Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: VA/02150/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 6th April 2017
On 19th April 2017

Before

DEPUTY upper tribunal judge ROBERTS

Between

ENTRY CLEARANCE OFFICER - MOSCOW
Appellant
and

ms ada nikolaevna ravilova
(ANONYMITY DIRECTION not made)
Respondent

Representation:
For the Appellant: Mr E Tufan, Senior Home Office Presenting Officer
For the Respondent: Ms Lilia Moufid, the Sponsor

DECISION AND REASONS
1. The Entry Clearance Officer Moscow appeals with permission against the decision of a First-tier Tribunal (Judge Wilsher) allowing the appeal of Ada Nikolaevna Ravilova against the Entry Clearance Officer’s decision of 4th March 2015 refusing her entry clearance to the UK for the purpose of a family visit.
2. For the sake of clarity I shall throughout this decision, refer to Mrs Ravilova as “the Appellant” which reflects her position before the First-tier Tribunal.
Background
3. The Appellant applied for entry clearance to visit her daughter “the Sponsor” who is lawfully in the UK, and to see her new grandson. The Appellant has already visited in the past, having entered the UK in 2012 following the birth of her granddaughter.
4. The ECO after consideration refused the application because he was not satisfied that a genuine visit only was intended. In short, he formed the impression that the purpose of the visit was for the Appellant to act as an unpaid childminder for her grandchild, thus enabling the Sponsor to return to work and thereby work extended hours at her place of employment.
5. In coming to his conclusion the ECO took into account evidence obtained in a past application concerning a mistake which the Appellant made over how much money she had available to her for her visit. Secondly, the ECO noted that in a past application the Appellant stated that she wished to visit her daughter but this was refused because the invitation letter stated it was the Appellant’s intention to look after the Sponsor’s child so that the child did not have to attend a crèche thus enabling the Sponsor to work longer hours and settle into her role as a nursery manager.
6. The ECO’s decision informed the Appellant that any appeal against his decision was limited to the grounds referred to in Section 84(1)(c) of the Nationality, Immigration and Asylum Act 2002, namely
Human rights grounds – the usual ground being Article 8 ECHR;
Race relations grounds.
I note here that there is no evidence that this case involves any question of race relations being advanced. That leaves Article 8 ECHR as the sole ground of appeal.
First-tier Tribunal Hearing
7. When the appeal came before the FtT, the judge in his decision said the following:
“The relevant law is set out in paragraph 41 of the Immigration Rules [4].”
Then at the conclusion of his decision he said:
“Notice of Decision
This appeal is allowed on immigration grounds.”
The Entry Clearance Officer sought and was granted permission to appeal. The grant of permission by DJ Murray pointed out that there is no valid appeal under the Rules and further the judge had made no findings on either of the issues which lead to an appeal right, namely discrimination/human rights.
UT Hearing
8. I heard submissions from Mr Tufan on behalf of the ECO. Essentially he relied on the grounds seeking permission and which are encapsulated in the grant set out above. The Sponsor attended to represent her mother the Appellant. The procedure was explained to her and I asked her for her submissions. She said that she had taken legal advice on behalf of the Appellant and had been advised that she should respond to any appeal made by the ECO. Her other submissions went to the substance of the Entry Clearance Officer’s refusal letter and I shall deal with those further on in this decision.
9. Following submissions I informed the parties that I was satisfied that the First-tier Tribunal Judge’s decision was plainly wrong and contained material error. It is surprising that in a decision promulgated in September 2016, the judge has overlooked the fact that since 25th June 2013 the only grounds on which a case of this nature can be appealed are discrimination/human rights ones. I have no hesitation therefore in setting aside the FtT’s decision for legal error.
Re-making the Decision
10. I find that I am in a position to remake the decision there being no further evidence put before me. I find that the proper approach to re-making the decision in this case essentially involves asking whether the Appellant’s Article 8 ECHR rights are infringed by the ECO’s refusal. In other words the Appellant’s only route of appeal is one under Article 8 ECHR. The Sponsor submitted that the Entry Clearance Officer was wrong in his evaluation of the evidence before him. The Sponsor then reiterated matters which are contained in the Grounds of Appeal. In summary it was not the Appellant’s intention to act as a childminder, her sponsor had sufficient finances to sponsor her visit and a post-decision letter was available showing that nursery arrangements had now been made for the sponsor’s children.
11. The post-decision letter was not something that could be said to be evidence in existence at the date of decision. More importantly there was nothing in the grounds of appeal, nor in the evidence before the FtT, directly addressing any infringement of the Appellant’s Article 8 rights.
12. As Mr Tufan correctly pointed out the Appellant has to establish firstly whether Article 8 is engaged at all. It is the ECO’s view that the case law shows that it is not so engaged. I find that I am in agreement with Mr Tufan’s submission. I am not satisfied that the Appellant has established that the ties she has with her daughter and grandchildren constitutes protected family life within Article 8(1). Whilst I accept that family life is not confined to parents and minor children and that it can therefore include grandchildren, this must be looked at in the context of the case law.
13. The case law establishes that ties between a parent and adult children or between a grandparent and children will not as a rule constitute family life for Article 8(1) purposes unless there is dependency over and above normal emotional ties: Kugathas [2003] EWCA Civ 31 and Singh & Another [2015] EWCA Civ 74. There was no evidence before me to show that the Appellant enjoyed ties with her daughter and grandchildren over and above normal emotional ties such as to engage any dependency which would bring her within Article 8 ECHR.
14. Accordingly the foregoing reasons I find the FtT was wrong to allow the Appellant’s appeal against the ECO’s decision to refuse a visit visa. The ECO’s appeal against the First-tier Tribunal is allowed. The decision is re-made dismissing Ada Nikolaevna Ravilova’s appeal against the Entry Clearance Officer, Moscow.
Notice of Decision
15. The decision of the First-tier Tribunal is set aside for legal error. I substitute the following decision. The appeal of Ada Nikolaevna Ravilova against the Entry Clearance Officer’s decision of 4th March 2015 refusing her entry clearance to the United Kingdom is dismissed.
16. No anonymity direction is made.

Signed C E Roberts Date 13 April 2017

Deputy Upper Tribunal Judge Roberts

TO THE RESPONDENT
FEE AWARD

Because I have dismissed the appeal there is no fee award.

Signed C E Roberts Date 13 April 2017

Deputy Upper Tribunal Judge Roberts