Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: VA/00182/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 2nd June 2016
On 14th September 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE MANDALIA

Between

THE ENTRY CLEARANCE OFFICER - ACCRA
Appellant
and

MR RICHARD OTTO
(ANONYMITY DIRECTION NOT MADE)
Respondent

Representation:
For the Appellants: Mr. I Jarvis; Home Office Presenting Officer
For the Respondent: Mr I Palmer; Instructed by Rashid & Rashid Solicitors

DECISION AND REASONS
1. This is an appeal by the Entry Clearance Officer against a decision by First-tier Tribunal Judge Robison promulgated on 22nd October 2015 in which she allowed the appeal by Mr Richard Otto against the Entry Clearance Officer's decision of 2nd December 2014 to refuse his application for entry clearance to visit his mother Ms [CN].
2. The appellant before me is the Entry Clearance Officer, and the respondent to this appeal is Mr Richard Otto. However for ease of reference, in the course of this decision I shall adopt the parties' status as it was before the First-tier Tribunal. I shall refer to Mr Richard Otto as the appellant, and the Entry Clearance Officer as the respondent.
3. The respondent's reasons for refusing the application were set out in the refusal of entry clearance dated 2nd December 2014. The respondent was not satisfied that the appellant is genuinely seeking entry as a child visitor for the reasons set out in the refusal. It followed that the respondent was not satisfied that the appellant met the requirements of paragraph 41(i) and (ii) of the immigration rules.
4. The decision to refuse the application was reviewed by an Entry Clearance Manager who noted that the grounds of appeal advanced by the appellant were based upon Article 8 ECHR. The Entry Clearance Manager noted that no new evidence had been provided by the appellant. The Entry Clearance Manager, having reviewed the matter, was satisfied that the decision to refuse entry clearance was correct and was maintained. The Entry Clearance Manager went on to conclude that Article 8 is not engaged and even if it were, refusal of entry clearance is proportionate for legitimate reasons of fair and firm immigration control, and the economic well-being of the country.
The decision of First-tier Tribunal Judge Robison
5. The First-tier Tribunal Judge sets out the background to the appeal at paragraphs [1] to [3] of her decision. At paragraphs [8] to [13] she sets out the evidence received by the Tribunal. At paragraphs [14] to [22] the Judge sets out the proper approach to an appeal against a refusal of entry clearance as a visitor. The Judge notes the grounds upon which an appeal can be brought are restricted to those set out in s84 of the Nationality Immigration and Asylum Act 2002. In this appeal, the only relevant provision is that the decision is unlawful under section 6 of the Human Rights Act. That is, the decision is contrary to Article 8 ECHR.
6. Having recorded the evidence, the legal framework and the submissions made by the parties, the Judge sets out her findings and conclusions at paragraphs [31] to [48] of her decision. The Judge found, for the reasons set out at paragraph [32] of her decision that the appellant has established ties with his mother and brothers such that there is family life within the terms of Article 8. The Judge found at paragraph [33] that the interference with that family life is of such gravity as potentially to engage the operation of Article 8. At paragraph [34] of her decision, the Judge found that the interference has a legitimate aim of enforcing immigration control. The Judge notes at paragraph [35] of her decision that the key question is whether the means of achieving that aim, here to refuse the appellant a visitor's visa, are proportionate to that legitimate aim. The Judge carried out an assessment of proportionality at paragraphs [36] to [48] of her decision, before concluding at paragraph [49] that the refusal of a visitor visa would be disproportionate to the legitimate aim being pursued. In light of her findings the Judge allowed the appeal on human rights grounds.
The grounds of appeal
7. The respondent contends that the decision of the Judge discloses a material misdirection as to the law and that the Judge erred in her conclusion that the decision to refuse entry clearance amounts to a disproportionate interference with the Article 8 rights of the appellant. The respondent contends that the Judge has failed to make a finding that there are exceptional circumstances, and the proportionality assessment undertaken, is inadequate. It is said that the Judge does not explain why the refusal of a visa that only allows the parties to be together temporarily, is a disproportionate interference with Article 8, and furthermore, the Judge has failed to have regard to the public interest considerations that are now set out in s117B of the 2002 Act.
8. Permission to appeal was granted by First-tier Tribunal Judge Andrew on 29th April 2016. The matter comes before me to consider whether or not the decision of First-tier Tribunal Judge Robison involved the making of a material error of law, and if so, to remake the decision.
9. Before me, Mr Jarvis submits that the recent decisions of the Tribunal all establish that there is a requirement for an appellant to show some compelling circumstances that weigh in favour of an appellant in any assessment of proportionality, when considered against the public interest in the maintenance of immigration control. He submits that the Judge has not given sufficient reasons for finding that there are any compelling circumstances, in this case.
10. In reply, Mr Palmer submits that a careful reading of the decision makes it plain that the Judge has correctly directed herself as to the law at paragraphs [14] to [22] of her decision. He submits that the Judge found that the facts here are compelling enough, to conclude that the refusal of entry clearance is disproportionate to the legitimate aim of immigration control. He submits that it was open to the Judge to find that the appellant genuinely intends to visit the UK for a short period. The fact that the immigration rules can be met weigh heavily in favour of the appellant. Mr Palmer accepts that the Judge does not refer to the public interest considerations set out in s117B of the 2002 Act, but submits that there is no adverse immigration history here, and matters such as maintenance and accommodation were not in issue. He submits that the public interest considerations are subsumed within the Judge's assessment of proportionality.
Discussion
11. The First-tier Tribunal Judge correctly identified the parameters of the appeal before her at paragraph [14] of her decision. She properly identifies and directs herself to the legal framework for her decision at paragraphs [14] to [22] of her decision. The Judge noted that there is only a limited right of appeal on human rights grounds.
