Tribunal decisions

The decision

IAC-FH-NL-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/24104/2012

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On 28 November 2013
On 9 December 2013

Before

UPPER TRIBUNAL JUDGE CRAIG

Between

joseph iroghama
Appellant
and

ENTRY CLEARANCE OFFICER - ROME
Respondent

Representation:
For the Appellant: Not represented but the sponsor, Ms Ekhator, was present
For the Respondent: Mr T Wilding, Home Office Presenting Officer

DETERMINATION AND REASONS
1. Although this is an appeal brought by the Entry Clearance officer against a decision allowing Mr Iroghama’s appeal, for ease of reference I shall refer to the parties as they were referred to before the First Tier tribunal. The appellant, who was born on 4 August 1970, is a national of Nigeria. He currently resides in Italy, and has done so for some years. He has a fiancée, Ms Rosemary Ekhator, whom he has known since 1990. Ms Ekhator has been resident in the UK since 2005 and became a UK citizen in 2010.
2. Since 2004, as is shown in his passport, the appellant has visited the UK on several occasions, and Ms Ekhator has visited the appellant in Italy. At no time has the appellant failed to abide by the terms of his visa. As at December last year, he had a multiple entry visa valid until 17 September 2014, which, as already noted, he had never abused.
3. The appellant and Ms Ekhator became engaged on 26 June 2010, and their wedding was arranged for 26 January 2013. They had booked the registry office for their wedding and had paid a fee of £191. They had invited friends and relatives from various countries. These facts are now accepted, as is explained below.
4. Regrettably, when the appellant arrived at Stanstead Airport on 4 December 2012, in order to be with his fiancée and make final arrangements for his wedding, he was detained, apparently because he only had a one-way ticket. The appellant’s explanation (which, for reasons which appear below, is not now in dispute) is that it was cheaper to buy a one-way ticket and then return on a separate one-way ticket. At no time did he have any intention not to return to Italy. The appellant had not applied for a marriage visa, because he intended to return to Italy after the wedding in order to settle his affairs in that country. Although it was probable that he would subsequently have applied for a spouse visa, he would have done so in accordance with the Rules.
5. After the appellant had been detained at Stanstead Airport, his visa was revoked and he was removed to Italy. The Entry Clearance Officer at port was concerned that he only had a one-way ticket, and although Ms Ekhator was contacted by the Immigration Officer dealing with the appellant and she went to the airport to explain the situation, she was not given an opportunity to have personal contact with that officer.
6. Subsequently, the appellant instructed solicitors who made representations to the British Embassy in Rome, to the sponsor’s MP and to the Immigration Officers at Stanstead. She hoped that by this means the Entry Clearance Officer then dealing with the appellant’s affairs would reconsider the decision which had been made. However, eventually the couple considered that the best way forward was for the appellant to make another application for entry clearance, which he did on 18 January 2013, in the hope that he would still be able to arrive in this country in time for his wedding. He did not apply for a marriage visa at this time because he had not known until he was refused entry in December that this was another way of entering the country and by this time he thought that it would take too long.
7. Again the appellant was unsuccessful, the respondent refusing his application on 29 January 2013, which was in any event three days after the marriage had been due to take place. The couple are Pentecostal Christians and as part of their faith, they are not allowed to live together until they are married. Again, this is not now in dispute. On this occasion, the respondent was not satisfied that the appellant had provided adequate evidence of his personal circumstances, and in particular that he would be able to marry within the period for which he was seeking entry clearance. The wedding was due to take place on 26 January 2013 and the application was submitted on 18 January 2013 which, in the respondent’s view, did not allow him adequate time to travel to this country as planned on 23 January. In light of the background to this application, and the findings which had been made already, to which I refer below, the respondent was wrong.
