Tribunal decisions

The decision

IAC-FH-LW-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: VA/02047/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 21 February 2017
On 28 February 2017

Before

UPPER TRIBUNAL JUDGE WARR

Between

mr Abdolhamid shiri
(ANONYMITY DIRECTION not made)
Appellant
and

ENTRY CLEARANCE OFFICER – ABU DHABI
Respondent

Representation:
For the Appellant: Mr K Behbahani (Behbahani & Co Solicitors)
For the Respondent: Mr P Armstrong, Home Office Presenting Officer

DECISION AND REASONS

1. The appellant is a citizen of Iran born on 23 September 1947. He appeals the decision of an Entry Clearance Officer dated 1 March 2015 wherein his application for an entry clearance as a family visitor to visit his daughter, the sponsor, was refused. The notice of refusal reads as follows:

“You have applied for entry clearance to go to the UK to visit your daughter. I acknowledge that you have been to the UK before. The last visit was in 2012 when your daughter had leave to remain in the UK as a Tier 4 Student.

Circumstances since then have changed however in that your daughter has now sought to remain permanently in the UK outside of the Immigration Rules. I am not satisfied therefore that your own circumstances, given your relationship, will not also have changed.

Although you have been working as a lawyer, you are financially independent and do not rely on employment. You are 67 years old and approaching retirement age. I am therefore not satisfied that your work is in itself and [sic an] incentive to leave the UK. I note that you have not sought to visit your daughter for 3 years now, even when she decided to remain almost two years because of exceptional circumstances. It is not clear why you are visiting now in particular.

On balance of probabilities, I am not satisfied that you are seeking entry to the UK only as a general visitor for a limited period. 41(i)(ii).

I have therefore refused your appellant because I am not satisfied on the balance of probabilities, that you meet all the requirements of relevant paragraphs of the United Kingdom Immigration Rules.”

2. In the decision of the Entry Clearance Manager on 26 May 2015 it was acknowledged that the appellant’s daughter was in the United Kingdom with humanitarian protection, but this did not then confer on the appellant an absolute right to travel to the UK himself and he still needed to meet the Immigration Rules. The Entry Clearance Manager added:

“The sponsor chose to remain in the UK knowing that entry clearance for her family to come to the UK too could not be guaranteed. There are no exceptional or compassionate circumstances why the appellant needs to visit his daughter now in particular to consider this application outside of rules.

The appellant and sponsor have lived apart for several years and refusal does not change that status quo. They can continue their lives as they did prior to application.”

The Entry Clearance Manager continues by saying that the decision was reasoned and in accordance with the Rules and that the decision maker took proper account of the documents and information provided and the decision was proportionate. The last paragraph of the decision does not appear particularly to relate to the circumstances of this case since it refers to the Entry Clearance Officer providing comprehensive details regarding inconsistencies and/or lack of documentation. This does not appear to have been the basis of the Entry Clearance Officer’s decision which was founded on the matters which I have set out above.

3. The appellant appealed the decision and his appeal came before a First-tier Judge on 16 June 2016. On that occasion the appellant was represented, as he is now, by Mr Behbahani. The respondent however did not field a representative.

4. It was submitted on behalf of the appellant that the Entry Clearance Officer had erred, not only on the question of the sponsor’s status, but had also made an inappropriate assumption as to the appellant’s intentions merely because the appellant was approaching retirement age.

5. It was further submitted that the relationship between the appellant and the sponsor satisfied the requirements of dependency and went beyond the normal emotional ties by reference to Kugathas [2003] EWCA Civ 31. Reliance was place on Mostafa (Article 8 in Entry Clearance) [2015] UKUT 00112 (IAC).

6. The decision concludes as follows:

“15. While there appears to be a mistake made by the ECO in relation to the Sponsor’s status (‘she has now sought to remain permanently outside of the rules’) whereas she had in fact been granted status and the ECO appears to be making an inappropriate assumption in relation to the Appellant’s intentions by virtue of the fact that he is coming up to retirement age, during oral evidence a far more significant issue emerged. The Sponsor provided amongst the Appellant’s bundle a Determination dated 4th June 2013 of FTT Judge Broe, who allowed the Sponsor’s appeal against refusal of asylum/humanitarian protection (pages 41 – 47) of the Appellant’s bundle) which reveals that the Appellant was considerably indebted to a man called Mr. M. The Appellant arranged for the Sponsor to marry this man in order essentially that his debts amounting to $600,000 would be written off by the said Mr. M. At paragraphs 12 and 13 of Judge Broe’s Determination there are significant details of the level of debt owed by the Appellant to Mr. M as reported to the Tribunal by the Sponsor. The Appellant owed the equivalent of $600,000 and could not afford to repay it. He sold his practice and told the Sponsor that there was interest on such debt increasing rapidly. The Appellant told the Sponsor that she was the only person who could come to his rescue because Mr. M had asked for her hand in marriage. In addition the Appellant also told the Sponsor that Mr. M had had his [the Appellant’s] house, office and car transferred into his name because of a failed investment that the Appellant had guaranteed.

