Tribunal decisions

The decision

IAC-AH-SAR-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: VA/00315/2015
VA/00316/2015
VA/00317/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 11 October 2016
On 15 November 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE CHAMBERLAIN

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

Mrs TAIWO [A]
Mr OLASUNKANMI [A]
[I A]
(anonymity direction Not MADe)
Respondents

Representation:
For the Appellant: Ms J. Isherwood, Home Office Presenting Officer
For the Respondents: Mr. D. Balroop, Counsel instructed by AB Mackenzie Solicitors

DECISION AND REASONS
1. This is an appeal by the Secretary of State against the decision of First-tier Tribunal Judge S. George, promulgated on 23 February 2016, in which he allowed the appeals of Taiwo, Olasunkanmi and [I] [A] against the Secretary of State's decision to refuse leave to enter as visitors.
2. For the purposes of this appeal I refer to the Secretary of State as the Respondent, and to Taiwo, Olasunkanmi and [I] [A] as the Appellants, reflecting their positions as they were before the First-tier Tribunal.
3. Permission to appeal was granted as follows:
"Arguably the judge failed to identify any unusual circumstances which justified extension of family life for article 8 purposes to the relationship between two adult sisters, or further extension to the other two appellants, the brother-in-law and niece of the sponsor.
Arguably also there is lack of identification of the extent of the interference with family life brought about by the refusal of visit visas, and how this gave rise to consequences of such gravity that the appellants had a right to enter the UK".
4. The Sponsor, Mrs. [OA], attended the hearing. I heard submissions from both representatives following which I reserved my decision which I set out below with reasons.
Submissions
5. Ms Isherwood submitted that the judge had failed to engage with the issue of unusual circumstances. He found that there was a "close relationship" between the Appellants and Sponsor, but it is not clear from the decision what the evidence was. The witness statement does not explain the nature of the close relationship. I was referred to the case of Mostafa (Article 8 in entry clearance) [2015] UKUT 112 (IAC), in particular the headnote and paragraph 24. She submitted that the judge had made the fact that the Appellants met the rules to be determinative, contrary to Mostafa.
6. At paragraph 10 of the decision the judge stated that Article 8 was engaged without giving any reasons. I was referred to the case of Adjei (visit visas - Article 8) [2015] UKUT 261 (IAC), in particular the head note and paragraphs 9, 15 and 17. The judge had embarked on an assessment of the decision under the rules and should not have done so. With regard to paragraph 15 of Adjei she submitted that it was the same here. The first Appellant and Sponsor were sisters, and the evidence disclosed no aspect of dependency. The Sponsor had often returned to Nigeria, e.g. in 2015.
7. I was further referred to the case of Kaur (visit appeals - Article 8) [2015] UKUT 487 (IAC), paragraph 3 of the head note. She submitted that there was no evidence here of any individual interests which were covered by Article 8. I was referred to paragraphs 21 and 29 of Kaur. The judge had considered the position wrongly here. Even if a person met the requirements of paragraph 41 of the immigration rules that did not necessarily establish that the appeal should be allowed. I was referred to paragraph 39. The judge had not considered the relationships through the prism of whether there was dependency over and above normal emotional ties. There were no reasons given for finding that family life existed, and the judge's reasoning was not in accordance with the case law.
8. Mr. Balroop referred me to paragraph 24 of Mostafa. In order for the court to have jurisdiction, there must be a finding that Article 8(1) is engaged. The Respondent had not submitted that the sisters were not close relatives. With reference to Kaur, if Article 8(1) was engaged the judge could not look at the appeal in a vacuum, but must go to the paragraph 41 of the immigration rules to determine the proportionality aspect. In relation to paragraph 39, and the reference to Kugathas [2003] EWCA Civ 31, it depended on the circumstances of the Appellant whether or not there was be family life. Here there was a close-knit family and the judge was open to make that finding. Article 8(1) was engaged. Therefore the judge had jurisdiction to look at paragraph 41 and then decide whether or not the decision was proportionate. The Respondent had not challenged the judge's findings of fact.
9. Even if there was an error of law, he submitted that I should take into account how the grounds of appeal were approached. There would only be jurisdiction if there was a breach of section 6 of the Human Rights Act 1998. He submitted that this could be by reference to Article 13 as well as Article 8. Article 13 concerned the effective remedy. I was referred to the case of MM (Sri Lanka) [2014] EWCA Civ 36 which had considered Article 13, in particular paragraphs 21 and 26. The Upper Tribunal needed to make findings under Article 13. The deception was a ten year ban and another application could not be made until 2018. This was based on an unappealed finding that there had been no deception. He submitted that the decision of the Respondent was bordering on abuse. This issue had not been raised at the First-tier Tribunal. This was the first time that a finding had been made that no deception had been used in relation to the claimed deportation of the Appellant in 2009. The issue of the claimed deportation in 2009 was not being pursued by the Respondent. There had been no valid appeal in 2009. If I were to find an error of law, the decision would be a breach of Article 13, and the appeal could still be allowed in this respect.
10. In relation to jurisdiction the judge was only entitled to look at paragraph 41 if there was a breach of section 6 of the Human Rights Act 1998. The Respondent had not submitted that Article 8 was not engaged.
