Tribunal decisions

The decision

IAC-FH-NL-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: VA/00923/2015
va/00919/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 17 February 2017
On 23 February 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE RAMSHAW

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
And

MR RACHID BENCHIKH
MRS FAZIA ZERROUKI BENCHIKH
(ANONYMITY DIRECTION NOT MADE)
Respondents

Representation:
For the Appellants: No representation
For the Respondent: Mr E Tufan, Home Office Presenting Officer

DECISION AND REASONS
1. Mr and Mrs Benchikh ('the claimants') are nationals of Algeria whose dates of birth are 10 October 1949 and 23 December 1952 respectively. The claimants applied for entry clearance for a family visit visa to visit their son in the United Kingdom. On 12 January 2015 the Entry Clearance Officer refused to issue a visa. The Entry Clearance Officer was not satisfied that the sponsor was able to accommodate the appellants because no documents in relation to the sponsor's proposed accommodation had been submitted. The Entry Clearance Officer further considered that as no documents had been submitted to show the claimants' financial or social situation in Algeria, he could not be satisfied that the claimants had demonstrated sufficient ties to their country of residence.
2. The claimants appealed against the Entry Clearance Officer's decision to the First-tier Tribunal. In the decision promulgated on 27 May 2016 First-tier Tribunal Judge M J Gillespie allowed the claimants' appeals. The Secretary of State on behalf of the Entry Clearance Officer applied for permission to appeal against the First-tier Tribunal's decision to the Upper-tier Tribunal. On 16 January 2017 First-tier Tribunal Astle granted the Secretary of State permission to appeal. Thus, the appeal came before me.
The Appeal Hearing before the Upper Tribunal
3. There was no appearance on behalf of the claimants. I checked the court file and ascertained that notice of the hearing date and time had been served on the sponsor, Mr Djamel Benchikh at 19 Somerset Avenue, Welling, Kent DA16 2LR. This is the address on file. This notice was sent by first class post on 23 January 2017. I was satisfied, therefore, that notice of the hearing had been properly served and decided to proceed in the absence of a representative of the claimants or the sponsor.
4. Mr Tufan relied on the grounds of appeal. The only basis of an appeal against the decision in this case was on human rights grounds. He referred to paragraph 3 of the First-tier Tribunal's decision where the judge referred to the cases of Mostafa (Article 8 in entry clearance) [2015] UKUT 00112 (IAC) and Adjei (visit visas - Article 8) [2015] UKUT 261 (IAC) and Kaur (visit appeals - Article 8) [2015] UKUT 00487. He submitted that the first issue is whether or not family life exists. The cases set out above clearly demonstrate that there must be more than emotional ties, there must be some form of dependency in order for family life to exist between adult children and parents. He referred specifically to paragraph 24 of Mostafa where it was set out that it would 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(1) of the European Convention on Human Rights. He submitted that the Tribunal indicated that this is likely to be limited to cases where the relationship is that of a husband and wife or other close life partners. The relationship in the instant case does not fall within the examples given and is not equated to those examples.
Discussion
5. In this case the First-tier Tribunal has clearly set out the relevant case law in respect of Article 8 in visit visa appeals. The judge also correctly set out that there is no right of appeal against the merits of a decision to refuse to issue a visit visa and the right of appeal is on grounds only of Article 8. In paragraph 3 of the First-tier Tribunal's decision the judge set out:
"The Tribunal has no jurisdiction to investigate the merits of the decision of the Entry Clearance Officer under the rules. Where, however, the protection of article 8 against exclusion from the United Kingdom may be engaged in principle, then it is a relevant and potentially weighty, factor, which might inform the proportionality balancing exercise, whether the claimant is able to satisfy the rules, or the extent to which he fails to do so. In determining this issue, the Tribunal must take as a starting the question whether or not the appellant would meet the requirements under rule 41 for the issue of a visit visa."
6. The judge then went on to consider in some detail whether or not he considered the claimants met the requirements of the Immigration Rules. That consideration comprised the vast bulk of the decision. The judge found:
