Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/08071/2015
OA/08073/2015
OA/08074/2015

THE IMMIGRATION ACTS

Heard at City Centre Tower, Birmingham
Decision & Reasons Promulgated
On 9th January 2017
On 25th January 2017

Before

DEPUTY upper tribunal JUDGE RENTON

Between

kousar mubashar (first appellant)
farrukh ahmad (second appellant)
imama mubashar (third appellant)
(ANONYMITY DIRECTIONs not made)
Appellants
and

Entry Clearance Officer - islamabad
Respondent

Representation:

For the Appellants: Ms Ali of Morden Solicitors LLP
For the Respondent: Mr D Mills, Senior Home Office Presenting Officer

DECISION AND REASONS
Introduction
1. The Appellants are a family of Pakistani citizens. The first Appellant, born on 21st November 1972, is the mother of the second and third Appellants who were born respectively on 15th June 1996 and 30th November 2000. They all applied for entry clearance to the UK as the dependent spouse and children of the Sponsor, Mubashar Mumtaz. Those applications were refused for the reasons given in Notices of Decision dated 10th April 2015. The Appellants appealed, and their appeals were heard by Judge of the First-tier Tribunal Judge Pooler (the Judge) sitting at Stoke-on-Trent on 20th May 2016. He decided to dismiss the appeals for the reasons given in his Decision dated 6th June 2016. The Appellants sought leave to appeal that decision, and on 17th October 2016 such permission was granted.
2. There was a fourth Appellant, another child of the first Appellant and the Sponsor named Muqarab Ahmad Bilal. However his appeal was allowed by the Judge on human rights grounds and therefore he is not a party to this appeal.
Error of Law
3. I must first decide if the decision of the Judge contained an error on a point of law so that it should be set aside.
4. The appeals of all the Appellants were dismissed under the provisions of paragraph 320(7B) of HC 395 in that deception had been used in an earlier application for entry clearance. The Judge also dismissed the appeals on Article 8 ECHR grounds on the basis that there were no compelling circumstances allowing him to consider the Appellants' human rights outside the Immigration Rules.
5. At the hearing, Mr Mills addressed me first and helpfully conceded that there was a material error of law in the decision of the Judge in respect of the second and third Appellants. That error was that the Judge had not taken into account the fact that under paragraph 320(7B) children cannot suffer the consequences of an earlier act of deception by an adult, in this case their mother. He invited me to find a material error of law in respect of the second and third Appellants and to set aside the Judge's decision relating to them. Indeed, as the paragraph 320(7B) issue had been the only reason why the applications for entry clearance made by the second and third Appellants were refused, and subsequently their appeals dismissed, I should go on to remake their appeals by allowing them.
6. Mr Mills went on to further concede that in considering the first Appellant's Article 8 ECHR rights, the Judge had erred in law by not considering the situation, which should have been the case, that the first Appellant would be the only member of this family not to achieve entry clearance under the Immigration Rules. That was a material error of law and the decision of the Judge in respect of the first Appellant should therefore also be set aside.
7. Ms Ali confirmed that she agreed with what Mr Mills had said. I therefore find a material error of law in the decisions of the Judge relating to all three Appellants and I set aside those decisions. I need not give detailed reasons for my decision in accordance with the provisions of Rule 40(3)(a) of The Tribunal Procedure (Upper Tribunal) Rules 2008.

Remade Decisions
8. I proceeded to remake the decisions in the appeals of all three Appellants. Following the invitation of Mr Mills and with the agreement of Ms Ali, I allowed the appeals of the second and third Appellants for the reasons explained to me by Mr Mills.
9. As regards the first Appellant, I heard submissions. Mr Mills addressed me first. He accepted that there was family life between the Sponsor and all three Appellants which would be interfered with by the decision of the Respondent to such a degree of gravity as to engage their Article 8 rights. He also acknowledged that now it was the case that the first Appellant's three children would be able to join their father in the UK to the exclusion of the first Appellant, there was a compelling circumstance whereby the Appellant's Article 8 rights should be considered outside the Immigration Rules. The issue therefore was whether the decision of the Respondent was proportionate. In that respect, Mr Mills argued that the decision was not disproportionate. The deception previously referred to had occurred in an application for entry clearance made in June 2007. Under paragraph 320(7B) of HC 395, the first Appellant was therefore excluded from seeking entry clearance for a period of ten years. She could therefore apply again for entry clearance in June 2017. Following the decision in Mumu (paragraph 320; Article 8; scope) [2012] UKUT 00143 (IAC), each case had to be considered on its own facts. In Mr Mills' submission, it was not disproportionate to expect the first Appellant and her three children to wait in Pakistan for approximately six months in order to seek entry clearance again, which application would inevitably be successful. The Sponsor had now achieved refugee status in the UK as an Ahmadi. The first Appellant and her children were also Ahmadis, but it would not be disproportionate to expect them to wait in Pakistan because the objective evidence was that not all Ahmadis were persecuted in Pakistan, and that had been the finding of a Country Guidance decision. The first Appellant and her children did not come within any of the categories of risk as Ahmadis identified in that case, and there was no evidence that they themselves had ever been persecuted as Ahmadis in Pakistan.
10. In response, Ms Ali argued that it would be disproportionate to separate the first Appellant from her children and their father even for a short period of time. The best interests of those children had to be taken into account as a primary consideration, and as their father had been persecuted as an Ahmadi, there was an element of risk in them remaining in Pakistan.
11. I find that the decision of the Respondent is not disproportionate in respect of the first Appellant. I accept that that decision will in one way or another involve the separation of this family, but only in the short term. They had been separated since the Sponsor came to the UK in December 2011, but that separation will inevitably come to an end later this year. The first Appellant and her children are Ahmadis, but notwithstanding the experiences of the Sponsor, there is no reason for me to believe that they will be at risk of persecution whilst remaining in Pakistan for this short period. The objective evidence is that not all Ahmadis are persecuted in Pakistan, and there is no information before me that the first Appellant and her children have experienced persecution as Ahmadis in Pakistan. I must consider the best interests of the children as a primary issue, but there is no evidence before me that they will suffer any greater adverse consequences by their separation from their father continuing for a further short period.
12. For these reasons I find the decision of the Respondent in respect of the first Appellant proportionate and I dismiss her appeal.

Notice of Decision

The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law in respect of all Appellants.

I set aside that decision.

I remake the decision in the appeal by dismissing the appeal of the first Appellant, but by allowing the appeals of the second and third Appellants.

Anonymity

The First-tier Tribunal did not make orders for anonymity. I was not asked to do so, and indeed I find no reason to do so.

Signed Date

Deputy Upper Tribunal Judge Renton

TO THE RESPONDENT
FEE AWARD

In the light of my decision to remake the decision in the appeal by allowing the appeals of the second and third Appellants, I have considered whether to make a fee award. I have had regard to the Joint Presidential Guidance Note: Fee Awards.

I make a whole fee award in respect of both the second and third Appellants. This is because their original applications for entry clearance were refused in error.

As I have dismissed the appeal of the first Appellant I cannot make a fee award in her favour.

Signed Date 25/01/2017

Deputy Upper Tribunal Judge Renton