Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/06502/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 18 August 2016
On 23 August 2016

Before

Deputy Upper Tribunal Judge MANUELL

Between

ENTRY CLEARANCE OFFICER, AMMAN
Appellant
and

Dr KADHIM QASIM ALI AL-RUBAYE
(ANONYMITY DIRECTION NOT MADE)
Respondent

Representation:
For the Appellant: Miss Z Ahmad, Home Office Presenting Officer
For the Respondent: Mr E Nicholson, Counsel

DETERMINATION AND REASONS
Introduction
1. The Appellant (the Secretary of State) appealed with permission granted by First-tier Tribunal Judge Mark Davies on 29 June 2016 against the decision and reasons of First-tier Tribunal Judge Whitcombe who had allowed on Article 8 ECHR grounds the Respondent's appeal against the Appellant's decision dated 31 March 2015 to refuse to grant the Respondent leave to enter the United Kingdom as a business visitor for 12 days. The decision and reasons was promulgated on 3 February 2016.
2. The Respondent is a national of Iraq, born there on 1 July 1947, hence 69 years of age. Paragraphs 41 and 46G of the Immigration Rules applied (since repealed and replaced by Appendix V). The application was refused by the Entry Clearance Officer under paragraphs 41 and paragraph 46G for failure to provide sufficient evidence, including original supporting documents. It was not accepted that the Appellant intended to leave the United Kingdom at the conclusion of his visit nor that the purpose of his visit was business. The Entry Clearance Officer invoked paragraph 320(7A) of the Immigration Rules, because the Respondent had replied "No" to question 77 of his VAF ("Do you have friends or family in the UK"). Yet records showed that the Respondent's wife had applied for a United Kingdom family visit visa to see their son. The Respondent's answer was false. That was treated as a failure to disclose material facts, with the result that any future entry clearance applications would be refused under paragraph 320(7B) of the Immigration Rules resulting mandatory refusal of any future applications for a period of 10 years.
3. Judge Whitcombe recognised that because the visa application had been made after 25 June 2013, the right of appeal to the First-tier Tribunal was limited to Equality Act 2010 and Article 8 ECHR issues: section 84(1)(b) and (c), the Nationality, Immigration and Asylum Act 2002. (No Equality Act 2010 issues were in fact raised.) Judge Whitcombe stated that the Article 8 ECHR appeal had to be approached by examining whether or not the Immigration Rules had been met. He found at [29] of his decision that the Appellant had been genuinely unaware that he was required to disclose the presence of his son in the United Kingdom, i.e. there had been no dishonesty. At [36](iii) the judge found that the information regarding family members was immaterial in any event, in part because the Home Office Presenting Officer at the hearing had been unable to justify how such information related to a business visit. The judge found that the Immigration Rules had been complied with as there was no requirement for the production of original documents to support an entry clearance application, and that weight was due to the copy documents produced and to the difficulty of producing originals from Iraq under current conditions there. He went on to find that there was family life which required respect for Article 8 ECHR purposes, that the refusal decision was not in accordance with the law (see [40]) and was disproportionate. Importantly, the judge found that the potential 10 year ban faced by the Appellant because of the application of paragraph 320(7A) was a component of disproportionality: see [39]. Hence the appeal was allowed.
4. Permission to appeal to the Upper Tribunal as sought by the Appellant was granted by Judge Mark Davies because he considered that it was arguable that the judge had wrongly concluded that there was family life between the Appellant and his son in the United Kingdom. No dependency had been found, simply normal emotional ties. That was an arguable material error of law.
5. Standard directions were made by the Upper Tribunal, indicating that the appeal would be reheard and remade immediately in the event that a material error of law were found. There was no rule 24 notice opposing the appeal, but the Appellant was unrepresented until the day of the Upper Tribunal hearing.
Submissions - error of law
6. Miss Ahmad for the Secretary of State submitted that this was a clear case of legal error, as the grant of permission to appeal by the First-tier Tribunal indicated. As the grounds of onwards appeal stated, the judge had not begun by considering whether or not Article 8 ECHR was engaged at all: Kugathas [2003] EWCA Civ 31 applied. There had been no examination of the nature of the family ties. No evidence of dependency had been provided. The impact of a 10 year ban was a subsidiary issue for these purposes. There was no jurisdiction in the First-tier Tribunal. The judge's approach to the potential 10 year ban had in any event been misconceived. Other remedies existed, such a fresh application explaining what had happened, or an application for judicial review.
7. Moreover, the judge's reasons for allowing the appeal under the Immigration Rules (as a preliminary to his Article 8 ECHR findings) were inadequately reasoned. The Entry Clearance Officer's case had not been addressed at [29] or elsewhere in the decision. Nor had the judge found compelling circumstances which justified going outside the Immigration Rules: SS (Congo) [2015] EWCA Civ 387 had not been applied. The decision was defective and should be set aside. The appeal should be remade and dismissed, as there was no jurisdiction.