11. In response Ms Isherwood submitted that the appeal rights were restricted to Article 8 and/or an appeal under the Race Relations Act 1976. The Respondent had refused the decision under paragraph 320(7A), under the financial requirements, and with reference to the interview. The ECM review had raised Article 8. The appeal rights had been restricted by the Immigration Act 2016 and the judge should not have gone back to looking at the appeal under the old system as there was no legal basis to do so. The issue of the claimed deportation was not being pursued by the Respondent. In summary, the full impact of Article 8 had not been considered. It was not clear from the decision what the evidence was. I was referred to paragraph 20 of Kugathas - the judge had to engage with the nature of the relationship.
Decision and Reasons
12. The head note to Mostafa states
"In the case of appeals brought against refusal of entry clearance under Article 8 ECHR, 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. In paragraph 24 of Mostafa it states:
"We are, however, prepared to say that it will 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). In practical terms this is likely to be limited to cases where the relationship is that of husband and wife or other close life partners or a parent and minor child and even then it will not necessarily be extended to cases where, for example, the proposed visit is based on a whim or will not add significantly to the time that the people involved spend together".
14. Paragraph 1 of the head note to Adjei states:
"The first question to be addressed in an appeal against 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, which will not infrequently be the case, 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 claimant is said to have failed to meet the requirements of the rule because that may inform the proportionality balancing exercise that must follow. Mostafa (Article 8 in entry clearance) [2015] UKUT 112 (IAC) is not authority for any contrary position."
15. Paragraph 17 of Adjei states:
"[?.] the protection of Article 8 does not extend to links between adult siblings living apart for a long period where they were not dependent upon each other. There is no evidence of such dependence between these siblings or step-siblings. Further, it is well established that there must be more than the normal emotional ties between adult relatives for family life to exist for the purposes of Article 8 of the ECHR: Kugathas v IAT [2003] EWCA Civ 31".
16. I have considered the decision of the First-tier Tribunal. The judge first finds that the applications should not have been refused in accordance with paragraph 320(7B) at paragraph 43. In paragraphs 44 and 45 the judge finds that the Appellants meet the requirements of paragraph 41 of the immigration rules. In paragraph 46 he states:
"I must now consider if refusing the appellants' entry clearance by refusing to give them entry clearance for the specific and limited purpose sought interferes disproportionately with the family lives of the appellants".
17. I find that the judge has taken an incorrect approach to the appeals and has not followed the case law set out above. Instead of first considering whether the decision engaged Article 8, he considered whether the Appellants satisfied the requirements of the immigration rules. Following the case of Adjei he was not entitled to consider whether the Appellants met the requirements of the immigration rules before consideration of whether Article 8 was engaged. I find that the decision involves the making of an error of law in the judge's approach in first considering the immigration rules rather than first considering whether Article 8 was engaged.
18. Further, in paragraph 46 the judge states that he must now consider whether the decision interferes disproportionately with the family lives of the Appellants, thereby presuming that family life exists. He gives no reasons in paragraph 46 for why there is family life between the Appellants and the Sponsor. In paragraph 47 he states "I can see no justification for the interference in the visit between adult siblings, together with Mr [A] (the brother in law of the sponsor) and children cousins." He has set out the nature of the relationships between the Appellants and the Sponsor, but none of these relationships automatically engage Article 8.
19. The judge has given no reasons for finding that there is family life between the Appellants and the Sponsor. He has acknowledged in paragraph 47 that the first Appellant and Sponsor are adult siblings. Following the case law, in particular paragraph 17 of Adjei, which refers to Kugathas, there is no presumption of family life. An additional dependency must exist in order for there to be family life between adult siblings such as to engage the operation of Article 8. It was necessary for the judge to examine the relationship between the Appellants and Sponsor in order to find that family life existed. However there is no such analysis of their relationship, and no findings as to why their relationship goes above and beyond the bonds normally to be found between adult siblings.
20. It is not clear from the decision what evidence was before the judge in relation to the strength of the relationship between the first Appellant and the Sponsor. In paragraph 39 the judge states that he was "impressed by the oral evidence of the sponsor" but it appears from this paragraph this evidence was in relation to the financial requirements. There is no reference in this paragraph to the evidence of the Sponsor which showed that her relationship with her sister went above and beyond the normal emotional ties to be found in such a relationship. In paragraph 40 the finding is only that the Sponsor and the first Appellant are sisters, without more. There are no findings as to any dependency.
21. I find that the judge has erred in law by failing to give reasons for his finding that there was family life between the Appellants and Sponsor.
