Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: VA/00731/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 15 November 2016
On 20 December 2016

Before

Deputy Upper Tribunal Judge MANUELL

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

Mrs RANI SAXENA
(ANONYMITY DIRECTION NOT MADE)
Respondent

Representation:
For the Appellant: Ms S Brocklesby-Weller, Home Office Presenting Officer
For the Respondent: Mr C Yeo, Counsel

DETERMINATION AND REASONS
Introduction

1. The Appellant (the Secretary of State for the Home Department) appealed with permission granted by First-tier Tribunal Judge Colyer on 17 October 2016 against the determination of First-tier Tribunal Judge Moore who had allowed the Appellant's visit visa appeal on Article 8 ECHR grounds. The decision and reasons was promulgated on 24 June 2016.

2. The Respondent is a national of India. Her application to visit her son in the United Kingdom had been refused by the Entry Clearance Officer on 31 December 2014. The Respondent had previously been refused settlement as an adult dependant relative and her appeal had been dismissed. She had visited the United Kingdom in 2009 and returned to India. The judge found that Article 8 ECHR was engaged on the facts, that the Appellant satisfied the relevant Immigration Rules, and that the refusal was a disproportionate interference with the respect due to her family life. Hence the appeal was allowed.

3. Permission to appeal was granted because it was considered arguable that the judge had erred by failing to give sufficient reasons for finding that family life was engaged and by conducting an inadequate proportionality assessment.

4. Standard directions were made by the tribunal. A rule 24 notice opposing the appeal was filed by the Respondent.

Submissions

5. Ms Brockelsby-Weller for the Appellant relied on the grounds of onwards appeal and grant. In summary she argued that the judge had erred by finding that Article 8 ECHR was engaged. There was no evidence of financial dependency nor of emotional dependency, as discussed in Ghising and Others [2013] UKUT 00567 (IAC). There had been no cohabitation. Dasgupta (error of law - proportionality - correct approach) [2016] UKUT 28 (IAC) suggested that emotional dependency between grandparent and grandchild would be fact sensitive and that had not been established in this appeal. The judge's decision and reasons could not stand. The appeal should be remade and dismissed.
6. Mr Yeo for Respondent relied on the Respondent's rule 24 notice. The First-tier Tribunal judge's decision and reasons was unimpeachable, careful and thorough. It was not easy to see why permission to appeal had been granted. The judge had found as a fact that there was family life. There was evidence of regular contact and past visits. Numerous authorities supported the judge's approach, in particular Mostafa (Article 8 in entry clearance) [2015] UKUT 00112 (IAC); Adjei (visit visas - Article 8) [2015] UKUT 261 (IAC); Kaur (visit appeals; Article 8) [2015] UKUT 487 (IAC) and Abbasi and another (visits- bereavement-Article 8) [2015] UKUT 463 (IAC). The Razgar questions applied and had been correctly answered. The Immigration Rules defined the margin of appreciation for Article 8 ECHR purposes and, once the judge had found that the Immigration Rules were met, the Article 8 ECHR outcome was obvious and had to be decided in the Appellant's favour.
7. Mr Yeo submitted that this appeal was one where costs had been unreasonably caused by the Secretary of State for the Home Department. There had in short been no proper basis for pursuing the appeal to the Upper Tribunal. The First-tier Tribunal appeal had not been opposed with any vigour and legal argument had been reserved for the permission to appeal application and onwards appeal. Mr Yeo submitted a schedule of the Respondent's costs.
8. The unreasonable costs applicant was opposed by Ms Brocklesby-Weller. The Secretary of State for the Home Department had obtained permission to appeal and had been entitled to pursue that appeal,

No material error of law finding

9. In the tribunal's view the grant of permission to appeal might well be seen as generous. Indeed, it seems to the tribunal that Secretary of State for the Home Department's apparent policy of challenging all appeals allowed by the First-tier Tribunal on Article 8 ECHR grounds might be thought to create an unfortunate impression of an extravagant use of the state's resources, and contributes to a further unfortunate impression that litigation in the Immigration and Asylum Chamber is never ending.

10. The tribunal accepts Mr Yeo's submission that there was no error of law in the decision and reasons. It was indeed a well-crafted determination in all respects. The judge reminded himself of the limited scope of his jurisdiction, and was guided by the relevant current authorities, in particular Mostafa. The judge examined the evidence closely, and gave ample and secure reasons for finding that there was family life between the Respondent and her sponsor. Indeed, the fact that the Respondent had previously (albeit unsuccessfully) sought to settle with the sponsor was obvious evidence that there was a close family relationship. Financial dependency was not a necessary ingredient of that. Nor was emotional dependency as such, because these was not a settlement application, merely an application to maintain family connections through visits. Development of that family life within the confines of the Immigration Rules was a relevant consideration. The judge gave proper reasons for finding that the family life extended at least potentially to the Respondent's grandchildren.

11. The judge also examined the evidence concerning the Respondent's ties with India, and gave proper reasons for finding that she had a number of strong ties which demonstrated an intention to return there at the conclusion of her visit, notwithstanding the previous lawful attempted settlement. The judge found that the Immigration Rules, the margin of appreciation set out in the Immigration Rules indicating the Secretary of State for the Home Department's view of where the proportionality balance lay for Article 8 ECHR purposes, had been satisfied. The submissions advanced on the Secretary of State for the Home Department's behalf amount to no more than an expression of disagreement with the First-tier Tribunal's decision which been reached on conclusions of fact (doubtless with superior evidence) which were distinctly different from those reached by the Entry Clearance Officer.

12. The tribunal accordingly finds that there was no error of law.

13. Whilst the tribunal has some sympathy with Mr Yeo's application on behalf of the Appellant for a wasted costs order against the Secretary of State for the Home Department, and considers that the costs set out in the accompanying schedule are in themselves are fair and appropriate in amount, the fact remains that permission to appeal was granted by the First-tier Tribunal. The Home Office Presenting Officer simply relied on the reasons for refusal letter before the First-tier Tribunal, but the appeal was not conceded. Thus the Appellant was entitled to pursue an appeal to the Upper Tribunal, and to assemble further legal argument if so advised. The onwards appeal was pursued with conspicuous moderation by Ms Brocklesby-Weller and nothing was done between the grant of permission to appeal and the eventual hearing to increase the costs borne by the Respondent. The Upper Tribunal (IAC) does not enjoy a costs shifting regime in statutory appeals, rather its costs jurisdiction is in substance disciplinary to encourage adherence to the overriding objective. In the tribunal's judgment, the Secretary of State for the Home Department's conduct did not cross the line into unreasonableness as described in Ridehalgh v Horsefield and Anor [1994] EWCA Civ 40. A wasted costs order must be refused.

DECISION

The making of the previous decision did not involve the making of a material error on a point of law. The decision stands unchanged.

Signed Dated 20/12/2017

Deputy Upper Tribunal Judge Manuell