16. In oral evidence before me the Sponsor confirmed that she realised that she was essentially being ‘sold off’ (as recorded by Judge Broe), she nevertheless decided to proceed with the marriage fully intending to renege upon any marriage vows with immediate effect simply as a means to get back from Mr. M various cheques that her father had written which he knew would not be honoured because he did not have sufficient funds. Such dishonoured cheques would have resulted in serious consequences for her father, the Appellant.

17. Judge Broe’s Determination records that the Sponsor married Mr. M on 9th October 2012 and as agreed Mr. M returned all her father’s cheques to her ‘As the dowry’ and she returned to the United Kingdom on 11th October 2012. Not surprisingly Mr. M was not best pleased and allegedly reported the Sponsor and the Appellant to the police and the Sponsor applied for asylum in the United Kingdom. Her application was refused but aforesaid Judge concluded the Appellant is at risk on return from her husband who is seeking revenge and allowed the Appellant’s appeal under Articles 2 and 3 of the ECHR (as due to a legal technicality because the Sponsor did not satisfy the requirements of a membership of a particular social group she could not be granted asylum).

18. As the Respondent had not instructed a Home Office Presenting Officer I asked various questions for clarification and in particular whether aforesaid debts owed by the Appellant had been paid to Mr. M. The Sponsor suggested in oral evidence that they had in effect been paid because she had agreed to marry and had indeed married Mr. M. In my judgment however the marriage was plainly a sham and entered into by the Sponsor specifically for the purpose of re-acquiring cheques which her father had written and handed over to Mr. M.

19. More particularly however there was no evidence before me that the ECO was aware of any of the aforesaid history in relation to the Appellant’s financial circumstances and in particular his debts and the fact that his house, his car and his office had been transferred to Mr. M. In my judgment there is no evidence that the Appellant has paid off his debts to Mr. M and such debts must be relevant to the consideration under the Immigration Rules regarding the Appellant’s financial viability and the inter-related question of intention to only remain in the United Kingdom for a limited period. The Sponsor sought to suggest in oral evidence that because she married Mr. M that paid off her father’s debts. I do not think Mr. M will view the situation in that manner because in reality the marriage was a complete sham. However these are issues which the ECO will undoubtedly have to grapple with in relation to any further future applications made by the Appellant.

20. The issue before me is the question of whether the Appellant is entitled to succeed under Article 8 in relation to which I have considered the five step process under Razgar in terms as set out below.

21. In relation to the first question under Razgar, that of whether Article 8 family life is engaged, the Sponsor’s oral evidence was consistent with that set out in her witness statement. The Sponsor also produced a letter dated 18th May 2016 from her general practitioner which states that she is suffering from anxiety and depression due to the fact that her family have been prevented from coming to the United Kingdom for a visit. I accept the Sponsor’s evidence to the effect that she was financially dependent on the Appellant for nine years while she was a student in the United Kingdom. However that financial dependency has now ceased because she asserts that she is now in business and no longer in need of funds from the Appellant. She also maintains that she is emotionally dependent upon her father and that she has been suffering emotional/psychological damage as a result of not being able to see him – for the last three years – since his visit for her graduation ceremony in mid 2012.

22. I note that on that occasion the Appellant remained in the United Kingdom for approximately 2 weeks whilst the Sponsor’s mother remained with her for approximately 8 months. This would appear to suggest that the Sponsor is far closer to her mother than she is to her father.

23. While I accept that the Appellant is undoubtedly close to her father, in evidential terms I have little more than the Sponsor’s assertions made in her witness statement and orally before me and to her general practitioner to suggest that she is suffering from anxiety and depression. Accordingly I am not satisfied that there is reasonably reliable evidence before me to establish that her emotional dependency upon her father is consistent with the type of dependency envisaged in Kugathas. I am not satisfied that her relationship/dependency on the Appellant goes beyond normal emotional ties as between adult children and their parents.

24. The appellant’s representative sought to rely upon the aforesaid Upper Tribunal decision in Mostafa for the proposition that there is Article 8 protected family and it is not reasonable to expect such family life to be enjoyed in the third country. With respect Mostafa is not an authority for the first proposition – the relationship in Mostafa was as between husband and wife which by law is categorised as a family relationship protected under Article 8 of the ECHR.