"8. This ought to have moved the Entry Clearance Manager to reverse the refusal. Far from doing so however, the Entry Clearance Manager did not even engage with the submissions and evidence of the sponsor. Rather the Entry Clearance Manager avoided the substance of the case for the appellants and supported the refusal solely on the basis that the only available ground of appeal is that in protection of private and family life. This, it was stated, is a qualified right proportionate to the need to maintain an effective immigration and border control.
9. I deal directly with this position. The appellants have established a private and family life which manifests settled family life in Algeria and regular lawful family visits of short duration to the United Kingdom. The decision to refuse entry interfered with these established circumstances of life. It does so, moreover, without any justification pertaining to the merits of the applications for family visit visas. The entry into the United Kingdom, as family visitors, of the appellants would present no threat to the public interest. It would not jeopardise in any way the maintenance of effective border control. The decision to refuse was made in an apparently arbitrary and inconsistent manner, given the previous history and appropriate circumstances of all parties. There is no public interest in upholding such a decision."
7. It is evident from the paragraphs above that the judge, rather than considering as a weighty factor or as a starting point (the fact that the claimants might meet the requirements of the Immigration Rules) in the proportionality exercise, has essentially used this as a determinative factor in finding that the decision to refuse entry interfered with established circumstances of life. In Mostafa the Upper Tribunal held that the appellant's ability to satisfy the Immigration Rules is not the question to be determined by the Tribunal but that it is capable of being a weighty, though not determinative factor when deciding whether refusal is proportionate.
8. As set out in the case of Adjei in head note (1) 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 the Tribunal has no jurisdiction to embark upon an assessment of the decision by the Entry Clearance Officer under the Rules and should not do so.
9. The judge has fallen into error by failing to determine, when considering Article 8, firstly whether Article 8 is engaged at all in this case. The judge found that 'The appellants have established a private and family life which manifests settled family life in Algeria and regular lawful family visits of short duration to the United Kingdom'. There is no analysis of a 'family life' that requires protection between the claimants and the sponsor. In Singh v Secretary of State for the Home Department [2015] EWCA Civ 630 the court of appeal having reviewed a number of authorities held at paragraph 24:
"I do not think that the judgments to which I have referred lead to any difficulty in determining the correct approach to Article 8 in cases involving adult children. In the case of adults, in the context of immigration control, there is no legal or factual presumption as to the existence or absence of family life for the purposes of Article 8. I point out that the approach of the European Commission for Human Rights cited approvingly in Kugathas did not include any requirement of exceptionality. It all depends on the facts. The love and affection between an adult and his parents or siblings will not of itself justify a finding of a family life. There has to be something more.'
10. The judge does not set out any particular factors over and above the normal emotional ties that could lead to a finding that there is family life between the sponsor (an adult child) and his parents for the purposes of Article 8. The starting point when considering whether Article 8 was engaged at all required an assessment of the relationship between the claimants and the sponsor. In this case no particular circumstances were advanced that would indicate that there was anything above the normal emotional ties that subsist between adult children and parents.
Notice of Decision
11. The decision of the First-tier Tribunal contained a material error of law. I set aside the decision.
Remaking the Decision
12. I remake the decision. Whilst family life may continue between a parent and child once the child becomes an adult, in this case the sponsor has lived in the UK for many years independently. Nothing was identified that would indicate that there was anything between the claimants and their adult son over and above the normal emotional ties that exist. For example, there was no element of dependency. In this case the claimants and the sponsor do not have a family life to be respected under Article 8.
13. The claimants' appeal is dismissed. The decision of the Entry Clearance Officer stands.
No anonymity direction is made.

Signed P M Ramshaw Date 22 February 2017
Deputy Upper Tribunal Judge Ramshaw