Tribunal decisions

The decision

Upper Tier Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: VA/01248/2015
VA/01249/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision and Reasons Promulgated
On 18 November 2016
On 21 November 2016

Before

Deputy Upper Tribunal Judge Pickup

Between

Muhammad Ramzan
Mehfooz Akhtar
[No anonymity direction made]
Appellants
and

The Entry Clearance Officer Abu Dhabi
Respondent

Representation:
For the appellant: Mr N Khan, sponsor
For the respondent: Mr S Walker, Senior Home Office Presenting Officer

DECISION AND REASONS
1. This is the appellants' appeal against the decision of First-tier Tribunal Judge Rodger promulgated 22.6.16, dismissing their linked appeals against the decision of the respondent to refuse clearance to the United Kingdom as family visitors. The Judge heard the appeal on 15.6.16.
2. First-tier Tribunal Judge Macdonald granted permission to appeal on 28.10.16.
3. Thus the matter came before me on 18.11.16 as an appeal in the Upper Tribunal.
4. The role of Mr Khan as sponsor is somewhat peculiar. He is said to be a family friend and financial sponsor. He admitted to Judge Rodger that he did not have any family life with the appellants. Mr Walker found within his file the two previous appeal decisions relating to the appellants, both of which were allowed. Mr Khan was also named as a sponsor in those appeals, but there may have been some confusion in those appeals as the respective judges thought that Mr Khan was a family member and was found to be a credible witness.
5. I am not satisfied that Mr Khan is a sponsor at all. He told me that he is a lawyer acting on behalf of the appellants, and is a family friend of Mr Imran. However, I was prepared to hear his submissions on the appeal.
Error of Law
6. For the reasons summarised below, I found no material error of law in the making of the decision of the First-tier Tribunal such as to require the decision of Judge Rodger to be set aside.
7. The appellants have only a limited right of appeal against the decision of the Entry Clearance Officer. Effectively, they can only appeal on human rights grounds. Merely claiming that there is a family relationship is insufficient, as clearly all family visit applications are to visit family members in the UK.
8. In dismissing the appeal, Judge Rodger found at [36] that he was not satisfied that there was family life sufficient to engage article 8 ECHR between the appellants and the sponsor Mr M Imran. It is not clear to me why, accepting that the family is close, the judge considered the matter should be considered under private life. However, at [40] the judge found that the decisions did not adversely interfere with the private life of the appellants, or either Mr Khan or Mr Imran.
9. The grounds of appeal contend that the First-tier Tribunal Judge did not take sufficient account of the fact that the appellants were visiting family in the UK.
10. In granting permission to appeal, Judge Macdonald found it arguable that the judge did not take into account what is said in Mostafa (Article 8 in entry clearance cases) [2015] UKUT 00112 (IAC), to the effect that the applicant's ability to satisfy the immigration Rules is a weighty factor when deciding whether the refusal was proportionate.
11. Proportionality is only relevant if the appellants cross the previous requirements under the Razgar stepped approach. It is clear that at [46] the judge found that this appeal failed at the first hurdle, a failure to demonstrate that the decisions of the Entry Clearance Officer engaged article 8 ECHR. Whilst there is family life, the judge was not satisfied that the interference to family life by refusal of the decision, particularly when it is open to the appellants to make a fresh application addressing the reasons for refusal, and that visits can be made by family members in the UK to Pakistan, was an interference of such consequence and gravity as to engage article 8, either in respect of private or family life.
12. In the circumstances, any error in failing to take account of the extent to which the appellants might meet the requirements of the Rules in a proportionality balancing exercise is not material, as the proportionality balancing exercise stage does not arise where the appellants have failed to demonstrate that article 8 is engaged at all.
Conclusions:
13. For the reasons set out above, I find that the making of the decision of the First-tier Tribunal did not involve the making of an error on a material point of law such that the decision should be set aside.
I do not set aside the decision.
The decision of the First-tier Tribunal stands and the appeal of each appellant remains dismissed.

Signed

Deputy Upper Tribunal Judge Pickup

Dated

Anonymity
I have considered whether any parties require the protection of any anonymity direction. No submissions were made on the issue. The First-tier Tribunal did not make an order.
Given the circumstances, I make no anonymity order.

Fee Award Note: this is not part of the determination.
In the light of my decision, I have considered whether to make a fee award.
I have had regard to the Joint Presidential Guidance Note: Fee Awards in Immigration Appeals (December 2011).
I make no fee award.
Reasons: The appeals of the appellants have been dismissed and thus there can be no fee award.

Signed

Deputy Upper Tribunal Judge Pickup

Dated