Tribunal decisions

The decision

IAC-AH-KEW-V2

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: VA/02154/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 18th November 2016
On 29th November 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE D N HARRIS

Between

MRS JEZIA Hanzouli Ep Jaouadi
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Mounir Ben Laid Jaouadi - Sponsor
For the Respondent: Mr P Armstrong, Home Office Presenting Officer

DECISION AND REASONS
1. The Appellant is a citizen of Tunisia born on 1st November 1987. The Appellant applied for entry clearance for a visit visa to the United Kingdom for one month. Her application was refused by the Secretary of State on 9th March 2015 on the basis that the documents that the Appellant chose to provide did not demonstrate any significant ties that the Appellant personally may have to her country of residence such as may encourage or guarantee her return at the conclusion of her proposed visit.
2. The Appellant appealed the refusal of the Secretary of State on the grounds that it was a breach of her human rights pursuant to Article 8 of the European Convention of Human Rights. That appeal came before a panel of Judge of the First-tier Tribunal Shergill and Judge of the First-tier Tribunal Chohan sitting at Birmingham on 27th May 2016. In a decision and reasons promulgated on 29th June 2016 the appeal was allowed on human rights grounds.
3. On 4th July 2016 the Secretary of State lodged Grounds of Appeal to the Upper Tribunal. The simple point that the Secretary of State relied upon was that the Secretary of State did not accept that there was scope for Article 8 engagement in bare visit applications and relied on the fact that the starting point of the European Court of Human Rights jurisprudence is that Article 8 did not impose a general obligation on states to respect the choice of residence of a married couple or to accept a non-national for settlement in that country.
4. On 10th October 2016 Designated Judge Woodcraft granted the Secretary of State permission to appeal. Judge Woodcraft considered that arguably, the panel failed to make clear what the interference was in the party's family life given that the Sponsor could visit the Appellant at any time and the disruption in their family life occurred because the Sponsor had chosen to come to the United Kingdom leaving the Appellant behind. He considered that arguably a visit to see if the Appellant wanted to make a settlement application at a later date did not amount to a very compelling reason in accordance with SS (Congo) [2015] EWCA Civ 387.
5. It is on that basis that the appeal comes before me to determine whether or not there is a material error of law in the decision of the First-tier Tribunal Judge. I note that this is an appeal by the Secretary of State. For the purpose of continuity throughout the appeal process the Secretary of State is consequently referred to herein as the Respondent and Mrs Jaouadi as the Appellant. The Appellant's previously instructed solicitors AKL advised the Tribunal on 15th November that they were no longer acting but that the Sponsor Mr Mounir Ben Laid Jaouadi, the Appellant's husband, would attend and give evidence in person. It is on that basis that I hear this appeal.
Submissions/Discussions
6. Mr Armstrong points out that the panel had noted that at paragraph 10 that the Sponsor was a credible witness, that he gave a credible account of his wife's situation and that the visit was motivated in part as a marital family visit so the Appellant could see the United Kingdom for the first time. He noted that the Sponsor, who is a British citizen, lives in the UK and that the Appellant lives in Tunisia with the two children of the family who are now respectively aged 6 and 3. He submitted that there was no breach of Article 8 on the basis that the Appellant was visited regularly by the Sponsor and he contends difficult to see in such circumstances how a breach of Article 8 could possibly ensue. He asked me to dismiss the appeal.
7. I invited the Sponsor to explain his position to me. He states that he has been living for a considerable period of time in the United Kingdom, that he is a British citizen and that his two children are British citizens. The Appellant is of course a Tunisian national. He is a postman and he has been doing that job for the past twelve years. He very much would like his wife and two children to come and live with him in the UK. He indicates that his wife has advised him that she is not sure whether she wants to do so and the reason that he sought a visit was to persuade her to come over to see if she liked the country and if she did then he would be prepared to make a settlement application.
8. He advised that they were married in Tunisia and that he returns to Tunisia on approximately four occasions every year thus acknowledging that he has regular physical contact with the Appellant and his children. He emphasises that his application is motivated by a desire to allow the Appellant to see the UK.
