Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: VA/01261/2015
VA/01263/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 9 September 2016
On 27 September 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE RAMSHAW

Between

ENTRY CLEARANCE OFFICER, ISTANBUL
Appellant
and

Mr miro eren
mrs hatun eren
(ANONYMITY DIRECTION NOT MADE)
Respondents

Representation:
For the Appellant: Mr E Tufan, Home Office Presenting Officer
For the Respondent: Emine Eren, Sponsor

DECISION AND REASONS
Introduction
1. The Entry Clearance Officer appeals against a decision of the First-tier Tribunal, Judge Petherbridge, who following a hearing on 27 January 2016 allowed the appeals of Mr Miro Eren and Mirs Hatun Eren ("the claimants").
2. The claimants had appealed against a decision of the Entry Clearance Officer dated 27 January 2015 to refuse their applications for entry clearance visas to visit their children present and settled in the United Kingdom. The claimants are citizens of Turkey. The first claimant was born on 1 March 1941 and his wife, the second claimant was born on 13 February 1943.
3. On 17 January 2015 the claimants made an application for entry clearance to visit their children and grandchildren in the United Kingdom.
4. The Entry Clearance Officer considered that the claimants had not provided any documentation in respect of their other children who were said to be present in the United Kingdom that demonstrated their immigration status. The Entry Clearance Officer was not satisfied that the claimants had sufficient income to meet their living needs in Turkey and also considered that there was insufficient evidence that the claimants had children living in Turkey. Therefore, the Entry Clearance Officer considered that the claimants had not demonstrated sufficient ties to Turkey which might prompt them to leave the United Kingdom at the end of their visit.
The Appeal to the First-tier Tribunal
5. The claimants appealed against the Entry Clearance Officer's decision to the First-tier Tribunal. The First-tier Tribunal noted that the only ground on which the claimants could appeal was on the basis that the decision of the Entry Clearance Officer was incompatible with the appellants' Convention rights. The judge set out that if the claimants could show that refusing them entry clearance would interfere with their private and family lives the issue as to whether or not the claimants can meet the substance of the Immigration Rules HC 395 (as amended) would be relevant to the proportionality of the decision to refuse them entry clearance when considering the European Convention on Human Rights ('ECHR').
6. The judge found that the claimants had savings and investments income in excess of their monthly expenditure. The judge also found that the claimants have six children who appear to be living in Turkey according to the Nufus Register. The judge considered that the decision of the Entry Clearance Officer was a disproportionate interference with the claimants' Article 8 right to family life.
The Appeal to the Upper Tribunal
7. The Secretary of State on behalf of the Entry clearance officer applied for permission to appeal to the Upper Tribunal. On 20 July 2016 First-tier Tribunal Judge Chambers granted permission to appeal.
Summary of Submissions
8. The grounds of appeal assert that the First-tier Tribunal Judge materially erred in law before failing to consider whether or not the claimants and the sponsor had a family life. Reliance is placed on the case of MF (Article 8 - family life - dependency - proportionality) Uganda [2004] UKIAT 00064 and the case of Kugathas v SSHD [2003] EWCA Civ 31. It is submitted that these cases demonstrate that in order for there to be a finding that there is family life within the meaning of Article 8 between adult children and non-dependent parents there must be further elements involving more than normal emotional family ties.
9. Reliance is also placed on the cases of ZB (Pakistan) v SSHD [2009] EWCA Civ 834 and Gissing and Others [2013] UKUT 00567 (IAC). It is asserted that there must be some form of dependency between adult children and parents. The Secretary of State asserts that none of these criteria appear to be met in this case. There is no finding of additional dependency such as to amount to family life.
10. It is also asserted that no reasons are given as to how the judge reached his conclusion that the entry clearance officer's decision interferes with their private and family lives and that the interference is of sufficient gravity potentially to engage the operation of Article 8. It is also asserted that the judge has failed to consider that the sponsor is able to visit the claimants and that any finding of interference is inadequately reasoned and not explained.
11. Mr Tufan relied on the cases of Adjei (visit visas- Article 8 ) [2015] UKUT 261 and submitted that although the Tribunal may need to look at the extent to which the claimants is said to have failed to meet the requirements of the Immigration Rules the right of appeal is solely against Article 8. Mr Tufan referred to paragraph 28 of the decision and submitted that the judge appears to have assumed that excluding the claimants from an opportunity to see their children and grandchildren in the United Kingdom interferes with a right to respect for family life without answering firstly the question as to whether or not there is family life and whether or not Article 8 is even engaged at all.
12. The sponsor (through her friend) submitted that the claimants have enough money to meet their living needs and that they want to come to the UK to see what her life in the UK is like. She submitted that the claimants were not coming here to live but they just wanted to come for one month. When asked if there were any points that she wished to raise with regard to anything specific or special about the relationship between the sponsor and her parents, the sponsor submitted that it was just her right and her parents' right to want to come and see her life here. She submitted that she would be happy to give a written undertaking that her parents would return to Turkey at the end of their visit.
Discussions
13. There is no evidence in the First-tier Tribunal's decision that the judge has considered the relationship between the claimants and their daughter, the sponsor.
14. The judge appears to have assumed that family life within the meaning and purpose of Article 8 exists between them. The judge sets out at paragraph 26:
"26. The grounds of appeal against the refusal of a visit visa have to be considered as to whether or not the refusal amounts to a breach of the appellants' human rights under Article 8 of the ECHR.
27. I have to follow the approach outlined by the House of Lords in R v SSHD ex parte Razgar [2004] UKHL 26. ....