8. Mr Nicholson for the Respondent relied on his skeleton argument. The first point taken by the Appellant was the adequacy of the judge's reasoning, with reference to [29] of the decision. But that had ignored the judge's further reasoning given at [36]. There had been no irrationality or perversity by the judge. He had applied the correct test as explained in AA (Nigeria) v SSHD [2010] EWCA Civ 773 and had found that there had been no dishonesty by the Respondent when making his entry clearance application. The judge had invited the Home Office Presenting Officer to explain what was material about question 77 of the VAF and the judge had been right to be dissatisfied about the explanation provided: see [36(iii)]. He had addressed himself to the Respondent's state of mind when considering dishonesty, and reached a sustainable finding.
9. As to the existence of family life, the Secretary of State was in error by attempting to interpret Kugathas [2003] EWCA Civ 31 too restrictively. A fact sensitive approach was needed, as explained in PT (Sri Lanka) v Entry Clearance Officer, Chennai [2016] EWCA Civ 612, approving Ghising v Secretary of State [2012] UKUT 160 (IAC). The fact of the 10 year ban consequent on the paragraph 320(7A) decision was a relevant consideration, because that interfered with the future development of family life, indeed because of the age of the Respondent might effectively end that possibility. The judge was right to find that the Entry Clearance Officer's decision amounted to a disproportionate interference with the Appellant's family life.
10. In reply, Miss Ahmed briefly reiterated her earlier submissions.
The error of law finding
11. The tribunal reserved its decision which now follows. The number of reported appeals concerning visit visas since restricted appeal rights to the First-tier Tribunal were introduced, and the variations in approach and emphasis, indicates the conceptual or philosophical problems which arise. Judge Whitcombe made a conscientious effort to tackle those problems. The Upper Tribunal should not lightly interfere with decisions made by the First-tier Tribunal, not least when positive credibility findings have been made. There is no scope for a mere difference of opinion in areas where a range of reasonable opinions consistent with the current law exists, of which Article 8 ECHR appeals provide a ready example. Here, however, it is a question of the substance of the First-tier Tribunal's reasoning. In this tribunal's view, the judge fell into a number of material errors. His decision and reasons cannot stand and must be set aside and remade.
12. What is the correct starting point in visit visa appeals? The restrictions imposed by parliament in section 84 of the Nationality, Immigration and Asylum Act 2002 mean that only visit appeals raising Article 8 ECHR issues can be argued before the First-tier Tribunal. The only route of challenge to the decision under the Immigration Rules as such was restricted to judicial review. In Adjei (visit visas - Article 8) [2015] UKUT 0261 (IAC), it was held that the first question to be addressed in visit visa appeals was whether Article 8 ECHR was engaged at all. In Kaur (visit appeals; Article 8) [2015] UKUT 00487, the headnote states the starting point for deciding that a decision is unlawful under section 6 of the Human Rights Act 1998 must be the state of the evidence about the appellant's ability to meet the requirements of paragraph 41 of the Immigration Rules. The approach recommended in Adjei (above) was not stated to be wrong in Kaur. It follows that the first question is whether or not the appeal engages Article 8 ECHR at all.
13. Judge Whitcombe took a different approach. It was logical enough, in that it is now accepted that Article 8 ECHR must be approached by the tribunal through the lens of the Immigration Rules: see, e.g., MF (Nigeria) [2013] EWCA Civ 1192. Unfortunately, however, none of Mostafa (Article 8 in entry clearance) [2015] UKUT 112 (IAC), Adjei or Kaur was cited to the judge, hence his omission to consider whether Article 8 ECHR was engaged in the first place. Mostafa at [24] offered a useful warning: "We are, however, prepared to say that it will only be in very unusual circumstances that a person other than a close relative will be able to show that the refusal of entry clearance comes within the scope of Article 8(1). In practical terms this is likely to be limited to cases where the relationship is that of husband and wife or other close life partners or a parent and minor child and even then it will not necessarily be extended to cases where, for example, the proposed visit is based on a whim or will not add significantly to the time that the people involved spend together." A similar point is made at [27] of Kaur, with reference to [54] to [56] of SS (Congo) [2015] EWCA Civ 387.
14. Now the Respondent was seeking a business visa and he had expressly denied having any family in the United Kingdom. The Article 8 ECHR dimension in such circumstances was at most his private life. Question 77 of the VAF asked about friends in the United Kingdom as well as family. The Respondent stated that he had no friends in the United Kingdom. That answer will receive further attention below, but on its face indicated a minimal Article 8 ECHR dimension. Family life was mentioned by the Respondent for the first time in his Notice of Appeal.
15. In the tribunal's judgment, the correct starting place, having established that no Equality Act 2010 issues arose, was for the First-tier Tribunal to determine whether Article 8 ECHR engaged. It seems to the tribunal that it was too late to raise family life in the Notice of Appeal, although the point was responded to by the Entry Clearance Manager in his review, so the issue may be said to be live in the present appeal. (No private life issue were raised in the Notice of Appeal.) The family relationships relied on by the Respondent which he had earlier failed to disclose were with his son, daughter-in-law and their children. What was the nature of the family relationship?