25. On the above basis I conclude that Article 8 family life is not engaged in this case and the Appellant’s appeal fails at the first hurdle under Razgar.

26. If I am completely wrong in relation to my aforesaid conclusion it is evident from lack of evidence that the Appellant has paid off his debts to Mr. M that I cannot be satisfied that the appellant meets the criteria under paragraph 41 of the Immigration Rules. As such, in relation to the final question under Razgar, that of proportionality, I am bound to conclude that the appellant has failed to establish the ECO’s decision is disproportionate to the public aim of ensuring firm immigration control in accordance with the Immigration Rules. The ECO and the ECM appear not to have considered such factors relating to the Appellant’s debts to Mr. M. In all probability neither the ECO nor the ECM would have been aware of the Appellant’s debts to Mr. M, because they only surfaced during this appeal, and would not have considered them.”

7. Accordingly, the judge dismissed the appeal on the totality of the evidence.

8. Grounds of appeal were settled and permission to appeal was granted by a Designated First-tier Judge on 20 January 2017. The judge had found that there was no evidence that the appellant had paid off his debts, but as the grounds stated, even upon review of the decision by the Entry Clearance Manager no concerns had been raised about the appellant’s financial standing. The judge had arguably erred in law in considering an aspect of the application which was not before him and it was arguable that he had been wrong to conclude that the appellant’s relationship with his daughter did not constitute family life within the meaning of Article 8.

9. Mr Behbahani relied on the grounds of appeal. The financial standing of the appellant had not been questioned. He had been found to be financially independent. The question of the appellant’s previous debts was an historical matter. The respondent’s guidance about providing evidence of financial standing was to concentrate on a snapshot window of six months. The judge had failed to consider the appellant’s own statement where he had referred to delays in visiting the sponsor because of sorting out his financial difficulties. The sponsor had got humanitarian protection and reliance was placed on the sprit of the decision of Mostafa. Reference was made to the case of Lama (video recorded evidence – weight – Article 8 ECHR) [2017] UKUT 16 (IAC) where in a decision of the President it had been stated at paragraph 3 of the italicised words that “There are no hard and fast rules as to what constitutes family life within the compass of Article 8 ECHR.”

10. Mr Behbahani referred to paragraph 32 of Lama where the Tribunal noted that the Court of Appeal in PT (Sri Lanka) [2016] EWCA Civ 612 had highlighted the need for a “fact sensitive approach”. Mr Behbahani referred to the last paragraph of paragraph 32 where the Tribunal had stated:

“Thus, at its heart, family life denotes real or committed personal support between or among the persons concerned. Such persons need not necessarily be related by blood and, in that sense, are not a family in the traditional or conventional senses. However, they are readily embraced by one of the dictionary definitions of ‘family’, namely ‘a group of things that are alike in some way’. Mere likeness is not, of course, sufficient for Article 8 purposes. The ‘likeness’, in Article 8 terms, is constituted by committed support, emotional bonds and, very frequently, a strong sense of duty.”

11. Mr Behbahani drew attention to the commitment on the part of the sponsor to support her father to the point of her own sacrifice. He submitted that the determination was flawed by a material error of law in that the First-tier Judge had used historical factors to cast doubt on the financial standing of the appellant and he had not given consideration to the appellant’s own witness statement which dealt with the matter and the reason for him not being able to visit the sponsor earlier. It could not be right to raise a new point in the way the judge did. The judge had gone behind the findings made by Tribunal Judge Broe at paragraph 32 of Judge Broe’s decision where he had accepted the appellant’s account of the events leading to her departure from Iran and he expressly found that he was satisfied that she had married her husband “in order to protect her father and that his debt was effectively written-off”. The judge should not have gone behind these findings bearing in mind the principles in Devaseelan [2002] UKIAT 00702. Clearly the relationship between the sponsor and the appellant went beyond the normal emotional ties.

12. The findings made by Judge Broe had not been challenged by the Secretary of State and the sponsor had been granted humanitarian protection status. The judge should not have reopened the question of the appellant’s financial status. The appeal should be allowed in the light of the very unusual circumstances of the sponsor.

13. Mr Armstrong said he did not have the appellant’s bundle before him. There had been no Presenting Officer at the original hearing. He submitted that the First-tier Judge was right to say that the sponsor had been in effect sold off. She had married to get the appellant’s cheques back. There had been no evidence from her husband about the debt. The Home Office would have received Judge Broe’s determination. It had been two years since the Entry Clearance Manager had refused to review the application. It would have been open to the appellant and his daughter to meet in another country. While it was possible the judge had not been impressed with the original reasons for the refusal, Mr Armstrong submitted there was no material error of law in the decision. The appellant had a lack of incentive to return to Iran.

