Tribunal decisions

The decision

IAC-AH-dh-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: VA/01308/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 11 January 2017
On 21 February 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE R C CAMPBELL

Between

mr abdul wahab paracha
(ANONYMITY DIRECTION not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Z Nasim (Counsel)
For the Respondent: Mr T Melvin (Senior Home Office Presenting Officer)

DECISION AND REASONS
1. The appellant's appeal against a decision to refuse him entry clearance as a visitor was dismissed by First-tier Tribunal Judge A J M Baldwin ("the judge") in a decision promulgated on 26 January 2016. The appellant sought entry as a married man with a child, seeking to visit two brothers in the United Kingdom, one an accountant and the other a student. Accommodation and travel insurance were already paid for when the application was made. The Entry Clearance Officer ("the ECO") was not satisfied that the appellant was a genuine visitor or that he intended to leave the United Kingdom at the end of the visit and also found that the appellant had not shown that he could maintain and accommodate himself or meet the cost of the onward journey. The appeal was brought on the only available ground, that the adverse decision breached the appellant's human rights.
2. The judge recorded evidence from the appellant's brother that the visit was intended to enable support to be given to the brother's wife who had suffered from ovarian cancer and who had undergone surgery. The judge referred to two decisions of the Upper Tribunal, Adjei [2015] UKUT 0261 and Mostafa [2015] UKUT 112. He concluded that Article 8 of the Human Rights Convention was not engaged in the appeal. He accepted that the appellant's sister-in-law had ovarian cancer and that a visit by the appellant, his wife and their child might well lift her spirits. Nonetheless, the appellant had his own family and private life in Pakistan, as did his relatives in the United Kingdom. At paragraph 20 of the decision, the judge concluded as follows: "Article 8 is, I find, simply not engaged - the serious illness in the recent past of the appellant's sister-in-law notwithstanding" and dismissed the appeal.
3. An application for permission to appeal was made on the basis that the judge erred in his approach to Article 8 of the Human Rights Convention. In Mostafa, the President of the Upper Tribunal held that the decision in Shamin Box [2002] UKIAT 02212 was to be followed and in that earlier case, the relevant question was held to be whether the decision of the ECO failed to comply with a positive obligation regarding family reunion. The judge also erred in appearing to find that family life was restricted to spouses and minor children. Thirdly, the judge failed to consider the appellant's ability to meet the requirements of the rules relating to family visitors. Not taken into account was the Upper Tribunal decision in Kaur in which the starting point was held to be the state of the evidence about the ability to meet the requirements of paragraph 41 of the rules, notwithstanding the limited ground of appeal available. Similar guidance was given in the case referred to by the judge, Mostafa, where the President held that an applicant's ability to meet the requirements of the rules was capable of being a weighty factor when deciding whether refusal of entry clearance is proportionate. Permission to appeal was granted on 2 December 2016. The judge granting permission took into account Mustafa and Kaur. The application was late, but satisfactory reasons were given and time was extended.
4. In a Rule 24 response prepared on 12 December 2016, the Secretary of State opposed the appeal. The judge directed himself appropriately and was aware of the relevant factual matrix, including the poor health of the appellant's sister-in-law. It was apparent that the appellant had his own independent family unit in Pakistan, as did his sponsor in the United Kingdom. There was no degree of dependency between the family members and the judge was entitled to find that Article 8 was not engaged.
Submissions on Error of Law
5. Mr Nasim said that the only ground of appeal available to the appellant was that the decision breached his human rights. The judge erred in finding that Article 8 was not engaged. Paragraph 20 of the decision contained the relevant findings. The appellant's brother, his sponsor, appeared in person. The underlying reason for the visit was the sponsor's wife's cancer and her depression following surgery.
6. The first ground included a contention that the judge addressed the wrong question. At paragraphs 14 and 15, it appeared that he had in mind a removal decision. Guidance given in Mustafa showed that the approach in Shamin Box was correct and relevant to the question whether Article 8 was engaged. The family members were close and the appellant and his wife and child wished to visit, including as a relevant aspect the imminent birth of a child to his brother and sister-in-law. On the facts set out in paragraph 20 of the decision, Article 8 was engaged. In the second ground, it was contended that caselaw showed that included within private life under Article 8 were visits from family members of a prisoner. That same principle applied in the present case although the judge appeared not to have brought it into play.
