Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: VA/00616/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 30 September 2016
On 14 October 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE NORTON-TAYLOR

Between

ENTRY CLEARANCE OFFICER, PARIS
Appellant
and

KARIMA AMIROUCHE
(ANONYMITY DIRECTION NOT MADE)
Respondent

Representation:
For the Appellant: Mr S Walker, Senior Home Office Presenting Officer
For the Respondent: No representation

DECISION AND REASONS
1. This is an appeal by the Entry Clearance Officer (hereafter the Respondent, as it was before the First-tier Tribunal) against the decision of First-tier Tribunal Judge Cooper (the judge), promulgated on 8 March 2016, in which he allowed the appeal of Miss Karima Amirouche (once again the Appellant).
2. The appeal to the First-tier Tribunal was brought against the decision of the Respondent dated 22 December 2014, refusing entry clearance as a family visitor. By an application made on 7 December 2014 the Appellant had sought to visit her sister in the United Kingdom for a short period. That application was refused on the basis that the requirements of paragraph 41 of the Immigration Rules were not satisfied. Given the date of that refusal the grounds of appeal open to the Appellant were limited to those relating to human rights.
The judge's decision
3. There was an oral hearing before the judge on 11 February 2016. The Appellant's sister attended along with another sister, and both gave oral evidence. There was no Presenting Officer present. The judge deemed there to be a valid appeal before him given that Article 8 had been raised on appeal (see paragraph 7).
4. An aspect of the oral evidence was that the Appellant's brother (who had resided in this country) had passed away, and that she wished to visit his grave as part of the family's grieving process. This was in addition to her spending time with her sister, with whom she had a particularly close relationship.
5. At paragraphs 23 and 24 the judge makes it abundantly clear that he found all of the evidence before him to be wholly credible. The judge goes on to make detailed factual findings, all supported by reasons, in respect of the objections taken in the Respondent's refusal notice. The judge then correctly goes on to identify the relevant case law relating to Article 8 including the case of Mostafa [2015] UKUT 00112 (IAC), ZB (Pakistan) [2009] EWCA Civ 834 and Kugathas [2003] EWCA Civ 170.
6. At paragraph 38 the judge finds that there was, as he described it, a significant and very close relationship between the Appellant and her sister in this country. That relationship had strengthened since the death of their brother. There was found to be regular contact between the two sisters including the UK based sister travelling back to Algeria to see the Appellant and spending significant periods of time with her there.
7. At paragraph 39 the judge concludes that despite the close and significant relationship between the two sisters he was not satisfied that there was financial or other dependency between them going beyond that of most adult sibling relationships. However, at paragraph 40 the judge goes on as part of his overall assessment of the case to conclude that the issue of family life also incorporated the wish of the Appellant to be with not only her sister but also to see the grave of her late brother. The judge directed himself to the case of Abbasi [2015] UKUT 00463 (IAC), and cites a relevant passage from that decision of the Upper Tribunal.
8. At paragraph 41 the judge concludes that visiting the brother's grave was an important reason for the visit and that this reason existed as at the date of decision. He finds that as a whole the family, who were found to be devout Muslims, regarded visiting the grave as holding significance. As a result of this the judge finds that Article 8 was engaged.
9. He then finds that the Respondent's decision refusing entry clearance interfered with the Article 8 rights on the basis that the Appellant was being prevented from visiting her brother's grave. The judge then moves on and appears to conclude that the Respondent was justified in not exercising his discretion in favour of the Appellant in respect of the Rules. In the following paragraph he accepts that the sister based in this country would be able to continue to visit the Appellant in Algeria.
10. In paragraph 43 the judge makes reference to the importance of maintaining effective immigration control and in paragraph 44 he notes that he has given particular weight to the fact that the family had a very good immigration record and the core purpose for this particular visit was to be a visit to the brother's grave. In this case the judge found that there were compelling circumstances. As a result he concluded that the Respondent's decision was a disproportionate interference with Article 8 and the appeal was allowed on human rights grounds.
The grounds of appeal and grant of permission
