VA/00296/2014 & Ors.
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The decision
IAC-FH-AR-V1
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: VA/00296/2014
VA/00295/2014
VA/05701/2014
THE IMMIGRATION ACTS
Heard at Field House
Decision & Reasons Promulgated
On 8th April 2014
On 22nd April 2015
Before
DEPUTY UPPER TRIBUNAL JUDGE J G MACDONALD
Between
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and
MRS TERIZ ESHAK SOMAEIL GERGIS
MISS CLARA EMAD MICAD AZIZ BEKHIT
master KIROLLOS EMAD MILAD AZIZ BEKHIT
(ANONYMITY DIRECTION not made)
Respondents
Representation:
For the Appellant: Ms E Savage, Home Office Presenting Officer
For the Respondent: Ms V Easty, Counsel, instructed by Brighton Housing Trust
DECISION AND REASONS
1. I shall refer to Mrs Teriz Gergis as the claimant and (first) Appellant. She is a national of Egypt and the mother of the two children who applied for entry clearance to come to the United Kingdom. Their appeal against refusal was allowed by First-tier Tribunal Judge Mailer in a decision promulgated on 7th January 2015. The Secretary of State lodged grounds of application. It was said that the judge had materially directed himself in law in that there was a complete lack of reasoning and evidence to say that private life existed and in any event it was submitted that family life did not exist. The proportionality assessment was inadequate. The family maintained contact with the Sponsor by Skype and the refusal of a visit visa did not interfere with the established pattern of communication.
2. A Rule 24 notice was lodged. Contrary to what was said in the grounds the judge had set out his factual findings in relation to family life and set out well-known jurisprudence. Most of the grounds amounted to no more than a disagreement with the judge's decision and were an attempt to reargue the case.
3. The grounds were found to be arguable and thus the matter came before me on the above date.
4. For the Secretary of State Ms Savage relied on her grounds. The statement at paragraph 56 of the decision that the "appellants' right to respect for their private lives is engaged" was unreasoned. This was not a case where family life could be said to exist. I was referred to Mostafa (Article 8 and entry clearance) [2015] UKUT 112 (IAC) which was a husband and wife case and very fact specific. The relationship between the parties could be continued as before and that would merely maintain the status quo. I was asked to set the decision aside and remake the decision dismissing the appeal.
5. Ms Easty relied on her Rule 24 notice and also said that this was a case where the claimant and her family would have succeeded under the old Immigration Rules - see the findings at paragraphs 3 and 57. In terms of Mostafa that was a weighty factor to take into account. Family life was not being argued in this case - this was a private life case where the decision should be upheld.
6. I reserved my decision.
Conclusions
7. The background to this case is that the Appellants before the First Tier Judge were mother and children respectively and they are the Sponsor's daughter (first Appellant and claimant) and grandchildren. The applications were to see the UK relatives. It is common ground between parties that the appeal rights for visitors coming to visit family members are now restricted and the only ground open to these Appellants were that to refuse them entry would breach their fundamental but qualified rights under Article 8 ECHR. The Sponsor and her husband are refugees being Coptic Christians.
8. The claimant and her children were not only coming to see the Sponsor and her husband after a long separation but also to see other relatives. In particular the sponsor's daughter Tena had been granted six years leave to remain.
9. The judge says he found the evidence of the sponsor and Tena Giris to be "straightforward and credible" (paragraph 47). In any event their evidence was effectively unchallenged.
10. The judge considered the extensive evidence produced relating to the medical and social problems of Mr Eshak Botros and found that he was dependent on a daily basis upon the assistance he received from Tena Geris; given that the judge found that Mr Botros could not realistically be in a position to visit his daughter and grandchildren in a third country. As Ms Easty pointed out, the judge noted that the Entry Clearance Officer accepted there was evidence of sufficient funds for the visit as well as evidence of owning a property in Egypt. The judge had no reason to suppose that the intentions of the Appellants were anything other than what they had stated and it was found that they had had substantial ties to Egypt and that they would return at the end of their trip (paragraph 57). Accordingly this is a case where the Appellants would have been successful under the old Rules because they would have satisfied the criteria set out in paragraph 41 in relation to maintenance, accommodation and intention to return. As is said in Mostafa, the claimants' 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 a refusal is proportionate to the legitimate aim of enforcing immigration control.
