Tribunal decisions

The decision

IAC-AH-VP-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: VA/00940/2015

THE IMMIGRATION ACTS

Heard at Manchester
Decision & Reasons Promulgated
On 28 November, 2016
On 9 December 2016

Before

Upper Tribunal Judge Chalkley

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Appellant
and

AZIZ AKHTAR
(ANONYMITY DIRECTION NOT MADE)
Respondent
Representation:

For the Appellant: Mr McVitie a Home Office Presenting Officer
For the Respondent: Mr M Karnik of Counsel

DECISION AND REASONS

1. The appellant in this appeal is the Secretary of State for the Home Department and to avoid confusion I shall refer to her as being "the claimant".

2. The respondent is a Pakistani citizen born in 1947 who made application to visit her son Tahir Mehmood in the United Kingdom for two months but her application for entry clearance was refused on 13 January, 2015 under paragraphs 41(i) and (ii) of Statement of Changes in Immigration Rules, HC 395 as amended. The appellant appealed on the basis that the decision was incompatible with her rights under the European Convention for the Protection of Human Rights and Fundamental Freedoms.

3. The respondent appealed and her appeal was heard by First-tier Judge A K Simpson in Manchester on 2 December, 2015. The judge concluded that the appellant had met the requirements of paragraph 41 of the Immigration Rules and went on to consider her Article 8 rights. The judge was satisfied that the appellant has three sons and they have numerous children living in the United Kingdom. The judge assumed that the appellant enjoyed a family life with her three sons and numerous grandchildren sufficient to be interfered with by the decision of the Entry Clearance Officer to refuse to grant the respondent's application.

4. The claimant sought permission to appeal and in granting the application First-tier Tribunal Judge Kelly said:

"It is arguable, for the reasons stated in the application, that the Tribunal failed to identify any particular circumstances that were

(a) legally capable of supporting its conclusion that family life existed between the [respondent] (who resides in Pakistan) and her adult sons (who reside in the United Kingdom) and/or

(b) of sufficient consequence to engage the potential operation of Article 8 of the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms."

5. At the hearing before me Mr Karnik of Counsel appeared on behalf of the respondent. He told me he was in some difficulty because he had not seen the bundle submitted on behalf of the appellant to the Tribunal. His solicitors had requested a copy from previous solicitors but these had not been forthcoming. I handed Mr Karnik a bundle which I found in the file. I allowed him time to read the bundle and allowed time for the Presenting Officer to examine it also. Mr Karnik suggested that the witness statements talk of providing provision to the applicant for her expenses of her visit and for her living expenses and accommodation. He suggested that financial support was sufficient to show support beyond normal emotional family ties and that the context was relevant. Here the appellant is a grandmother with extended family living in the United Kingdom and she has some ten grandchildren and it is being suggested by the Secretary of State there is no interference with someone who wishes to visit her children and grandchildren in the United Kingdom. He submitted that there clearly was an interference and in the context of this appeal the judge's approach was correct. As to the question of proportionality, the judge had found that the Immigration Rules were met. Mr McVitie relied on the grounds of appeal. He submitted that paragraph 6 of the judgment of Kaur (Visit appeal; Article 8) [2015] UKUT 00487 was relevant. Paragraph 12 of the determination the judge has only quoted paragraphs 1, 2 and 3. Mr Karnik suggested that since in this appeal the appellant met the requirements of the Immigration Rules paragraph 6 of the determination of Kaur was not appropriate.

6. I was about to conclude the hearing when Mr Karnik pointed out that his client had now arrived. He said that he had not had an opportunity of speaking to ?. before the hearing because his client was not present and before I concluded the hearing he asked that I should give him a moment to speak to his client. I agreed.

7. On returning Mr Karnik told me that there were in fact some 35 family members of the appellant's extended family in the United Kingdom and a similar number living in Pakistan.

8. I reserved my decision.

9. Family life within the meaning of Article 8 does not normally exist between adult siblings and between parents and adult children. If family life does not exist then Article 8 will not be engaged. Article 8 can be engaged between adult siblings and between parents and adult children where there are further elements of dependency involving more than emotional family ties. (MS (Article 8 - family life - dependency - proportionality) Uganda [2004] UKIAT 00064).

10. Neither blood ties nor the concern and affection which normally go with them are by themselves or together sufficient to constitute family life (Kugathas v Secretary of State for the Home Department [2003] EWCA Civ 31.

11. There was simply no evidence before Judge Simpson of further elements of dependency over and above the normal emotional ties that one might expect between a mother and her children and a grandmother and her grandchildren.

12. I have concluded that Judge Simpson was wrong to find that the decision of the Entry Clearance Officer would constitute an interference with the respondent's family life and allow the appeal on human rights grounds. In the absence of any evidence of any elements of intervening devotion between the respondent and her children and the respondent and her grandchildren I find that the decision of the Entry Clearance Officer is not one which interferes with the respondent's Article 8 rights.

13. The First-tier Tribunal Judge did err in the making of her decision. I set aside her decision. My decision is that the respondent's appeal be dismissed.

No anonymity direction is made.

Upper Tribunal Judge Chalkley