28. Clearly the exclusion of the appellants from an opportunity to see their children and grandchildren in the United Kingdom interfered with their right to respect for family life. It is settled law that in an Article 8 balancing exercise, the rights of all those closely affected, not only those of the claimants, having to be considered.
29. It is my view that the decision in Shamin Box [2002] UKIAT 02212 is to be followed and that the obligation imposed by Article 8 is to promote the family life of those affected by the decision.
30. I am satisfied that on the facts of this case, the decision to refuse the appellants entry clearance interferes with their private and family lives and that the interference is of sufficient gravity potentially to engage the operation of Article 8.
31. I place considerable importance on my decision in determining proportionality in taking into account the respective ages of the appellants, neither of whom are said to have any health problems.
32. I find that none of the reasons provided by the ECO, as reviewed by the ECM, for refusing the appellants' application can be sustained on the evidence before me. The evidence does not support a proposition as made by the ECO that the appellants were spending more per month than they were receiving. The appellants have been able to show that they have four children in the United Kingdom with British passports and the Nufus confirms that they have a further six children making a total of ten in all, which was what the appellants said in their 2008 application.
33. Based on those findings, I find that the refusal of the appellants' application was not in accordance with the law. However, the ECO cannot satisfy paragraph (iii) of the Razgar rules in that the interference to the established private and family life of the appellants by refusing their application for a visit visa was not in accordance with the law.
34. If I were to be wrong with this finding, and that the ECO had been correct to say that the appellants' monthly income did not meet their monthly expenses, so that the decision was, in fact, in accordance with the Rules I would still have to go on and consider whether by refusing the appellants their entry clearance visa, was that interference proportionate to the legitimate public end sought to be achieved, (iv) of the Razgar test identified by Lord Bingham of Cornhill.
35. If that were to be the case, I am satisfied that in any event the decision of the ECO interferes disproportionately with the private lives of the appellants.
36. I am satisfied as to the honesty of the appellants in their application. They have not in any way contributed to their application being refused by presenting inaccurate information or by omitting something material or committing some comparable misdemeanour. Accordingly, even had the ECO 's decision been in accordance with the requirement of the Immigration Rules, I would have considered in the circumstances that the refusal of their application, bearing in mind that the ECO had accepted that the appellants had substrata parcels of land and had not challenged the appellants' evidence as to the funds that the appellants had available to them, as shown in the bank statements that had been provided with their appeal, that the ECO's decision was a breach of the appellants' rights under Article 8 of the ECHR." (emphasis added)
15. Nowhere in the decision has the judge considered whether or not the relationship between the claimants and their adult daughter (or other children in the UK) constitutes family life within the meaning of Article 8. It is clear from the case law that in order for there to be an engagement of Article 8 in a relationship between parents and adult children, there must be something in addition to the normal emotional family ties. Paragraph 25 of Kugathas sets out:
"Because there is no presumption of family life, in my judgement a family life is not established between an adult and his surviving parent or other siblings unless something more exists than normal emotional ties."
16. Further in Kugathas at paragraph 20 the court set out:
"... Neither blood ties nor the concern and affection that ordinarily go with them are, by themselves or together in my judgement enough to constitute family life. Most of us have close relations of whom we are extremely fond and whom we visit, or who visit us, from time to time; but none of us would say on those grounds alone that we share a family life with them in any sense capable of coming within the meaning and purpose of Article 8."
17. In this case the judge has not identified anything that amounts to dependency on the part of either the claimants or the sponsor. Whilst it is natural that the claimants would wish to visit their daughter in the United Kingdom and their other children and grandchildren in the UK the relationship between them does not extend beyond the normal emotional ties to be found between family members. Unfortunately, those relationships do not fall within the ambit of the rights that are protected by Article 8 of the ECHR. I consider that this is particularly so where there is only to be a short term visit. I therefore find that the First-tier Tribunal's decision continued a material error of law. I set aside that decision.
Remaking the Decision
18. On the basis of the evidence before me and on the submissions made by the sponsor when asked during the hearing if she was able to set out any particular aspects of the relationship with her parents there is nothing to suggest that the claimants have any particular dependency upon the sponsor or their other children in the United Kingdom and neither does the sponsor or the claimants' children in the United Kingdom have any particular dependency upon the claimants. The relationship therefore does not fall within the meaning and purpose of Article 8 as identified in Kugathas.
19. The grounds of appeal against the decision to refuse entry clearance are limited to the grounds identified in Section 84(1)(c) of the Nationality, Immigration and Asylum Act 2002. The only grounds upon which the claimants can bring an appeal is on the basis that the Entry Clearance Officer's decision is incompatible with their rights under Article 8 of the European Convention on Human Rights. On the basis that I do not consider that the claimants have been able to demonstrate that their relationship gives rise to family life within the meaning and purpose of Article 8 of the ECHR their appeal must fail.
Notice of Decision
20. The First-tier Tribunal's decision contains a material error of law. I set aside that decision. I remake the decision. The claimants' appeals against the Entry Clearance Officer's decision to refuse to grant an entry clearance visa is dismissed. The Entry Clearance Officer's decision stands.

No anonymity direction is made.

Signed P M Ramshaw Date 26 September 2016

Deputy Upper Tribunal Judge Ramshaw