Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: VA/01978/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 7th September, 2016
On 14 September 2016

Before

Upper Tribunal Judge Chalkley

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Claimant
and

dr mohammad abul kashem
(ANONYMITY DIRECTION not made)
Respondent

Representation:
For the Claimant: Mr L Tarlow
For the Respondent: Mr Mohammad Hossain

DECISION AND REASONS
1. The appellant in this appeal is the Secretary of State for the Home Department and to avoid confusion I shall refer to her as being, "the claimant".
2. The respondent is Dr Mohammad Abul Kashem, a national of Bangladesh who was born on 1st June, 1953. He is, I believe a retired medical consultant. The respondent made application for entry clearance to the visit the United Kingdom, but his application was refused under paragraph 41 of Statement of Changes in Immigration Rules HC 395 as amended ('immigration rules").
3. On 16th March, 2015, the respondent appealed that decision and, as the refusal notice of the claimant pointed out, the grounds of appeal were limited by Section 84(1)(c) of the Nationality, Immigration and Asylum Act 2002.
4. The appeal came for hearing before First-tier Tribunal Judge Blair, who decided the appeal in Glasgow on 9th December, 2015 without an oral hearing.
5. He considered the refusal notice and noted that the Entry Clearance Officer had refused the application because in a one year period, from September 2014, the respondent will have spent some eight and a half months in the United Kingdom. The Entry Clearance Officer was not satisfied that the respondent was genuinely seeking entry as a visitor, or that he intended to leave the United Kingdom at the end of his visit.
6. The judge first considered the matter in the context of the relevant immigration rule, paragraph 41 and considered the evidence which had been submitted by the respondent. In paragraph 18 of the determination, the judge expressed the view that the respondent clearly met the requirements of the Immigration Rules.
7. The judge then went on in the determination, in two paragraphs, to purport to allow the appeal on the basis of the appellant's Article 8 family life rights with his daughter.
8. The claimant challenged the determination on the basis that there was no evidence before the judge which would enable him to find that Article 8 family life rights were engaged; there appeared to be no ties between the appellant and his adult daughter disclosed by the evidence before the judge, either emotional or financial, sufficient to engage Article 8.
9. The Secretary of State relied on the decisions in MS (Article 8 family life dependency proportionality) Uganda [2004] UKIAT 00064; on paragraph 25 of Kugathus v Secretary of State for the Home Department [2003] EWCA Civ 31; ZB (Pakistan) v Secretary of State for the Home Department [2009] EWCA Civ 834; and Ghising and Others [2013] UKUT 00567 (IAC).
10. The claimant is represented by Mr Tarlow a Senior Home Office Presenting Officer before me today. Mr Mohammad Hossain appeared on behalf of the respondent. He confirmed that he was not receiving financial payment to appear on behalf of the respondent and I agreed to allow him to present the case on behalf of the respondent.
11. I opened the proceedings by explaining the purpose of today's hearing and explaining that it was only if I found that there was an error of law in the judge's determination, that I could interfere with it.
12. I explained that more recently, in April this year, the Tribunal heard a case Adjei (visit visas Article 8) [2015] UKUT 0261 which pointed out that while the requirements of the immigration rules and the extent to which a respondent had failed to satisfy those requirements, might be relevant to the consideration of an Article 8 appeal, Adjei pointed out that it was first necessary to establish that there were Article 8 family life rights which were to be breached.
13. Mr Hossein confirmed that the appellant's daughter is a 32 year old married lady. She is a medical doctor and is herself married to a consultant. She studied in the United Kingdom and was successful, after six years of study, in qualifying as a doctor and more recently she has acquired further qualifications as a member of the Royal College of Physicians.
14. I explained to Mr Hossain that there needed to have been evidence before the judge of some form of dependency between the respondent and his adult married daughter, who appeared now to be living an independent life in the United Kingdom. He explained that the daughter was financially dependent on her father, who had given her gifts of money to purchase a property in the United Kingdom.
15. I pointed out that there was no evidence of that before the judge, but he suggested that the Entry Clearance Officer made the wrong decision in the application and in refusing the application. The decision was wrong because it was based on wrong information and that amounts to an error of law. The Entry Clearance Officer, he suggested, claimed that the respondent had overstayed, but in fact there was no question of the respondent ever overstaying his leave in the United Kingdom.
16 Having explained the purpose of the hearing to Mr Hossein, I heard from Mr Tarlow who told me that he relied on the grounds which were brief and specific. The judge had allowed an Article 8 appeal in respect of a proposed visit by the respondent to visit his adult daughter, following the birth of her first child, on family life grounds.
17. The judge found that the respondent met the requirements of paragraph 41, but he erred because, he failed first to find whether or not there was family life between the respondent and the sponsor. Mr Tarlow asked me to find an error of law and to remake the decision myself.
18. I gave Mr Hossain the opportunity to speak to the respondent's daughter and her husband, who were present in the hearing room, to see whether between the three of them they would like to raise any further points and so that he could clarify the matters before addressing me. They left the hearing room for a few minutes to confir. On resuming the hearing, Mr Hossain told me that he was ready to proceed and explained that the respondent was a frequent visitor not only to the United Kingdom, but also to other countries, and as a result the refusal would have an adverse effect on the respondent and his future life. He told me that there was nothing further he wished to add.