16. There was no dispute that the two families have long lived apart, in different and distant countries. The son is an independent adult, successful in his own right. No ties going beyond ordinary parental/grandparental relationships were shown. There was nothing unusual, no emotional dependency or any circumstance of any kind capable of being seen as compelling: see SS (Congo) [2015] EWCA Civ 387. The current terms on which family life and connections were maintained was not interfered with by the Entry Clearance Officer's decision to refuse the Respondent a short business visit visa.
17. In the tribunal's view it was an error of law to treat the potential future interference with the Respondent's ability to visit the United Kingdom as engaging Article 8 ECHR, notwithstanding the scope of Article 8 ECHR which can extend to the development of family life. In the tribunal's view, the form of the family life between the relevant individuals had been fixed by the Respondent's son decision to practice his profession in the United Kingdom and to make the United Kingdom his home and to raise his own family there. The Respondent had the separate remedy of judicial review available to challenge the refusal under paragraph 320(7A) of the Immigration Rules. If, for example, the Respondent applied for a visit visa in future under Appendix V, he could in the first instance explain his "mistake" to the Entry Clearance Officer and invite a review of the application of paragraph 320(7A) to the previous business visit visa application. If mandatory refusal still followed, he would have a right of appeal to the First-tier Tribunal on Article 8 ECHR grounds, or the separate option of judicial review. Thus the stage of Article 8 ECHR interference was not reached when the business visit visa was refused and the appeal failed at the first hurdle. That is the tribunal's judgment is the end of the appeal. Nevertheless, the tribunal will consider the alternative argument which was put on the Respondent's behalf.
18. Here it should be noted in passing that the judge at [40] of his decision and reasons indicated a faulty appreciation of step or question 3 of the familiar Razgar [2004] UKHL 27 analysis. The question is whether there was power in law to make the relevant decision, not whether the decision was correctly made. Plainly there was such power under the Immigration Rules. It is obvious that the power is necessary and is exercised in pursuit of a legitimate objective: see the discussion at [18ff] of Kaur. The issue for the tribunal was proportionality if it were found that the Immigration Rules had been complied with.
19. If the tribunal were mistaken to find that the judge materially erred in finding that Article 8 ECHR was engaged in a business visit visa application because of the potential future dimension, and that the tribunal was thus entitled to entertain the appeal, the correct next step was (as the judge did) to examine whether the Respondent had complied with the Immigration Rules. Here again the judge fell into material legal error. He seems to have considered that he was entitled to substitute his own views of a number of matters.
20. Paragraph 46G of the Immigration Rules was lengthy. It can readily be consulted and so is not reproduced here. Paragraph 34A(i) of the Immigration Rules requires the use of the specified form where prescribed, and paragraph 34(iii) requires the mandatory completion of the sections so designated. Paragraph 39B(d) requires the production of originals where specified documents must be produced. Paragraph 46G made no express stipulation for the provision of original documents, nor were any documents specified, in contrast, for example, with Appendix FM-SE. The VAF which the Respondent was required to complete commenced with a declaration that the information provided was "complete and correct to the best of my knowledge and belief". An express warning of a potential 10 year ban was given of the consequences of using a false document, lie or withholding information. The importance of answering all questions and of answering them accurately was thus stressed. No particular documents were specified in the form.
21. The judge considered that the Entry Clearance Officer was wrong not to give the scanned documents provided by the Respondent weight. The Entry Clearance Officer, however, stated that applicants were advised "through notices and at the time of application that original documents should be submitted in support of a visa application". The judge gave no reason for disbelieving that statement by a public official and it is difficult to think any reason for doubting it. Yet the judge failed to explain why he refused to take that evidence of practice into account in his assessment. The fact that the Respondent may have been permitted to use scanned or copy documents in previous successful visa applications is irrelevant, because conditions change, rules are tightened and vigilance is increased. The Entry Clearance Officer was applying the current procedures. The visa application was processed at the British Embassy in Amman, Jordan. It is not at all easy to see how the judge supposed that the Entry Clearance Officers in Amman would or could be unaware of current country conditions in Iraq with which Jordan shares a border and make all proper allowances for them when considering applications from Iraqi nationals.