7. The third ground relied upon Kaur. The judge had not considered this case. At paragraph 16 of the decision, the judge appeared to be considering whether an assessment outside the rules was required. At paragraph 20, it was not clear what the underlying reasoning was, leading to the conclusion that Article 8 was not engaged.
8. Mr Melvin said that the judge was fully entitled to find that Article 8 was not engaged in the case. In Mustafa, Upper Tribunal Judge Perkins held that Article 8 would be engaged in a limited range of cases, including those concerning husband and wife and perhaps other close life partners. The core guidance was that something exceptional was needed to engage Article 8. Both Kaur and Adjei referred to compelling circumstances. The appellant was an adult who wished to visit his brother and sponsor in the United Kingdom. He could reapply if need be. None of this showed that Article 8 was engaged. The first relevant question in appeals in this context was whether Article 8 was engaged at all.
9. In a brief response, Mr Nasim said that it was clear from Kaur, at paragraph 38 of the decision in that case, that other relationships and not only those of husband and wife and other close family members, could fall within scope.
Conclusion on Error of Law
10. The decision has been prepared by a very experienced judge, with characteristic care. It is apparent that the reasoning is contained in paragraphs 18 to 20 of the decision and those paragraphs include brief mention of two of the several visit visa cases heard by the Upper Tribunal in 2015. There is no mention of the important decision in Kaur [2015] UKUT 487 (IAC), in which the Upper Tribunal considers whether Adjei and Mustafa are in conflict. The clear conclusion is that they are not. However, in Kaur, and reflecting part of the decision in Mustafa, the Upper Tribunal held that evidence relating to the ability of an appellant to meet the requirements of paragraph 41 must be relevant to the assessment of whether there is a violation of Article 8. It is essential for a judge deciding the Article 8 question to make findings on the basis of all the evidence and, if it is contended on an appellant's behalf that the ECO was wrong about matters of evidence, regarding intention or finances and so on, then the judge must decide whether that is in fact so. This appears in paragraph 31 of the decision in Kaur.
11. In contrast to this approach, the judge finds in paragraph 18(2) of the decision as follows: "As compliance with paragraph 41... is not a ground of appeal to be decided by the Tribunal, any findings concerning that will carry little weight, especially if based upon arguments advanced only by the appellant." What follows in paragraph 20 is the judge's conclusion that Article 8 is not engaged. The decision does not contain an analysis of the case in relation to the adverse findings made by the ECO regarding paragraph 41 or the appellant's response. This absence amounts, I find, to an error of law.
12. Moreover, although the relationship between the appellant, his family, and his sponsor and close relatives in the United Kingdom is not within the most narrow compass, such as parents and children, Mr Nasim correctly drew my attention to paragraph 38 of the decision in Kaur, where the Upper Tribunal held that the notion of family life is not confined in this way and that it cannot be excluded in contexts such as bereavement, where there may be significant elements of private as well as family life engaged. The judge accepted the evidence regarding the appellant's sister-in-law's serious recent illness and her depression and if there had been clear findings regarding the requirements of paragraph 41 of the rules, a different outcome may have been the result.
13. I conclude that the decision contains a material error of law and must be set aside and remade. The appropriate venue is the First-tier Tribunal, in the light of the fact-finding required. The hearing will be de novo and no findings are preserved. In the meantime, the appellant and his advisors will no doubt consider the costs likely to be involved in the rehearing, as they might the possibility of making a fresh application from abroad.

Notice of Decision
The decision of the First-tier Tribunal is set aside. It will be remade at Hatton Cross, in the First-tier Tribunal, before a judge other than Judge A M Baldwin.
Anonymity
There has been no application for anonymity (and no direction was made by the First-tier Tribunal Judge). I make no direction on this occasion.

Signed Date

Deputy Upper Tribunal Judge R C Campbell