8. The appellant appealed against this later decision, refusing to grant him leave to enter, and his appeal was heard before First-tier Tribunal Broe, sitting at Hatton Cross on 9 August 2013. In a determination promulgated on 22 August 2013 (which was some two months or so before the couple had by then fixed their wedding, for a new date of 26 October 2013) Judge Broe allowed the appeal, under the Immigration Rules.
9. In the course of his determination, Judge Broe made positive credibility findings with regard to the appellant, accepting the evidence which was given on his behalf by his fiancée, Ms Ekhator. I note in passing, having heard Ms Ekhator give evidence myself, that I am also entirely satisfied that she is a truthful witness and that the facts of this case are as I have set out above. I note also that Mr Wilding, on behalf of the respondent, has not sought to challenge these findings.
10. However, the respondent has challenged Judge Broe’s decision, for a reason which was not argued before him, but is, in my judgment nonetheless correct. The grounds of appeal are succinct, and argue that Judge Broe did not have jurisdiction to entertain an appeal under the Immigration Rules. This being an application for a visit visa (under paragraph 56B of the Immigration Rules) by virtue of Section 88A(1)(a) the appellant’s right of appeal was limited to the grounds referred to in Section 84(1)(c) of the Nationality, Immigration and Asylum Act 2002. I set out the relevant parts of this Act, which provide as follows:
“83. Right of Appeal: General:
(1) Where an immigration decision is made in respect of a person he may appeal to the Tribunal .
(2) In this Part “immigration decision” means— …
(b) refusal of entry clearance…
84. Grounds of Appeal
(1) An appeal under Section 82(1) against an immigration decision must be brought on one or more of the following grounds –
(a) that the decision is not in accordance with Immigration Rules;
(b) that the decision is unlawful by virtue of … Article 20A of the Race Relations (Northern Ireland) Order 1976 (discrimination by public authorities);
(c) that the decision is unlawful under Section 6 of the Human Rights Act 1998… (public authority not to act contrary to Human Rights Convention) as being incompatible with the appellant’s Convention rights;…
(e) the decision is otherwise not in accordance with the law;…
88A. Entry Clearance
(1) A person may not appeal under Section 82(1) against the refusal of an application for entry clearance unless the application was made for the purpose of –
(a) visiting a person of a class or description prescribed by Regulations for the purpose of this sub-Section, or
(b) entering as a dependant of a person in circumstances prescribed by Regulations for the purpose of this sub-Section.
(2) Regulations under sub-Section (1) may, in particular –
(a) make provision by reference to whether the applicant is a member of the family (within such meaning as the Regulations may assign) of the person he seeks to visit;
(b) provide for the determination of whether one person is dependent on another;
(c) make provision by reference to the circumstances of the applicant, of the person whom the applicant seeks to visit or on whom he depends, or on both and the Regulations may, in particular, include provision by reference to –
(i) whether or not a person is lawfully settled in the United Kingdom within such meaning as the Regulations may assign;
(ii) the duration of two individuals’ residence together;…
(iii) sub-Section (1) –
(a) does not prevent the bringing of an appeal on either or both of the grounds referred to in Section 84(1)(b) and (c), and
(b) is without prejudice to the effect of Section 88 in relation to an appeal under Section 82(1) against refusal of entry clearance.”
11. During the course of the hearing, Mr Wilding, on behalf of the respondent, handed me a copy of Statutory Instrument 2012 No.1532, which was laid before Parliament pursuant to Section 88A(1)(a) which provides as follows:
“Class or description of person to be visited
2-(1) A person [“P”] is of a class or description prescribed for the purposes of Section 88A(1)(a) of the Nationality, Immigration and Asylum Act 2002 (entry clearance) if –
(a) the applicant for entry clearance “A” is a member of the family of P; and
(b) P’s circumstances match those specified in Regulation 3.
(2) For the purposes of paragraph (1), A is a member of the family of B if A is the –
(a) spouse, civil partner, father, mother, son, daughter, grandfather, grandmother, grandson, granddaughter, brother or sister;
(b) father-in-law, mother-in-law, brother-in-law or sister-in-law;
(c) son-in-law or daughter-in-law; or
(d) stepfather, stepmother, stepson, stepdaughter, stepbrother or stepsister…”.