22. The further error was the judge's approach to the Respondent's incorrect answer to question 77 of the VAF, where the Respondent denied both friends and family in the United Kingdom. The denial of friends was in itself remarkable in a distinguished medical practitioner who was a regular attendee on the international medical circuit, as the unchallenged travel history he provided showed. He had been honoured as a Physician Fellow of the Royal College of Physicians and Surgeons of Glasgow on 24 October 2012. He provided a long list of his learned articles, which included subjects such as "An Overview of Health Care in Basra during British Occupation" (1992), "The Black Death and the Great Plague of London" (2002), which suggested a longstanding interest in the United Kingdom. It would be surprising if a learned and sociable person of distinction had developed no personal or professional friendships in the United Kingdom. That was not considered by the judge. It was so obvious that it should have been.
23. It was accepted by the Respondent that he had failed to state the presence of his son, daughter-in-law and their children in the United Kingdom. The judge gave some reasons for finding that the Respondent was "genuinely unaware" and that it was an "innocent mistake". Those reasons were in the tribunal's view inadequate. They failed to take into account the clear text of the declaration signed by an experienced, well educated English speaking man. They failed to take into account the fact that it was not for the Respondent to decide what was relevant or material, but simply to provide the information demanded from him. It was a simple, straightforward question which admitted of only one possible truthful answer.
24. Nor was it for the judge to determine whether the information demanded on a prescribed UK Visas and Immigration form was material or immaterial: see [36(iii)] of the determination. The only relevant fact was that it was required. The reasons which the judge gave for finding that the information was not material are both inadequate and difficult to understand. It is perfectly obvious that the question is both relevant and highly material. The presence of friends and relatives in the United Kingdom is a factor to be assessed when the Entry Clearance Officer weighs the probability of departure from the United Kingdom at the conclusion of the intended visit. It is a frequently publicised and well known fact that overstaying is a large problem for the Home Office, involving thousands of persons each year. Possibly the Appellant was in a position to demonstrate ties to Iraq and a firm intention to return but those ties could not be assessed properly by the Entry Clearance Officer without full knowledge of all material facts. The failure to disclose family (and in all probability, friends) in the United Kingdom was material and was bound to excite justified suspicion of dishonesty, which in turn reasonably affected the view taken of the copy documents supplied by the Respondent. It might still have been possible for the judge to have found that the Appellant had not been deliberately dishonest but the reasons which the judge gave were singularly inadequate. The fact that the judge stated that he considered that the question was immaterial suggests that his whole approach to the fact finding exercise required was not balanced. The discussion at [18ff] of Kaur should have guided him. His finding that the Immigration Rules had been complied with cannot stand.
25. Mr Nicholson argued that in the event that the tribunal decided that it must set aside the determination, the appeal should be reheard. The tribunal has given that request careful consideration, but takes the view that the appeal can and should be determined without a rehearing. Mr Nicholson's submissions were all embracing. In any event the tribunal considers that the reality of this appeal is that Article 8 ECHR was not engaged on the essential facts of the appeal.
Discussion and fresh decision
26. Here the tribunal will refer to their parties by the original designations. The Appellant's application was for a business visa to visit the United Kingdom for a medical conference for 12 days. He failed to disclose the presence of close family in the United Kingdom. That is not in dispute. The purpose of his journey was not to see his family, he said. It is impossible to see how the decision to refuse the application because of his failure to produce sufficient evidence coupled with his failure to disclose the presence of close family in the United Kingdom engages Article 8 ECHR at all. The existing form of family life between independent adults is not subject to interference. There is nothing to stop the family from reuniting for the purpose of visits, whether in Iraq or another country. There are ample funds available and the Appellant has been a regular traveller.
27. It was submitted on the Appellant's behalf that the imposition of a 10 year ban on the Appellant because of his failure to disclose material facts brought Article 8 ECHR into play, in terms of the prospect of the development of family life in the future. That seems to the tribunal to be an extravagant submission, for the reasons given above. This was a business visa application. Article 8 ECHR was not engaged and so consideration of the Immigration Rules does not arise. It remains open to the Appellant to make a fresh visit visa application based on a wish to see his family in the United Kingdom. As noted above, in the event of a future refusal he will have the option of seeking judicial review or of raising Article 8 ECHR on an appeal before the First-tier Tribunal. The present appeal is accordingly dismissed.
28. There was no application for an anonymity direction and the tribunal sees no need for one.
DECISION
The making of the previous decision involved the making of an error on a point of law. The tribunal allows the onwards appeal to the Upper Tribunal, sets aside the original decision and remakes the original decision as follows:
The appeal is dismissed

Signed Dated 23rd August 2016

Deputy Upper Tribunal Judge Manuell

TO THE RESPONDENT
FEE AWARD
The appeal was dismissed. There can be no fee award

Signed Dated 23rd August 2016

Deputy Upper Tribunal Judge Manuell