22. Even if the judge had found that there was family life between them, I find that he has given inadequate reasons given for why the decision constitutes an interference in this family life with reference to paragraph 15 of Adjei. There are no reasons given for why the relationships "cannot be maintained in the way that relatives who have chosen to live in different countries manage to do". There was evidence before the judge that the Sponsor had returned to Nigeria as recently as 2015.
Remaking
23. It was agreed by Mr. Balroop that I would be able to re-make the decision on the basis of the evidence which was before the First-tier Tribunal.
24. In relation to Mr. Balroop's submissions relating to Article 13, I find that it is not quite as clear as submitted. It is not disputed that the reason that the decision was refused under paragraph 320(7B) is with reference to the same reason that the earlier application was refused. Mr. Balroop submitted that the evidence had been found to be inadequate, and that there was no evidence of deception in 2009, but this is not quite the case. In paragraph 37 the judge refers to the fact that Immigration Judge Miles had stated obiter that the Respondent would have "some considerable difficulty" in establishing that the Appellants had each previously used deception in relation to the application refused in May 2008. However, for other reasons, Immigration Judge Miles concluded that there was no valid appeal before him. I find that there had been no decision of the Tribunal that the evidence provided did not show that deception had been used, but only an obiter comment by Immigration Judge Miles that the Respondent would have some difficulty in establishing that deception had been used "based on the evidence in the AIT file". There was therefore no "unappealed finding" that deception had not been used as there was no valid appeal.
25. I find that the appeal before Judge S. George was the first time that the Respondent's evidence relating to paragraph 320(7A) had been fully considered. It was accepted by Mr. Balroop that it had not been submitted in the First-tier Tribunal that there had been an abuse. There was no "unappealed finding" that there had been no deception. No reason was given by the Appellants for why a further application had not been made between 2009 and the current application.
26. I find that there has been no abuse of Article 13 by the Respondent. The application was refused under paragraph 320(7B), with reference to paragraph 320(7A). Further, the Respondent was not satisfied that the requirements of paragraph 41(i), (ii) and (vii) were met. The judge has made a finding that the applications should not have been refused by reference to paragraph 320(7B). This finding in paragraph 43 of the decision has not been challenged by the Respondent, and this finding therefore stands. This was the first time that the issue had come before a Tribunal. Contrary to the submissions, there was no previous finding that deception had not been used.
27. I have considered the evidence that was before the First-tier Tribunal. Following the caselaw referred to above, the first issue before me is whether or there is family life between the Appellants and the Sponsor such as to engage the operation of Article 8. I find that the first Appellant is the sister of the Sponsor. They are both adults. I have considered the first Appellant's witness statement. This witness statement is concerned with addressing the reasons for the refusal of the application under paragraph 320(7B). There is no reference in this witness statement to the nature of the first Appellant's relationship with the Sponsor. There is no evidence in this witness statement of the nature of the relationship between them.
28. I have considered the witness statement of the second Appellant, the brother-in-law of the Sponsor. This does not make any reference to the nature of his relationship with the Sponsor or of his wife's relationship with the Sponsor.
29. I have considered the witness statement of the Sponsor. In paragraph 4 she states that the first Appellant's is her "blood sister". In paragraph 5, she states "we all grew up together as a family unit and we have a family bond that is very strong". In paragraph 15 she states "as I said earlier, me and my sister are very close". In paragraph 27 she states that she has "strong family ties" with her sister. No further details are given.
30. There is no evidence before me to show that the relationship between the first Appellant and the Sponsor goes above and beyond the normal emotional ties to be found between adult siblings. Paragraph 17 of Adjei states, "the protection of Article 8 does not extend to links between adult siblings living apart for a long period where they were not dependent upon each other?..Further, it is well established that there must be more than the normal emotional ties between adult relatives for family life to exist for the purposes of Article 8." I have no evidence of anything more than normal emotional ties. There is no evidence of any financial dependence, or indeed any other kind of dependence. I find that the Appellants have failed to show that they have a family life with the Sponsor, or indeed any other relatives, in the United Kingdom which engages the operation of Article 8.
31. I therefore find that the Appellants have failed to show that the decision engages Article 8, and I therefore find that they have failed to show that the decision is a breach of their rights to a family life under Article 8 ECHR, or indeed any other rights protected by the Human Rights Act 1998.

Decision
32. The decision of the First-tier Tribunal involves the making of a material error of law and I set the decision aside. However, the finding in paragraph 43 that the application should not have been refused in accordance with paragraph 320(7B) stands. This finding was not challenged by the Respondent.
33. I remake the decision dismissing the Appellants' appeals on human rights grounds.
No anonymity direction is made.

Signed Date 14 November 2016

Deputy Upper Tribunal Judge Chamberlain

I have dismissed the appeals and therefore there can be no fee award.

Signed Date 14 November 2016

Deputy Upper Tribunal Judge Chamberlain