Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: VA/01569/2015

THE IMMIGRATION ACTS

Heard at : Field House
Decision & Reasons Promulgated
On : 22 December 2016
On: 23 December 2016

Before

UPPER TRIBUNAL JUDGE KEBEDE

Between

md nazrul islam
Appellant
and

ENTRY CLEARANCE OFFICER
Respondent

Representation:

For the Appellant: Nurun Khatun (the Sponsor)
For the Respondent: Mr T Wilding, Senior Home Office Presenting Officer

DECISION AND REASONS

1. The appellant is a citizen of Bangladesh born on 3 December 1993. He has been given permission to appeal against the determination of First-tier Tribunal Judge Boylan-Kemp dismissing his appeal against the respondent's decision to refuse entry clearance as a family visitor under paragraph 41 of HC 395.

2. The appellant applied for entry clearance to the United Kingdom to visit his brother and sister-in-law and their children. The respondent refused the application in a decision dated 29 January 2015.

3. The basis for the refusal decision was that the respondent did not accept that the appellant planned to leave the UK at the end of his visit or that he was genuinely seeking entry as a visitor for a period not exceeding six months and concluded that he could not, therefore, meet the requirements in paragraph 41(i) and (ii) of the immigration rules. The respondent's reasons for reaching that conclusion were that the appellant had, on a previous visit to the UK in 2012, stayed for longer than stated in his application form, namely two months instead of three weeks; that he had provided no evidence of his studies in Bangladesh; and that he had failed to demonstrate his financial ties to Bangladesh.

4. The appellant appealed against that decision and his appeal was heard by First-tier Tribunal Judge Boylan-Kemp. The sponsor, the appellant's sister-in-law, Nurun Khatun, gave oral evidence before the judge and explained why the appellant had stayed longer during his previous visit and why he would return to Bangladesh after his visit. She gave evidence that there were close ties between the appellant and her own children and that it would be difficult for her and her family to visit him in Bangladesh due to their work commitments and the financial cost. She said that her husband had visited Bangladesh in 2015, but only due to a family emergency. At [13] the judge accepted the sponsor's evidence and explanations but considered that the respondent's conclusions were nevertheless right and proper on the evidence available at the time the decision was made. The judge was not satisfied that the respondent's decision amounted to such an interference with the appellant's human rights as to infringe his Article 8 rights and considered that the public interest outweighed the appellant's interests in the UK. She considered that the decision to refuse entry clearance was proportionate. Accordingly she dismissed the appeal.

5. The appellant sought permission to appeal that decision on grounds which were, I believe, prepared by the sponsor. Permission was initially refused in the First-tier Tribunal, but subsequently granted in the Upper Tribunal by Upper Tribunal Judge Grubb, who found that the judge had arguably erred in her approach to Article 8 in two respects. Firstly, she appeared to have accepted at [13] that the appellant met the immigration rules and, if that was the case, that was arguably an important factor in considering Article 8. Secondly, she used terminology which was arguably inappropriate in an entry clearance case.

Appeal hearing

6. At the hearing before me, Mr Wilding relied on the cases of Kaur (visit appeals; Article 8) [2015] UKUT 487 and Adjei (visit visas - Article 8) (Rev 1) [2015] UKUT 261. He accepted that the judge had erred by failing to consider whether Article 8 was engaged on the basis of family life but submitted that that was immaterial as he had found that there would be no interference. Article 8 was not engaged, but even if it was, there was no disproportionate breach and there were no compelling circumstances.

7. In response, Ms Khatun made detailed submissions, referring to various cases including Mostafa (Article 8 in entry clearance) [2015] UKUT 112. She submitted that Article 8 was engaged on the basis of family life, between two brothers who were very close. She gave reasons why the appellant would return to Bangladesh after his visit.

Consideration and findings.

8. As Judge Grubb found in granting permission, it is not clear, but appears to be the case, that the First-tier Tribunal Judge accepted that the appellant met the requirements of the immigration rules as a visitor. There is certainly a lack of clarity in her reasoning in [13] but in any event it is clear that she accepted the sponsor's evidence about the appellant's previous extended stay in the UK.