It is apparent that the class or description of persons to be visited as prescribed within Section 2 of the Statutory Instrument does not include a fiancée (and nor is fiancée included in the subsequent sub-Sections which it is not necessary to set out).
12. Essentially, therefore, it is the respondent’s case that, as was set out in the refusal letter, this appellant did not in fact have a right of appeal save on the limited grounds set out in paragraph 88A(3)(a) of the Rules (which in this case would be limited to a claim brought on the basis that the decision was unlawful because the respondent had acted contrary to the Human Rights Convention, under paragraph 84(1)(c)).
13. As I have noted above, this does not appear to have been argued in front of Judge Broe, but nonetheless in my judgment there is no answer to this submission. It is clear that, as argued on behalf of the respondent, Judge Broe did not in fact have jurisdiction to allow the appeal under the Immigration Rules.
14. Mr Wilding’s primary submission on behalf of the respondent was that accordingly I should first find that the determination contained a material error of law (in that Judge Broe had accepted jurisdiction whereas he did not have any) and then that I should re-make the decision by declaring that the Tribunal had no jurisdiction to entertain the appeal.
15. If the appeal had been limited to a challenge to the decision under the Immigration Rules, I would have had to accede to this submission, because it is clear that by reason of the provisions of the 2002 Act which I have set out above Judge Broe did not in fact have jurisdiction to entertain a claim under the Immigration Act. However, as I pointed out to the parties during the hearing, the Grounds of Appeal which had been submitted to the First-tier Tribunal included the following:
“…
5. It is submitted further that from the evidence before the respondent, it was abundantly clear that there was a genuine and subsisting relationship between the appellant and the sponsor and that the actions of the respondent amounted to Wednesbury unreasonableness and a clear breach of the appellant’s rights under Article 8 ECHR”.
16. The reference to Wednesbury unreasonableness does not have relevance to this appeal, but it is apparent nonetheless that the appellant made a challenge to the decision on human rights grounds. Accordingly, as again I pointed out to the parties during the hearing, it would follow that because the appeal included a ground that the decision was unlawful on the basis that the respondent (acting on behalf of a public authority) had acted contrary to the Human Rights Convention, and thus came within paragraph 84(1)(c) of the 2002 Act, in accordance with Section 88A(3)(a) the judge had jurisdiction to entertain the appeal. Although the judge did not in fact have jurisdiction to entertain an appeal under the Immigration Rules, he did have jurisdiction to entertain the appeal under Article 8. On behalf of the respondent, before me, Mr Wilding accepted that my analysis of the position as regards jurisdiction was correct.
17. This therefore being a validly constituted appeal, it follows that the judge was entitled to make the findings he did, which, as I have noted above, are in accordance with the facts as stated within this determination. Mr Wilding accepted that there had not been any challenge to these factual findings, and accordingly I proceed on the basis that the facts in this appeal are as found by the judge.
18. No doubt because he had considered he was entitled to find in favour of the appellant under the Rules (which, for reasons I have already given, he was not) Judge Broe did not go on to consider the appellant’s appeal under Article 8. The consequence is that while I must set aside the determination, because the judge did not have jurisdiction to consider the appeal under the Immigration Rules, I will myself have to consider the appeal under Article 8, because this aspect of the appeal has not been considered. I do so, however, on the basis of the findings as made by the judge.
19. I also take account of what the appellant’s fiancée told me during the course of the hearing, confirming that at no stage had either the appellant or herself ever been in breach of any Immigration Rule, and affirming also that they never would. She told me, in moving terms, that the earlier decision to send the appellant back to Italy had ruined their wedding plans, and had affected her health, her emotional stability and her financial wellbeing.
20. On behalf of the respondent, Mr Wilding reminded the Tribunal that because this was a refusal of entry clearance, I had to consider the position as it was at the time of the decision, which was 29 January 2013.
