Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: VA/02094/2015

THE IMMIGRATION ACTS

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

Before

DEPUTY UPPER TRIBUNAL JUDGE NORTON-TAYLOR

Between

ENTRY CLEARANCE OFFICER, ISLAMABAD
Appellant
and

AZIZA [A]
(ANONYMITY DIRECTION NOT MADE)
Respondent

Representation:
For the Appellant: Mr S Kotas, Senior Home Office Presenting Officer
For the Respondent: Mrs K Dyana, Sponsor

DECISION AND REASONS
1. This is an appeal by the Entry Clearance Officer (hereafter the Respondent, as it was before the First-tier Tribunal) against the decision of First-tier Tribunal Judge Ford (the judge), promulgated on 1 March 2016, in which he allowed the appeal of Mrs [A] (hereafter the Appellant once again), and dismissed the appeal in respect of her husband Mr [A].
2. By applications made on 6 March 2015 the Appellant and her husband sought entry clearance to visit the Appellant's sister in the United Kingdom (the Sponsor). The reason stated for the visit was to offer emotional support to the Sponsor during her first pregnancy. By a decision dated 19 March 2015 the Entry Clearance Officer refused both applications on the basis that the relevant criteria of paragraph 41 of the Immigration Rules were not met. Given the date of the decision, the only ground effectively open to the Appellant in terms of challenging the refusal was that it violated her human rights, in particular, Article 8.

The judge's decision
3. Before the judge the Appellant was represented by the Sponsor. A Presenting Officer appeared for the Respondent. The judge expressed sympathy for the Sponsor who he found had experienced a difficult pregnancy without the support of female relatives in this country. He appears to have found that the Sponsor's sister-in-law who does reside in the United Kingdom suffers from Parkinson's disease and was therefore unable to offer any support herself. The judge notes that at the date of the hearing before him the Sponsor was pregnant with her second child, with an expected due date of 21 September 2016.
4. At paragraph 13 of his decision the judge accepted that there was family life as between the Sponsor and the Appellant. It is said that this was because there was an "unusual level of dependency" between them due to the second pregnancy. It is said that, "[t]he support that the Sponsor needs cannot be provided by the NHS or carers, she needs emotional and psychological support as well as practical support".
5. At paragraph 14 the judge concludes that these ties did not exist as between the Appellant's husband and the Sponsor and therefore at that stage the husband's appeal was dismissed.
6. At paragraph 17 the judge concluded that the Appellant had strong ties to Afghanistan, that the cost of her trip would be covered by the Sponsor, and that she intended to return to Afghanistan at the expiry of her proposed visit.
7. In paragraphs 18 and 19 the judge concludes that the Respondent's refusal of the applications was not justified and constituted a disproportionate interference with the family life. On that basis the Appellant's appeal was allowed on Article 8 grounds.

The grounds of appeal and grant of permission
8. The Respondent's grounds are threefold: firstly, that the judge had erred in having any regard to the second pregnancy when this was a matter that had arisen a considerable period for time after the date of decision; secondly, that there was no consideration of the support that the husband could and should provide to the Sponsor in this country; thirdly, it is said that the proportionality assessment by the judge was inadequate.
9. Permission to appeal was granted by First-tier Tribunal Judge Bennett on 3 August 2016.

The hearing before me
10. The Sponsor attended the hearing alone. I explained the nature of the proceedings to her and was satisfied that she understood what was being said at all times.
11. For the Respondent Mr Kotas submitted that there was a material error of law in the judge's decision, namely his reliance upon the second pregnancy. In respect of any remaking of the decision there was no reason why the Sponsor's husband should not have been able to help her, and that no compelling case had been shown as to why the Article 8 claim should succeed.
12. The Sponsor in answer to questions from both myself and Mr Kotas confirmed that her husband had lived with her in his country throughout. He ran a dry cleaning business which was located directly below the couple's flat. She confirmed that during the first pregnancy she had been in hospital for four days and had received medical treatment prior to that. Her sister-in-law did indeed have Parkinson's disease and was unable to help her. She confirmed that her first child had been born prematurely on 31 May 2015.
13. Following her discharge from hospital a health visitor had come to the house on five occasions. No one else had helped her although she did confirm that the husband helped during the night. She stated that she had wanted help from a woman, in particular emotional help that a man could not provide. She told me that she had come to the United Kingdom in December 2012 and had not seen her sister and the Appellant between that year and 2015 but had visited Afghanistan herself in February of this year.

