VA/01079/2015

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The decision




Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: VA/01079/2015


THE IMMIGRATION ACTS


Heard at Field House
Decision & Reasons Promulgated
On 15 November 2016
On 7 December 2016


Before

DEPUTY UPPER TRIBUNAL JUDGE G A BLACK


Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Appellant
and

MRS lu yang
(ANONYMITY DIRECTION NOT MADE)
Claimant

Representation:

For the Appellant: Mr E Tufan, Home Office Presenting Officer
For the Respondent: Mr C Lam, Counsel, instructed by Ashtons Solicitors


DECISION AND REASONS


1. This is an appeal by the Secretary of State against a decision made by the First-tier Tribunal, (Judge Robison) ("FTT"), promulgated on 8 July 2016 in which the appeal was allowed against a decision to refuse leave to enter as a family visitor. In this decision I shall refer to the parties as the "Secretary of State" who is the appellant and to Mrs Yang as the "Claimant." The reasons for refusal relied on paragraph 320(7B) arguing that in a previous application deception had been used by the Claimant. It was contended that the Claimant used deception in that it was her intention at the time the application was made, to marry when visiting her partner in the UK.

2. In the grounds of application for permission to appeal the Secretary of State argued that the FTT failed to consider whether Article 8 was engaged or whether there was an interference in the family life of a husband and wife following the refusal of the application for a short visit to the UK. The main ground argued was that the FTT erred in finding that paragraph 320(7B) did not apply.

3. In a full and reasoned decision in which the FTT considered the restricted rights of appeal in visit visa cases the FTT found that the Claimant arrived in the UK on 30 September 2014 and got married on 6 October 2014. The factual background was accepted by the FTT and set out in [ 53].

4. The FTT found the Claimant's account to be credible in that the decision to marry was a last minute decision. The FTT found no intention to deceive at the time the entry clearance application as a visitor was made [ 54 & 57]. Further the FTT found that the Claimant had not overstayed and had left voluntarily at her own expense and that there was no deception for the purpose of securing any advantage [57].

5. The FTT therefore concluded that paragraph 320(7B) did not apply [58]. The FTT had regard to the fact that the requirements under paragraph 41 of the Immigration Rules HC 395 (as amended) were met.

6. The FTT then went on to consider Article 8 and made an assessement of proportionality having regard to public interest factors under Section 117B of the Nationality, Immigration & Asylum Act 2002 (as amended). The FTT followed the Razgar stages and found that there was family life under Article 8. The FTT considered that the sponsor had limited holidays and that there would be prolonged separation as a result of the decision. The FTT took into account that the sponsor could make visits to China to see the Claimant.

7. I have heard submissions this morning and I have also read Mr Lam's written submissions and the further material provided. I am satisfied that there is no material error of law in the FTT decision.

8. This is a full and detailed determination. The FTT considered all of the evidence and made findings that were properly open to it on the evidence. Regarding paragraph 320(7B) the FTT found no deception and gave full consideration to the pertinent issue of the Claimant's intentions at the time she made the application for a visit visa.

9. In terms of Article 8, whilst accepting that the assessment was not perhaps as detailed as it could have been, in terms of the Razgar stages, I am satisfied that the findings and decision properly come within the range open to the FTT albeit that the FTT has taken a fairly generous approach. There was no error of law and the FTT considered Mostafa (Article 8 in entry clearance) [2015] UKUT 00112 (IAC).

10. I dismiss the appeal. The decision and reasons shall stand.

No anonymity direction is made.


Signed Date 5th December 2016

Deputy Upper Tribunal Judge G A Black




TO THE RESPONDENT
FEE AWARD

As I have allowed the appeal and because a fee has been paid or is payable, I have considered making a fee award and have decided to make no fee award.


Signed Date 5th December 2016

Deputy Upper Tribunal Judge G A Black