11. Given the way the grounds and the response under Rule 24 were drafted, it might have been thought that much of the discussion before me would have been whether the relationship between the parties amounted to family life, but Ms Easty was clear that there was no case being argued on the basis of family life but rather that this was a private life case - as the judge had said in paragraph 56, namely that the right to respect for their private lives was engaged. This statement was attacked by the Secretary of State as being unreasoned. However in my view that is not a fair reflection of the decision when read as a whole. It must be read in the context of the judge finding that the detailed evidence of Ms Gadalla as well as Ms Giris was straightforward and credible. That evidence is set out in detail at paragraphs 5 to 36 inclusive and sets out the closeness of the relationship between the parties and their strong desire to visit the family in the United Kingdom. None of this evidence is challenged. It therefore seems to me that the grounds are not correct to say that there is a complete lack of reasoning and evidence for finding that private life existed - such a statement may have been encouraged by the fact that the judge did not link up what he said in paragraph 56 with the clear factual findings previously made.
12. What we see through those findings are that the judge did not doubt the intentions of the first Appellant and her children to come here for a short visit. The judge was aware of the difficulties of the parties meeting up in another European country. That particular finding is not challenged in the grounds of application.
13. The judge then identified what was said in Razgar v SSHD [2004] UKHL 27 and in Huang (citation not given but Huang v SSHD [2007] UKSC 11). Before going on to conduct the balancing exercise in relation to proportionality he took account of the fact that the intentions of the Appellants were what they had stated them to be and also took account of the health and mobility considerations relating to Mr Botros as well as the inordinate expense that would be required for the family to visit the Appellants from a third country. These were factors which the judge was entitled and indeed bound to take into account when assessing the proportionality of the decision to refuse the Appellants entry. Having taken all these matters into account the judge then went on to allow the appeal on human rights grounds.
14. The Presidential panel in Mostafa did say that it would 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) - see paragraph 24. However, although this is a private life case, it does involve close relatives. It therefore seems to me that there is nothing said in Mostafa which goes against the judge's decision and what can be taken from Mostafa in the Appellants' favour is that the ability to satisfy the Immigration Rules is a weighty factor in the proportionality assessment.
15. In my view the judge's approach to the case was correct. He considered the case under private life. He narrated the factors which he took into account when assessing the proportionality of the decision and on the facts as found by him was perfectly entitled to conclude that the balance fell in favour of the Appellants. There is no error in law. There is no need for an anonymity order.
Decision
16. The making of the decision of the First-tier Tribunal did not involve the making of an error on a point of law.
17. I do not set aside the decision.
18. No anonymity direction is made.
Signed Date 8th April 2014
Deputy Upper Tribunal Judge J G Macdonald
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: VA/00296/2014
VA/00295/2014
VA/05701/2014
THE IMMIGRATION ACTS
Heard at Field House
Decision & Reasons Promulgated
On 8th April 2014
On 22nd April 2015
Before
DEPUTY UPPER TRIBUNAL JUDGE J G MACDONALD
Between
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and
MRS TERIZ ESHAK SOMAEIL GERGIS
MISS CLARA EMAD MICAD AZIZ BEKHIT
master KIROLLOS EMAD MILAD AZIZ BEKHIT
(ANONYMITY DIRECTION not made)
Respondents
Representation:
For the Appellant: Ms E Savage, Home Office Presenting Officer
For the Respondent: Ms V Easty, Counsel, instructed by Brighton Housing Trust
DECISION AND REASONS
1. I shall refer to Mrs Teriz Gergis as the claimant and (first) Appellant. She is a national of Egypt and the mother of the two children who applied for entry clearance to come to the United Kingdom. Their appeal against refusal was allowed by First-tier Tribunal Judge Mailer in a decision promulgated on 7th January 2015. The Secretary of State lodged grounds of application. It was said that the judge had materially directed himself in law in that there was a complete lack of reasoning and evidence to say that private life existed and in any event it was submitted that family life did not exist. The proportionality assessment was inadequate. The family maintained contact with the Sponsor by Skype and the refusal of a visit visa did not interfere with the established pattern of communication.
2. A Rule 24 notice was lodged. Contrary to what was said in the grounds the judge had set out his factual findings in relation to family life and set out well-known jurisprudence. Most of the grounds amounted to no more than a disagreement with the judge's decision and were an attempt to reargue the case.
3. The grounds were found to be arguable and thus the matter came before me on the above date.
4. For the Secretary of State Ms Savage relied on her grounds. The statement at paragraph 56 of the decision that the "appellants' right to respect for their private lives is engaged" was unreasoned. This was not a case where family life could be said to exist. I was referred to Mostafa (Article 8 and entry clearance) [2015] UKUT 112 (IAC) which was a husband and wife case and very fact specific. The relationship between the parties could be continued as before and that would merely maintain the status quo. I was asked to set the decision aside and remake the decision dismissing the appeal.