9. However it seems to me that that cannot assist the appellant in an appeal in which the only permissible ground (other than race relations which was agreed did not apply) is human rights, and where Article 8 is not engaged. Clearly an ability to meet the immigration rules may well be a matter of some weight in assessing proportionality under Article 8, as found by the Upper Tribunal in Mostafa, and an assessment of an applicant's intentions may assist in considering the genuineness of family ties (Kaur, at [13]), but it is of no assistance if Article 8 is simply not engaged. That was the finding of the Upper Tribunal in Adjei, which said at [9]:

"If it is not, which will not infrequently be the case, the Tribunal has no jurisdiction to embark upon an assessment of the decision of the ECO under the rules and should not do so. If article 8 is engaged, the Tribunal will need to look at the extent to which the claimant is said to have failed to meet the requirements of the rule because that will inform the proportionality balancing exercise that must follow."

10. In this case Judge Boylan-Kemp clearly erred by failing to make any findings as to whether Article 8 was engaged on the basis of family life, but simply went on to an assessment of proportionality.

11. It was the submission of the sponsor, Ms Khatun, that there was family life between the appellant and her husband, his brother, and between the appellant and her children, as they were very close. She relied on the decision in Mostafa in submitting that family life could include ties between close relatives. However, at [24] the Upper Tribunal said as follows:

"We are, however, prepared to say that it will only be in very unusual circumstances that a person other than a close relative will be able to show that the refusal of entry clearance comes within the scope of Article 8(1). In practical terms this is likely to be limited to cases where the relationship is that of husband and wife or other close life partners or a parent and minor child and even then it will not necessarily be extended to cases where, for example, the proposed visit is based on a whim or will not add significantly to the time that the people involved spend together."

12. Both Kaur and Adjei referred, or alluded to, the principles in Kugathas v Secretary of State for the Home Department [2003] EWCA Civ 31 in requiring there to be some form of dependency over and above normal emotional ties when considering relationships between adult family members for the purposes of establishing the existence of family life in Article 8 terms. In this appellant's case, it cannot possibly be said that the relationship between him and his brother, or his brother's family including the children amounts to family life for the purposes of Article 8. Clearly the relationships do not fall within Appendix FM, but neither do they fall within the concept of family life outside the rules on a wider Article 8 consideration. Whilst the appellant may be close to his brother and his brother's family, they live in different countries and rarely see each other. The last visit of any substance was in 2012 when the appellant came to the UK and, other than a visit by the sponsor's family to Bangladesh in 2012 and a visit by the appellant's brother in 2015, there has been no face-to-face contact. There is, furthermore, no suggestion of any dependency between the appellant and his brother. On the contrary it is said that the appellant is dependent upon his family in Bangladesh. Accordingly there is no basis for concluding that family life exists between the appellant and his relatives in the UK. Plainly Article 8 is not engaged and the appellant is unable to show that the respondent's decision to refuse entry clearance to the UK amounted to an interference with, or in the more appropriate terms for entry clearance cases, a lack of respect for the appellant's family life or indeed the family life of his relatives. That is the end of the matter and the appellant simply cannot succeed in an appeal on human rights grounds.

13. Accordingly, Judge Boylan-Kemp was entitled to conclude, and indeed could have reached no other conclusion, that the decision to refuse entry clearance to the appellant did not amount to a breach of Article 8. As such, whilst the judge made errors of law in her approach to Article 8, those errors were not material to the outcome of the appeal. In any event the same result would be achieved by setting aside her decision and re-making the decision by dismissing the appeal on the same grounds.

14. As I advised Ms Khatun, the best course would be for the appellant to make a fresh entry clearance application with the benefit of the positive findings made by Judge Boylan-Kemp in regard to his intentions and his ability to meet the immigration rules as a visitor. For the purposes of this appeal, however, and given that the grounds are limited to human rights grounds, he simply cannot succeed.

DECISION

15. The making of the decision of the First-tier Tribunal did not involve the making of an error of law such that the decision needs to be set aside. I do not set aside the decision. The decision to dismiss the appeal therefore stands.

Signed Date 23/12/2015
Upper Tribunal Judge Kebede