19. I have concluded that Judge Blair did materially err in law in his determination. The consideration of Article 8 in his determination is set out in paragraphs 19 and 20. Having at paragraph 18 found that the respondent clearly met the immigration rules, the judge said at paragraphs 19 and 20
"19. There was no substance to the position the [respondent] had moved the centre of his life to the United Kingdom. It was evident from his application form for example that in the last few years he has visited many countries including the United Kingdom but also including India, Turkey, Saudi Arabia, the United States and Nepal. I could detect no basis for it being maintained that the [respondent] had ever breached immigration control and I could not see in this case any basis for holding that either.
20. It is evident that the [respondent] has very close ties to his daughter and in turn now has her own child. A very young child cannot reasonably be expected to travel to Bangladesh moreover attendance at an important ceremony in his daughter's life and career as a doctor in my view also is something bought by the notion of family life protected by Article 8 and in my view of the circumstances the decision to refuse the [respondent's] entry clearance to the United Kingdom did breach his right to respect for family life under Article 8 and I allow the appeal."
20. The judge failed to have any regard to the guidance given by Lord Bingham in Razgar v Secretary of State for the Home Department [2004] UKHL 27, and go through the stages suggested in that decision. Had he done so, he would first have asked whether family life existed between the respondent and his daughter.
21. I appreciate and accept that the respondent ,quite rightly, must feel terribly proud that his daughter has worked so hard that she has qualified as a medical practitioner in the United Kingdom and extended her qualifications by becoming a member of the Royal College of Physicians. It is only natural that any father in those circumstances would want to see his daughter attend the Convocation. It is also not at all difficult to understand why the respondent would wish to travel to the United Kingdom to see his daughter's first child following the birth. I accept that there are always strong ties between a parent and a child, but as the courts have previously said, there can be no Article 8 family life rights between a parent and their adult child without some evidence of continuing dependency.
22. Mr Hossain, without intending to give me evidence, told me that the respondent had provided money to his daughter and her husband for the purchase of a property in the United Kingdom. That, with respect may be evidence of a gift, but it is hardly evidence of financial dependency. The appellant's daughter is a 32 year old professionally qualified lady, with her own income and she is married to a colleague who himself enjoys an income. The making of a gift of money towards the purchase of a house does not amount to financial dependency.
23. In the respondent's papers, reference is made to Mostafa (Article 8 in entry clearance) [2015] UKUT 00122, where the Tribunal found that in the case of appeals brought against refusal of entry clearance under Article 8 of the ECHR, the respondent's ability to satisfy the Immigration Rules is not the question to be determined by the Tribunal, but it is capable of being a weighty though not determinative factor when deciding whether refusal is proportionate to the legitimate aim of enforcing control.
24. However, the case of Adjei (visit visas - Article 8) [2015] UKUT 0261 makes is clear that the first question to be addressed in appeals against refusal to grant entry clearance as a visitor where only human rights grounds are available, is whether Article 8 of the ECHR is engaged at all. Judge Blair did not do this. Judge Blair appears to have assumed that there was Article 8 family life in existence.
25. In Adjei the Tribunal said if Article 8 is not engaged, which will not infrequently be the case, the Tribunal has no jurisdiction to embark upon an assessment of the decision of the Entry Clearance Officer under the Rules and should not do so. If Article 8 is engaged, the Tribunal may need to look at the extent to which the Claimant is said to have failed to meet the requirements of the Rules, because they may inform the proportionality balancing exercise that may follow. It is clear to me that Judge Blair simply did not consider whether or not there was family life and merely assumed that it existed. The relationship between the respondent and his daughter is one between adult relatives disclosing no aspect of any dependency nor being any different from what might expect to be the case between an adult father and his adult daughter.
26. There is no evidence of any particularly strong relationship between the respondent and his daughter over and above that between a father and daughter and no evidence financial dependency. There is no reason why those relationships between an adult respondent and his adult daughter cannot be maintained in the way that relatives who have chosen to live in different countries manage to do. There is no good reason why UK based relatives cannot visit the respondent in Bangladesh although, I accept that at the time the purpose for the respondent's visit was two-fold and naturally he would wish to see his daughter at her convocation, especially since she has joined his profession and would, of course have had a strong desire to see his grandchild.
27. Having concluded that Article 8 is not engaged, I believe that the judge has materially erred in law since, on the evidence before the judge, the circumstances of this respondent and his daughter in the United Kingdom did not give rise to family life for the purpose of Article 8 of the ECHR.
25. I substitute a fresh decision to dismiss the respondent's appeal against the refusal to grant him entry clearance as a visitor.
No anonymity direction is made.

Richard Chalkley
Upper Tribunal Judge Chalkley

7th September 2016