5. Ms Easty relied on her Rule 24 notice and also said that this was a case where the claimant and her family would have succeeded under the old Immigration Rules - see the findings at paragraphs 3 and 57. In terms of Mostafa that was a weighty factor to take into account. Family life was not being argued in this case - this was a private life case where the decision should be upheld.
6. I reserved my decision.
Conclusions
7. The background to this case is that the Appellants before the First Tier Judge were mother and children respectively and they are the Sponsor's daughter (first Appellant and claimant) and grandchildren. The applications were to see the UK relatives. It is common ground between parties that the appeal rights for visitors coming to visit family members are now restricted and the only ground open to these Appellants were that to refuse them entry would breach their fundamental but qualified rights under Article 8 ECHR. The Sponsor and her husband are refugees being Coptic Christians.
8. The claimant and her children were not only coming to see the Sponsor and her husband after a long separation but also to see other relatives. In particular the sponsor's daughter Tena had been granted six years leave to remain.
9. The judge says he found the evidence of the sponsor and Tena Giris to be "straightforward and credible" (paragraph 47). In any event their evidence was effectively unchallenged.
10. The judge considered the extensive evidence produced relating to the medical and social problems of Mr Eshak Botros and found that he was dependent on a daily basis upon the assistance he received from Tena Geris; given that the judge found that Mr Botros could not realistically be in a position to visit his daughter and grandchildren in a third country. As Ms Easty pointed out, the judge noted that the Entry Clearance Officer accepted there was evidence of sufficient funds for the visit as well as evidence of owning a property in Egypt. The judge had no reason to suppose that the intentions of the Appellants were anything other than what they had stated and it was found that they had had substantial ties to Egypt and that they would return at the end of their trip (paragraph 57). Accordingly this is a case where the Appellants would have been successful under the old Rules because they would have satisfied the criteria set out in paragraph 41 in relation to maintenance, accommodation and intention to return. As is said in Mostafa, the claimants' 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 a refusal is proportionate to the legitimate aim of enforcing immigration control.
11. Given the way the grounds and the response under Rule 24 were drafted, it might have been thought that much of the discussion before me would have been whether the relationship between the parties amounted to family life, but Ms Easty was clear that there was no case being argued on the basis of family life but rather that this was a private life case - as the judge had said in paragraph 56, namely that the right to respect for their private lives was engaged. This statement was attacked by the Secretary of State as being unreasoned. However in my view that is not a fair reflection of the decision when read as a whole. It must be read in the context of the judge finding that the detailed evidence of Ms Gadalla as well as Ms Giris was straightforward and credible. That evidence is set out in detail at paragraphs 5 to 36 inclusive and sets out the closeness of the relationship between the parties and their strong desire to visit the family in the United Kingdom. None of this evidence is challenged. It therefore seems to me that the grounds are not correct to say that there is a complete lack of reasoning and evidence for finding that private life existed - such a statement may have been encouraged by the fact that the judge did not link up what he said in paragraph 56 with the clear factual findings previously made.
12. What we see through those findings are that the judge did not doubt the intentions of the first Appellant and her children to come here for a short visit. The judge was aware of the difficulties of the parties meeting up in another European country. That particular finding is not challenged in the grounds of application.
13. The judge then identified what was said in Razgar v SSHD [2004] UKHL 27 and in Huang (citation not given but Huang v SSHD [2007] UKSC 11). Before going on to conduct the balancing exercise in relation to proportionality he took account of the fact that the intentions of the Appellants were what they had stated them to be and also took account of the health and mobility considerations relating to Mr Botros as well as the inordinate expense that would be required for the family to visit the Appellants from a third country. These were factors which the judge was entitled and indeed bound to take into account when assessing the proportionality of the decision to refuse the Appellants entry. Having taken all these matters into account the judge then went on to allow the appeal on human rights grounds.
14. The Presidential panel in Mostafa did say that it would 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) - see paragraph 24. However, although this is a private life case, it does involve close relatives. It therefore seems to me that there is nothing said in Mostafa which goes against the judge's decision and what can be taken from Mostafa in the Appellants' favour is that the ability to satisfy the Immigration Rules is a weighty factor in the proportionality assessment.
15. In my view the judge's approach to the case was correct. He considered the case under private life. He narrated the factors which he took into account when assessing the proportionality of the decision and on the facts as found by him was perfectly entitled to conclude that the balance fell in favour of the Appellants. There is no error in law. There is no need for an anonymity order.
Decision
16. The making of the decision of the First-tier Tribunal did not involve the making of an error on a point of law.
17. I do not set aside the decision.
18. No anonymity direction is made.
Signed Date 8th April 2014
Deputy Upper Tribunal Judge J G Macdonald