Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/12086/2014

THE IMMIGRATION ACTS

Heard at Birmingham Employment Centre
Decision and Reasons Promulgated
On 9 August 2016
On 16 August 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE McCARTHY

Between

entry clearnce officer, abu dhabi
Appellant
and

nourelhouda hamed abdelrahman elebiary
(no anonymity order)
Respondent

Representation:
For the Appellant: Mr D Mills, Senior Home Office Presenting Officer
For the Respondent: Dr H Massoud, Sponsor

DECISION AND REASONS

1. The appellant Entry Clearance Officer appeals with permission against the decision and reasons statement of First-tier Tribunal Judge Juss that was promulgated on 19 August 2015. Judge Juss allowed the appeal of Mrs Elebiary against the decision of 9 September 2014 to refuse entry clearance as a medical visitor.
2. Mr Elebiary was represented by her daughter and son-in law who were present at the hearing. Both are medical doctors and as would be expected are well educated. Nevertheless, I ensured they were able to follow proceedings by explaining to them the procedural and legal issues that arose.
3. After hearing from Mr Mills and discussing matters with all present I am satisfied that Judge Juss erred in law in the way he dealt with the appeal. It is evident that he believed the appellant had a full right of appeal against the decision refusing her entry clearance as a medical visitor. There has never been a full right of appeal against such an immigration decision. A person refused entry clearance as a medical visitor has only ever been able to appeal on the limited grounds of race relations and human rights. Therefore, the approach taken by Judge Juss is fundamentally flawed and his decision must be set aside.
4. The question for me is what should the decision be. Mr Mills acknowledged that Judge Juss had made a number of sustainable findings about the appellant's circumstances. The issue was whether article 8 was engaged at all. He argued it could not be engaged on private life grounds because there was no reason the appellant could not have the necessary medical treatment either in Egypt or elsewhere. But Mr Mills acknowledged that the appellant's daughter and her family resided in the UK and part of the reason for choosing the UK for medical treatment was the fact that they were here and could assist the appellant both in dealing with the medical issues and treatment as well as helping with any aftercare.
5. Having reviewed all the evidence and arguments, I am satisfied that it would be appropriate to remake the appeal to allow it. As indicated by the Upper Tribunal in Abbasi, article 8 can be engaged in relation to short term visits but each case will turn on its own merits. The evidence in this case is that the appellant was seeking to come to the UK for a multitude of reasons. She needed surgery on her knee. She wanted the support of her daughter, who is medically qualified in the UK, both in terms of ensuring she received the best available treatment but also that she could be cared for after any operation by a close relative. Such are common and perhaps natural desires which leads me to conclude that the appellant's circumstances just engage article 8 for family life reasons.
6. Judge Juss made findings that the appellant met all of the requirements of paragraph 51 of the immigration rules as a medical visitor. Bearing in mind the guidance in Kaur these are strong indications that the decision refusing entry clearance is disproportionate in all the circumstances because it is not in accordance with the law. The appellant met the usual criteria and the Entry Clearance Office has not given any explanation as to why she should not benefit from the law. Not allowing her entry even though she meets all the relevant criteria amounts to arbitrariness which proportionality abhors.
7. As the Entry Clearance Officer has failed to demonstrate why it is necessary to refuse to admit the appellant as a medical visitor, and since the burden in this regard is on the Entry Clearance Office given the sustained findings of Judge Juss, there is no need to carry out the balancing exercise other than to say that there is nothing in the public interest to weigh against the appellant. As there is good reason why she wishes to undergo surgery in the UK, because she has close relatives here who will be able to care for her in the immediate period after her operation, and this is a a time when family members help each other out, the appeal must succeed.
8. I add, for clarity, that I have no doubt whatsoever about the integrity of the appellant's daughter and son-in-law and even at the date of hearing I am satisfied that the requirements of paragraph 51 are satisfied. But the appeal is allowed because the refusal of entry clearance fails to respect the appellant's rights under article 8 of the human rights convention because the decision is arbitrary given the facts established by the evidence.

Decision
The decision and reasons of Judge Juss contain an error on a point of law and are set aside.
I remake the decision and allow the appeal against the refusal of entry clearance.

Signed Date 16/08/2016

Judge McCarthy
Deputy Judge of the Upper Tribunal