Tribunal decisions

The decision

IAC-FH-AR-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: VA/00655/2015

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On 17 October 2016
Judgment given orally at hearing
On 30 November 2016

Before

UPPER TRIBUNAL JUDGE KOPIECZEK

Between

MANJIT KAUR

Appellant
and

ENTRY CLEARANCE OFFICER

Respondent

Representation:

For the Appellant: Ms M Atcher, Solicitor, Ebrahim & Co Solicitors
For the Respondent: Ms J Isherwood, Home Office Presenting Officer

DECISION AND REASONS

1. The appellant was born on 10 April 1953. She is a citizen of India. She made an application on 15 October 2014 for entry clearance as a visitor. That application was refused in a decision by the Entry Clearance Officer ("ECO") dated 20 December 2014.
2. In summary, the reasons given by the ECO for refusing the application were that the appellant was not genuinely seeking entry as a visitor or that she intended to leave the UK at the end of the period of the visit.
3. The appellant's appeal came before First-tier Tribunal Judge Pacey ("the FtJ") at a hearing on 18 March 2016. Ultimately the FtJ dismissed the appeal on human rights grounds. It is important to recognise that the only ground of appeal available to the appellant, in this particular case at least, was on human rights grounds. There was no ground of appeal available to her under the Immigration Rules.
4. The grounds of appeal upon which permission to appeal was granted refer to the appellant's circumstances, being a widow and wishing to make a short family visit to the UK. It is argued that the FtJ's decision failed to recognise the appellant's Article 8 rights. On the merits it is said that she would not want to settle in the UK, cannot speak English and is not familiar with the UK's lifestyle, culture, customs and language.
5. In submissions on behalf of appellant before me today it was emphasised that decisions on Article 8 cases in terms of domestic cases as compared to foreign cases, are somewhat different. It was submitted that the appellant did not want to stay in the UK. She has a relationship with her son which she wants to pursue by means of a visit. I was asked to have regard to considerations of fairness and to discretion overall. It was also submitted that the appeal raises issue in terms of the appellant's private life.
6. On behalf of the respondent it was submitted that there was no material error of law on the part of the FtJ. I was referred to aspects of her decision which were to the effect that Article 8 was not engaged.
7. It does seem to me that there are certain deficiencies in the FtJ's decision. In the first place, although not highlighted by either party before me, it is to be noted that at paragraph 3 the FtJ said that she was able to consider evidence about any matter which she thought relevant to the substance of the decision, including evidence which concerned a matter arising after the date of the decision. That is in fact not correct, because although this is an appeal where only Article 8 grounds were available, it is nevertheless the case that the FtJ was still bound to consider the circumstances appertaining at the date of the decision (see AS (Somalia) v Secretary of State for the Home Department [2009] UKHL 32).
8. That however, is not a feature of the arguments before me and is not material in any event.
9. The FtJ was required to consider whether Article 8 was engaged. Part of that assessment is a consideration of whether there was family life at all between the appellant and her son. Needless to say they are both adults. The FtJ at paragraph 9 referred to the decision in Mostafa (Article 8 in entry clearance) [2015] UKUT 112 (IAC) to the effect that it will only be in very unusual circumstances that a person other than a close relative would be able to show that the refusal of entry clearance comes within the scope of Article 8, and further that it is likely to be limited to cases where the relationship is that of husband and wife or other close family partners or a parent and minor child.
10. That is not to say, and the FtJ did not say, that there may not be other cases where, for example between adults, there may not be family life. That could occur between a mother and her adult son, depending on the circumstances. There is in fact no express finding on this issue by the FtJ and I consider that there should have been. Insofar as that constitutes an error of law however, I am not satisfied that it is material because there was no evidence before the FtJ which indicated that the relationship between the appellant and her son in the UK extended beyond more than normal emotional ties between adults. In other words, there was a lack of evidence which indicated that there was family life, in law, between them although it was accepted that they are mother and son.
11. The FtJ did however, refer to the decision in Adjei (visit visas-Article 8) [2015] UKUT 261 which directs Tribunals to the questions to be addressed in terms of whether Article 8 is engaged at all. As I say, that would have involved an assessment of family life. The evidence before the FtJ did not establish family life at all. Even if the FtJ therefore erred in law in not making an assessment of that issue, any error of law in that respect could not have been material.
12. There was also a requirement to assess the extent to which the appellant was able to meet the requirements of the Immigration Rules, even if there was family life. As indicated at the outset, the basis of the refusal was the genuineness of the visit and the intention to leave the UK at the end of the period of that visit. There is no express finding in relation to those aspects of the Immigration Rules by the FtJ although one could say that in terms of paragraph 15 it was impliedly found that the appellant had not established that she would leave the UK at the end of the period of the visit. This is because the FtJ referred to the arguments in terms of the appellant finding it difficult to adapt to culture and so forth and not being able to speak English. She rejected those arguments, saying that actually the appellant and her son speak Punjabi and are able to communicate with each other, and also that living with her son the culture and customs would be ones with which she would be familiar.
13. Impliedly therefore, the judge rejected the contention that the appellant would not intend to stay in the UK. That implied rejection of the appellant's ability to meet the requirements of the Rules would not in other circumstances have been sufficient. However, any failure in that respect again is not material because there was no evidence of family life between the appellant and her son.
14. Furthermore, however, even if the FtJ could be said to have found that there was family life, she concluded that the extent to which they have family life together is not sufficiently compromised by the respondent's decision so as to amount to a disproportionate interference or, this being an entry clearance case, lack of respect for family life, because at paragraph 14 she said that the appellant had visited India each year and therefore family life could continue in that way.
15. At paragraph 16 she said that the appellant is able to make a fresh application for a visit. I do not consider that that would answer the proportionality question, in so far as proportionality arises here. However, more importantly, the FtJ said that the refusal simply maintains the status quo; it does not adversely affect family life as it is currently enjoyed between the appellant and her family in the UK. In those circumstances, that being the overarching conclusion of the FtJ, any errors of law to which I have referred are not material to the outcome.
16. In those circumstances this appeal is dismissed.

Upper Tribunal Judge Kopieczek 29/11/16