The Law
9. Areas of legislative interpretation, failure to follow binding authority or to distinguish it with adequate reasons, ignoring material considerations by taking into account immaterial considerations, reaching irrational conclusions on fact or evaluation or to give legally inadequate reasons for the decision and procedural unfairness, constitute errors of law.
10. It is not an arguable error of law for an Immigration Judge to give too little weight or too much weight to a factor, unless irrationality is alleged. Nor is it an error of law for an Immigration Judge to fail to deal with every factual issue of argument. Disagreement with an Immigration Judge's factual conclusion, his appraisal of the evidence or assessment of credibility, or his evaluation of risk does not give rise to an error of law. Unless an Immigration Judge's assessment of proportionality is arguable as being completely wrong, there is no error of law, nor is it an error of law for an Immigration Judge not to have regard to evidence of events arising after his decision or for him to have taken no account of evidence which was not before him. Rationality is a very high threshold and a conclusion is not irrational just because some alternative explanation has been rejected or can be said to be possible. Nor is it necessary to consider every possible alternative inference consistent with truthfulness because an Immigration Judge concludes that the story is untrue. If a point of evidence of significance has been ignored or misunderstood, that is a failure to take into account a material consideration.
Findings
11. The issue before the Upper Tribunal is whether or not there is a material error of law in the decision of the First-tier Tribunal. I find having had the benefit of hearing the Sponsor and Mr Armstrong that there was. Whilst acknowledging and indeed confirming on the brief evidence I have heard from Mr Mounir Jaouadi, the Sponsor, that he is a credible witness it has to be remembered that this appeal is purely based on Article 8 grounds. This is an Appellant who has regular contact with her Sponsor. Indeed he visits her at least four times a year. It is difficult if not impossible in such a situation to conclude that the current arrangement constitutes a situation that by denying a visit visa there would be a breach of the Appellant's Article 8 rights. In such circumstances I find that there are material errors of law and I set aside the decision of the panel.
12. It seems appropriate to add an addendum paragraph to this matter having discussed the appeal with both Mr Jaouadi and with Mr Armstrong. Mr Jaouadi indicates that his wife has now made two applications for visit visas and they have both been refused on the basis that she may not leave the UK at the end of that visit. Ironically the Sponsor's issue is that he is only making the application because he would like the Appellant to find out if she would like to be here. It seems appropriate that if the Appellant wishes to come to the UK that she should couch her application in a settlement application. Mr Armstrong explained to the Sponsor that there were many benefits in that insofar as it did not mean that if the Appellant were granted a visa under such an application that she had to remain. She could if she wished leave of her own volition. It is not for this side of the bench to pass comment on the merit of such application save for the fact that it seems clear to me that there is considerable sense in such an approach. The issue as to whether a settlement application would succeed has not been aired but that would be a totally different application before the Entry Clearance Officer. It is a matter that I know the Sponsor wishes to go away and consider with his currently instructed solicitors albeit that they did not attend this appeal.
Remaking the Decision
13. However being satisfied, as I am, that the factual matrix of this case neither creates a situation whereby the Appellant could succeed under Article 8 inside the Rules, or indeed that there are any compelling circumstances bearing in mind the contact that is maintained between the Appellant and the Sponsor that she could succeed outside the Immigration Rules. Having found that there is a material error of law in the decision of the panel I set aside the panel decision and I re-make the decision allowing the Secretary of State's appeal.
Notice of Decision

I find there is a material error of law in the decision of the First-tier Tribunal Judge. I re-make the decision dismissing the Appellant's appeal under Article 8 of the European Convention of Human Rights.

No anonymity direction is made.

Signed Date

Deputy Upper Tribunal Judge D N Harris
TO THE RESPONDENT
FEE AWARD

No application was made for a fee award and none is made.

Signed Date

Deputy Upper Tribunal Judge D N Harris