14. Mr Behbahani in reply submitted that it was clear that the appellant had no debt and he had no lack of incentive to return to his own country where he was still in work and the evidence of that had been lodged.

15. In relation to the point made that Mr Armstrong did not have the material, the appellant’s bundle had been served in accordance with directions on the Home Office. The appellant could not be criticised if the Home Office had not fielded a Presenting Officer. Mr Armstrong made it plain he was not criticising the appellant, it was just the fact that he did not have a bundle.
16. Mr Behbahani submitted in relation to the daughter’s marriage that it had been her own decision to assist her father and there was no complicity between the two of them.

17. At the conclusion of the submissions I reserved my decision. I remind myself that I can only interfere with the decision of the judge if it was materially flawed in law.

18. I have carefully considered the evidence and the submissions that have been made.

19. As I have pointed out, the First-tier Judge does not appear to have been impressed by the decision of the Entry Clearance Officer who approached matters on the wrong footing insofar as the sponsor’s status was concerned and in making what he called an inappropriate assumption in relation to the appellant’s intentions by virtue of his age.

20. Instead the judge took a completely new point relying on a document provided by the appellant.

21. As Mr Behbahani forcefully points out, the question of the appellant’s finances had not been placed in issue by either the Entry Clearance Officer or the Entry Clearance Manager. Indeed, the Entry Clearance Officer had accepted that the appellant was financially independent. There was no Presenting Officer before the First-tier Judge to raise any additional issue. The judge erred in failing to appreciate that Judge Broe had determined the issue and there was no basis for revisiting that decision applying the principles of Devaseelan.

22. Among the criticisms of the First-tier Judge’s approach was the suggestion that he had not properly grappled with the appellant’s witness statement.

23. In that statement the appellant explains why he had not been able to visit his daughter over the previous two years. He refers in his statement to the huge sacrifice made by the sponsor because of the love she had for him. He had wanted to visit his daughter sooner but he could not because of great financial difficulties which had been explained by his daughter in her asylum claim. He had taken on many cases to generate income which meant he could not leave Iran to pay a visit. He had been able to help her rebuild her life and to set up her own business in the UK. His efforts had been complicated by the political and economic situation between 2013 and 2015, but he had managed and funds had become available so that his daughter could buy her own property. He wanted to visit in order to help her find such a property. While there was no absolute right for him to travel to the UK, his daughter could not travel to Iran.

24. In relation to incentive to return the appellant pointed out that he still had client cases to attend to and it would prejudice his own work if he did not return to Iran. He had applied for an entry clearance for a period of five years (multi-entry) paying $US849 and he had also paid extra fees for the premium priority service. Such expenditure would not have been necessary if he was simply intending to visit and not return.

25. I am satisfied that the approach of the First-tier Judge was wrong and his determination was materially flawed in law for the reasons advanced in the grounds of appeal and developed at the hearing by Mr Behbahani.

26. This is an appeal on human rights grounds. In Mostafa the Tribunal’s decision is summarised in the italicised words as follows:

“In the case of appeals brought against refusal of entry clearance under Article 8 ECHR, the claimant’s ability to satisfy the Immigration Rules is not the question to be determined by the Tribunal, but is capable of being a weighty, though not determinative, factor when deciding whether such refusal is proportionate to the legitimate aim of enforcing immigration control.”

27. In this case the decision of the Entry Clearance Officer was founded on a mistaken appreciation of the sponsor’s status. Although I have found that the decision of the First-tier Judge was affected by a material error of law, I do agree with him that the Entry Clearance Officer made an inappropriate assumption when he referred to the appellant’s age. The additional point taken was that the appellant had not sought to visit his daughter for some three years, even when she had decided to remain because of exceptional circumstances. It was said that it was not clear why the appellant wished to visit her now in particular. The sponsor gives in my view a credible explanation for the delay, particularly having regard to the financial circumstances he had been in previously. He had also referred to the difficulties between 2013 and 2015 because of the political and economic situation in Iran during that period. The previous difficulties experienced by the appellant and the fact that he was now accepted to be financially independent by the Entry Clearance Officer appear to confirm what the appellant says in his statement and plausibly explain the two years’ gap in his visits. The appellant has adduced evidence of his current practice. His actions do not appear consistent with a desire to retire and he has invested in a more expensive visa than would be required for a single visit.

28. In making these findings I remind myself that this is not an appeal under the Immigration Rules and I undertake the exercise taking into account what is said in Mostafa – compliance with the Rules is a weighty, though not determinative factor when considering proportionality issues.

