to living and working in Nigeria were taken into consideration, albeit the respondent considered that these assertions were outweighed by other factors. The applicant mentioned that her husband and youngest child live in Nigeria during her interview and there is no reason to conclude that this was not taken into consideration.
28. The grounds wrongly assert that the respondent did not consider that the applicant owned a mortgage-free property. This issue was directly referred to in both decisions but was treated as a factor which undermined the applicant’s claim that she was not residing in the United Kingdom. Likewise, that the applicant had entered the United Kingdom on fourteen occasions since January 2023 was considered, along with the total duration of those visits to demonstrate that she was spending the majority of her time in the United Kingdom, pointing to residence-like behaviour.
29. The grounds further state that there was a failure to take account of the applicant’s part-time research studies and that her parents were in transit in the United Kingdom at the time of the applicant’s proposed visit. The studies were acknowledged and considered in both the decision letters and Mr Miah did not make any submission in respect of the relevance of the fleeting presence of the applicant’s parents in the United Kingdom.
30. Mr Miah relied on passages from Oppong and Sawmynaden. The headnote in Oppong states:
An application for a visit visa which, if granted, could result in permission to spend more than 6 of 12 months in the United Kingdom is likely to be scrutinised rigorously but it is wrong to refuse someone entry clearance as a general visitor just because they have spent more than six of the last twelve months in the United Kingdom. In certain circumstances a person can utilise paragraph 41 in order to visit the United Kingdom to provide temporary care for a person present here.
31. Mr Miah argued that there was good reason for the applicant’s repeated visits to the United Kingdom, relying on a schedule of visits which was set out in the PAP letter. He acknowledged that the applicant’s many visits for the purpose of finding a property and renovating that property were not brought to the attention of the Border Force official who interviewed her.
32. Oppong and Sawmynaden do not assist the applicant in this case. Firstly, these are statutory appeal decisions dating from more than a decade ago whereas this case concerns a public law challenge.
33. Secondly the Immigration Rule in question in those appeals was paragraph 41(i) which made no reference to the issues in paragraph V 4.2(b) of Appendix V.
34. With reference, to Oppong, it cannot be said in the instant case, that the applicant was refused leave to enter ‘just because’ she had spent more than half of the last twelve months in the United Kingdom. It is apparent from the decisions that other factors were also taken into account, including the applicant’s purchase of a property and previous attempts to seek leave to remain on a different basis.
35. It is asserted in the third ground that the respondent’s decision was irrational. Mr Miah was not able to amplify this ground and indeed the skeleton argument contains little more than an assertion that the factors set out in the respondent’s guidance were not considered.
36. The decision letters refer to all the relevant matters raised in the bullet points at page 22 of the Guidance, replicated above. Essentially, the grounds amount to no more than disagreement with outcome reached by the respondent after a consideration of all material factors.
37. The respondent provided sound reasons for concluding that the reasons given by the applicant for spending around 220 days in the United Kingdom during 2023 and more than half her time here in the last twelve months, did not justify the length or frequency of the visits.
38. The respondent was entitled to point to the fact that the applicant’s children were in boarding school and that the applicant saw them at holiday times and at school events. The respondent was further entitled to take into consideration that the applicant’s course only required her presence on two days.
39. Much was made by Mr Miah of the number of visits set out in the schedule which were said to be for the purpose of locating a property and renovating it. He argued that the applicant’s circumstances on entry in April 2024 were not the same as in 2023 now that the property had been purchased and could be occupied. There would be some substance to this argument had the applicant provided this information when interviewed. The applicant was interviewed in detail and had every opportunity to provide a full explanation of the reason for the number and duration of her previous visits and yet did not mention that she required several visits to look for a property and to renovate it. The respondent cannot be said to have erred in not considering information which was never before her at the time of the original decision.
40. On the evidence available at the time of the decision, the respondent was entitled to conclude that the applicant was not genuinely seeking entry as a visitor but to reside in the United Kingdom through frequent and successive visits.
41. This application is refused.
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