Tribunal decisions

The decision

IAC-fH-nl-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: va/01603/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 11th January 2017
On 10th February 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE SAINI

Between

ms ajiyegbe elizabeth orelusi
(ANONYMITY DIRECTION not made)

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr F Abe, Legal Representative; Atlantic Solicitors
For the Respondent: Mr K Norton; Senior Presenting Officer

DECISION AND REASONS
1. The Secretary of State appeals against the decision of First-tier Tribunal Judge Wellesley-Cole allowing the Appellant's appeal against the Respondent's decision to refuse entry clearance to visit the United Kingdom for six weeks as a family visitor. The Secretary of State appealed against that decision and was granted permission to appeal by First-tier Tribunal Judge Page on all grounds. The grounds upon which permission was granted may be summarised as follows:
(i) It is arguable that the judge erred in allowing the appeal under paragraph 41 of the Immigration Rules and failed to consider Article 8 given that the jurisdiction of the appeal is confined to the assessment of Article 8 of the ECHR by virtue of Section 6 of the Human Rights Act as being incompatible with the Appellant's Convention rights as set out at Section 84(1)(c) of the Nationality, Immigration and Asylum Act 2002; and
(ii) It is arguable that the judge erred in failing to make any findings in relation to the proportionality assessment regarding the Entry Clearance Officer's decision; and
(iii) It is arguable that the judge erred in not noting that family life was not engaged under Article 8.
Error of Law
2. At the close of submissions I indicated that I did find there was an error of law in the First-tier Tribunal Judge's decision but that my reasons would follow. My reasons for so finding are as follows.
3. It is correct that at paragraph 8 of the First-tier Tribunal Judge's decision she writes that the appeal succeeds as the requirements of paragraph 41 of the Rules have been met. That is an error of law in her determination as far as it goes, as the First-tier Tribunal Judge needed of course to consider the proportionality of the Entry Clearance Officer's decision against the family life said to exist between the Appellant and her daughter, the Sponsor (Mrs Folake Popoola). Given the error of law that I have identified I do not propose to consider the remaining Grounds of Appeal upon which brief submissions were made by Mr Norton.
4. I shall proceed to re-make the appeal as follows.
Re-making the Appeal
5. Following discussion with Mr Abe and upon instruction from the sponsor, Mr Abe indicated that he was content to no longer pursue the Article 8 appeal given the view taken by Mr Norton on the findings of fact, which I will turn to shortly.
6. Thus in re-making the appeal I was encouraged by Mr Abe to dismiss the appeal on the Article 8 grounds given that the findings in relation to paragraph 41 were no longer challenged by the Respondent. For my part I would have found that family life was present between Mrs Popoola and her mother, the Appellant. However, given the indication from Mr Abe that the decision was proportionate and no longer challenged I shall say no more. Mr Norton in his usual pragmatic manner in representing the Entry Clearance Officer indicated that given that the findings of fact made by First-tier Tribunal Judge Wellesley-Cole, which he accepted were not challenged by the Entry Clearance Officer on appeal, the Appellant and Sponsor had received some benefit from this appeal in that the judge had independently confirmed that the financial documentation in the form of the NatWest account and payslips which were before the Entry Clearance Officer at the relevant date.
7. Mr Norton indicated that if a further application for a visit visa were to be made, in light of the judge's findings, and given that the only issues raised in the previous application were adequate maintenance and accommodation and that those issues were now resolved, such a further application should succeed in theory.
8. Indeed, it was on this basis that Mr Abe was instructed to no longer pursue the Article 8 matter. Thus, I observe that the findings of First-tier Tribunal Judge Wellesley-Cole not being challenged, do remain intact and may of course prove to be of benefit to the Appellant if she were to re-apply for a visit visa to see her daughter for six weeks or approximately thereabouts.
9. Those findings of course do not limit the Entry Clearance Officer in her consideration of any further application but of course should be borne in mind, particularly in respect of the previous failings of maintenance and accommodation and alongside the judge's finding that the Appellant has every incentive to return to Nigeria because her husband was not accompanying her on her visit to the UK.
10. I therefore re-make this appeal and dismiss the appeal under Article 8 as it is accepted that the decision was proportionate.
Notice of Decision
11. The appeal is accordingly dismissed.
12. No anonymity direction is made.
13. I have dismissed the appeal and therefore there can be no fee award.

Signed Date

Deputy Upper Tribunal Judge Saini