29. The appellant and sponsor are father and daughter, but of course the daughter is an adult and as was said in S v United Kingdom (1984) 40 DR 196 at page 198:

"Generally, the protection of family life under Article 8 involves cohabiting dependents, such as parents and their dependent, minor children. Whether it extends to other relationships depends on the circumstances of the particular case. Relationships between adults, a mother and her 33 year old son in the present case, would not necessarily acquire the protection of Article 8 of the Convention without evidence of further elements of dependency, involving more than the normal emotional ties."

In the citation in the case of Lama the word “generally” was highlighted, as were the words in the second sentence. Reference is made in paragraph 32 for the need for a fact sensitive approach and there was no absolute requirement of dependency. I have reproduced in paragraph 10 above the final sentence of paragraph 32.

30. In dealing with a case of this kind, as the Tribunal says in paragraph 34 it is important to bear in mind the public interest which is reflected in Section 117B (1) of the 2002 Act – “The maintenance of effective immigration controls is in the public interest”. As in Lama, this public interest “with its various ingredients, is the public interest engaged in the present case. It provides the starting point in the proportionality balancing exercise.”

31. By way of preamble I have to say this is a very unusual case. It is not putting the matter too high to say that the appellant’s daughter in effect sacrificed herself to assist her father. As was found in the case of Lama at paragraph 36 it is important not to view dependency “through an inappropriately narrow lens”. What is said in that case about the quality, potency and profundity of the relationship could be applied in these circumstances where the sponsor has made exceptional sacrifices on her part and where the appellant has given extensive financial support to the sponsor.

32 In this case a visit is requested. While in theory father and daughter could meet in a third country, she cannot visit her father in Iran. It appears clear in the circumstances that the refusal to grant an entry clearance interferes with the appellant’s protected rights. In relation to the factors in Section 117B it is clear that the public interest in maintaining effective immigration controls is engaged. It is not, I think, disputed that the appellant is a capable English speaker or that he is financially independent. There appears to be no adverse immigration history.

33. I am satisfied that Article 8 is engaged. I am satisfied that the decision of the Entry Clearance Officer interferes with the appellant’s protected rights. As was said in Huang v The Secretary of State for the Home Department [2007] UKHL 11 [2007 2 AC] at paragraph 18 the crucial question is likely to be whether the interference (or lack of respect) complained of is proportionate to the legitimate end sought to be achieved. Lord Bingham stated as follows in paragraph 20 of his opinion:

“In an Article 8 case where this question is reached, the ultimate question for the Appellate Immigration Authority is whether the refusal of leave to enter or remain, in circumstances where the life of the family cannot reasonably be expected to be enjoyed elsewhere, taking full account of all considerations weighing in favour of the refusal, prejudices the family life of the applicant in a manner sufficiently serious to amount to a breach of the fundamental right protected by Article 8. If the answer to this question is affirmative, the refusal is unlawful and the authority must so decide. It is not necessary that the Appellate Immigration Authority, directing itself along the lines indicated in this opinion, need ask in addition whether the case meets a test of exceptionality. The suggestion that it should is based on an observation of Lord Bingham in Razgar above, para 20. He was there expressing an expectation, shared with the Immigration Appeal Tribunal, that the number of claimants not covered by the Rules and supplementary directions but entitled to succeed under Article 8 would be a very small minority. That is still his expectation. But he was not purporting to lay down a legal test.”

This passage was referred to in paragraph 59 of Agyarko v Secretary of State [2017] UKSC 11. It was explained that Huang was decided at a time when the rules had not been revised to meet the requirements of Article 8 but Lord Reed stated at paragraph 60:

“It remains the position that the ultimate question is how a fair balance should be struck between the competing public and individual interests involved, applying a proportionality test. The Rules and Instructions in issue in the present case do not depart from that position.”

34. As I have already observed the facts of this case are extremely unusual. Bearing in mind the public interest, on the one hand it is to be noted that on the analysis that I have given above the appellant complies with the Immigration Rules, although that is not the matter that I have to determine in this case. In the light of the very pressing interdependency between father and daughter I have no hesitation in finding that the decision of the respondent represents a disproportionate interference with the appellant’s protected rights. Accordingly, I remake the decision of the First-tier Judge.

35. The appellant’s appeal under Article 8 is allowed.

Anonymity Direction

36. The First-tier Judge made no anonymity direction and I make none.

TO THE RESPONDENT
FEE AWARD

Any fee paid by the appellant is to be returned to him.

Signed Date 27 February 2017

G Warr, Judge of the Upper Tribunal