Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: VA/00935/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision and Reasons Promulgated
On 29 November 2016
On 30th November 2016

Before

UPPER TRIBUNAL JUDGE CANAVAN

Between

ENTRY CLEARANCE OFFICER - ISTANBUL
Appellant

and

ULKU YILMAN
Respondent

Representation:

For the appellant: Mr A. Burrett, Counsel instructed by Ozoran Turkan Solicitors
For the respondent: Mr P. Singh, Senior Home Office Presenting Officer

DECISION AND REASONS

1. For the sake of continuity I will refer to the parties as they were before the First-tier Tribunal although technically the Entry Clearance Officer is the appellant in the appeal to the Upper Tribunal.

2. The appellant appealed against the respondent's decision to refuse entry clearance as a family visitor. The appeal was limited to human rights grounds.

3. First-tier Tribunal Judge Colvin ("the judge") allowed the appeal in a decision promulgated on 05 July 2016. The judge heard evidence from the sponsor about her family circumstances, the close nature of her relationship with her aunt and their plans for the visit [5-7]. The judge made a proper self-direction in relation to the legal framework [13-15 & 17] and was clearly aware of the limited grounds on which the appeal could be brought [16]. The judge took into account the difficulties that the UK sponsor had faced in her family life. She was satisfied that the sponsor's relationship with the appellant was sufficiently close to show dependency beyond the normal emotional ties between adult relatives [19] and concluded that it was an exceptional visit visa case in which Article 8 was engaged [19].

4. In assessing the proportionality of the decision to refuse entry clearance the judge went on, in light of the decision in Adjei (visit visas - Article 8) [2015] UKUT 261, to consider to what extent the immigration rules might inform the assessment. The judge was in no doubt that it was a genuine visit and that the appellant would provide essential support and respite to the family before returning home. She was satisfied that the appellant would be adequately maintained and accommodated during the visit [20]. Having taken into account the public interest considerations contained in section 117B of the Nationality, Immigration and Asylum Act 2002 ("NIAA 2002") the judge concluded that the decision was disproportionate [21]. I note that many of those factors were, in any event, unlikely to be applicable to the circumstances of a visit visa appeal.

5. The Entry Clearance Officer, represented by the Secretary of State, sought to appeal the decision on the following grounds:

"3. The Judge allowed the appeal on human rights grounds. At [19] he finds that there is 'dependency which is more than just normal emotional ties [?] the emotional dependency on the appellant by her niece is real and genuine particularly in the absence of her mother being available.' The basis of the finding is the Sponsor's need for emotional support [7], however in making this finding the Judge has failed to consider that the Sponsor's husband has parents and a sister in the UK [7]. No reasons are given as to why the Sponsor's in-laws may not offer her that support.

4. It is submitted that as the Judge's findings on additional dependency is based on the Sponsor's need for support looking after her children, therefore if alternative support were available that dependency would fall away, and with it the claim that family life exists between the Appellant and Sponsor."

Decision and reasons

6. After having heard submissions from both parties I am satisfied that the First-tier Tribunal decision does not involve the making of an error on a point of law.

7. The House of Lords in Huang v SSHD [2007] UKHL 11 outlined the core aspects of the right to family life under Article 8 as follows:

"But the main importance of the case law is in illuminating the core value which article 8 exists to protect. This is not, perhaps, hard to recognise. Human beings are social animals. They depend on others. Their family, or extended family, is the group on which many people most heavily depend, socially, emotionally and often financially. There comes a point at which, for some, prolonged and unavoidable separation from this group seriously inhibits their ability to live full and fulfilling lives. Matters such as the age, health and vulnerability of the applicant, the closeness and previous history of the family, the applicant's dependence on the financial and emotional support of the family, the prevailing cultural tradition and conditions in the country of origin and many other factors may all be relevant."

8. This statement of principle reveals that it is the nature and strength of relationships between family members that lie at the heart of an Article 8 assessment. The fact that the sponsor's husband has relatives in the UK is not an alternative to her being able to spend time with a member of her own family with whom she has a particularly close and emotionally dependent relationship. It is not a matter of casting around for alternative family members who could provide the sponsor with respite.

9. The appellant has a particularly close relationship with her niece in the UK and wants to visit in order to provide a short period of emotional and practical support. The judge was unarguably entitled to consider the closeness of that relationship and assess the proportionality of the decision in the context of the fact that she was satisfied that the appellant was a genuine visitor who would be adequately maintained and accommodated during her time in the UK i.e. there were no strong public policy considerations to outweigh the right to family life. The fact that the sponsor's husband has some family members in the UK is immaterial to the relationship between the appellant and her niece which was at the heart of this appeal. In any event, I note that her husband's statement made quite clear that his parents are disabled and unable to provide support. The ECO disagrees with the decision but the judge's failure to consider other family members in the UK was immaterial to the outcome of the appeal.

10. I conclude that the First-tier Tribunal decision does not involve the making of an error on a point of law. The decision shall stand.

DECISION

The First-tier Tribunal decision does not involve the making of an error on a point of law

Signed Date 30 November 2016
Upper Tribunal Judge Canavan