Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: VA/00568/2014

THE IMMIGRATION ACTS

Heard at Birmingham
Decision & Reasons Promulgated
On 7 March 2017
On 10 April 2017

Before

UPPER TRIBUNAL JUDGE CLIVE LANE

Between

Entry Clearance Officer - istanbul
Appellant
and

Shahnaz Abdovies
(ANONYMITY DIRECTION not made)
Respondent

Representation:
For the Appellant: Mr Bates, Senior Home Office Presenting Officer
For the Respondent: Mr Mohzam, Birmingham Law Practice Limited

DECISION AND REASONS
1. I shall refer to the appellant as the respondent and the respondent as the appellant (as they appeared respectively before the First-tier Tribunal). The appellant Shahnaz Abdovies, was born on 20 February 1957 and is a female citizen of Iran. The appellant applied to visit her daughter, Ms Maryam Espiar (hereinafter referred to as the sponsor) who, with her child (aged 6 years) is a refugee in the United Kingdom. The appellant has never met the child although she has communicated with him by Skype. The application for a visit visa for four weeks was refused by the Entry Clearance Officer (ECO) by a decision dated 27 December 2013 who refused the application. The appellant appealed to the First-tier Tribunal (Judge Hussain) which, in a decision promulgated on 1 June 2016 allowed the appeal on human rights grounds (Article 8 ECHR). The Entry Clearance Officer now appeals, with permission, to the Upper Tribunal.
2. The judge conducted an analysis of Article 8 relying, inter alia, on Shamin Box [2002] UKIAT 02212 and Mostafa (Article 8 in entry clearance) [2015] UKUT 00112 (IAC). From the latter case, he quoted the following passage at [7]:
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.
The judge went on [8] to say that he “considered the relationship between a grandmother and a grandchild to be analogous to the relationships described in Mostafa”. The judge considered it important [11] that (per Shamin Box) the ECO should promote the development of family life between the appellant and the grandchild observing that such a duty existed in addition to a duty not to interfere disproportionately with such family life.
3. The ECO challenges the very premise of the judge’s analysis. The ECO argues that the relationship between a grandmother and a grandchild who have never met in person between whom there are no particularly strong ties other than those of natural affection, cannot constitute a “close” relationship such as that identified in Mostafa. I have to say that I agree. I acknowledge that all cases are fact-specific but it seems to me that the judge has not gone beyond the fact of the relationship between the appellant and the grandchild (i.e. that there is a blood relationship between the two) and has not (as he should have done) proceeded to analyse the nature of the relationship itself. On the judge’s analysis, a grandparent and grandchild who had never communicated in any form whatever or, indeed, may not be aware of each other’s existence could enjoy a “close” relationship. Frankly, that would be absurd. Whilst a relationship between a grandparent and a grandchild may be close enough to fall within the category identified in Mostafa, there must exist, for Article 8 ECHR to be engaged at all, a family life which goes beyond mere consanguinity. On the facts of the present case, there is nothing more. In the circumstances, the decision of the First-tier Tribunal is set aside.
4. I have remade the decision. As the Tribunal observed in Mostafa, Article 8 may provide a remedy for those appellants who fail to secure entry clearance under the Immigration Rules but whose particular relationships with those whom they intend to visit in the United Kingdom are so close that it would be disproportionate to deny entry clearance. As noted above, I do not consider the relationship between the appellant and the grandchild to be especially close. As regards the relationship with the sponsor (the appellant’s daughter) the fact remains that both are adults (I note that Mostafa refers to relationship between an adult and a minor child). The ECO’s decision does not interfere with the current state of the relationship between the sponsor and grandchild; the appellant’s relationship with her United Kingdom family will continue as at present by means of correspondence (including Skype). I am not persuaded that a four week visit by the appellant would materially alter the appellant’s relationships with her United Kingdom relatives. I am unable to conclude that the ECO’s decision to refuse the application has a disproportionate impact upon the family life of the applicant or the sponsor and her child. The appellant may, in any event, make further applications to the ECO with a view to satisfying the requirements of the Immigration Rules.
Notice of Decision
5. The decision of the First-tier Tribunal which was promulgated on 1 June 2015 is set aside. I have remade the decision. The appeal against the decision of the ECO dated 27 December 2013 is dismissed.
No anonymity direction is made.

Signed Date 1 April 2017

Upper Tribunal Judge Clive Lane

TO THE RESPONDENT
FEE AWARD

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

Signed Date 1 April 2017

Upper Tribunal Judge Clive Lane