Decision on error of law
14. I find the judge did materially err in law. This is so for the following reasons.
15. First, it is quite clear that the judge based his ultimate decision upon the fact of the second pregnancy. Given the dates stated in the evidence the Sponsor only became pregnant for the second time in late 2015 or early 2016. That of course postdates the Respondent's decision by many months. The law as it relates to this particular appeal means that the judge was precluded from considering the fact of the second pregnancy. The fact that he did take it into account was in my view clearly a material error. For that reason alone the judge's decision must be set aside.
16. Second, in addition to the first reason, the judge has failed to deal with the issue of whether the Sponsor's own husband could and should have provided necessary support. It is one thing to desire the emotional support from a woman, indeed perhaps a sister for example, but in reality the support of one's partner or spouse would, all other things being equal, amount to a primary source of such support. If this was deemed to be absent or inadequate, particular findings should be made on this point together with supporting reasons. This has not been done. I find this to be a further material error of law.
17. Third, on the evidence before the judge it is very difficult indeed to see how he could have properly concluded that there was family life as between the Sponsor and the Appellant within the guidelines set down in Kugathas [2003] EWCA Civ 31 and subsequent decisions. I find that the reasons expressed in paragraph 13 of the judge's decision are inadequate.
18. Fourth and finally, given the case law on Article 8 and family visits (see for example Kaur (visit appeals; Article 8) [2015] UKUT 00487 (IAC), Mostafa (Article 8 in entry clearance) [2015] UKUT 00112 (IAC) and Adjei (visit visas - Article 8) [2015] UKUT 0261 (IAC), the judge has failed to identify why he regarded this case to be a compelling case with regard to the particular facts. This is a further material error of law.
19. For all these reasons I set aside the judge's decision.

Remaking the decision
20. Given the nature of this appeal and the relevant date for the consideration of the facts I am satisfied that I have sufficient evidence before me to remake this decision without adjourning.
21. I accept that the Sponsor did experience a difficult pregnancy in respect of her first child, and that she suffered from medical conditions, in particular several allergies as confirmed in a supporting letter from her GP dated 31 March 2015. I accept that the Sponsor would have wanted the Appellant to come to this country and offer emotional support. That is a perfectly understandable motive. I accept that the Sponsor's sister-in-law in the United Kingdom is unwell and was at the material time unable to offer support herself.
22. Having said that, on the Sponsor's own evidence she lives with her husband who was willing and able to offer support. He was running his own business and of course that would have taken up a certain amount of his time. However, his business was immediately below the couple's flat. He was near at hand to offer support. It is, with respect, commonplace that couples face pregnancies together and often without external support, at least to the extent that they would perhaps otherwise desire. In this case beyond the husband being there the Sponsor was receiving appropriate NHS treatment.
23. I find that there was no compelling need for particular emotional or practical assistance from the Appellant. I find that as at the date of decision the Sponsor had not seen the Appellant for some three years and that there were no ongoing particularly strong ties of dependency as between the two of them during this period for separation. Both the Sponsor and the Appellant have at all material times of course been adults.
24. In light of the above I do not accept that there is family life for the purposes of Article 8. The appeal must fail on this basis.
25. If I were wrong about that and there was family life, I would nonetheless conclude that the refusal of entry clearance did not constitute a sufficiently serious lack of respect for the family life. As I have said already, there was no particular need for the Appellant herself to come to this country in order to offer assistance to the Sponsor. This was not part of an ongoing pattern of support between the two sisters. There were no other compelling circumstances either. The appeal must then fail at this stage.
26. If I were wrong about this too, I conclude that in any event the Respondent's refusal of entry clearance was not disproportionate. Although the judge found that the requirements of paragraph 41 of the Immigration Rules were satisfied (and these findings stand), the particular circumstances of this case simply cannot in my view be classed as compelling, as is effectively required by the case law already mentioned and the decision of the Court of Appeal in SS (Congo) [2015] EWCA Civ 387. The appeal would fail at this final stage.
27. For all these reasons the Appellant's appeal is dismissed on human rights grounds.
28. In respect of the Appellant's husband's case, as I have already mentioned, the judge dismissed his case and there has been no challenge to that decision.

Notice of Decision
The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law.
I set aside the decision of the First-tier Tribunal.
I re-make the decision by dismissing the appeal on human rights grounds.
No anonymity direction is made.

Signed Date: 12 September 2016
Deputy Upper Tribunal Judge Norton-Taylor

TO THE RESPONDENT
FEE AWARD
I have dismissed the appeal and therefore there can be no fee award.

Signed Date: 12 September 2016
Deputy Upper Tribunal Judge Norton-Taylor