11. The grounds of appeal cite a number of cases including MS [2004] UKIAT 00064 and Kugathas without any comment being made upon the passages cited. At paragraph 7 the case of Abbasi is cited. It is asserted that the cases referred to in Abbasi involved people who were already in a member state. Reference is made to the case of SS (Malaysia) [2004] UKIAT 00091, and it is said that private life could not be engaged in entry clearance cases. The grounds then go on to say that the refusal of entry clearance in a visit case "without more" does not constitute an interference with a private or family life of an Appellant.
12. In paragraph 8 it is said that none of the case law cited supported the contention that Article 8 in entry clearance cases would protect the private lives of those not already in the country.
13. Permission to appeal was granted buy First-tier Tribunal Judge Kelly on 10 August 2016.
The hearing before me
14. Mr Walker accepted that this was a thorough decision by the judge. He also accepted that some of the points apparently made in the grounds of appeal lacked a degree of merit. It was not being suggested that Abbasi was wrong in any way and Mr Walker quite fairly also accepted that in effect the judge was finding that the relevant requirements of paragraph 41 of the Immigration Rules had in fact been met by this particular Appellant, having regard to the findings as a whole. He had no other submissions to make.
15. The Appellant's sister who attended the hearing was not called upon to make any comment.
Decision on error of law
16. I find that there are no material errors of law in the judge's decision.
17. The judge has carried out a commendably thorough assessment of the evidence and issues before him. He has made detailed findings of fact, all of which were entirely open to him and none of which had been challenged by the Respondent in any event. He has directed himself correctly in law throughout.
18. In respect of the existence of family life, one has of course to read the decision as a whole and in a sensible manner. It is quite clear to me that the judge has found the relationship between the Appellant and her sister to be particularly close, and whilst he has concluded that this of itself would not necessarily constitute the necessary family life, it was part and parcel of the overall picture which of course included the significant finding that the brother's grave was in this country and that this formed an important reason for the Appellant wishing to come here.
19. As the judge has set out in paragraph 41, the issue of the brother's grave was of significance to the family as a whole, including of course the Appellant. The issue of family life has to be seen in the context of the findings as set out by the judge. Contrary to what has been suggested in some parts of the grounds of appeal, the judge there was not predicating the engagement of Article 8 upon private life but rather upon family life. In my view that was entirely consistent with the decision in Abbasi, a case which I note was also an entry case. There has been no suggestion by Mr Walker before me that Abbasi is wrong in any way.
20. In respect of an interference in (or more accurately a lack of respect for) the family life, it is well settled that the threshold is a relatively low one. In this case it was entirely open to the judge to find that that threshold was met. The Appellant was being prevented from coming to visit her brother's grave (see paragraph 41).
21. Moving through the Razgar approach (to which the judge had correctly directed himself), the judge has in effect found that the Appellant was a genuine visitor for the purposes of paragraph 41 of the Immigration Rules: that clearly counted very much in the Appellant's favour. He has correctly made reference to the public interest in maintaining effective immigration control. He has factored in the family's good immigration history as he was entitled to do and attributed particular weight to the issue of the brother's grave. Again, this was a matter to which he was entitled to have due regard.
22. Importantly, the judge has fully appreciated the high threshold needed to cross in order to succeed on Article 8 grounds in a visit visa case by referring to the compelling circumstances that he has found to exist in this particular case (see SS (Congo) [2015] EWCA Civ 387).
23. It may be the case that that successful visit visa cases are a fairly rare breed in this day and age. However such cases can and do exist. This is an example of a case in which the judge has applied himself conscientiously to the evidence and law and has produced what in my view is a thorough and fully sustainable decision.
24. The decision of the First-tier Tribunal stands.

Notice of Decision
The making of the decision of the First-tier Tribunal did not involve the making of an error on a point of law.
The decision of the First-tier Tribunal stands.
No anonymity direction is made.

Signed Date: 12 October 2016
Deputy Upper Tribunal Judge Norton-Taylor

TO THE RESPONDENT
FEE AWARD
As I have allowed the appeal and because a fee has been paid or is payable, I have considered making a fee award and have decided to make no fee award for the reasons given by the First-tier Tribunal.

Signed Date: 12 October 2016
Deputy Upper Tribunal Judge Norton-Taylor