21. Accordingly, I now turn to consider whether or not this appeal should succeed under Article 8, by asking myself the questions posited by Lord Bingham in the House of Lords in the well-known case of Razgar.
22. The first question I ask myself is whether or not the decision interferes with the right of respect for the appellant’s and the sponsor’s right to respect for their private or family lives. While it probably cannot be said that the couple currently have a family life in this country, it seems clear that their private lives were substantially interfered with by the decision made on 29 January this year, because as a result of this decision they have been unable to marry as they would have wished. In my judgment, bearing in mind that the threshold for this is not particularly high, I consider this interference is of sufficient weight as to engage their Article 8 rights.
23. I then have to ask myself whether the interference is lawful and also whether it is necessary. Mr Wilding very fairly accepted that if the appellant’s Article 8 rights were engaged, it may be difficult for him to assert that the decision was lawful, in light of the findings of fact made by Judge Broe. In my judgment, Mr Wilding was right in his assessment of the difficulty he would have in this regard. It is, in my judgment, clear that this appellant should have been granted entry clearance in accordance with the Rules. Although I do not (neither did Judge Broe) have jurisdiction to entertain an appeal under the Rules, nonetheless in circumstances where permission should have been granted under the Rules, I do not consider that the decision to refuse entry clearance can properly be said to be “lawful” for Article 8 purposes. Nor do I consider that it was necessary.
24. Even if a technical argument could be mounted that the decision was “lawful” in the sense that it was open to the respondent and “necessary” in the sense that the maintenance of effective immigration control is a necessary purpose, on the facts of this case, the decision anyway was not, in my judgment, proportionate. When I consider proportionality, I have to balance on the one hand the legitimate objective of promoting the economic wellbeing of the country through the maintenance of fair and effective immigration control against on the other hand the interference to the private lives of the appellant and his fiancée. I saw for myself the impact the respondent’s decision was having on the appellant’s fiancée, and I accept that, as she told the Tribunal, her emotional, physical and financial wellbeing have been greatly affected by this decision. As against this, I do not consider that the economic wellbeing of the country is advanced by refusing entry clearance to people who (as found by the judge, whose findings are not challenged) are in fact entitled to enter under the Rules.
25. Of course, Article 8 cannot be used merely to provide a right of appeal in circumstances where otherwise there would be no right of appeal, but in this case, as I have found, the appellant’s Article 8 rights are engaged, so he has a legitimate right of appeal under the 2002 Act. It is accordingly necessary for me to consider proportionality, and I do consider that the facts of this case are exceptional, such that it is proper to allow this appeal under Article 8. I would certainly hope that the facts are exceptional, and that it is very rare indeed that genuine applicants such as this appellant are refused entry clearance in circumstances where (again as found) all the requirements under the Rules are satisfied.
26. It follows that although I do not have jurisdiction to allow the appeal under the Immigration Rules, I will allow it under Article 8, which is within my jurisdiction.
27. Given the history of this matter and in light of the clear finding by Judge Broe that this is a genuine application by a person acting at all times in good faith (which finding I entirely endorse based on the evidence which I have heard) I trust that the appellant will now be granted entry clearance without further delay, so that this couple can now get on with their lives and arrange another date for their wedding as soon as is practicable. The appellant will then have to take advice as to whether or not he wishes to make an application for permission to remain as a spouse, but I am entirely satisfied, on the evidence I have heard, taking into account also Judge Broe’s findings, that whatever this couple choose to do in the future will be entirely in accordance with the law and the Immigration Rules.

Decision
I set aside the determination of the First-tier Tribunal as containing a material error of law, and substitute the following decision:
The appellant’s (that is Mr Iroghama’s) appeal is allowed, under Article 8.

Signed: Dated: 28 November 2013

Upper Tribunal Judge Craig