12. In Mostafa (Article 8 in entry clearance) [2015] UKUT 112 (IAC), the Upper Tribunal held that the claimant's ability to satisfy the immigration rules is not the question to be determined by the Tribunal, but is capable of being a weighty, though not determinative, factor when deciding whether such refusal is proportionate to the legitimate aim of enforcing immigration control.
13. The task of the judge was to determine whether the decision of the respondent was unlawful under s6 of the Human Rights Act 1998. That is, whether the decision was incompatible with the appellant's Article 8 rights. As set out in the decision of the Upper Tribunal in Adeji (visit visas - Article 8) [2015] UKUT 261 (IAC), the first question to be addressed in an appeal against a refusal to grant entry clearance as a visitor where only human rights grounds are available, is whether Article 8 of the ECHR is engaged at all. If it is not, the Tribunal has no jurisdiction to embark upon an assessment of the decision of the ECO under the rules and should not do so. If Article 8 is engaged, the Tribunal may need to look at the extent to which the appellant is said to have failed to meet the requirements of the rule because that may inform the proportionality balancing exercise that must follow.
14. In considering the appeal on Article 8 grounds, the Judge refers to the five questions identified by Lord Bingham of Cornhill in R -v- SSHD ex parte Razgar [2004] UKHL 27, at paragraph [15] of her decision.
15. In entry clearance cases, the Tribunal is concerned with whether there has been an unjustified lack of respect for private and family life. Decisions of this sort are entirely fact specific and the Judge accepted that in the particular circumstances of this case, there was a family life between the applicant, his mother and his siblings. The respondent does not challenge the findings made by the Judge.
16. The Judge found that the decision to refuse the appellant entry clearance interferes with the family life of the appellant, his mother and his siblings or that the interference is of sufficient gravity as potentially to engage the operation of Article 8. The issue before the Judge was whether the refusal of entry clearance for the specific and limited purpose sought, interferes disproportionately with the family lives of the appellant, his mother and his siblings.
17. In refusing the application for entry clearance the Entry Clearance Officer was not satisfied that the appellant is genuinely seeking entry to the UK as a child visitor. On review, the Entry Clearance Manager maintained that decision and having considered Article 8, concluded that the appellant has not established a family life with his mother and siblings, or that any interference would have consequences of such gravity as potentially to engage the operation of Article 8.
18. The Judge, having noted that the right of appeal is limited to human rights grounds only, was satisfied that the substantive requirements of the immigration rules appear to be met. The Judge considered the matters that had been relied upon by the respondent in the decision to refuse entry clearance and having heard the evidence concluded at paragraph [44] of her decision that the appellant can indeed meet the requirements of the rules. That again, is a finding that is not challenged. Importantly, insofar as any assessment of proportionality is concerned, the Judge states at paragraphs [46] to [48];
"46. Is this then a case where a refusal of entry clearance could be said to have infringed Article 8? In this case I have concluded that the appellant has established, on the balance of probabilities, that the purpose of his visit is a short holiday with his mother and younger brothers, and that it is his intention to return to further his University studies. This is not a case where there is any evidence that the appellant has acted in a way which might undermine the system of immigration control. He has not previously visited the country or applied for a visa, but rather he has waited until his mother has discretionary leave to remain and is in a financial position to support, maintain and accommodate him during his stay.
47. In undertaking the proportionality balancing exercise, I took account of the fact that the sponsor could at some stage in the future visit the appellant in Cameroon, since she now has discretionary leave. However, I considered on the evidence that such visit was unlikely to take place in the foreseeable future, given the age of the two younger brothers. I also took account of the fact that the appellant was at liberty to make a fresh application, but this is not a "near miss" case or a case where materially different evidence would require to be lodged in support of the application.
48. There were no public interest considerations which pointed to a justification for the refusal of a visitors' visa beyond a speculative concern that he might prefer to attend University in this country or take up employment here. On the contrary the evidence suggested that the appellant could meet the requirements of the rules, and that the public interest factors in ensuring a robust system of immigration control would not be compromised by the grant of a visitors' visa in this case. "
19. Whilst not the question before the Tribunal, the underlying merits of the application and the ability of the appellant to satisfy the substantive requirements of the immigration rules, is capable of being a weighty factor in an appeal on human rights grounds. The fact that the appellant appears, on the findings made by the Judge, to satisfy the requirements of the immigration rules, was in my judgment capable of tipping the balance in favour of the appellant in the particular facts and circumstances of this case.
20. Although the Judge does not identify them as compelling circumstances, in my judgement, it is clear from the extracts of the decision that I have cited that the Judge was satisfied that there are individual interests at stake covered by Article 8 in this appeal, that are of a particularly pressing nature so as to give rise to compelling circumstances that justify the grant of leave to enter as a visitor on Article 8 grounds. I accept that the Judge does not refer expressly to s117B of the 2002 Act in her decision, but in my judgement, the Judge plainly had regard to all relevant public interest considerations when reaching her decision.
21. In my judgment it was open to the Judge in the particular circumstances of this case, and upon the findings made by her, to conclude that the decision to refuse entry clearance, is disproportionate to the legitimate public end sought to be achieved and to allow the appeal.
22. It follows that the appeal before me, by the Entry Clearance Officer fails and is dismissed.
Notice of Decision
23. The appeal is dismissed and the decision of the First-tier Tribunal stands.
24. No anonymity direction is applied for and none is made.
Signed Date

Deputy Upper Tribunal Judge Mandalia 14th September 2016

FEE AWARD
The First-tier Tribunal made a fee award. I have dismissed the appeal of the Entry Clearance Officer and the fee award shall stand.
Signed Date

Deputy Upper Tribunal Judge Mandalia 14th September 2016