Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: VA/01642/2015
va/01644/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 10th April 2017
On 26th April 2017

Before

DEPUTY upper tribunal JUDGE RENTON

Between

Haji Abdul Malik malik (first appellant)
Mousumi Akhter Akhter (second appelant)
(ANONYMITY DIRECTIOns not made)
Appellants
and

Entry Clearance Officer – new delhi
Respondent

Representation:
For the Appellants: Ms J De Souza of Counsel instructed by Lumbini Solicitors
For the Respondent: Mr E Tufan, Home Office Presenting Officer

DECISION AND REASONS
Introduction
1. The first Appellant is a male citizen of Bangladesh born on 6th October 1953. The second Appellant is his daughter, a single woman and also a citizen of Bangladesh born on 16th May 1995. They applied to visit the United Kingdom for a period of four weeks in order to see their mother and grandmother respectively. Those applications were refused on 30th January 2015 because the Entry Clearance Officer was not satisfied that the requirements of paragraph 41(i) and (ii) of the Statement of Changes in Immigration Rules HC 395 were satisfied in that the Appellants were not genuine visitors who intended to leave the UK at the end of the period of the visit as stated by them. The Appellants appealed on human rights grounds, being the only grounds available to them, and their appeals were heard by First-tier Tribunal Judge Gillespie (the Judge) sitting at Hatton Cross on 20th September 2016. He allowed the appeals for the reasons given in his Decision dated 27th September 2016. The Respondent sought leave to appeal that decision, and on 30th January 2017 such permission was granted.
Error of Law
2. I must first decide if the decision of the Judge contained an error on a point of law so that it should be set aside.
3. The Judge allowed the appeals because he found that the Appellants satisfied all the requirements of paragraph 41 of HC 395 and that therefore when carrying out the balancing exercise required for any assessment of proportionality, there was no weight at all to be attached to the public interest. The decision to refuse entry clearance therefore was a disproportionate breach of the Appellants’ Article 8 ECHR rights.
4. At the hearing before me, Mr Tufan submitted that the Judge had erred in law in coming to his conclusion. He argued that the Judge had made no finding as to whether a family life existed between the Appellants and their relative, and in considering the proportionality of the Respondent’s decision, the Judge had failed to follow the decision in Mostafa (Article 8 in entry clearance) [2015] UKUT 00112 (IAC) which said that in entry clearance cases it will only be in very unusual circumstances that an Appellant can rely upon the protection afforded by Article 8(1). It would only be restricted to cases where the relationships was that of husband and wife or other close life partner or a parent and minor child. Further, the Judge had erred by attaching no weight to the public interest, and in particular had not considered the factors given in Section 117B of the Nationality, Immigration and Asylum Act 2002.
5. In response, Ms De Souza referred to her Skeleton Argument and submitted that there were no such errors of law. The Judge had come to a correct decision that the Appellants qualified for entry clearance under the Immigration Rules and was entitled to attach weight to that finding in the proportionality balancing exercise. The Judge had also been correct to decide that in the circumstances, no weight should be attached to the public interest. The Judge had come to a conclusion concerning proportionality open to him on the evidence before him, and he had demonstrated that he had carried out the balancing exercise properly.
6. I find no error of law in the Judge’s decision to find that there was family life between the Appellants and their relative being their mother and grandmother respectively. Certainly in the case of the first Appellant, this may be assumed. However, I do find a material error of law in the way in which the Judge assessed proportionality. The Judge found that the Appellants met the requirements of paragraph 41 of HC 395, but it was an error for the Judge to go on to say in paragraph 7 of the Decision that in such circumstances no public interest could be discerned. This error was compounded by the Judge failing to take into account the provisions of Section 117B of the 2002 Act. Regardless of the other arguments concerning error of law, it is a mistake for the Judge to attach no weight at all to the public interest where there is no breach of the Immigration Rules. For these reasons I set aside the decision of the Judge.
Remade Decision
7. Having set aside the decision of the Judge, I proceeded to remake the decision in the appeal. I did so by adopting the findings of fact made by the Judge at paragraph 7 of the Decision, and considering the submissions made at the hearing before me.
8. I accept that there is much to be said on behalf of the Appellants when considering the balancing exercise necessary for any assessment of proportionality. The first Appellant and his daughter wished only to visit his elderly and frail mother for no longer than four weeks. The fact that this intention comes within the requirements of paragraph 41(i) and (ii) of HC 395 carries significant weight as decided in Mostafa, but it was also decided in that case that this is not a determinative factor. The public interest must still be weighed in the balance, and as the jurisprudence states, will carry greater weight unless there are individual interests of a particularly pressing nature so as to give rise to a strong claim that compelling circumstances may exist to justify the grant of leave to enter outside the Rules, as decided in Kaur (visit appeals; Article 8) [2015] UKUT 487 (IAC), or where there is a particular relationship between the Appellant and his relative as decided in Mostafa. I find that in this case neither situation arises, and therefore I find that the public interest carries the greater weight and that the decision to refuse the Appellants’ entry clearance is proportionate.

Notice of Decision
9. The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law.
10. I set aside that decision.
11. I remake the decision in the appeals by dismissing them.
Anonymity
12. The First-tier Tribunal did not make an order for anonymity. I was not asked to do so, and indeed find no reason to do so.

Signed Date 25th April 2017

Deputy Upper Tribunal Judge Renton

TO THE RESPONDENT
FEE AWARD
In the light of my decision to remake the decision in the appeals by dismissing them, there can be no fee award in favour of the Appellants.

Signed Date 25th April 2017

Deputy Upper Tribunal Judge Renton