Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: VA/02155/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 17 November 2016
On 9 December 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE BAGRAL

Between

ENTRY CLEARANCE OFFICER - ACCRA
Respondent
and

ADWOA OSAFO
(ANONYMITY DIRECTION NOT MADE)
Claimant

Representation:
For the Respondent: Mr S Walker, Home Office Presenting Officer
For the Claimant: No Appearance

DECISION AND REASONS

Background
1. The Respondent in this case, the Entry Clearance Officer, appeals with permission against the decision of First-tier Tribunal Judge Wyman promulgated on 8 July 2016. That appeal was against a decision of the Entry Clearance Officer to refuse Adwoa Osafo (hereafter "the claimant") entry clearance as a family visitor in order to visit her sister (hereafter "the sponsor") who lives in the United Kingdom with her family, as she was not satisfied that she met the requirements of paragraph 41 of the Immigration Rules.
2. The matter came before the First-tier Tribunal on 28 June 2016. The judge allowed the appeal under Article 8 of the ECHR. She directed herself as to the five steps to be undertaken in line with the decision in Razgar v SSHD [2004] UKHL 27 and concluded that all of the five questions fell to be answered positively. She found that Article 8 was engaged; that there was a sufficient degree of gravity in this case and, ultimately, that it would on the facts of this case be disproportionate to refuse entry clearance.
3. The thrust of the Entry Clearance Officer's grounds of appeal to the Upper Tribunal are that, the judge misdirected herself in law; there had in this case been no proper findings as to family life or whether it could continue by the sponsor visiting the claimant without her disabled son.
4. When the matter came before me the Entry Clearance Officer was represented by Mr Walker. The claimant was unrepresented. On the morning of the hearing a telephone communication was received from the sponsor informing the Tribunal of her non-attendance at the hearing. No explanation was given. As it was plain the claimant had effective notice of the hearing I proceeded to hear the appeal. Mr Walker submitted that it was clear the judge had simply failed to make any findings with respect to whether family life existed or not and thus a proportionality assessment was not called for and, in any event, was inadequate. Accordingly the decision was flawed.
5. I announced my decision at the hearing that I was satisfied that the judge erred in law and indicated that I would remake the decision on the evidence before the First-tier Tribunal as no further evidence had been filed in support of the appeal. Mr Walker in his submissions relied on the decision of the Entry Clearance Officer.
Discussion
6. The judge found that Article 8 was engaged on the basis that the claimant was "asserting a facet of family life" with her adult sister who she said was unable to travel with her disabled son outside of the United Kingdom. The difficulty with the judge's approach is that in her consideration of the question of whether family life was established, she failed to consider whether the claimant's intention to visit her sister and members of the extended family constitutes part of "family life" for the purposes of Article 8. In my judgement what was required, but did not occur, was an analysis of the evidence to identify whether the ties with the individuals relied upon had the necessary quality required, or whether this was in truth a "private life" appeal, and the elements of that which were relied upon; Marckx v Belgium [1980] 2EHRR 330 and Singh v ECO New Delhi [2004] EWCA Civ 1075, and Abbasi (visits - bereavement - Article 8 [2015] UKUT 463.
7. Whilst the judge concluded that there are consequences of sufficient gravity to engage Article 8 on the basis that family life exists, there is simply no reasoning for this and no findings of fact which could explain to the Entry Clearance Officer why it was that she concluded that there was, unusually in this case, family life. While the judge referred to Abassi this was not a case where the claimant was seeking to visit the United Kingdom to mourn the death of a family member and, in considering whether family life could only continue in the United Kingdom, the judge failed to consider whether the sponsor could visit the claimant without her son. Given that I am satisfied that these findings were in error, I am satisfied also that it is material because if family life is not established then the remainder of the questions identified in Razgar would not fall to be asked. On that basis the judge's decision that the refusal of entry clearance was disproportionate cannot stand and accordingly, for these reasons, I am satisfied that the decision of the First-tier Tribunal involved the making of an error of law which affected the outcome and I set it aside.
Remaking the Decision
8. It is sufficiently clear from the decision of the Upper Tribunal in Kaur (Visit appeals Article 8) [2015] UKUT 00487 that the issue of whether there is family life is of significant importance. That is referred to in particular at paragraph 6 where the principles set out in Mostafa are identified in which it is stated that it is only in unusual circumstances that a close relative will be able to show that the refusal of entry clearance comes within the scope of Article 8(1). In practical terms this is likely to be limited to cases where the relationship is that of husband and wife, other close life partners or a parent and minor child. That is not to say that there cannot exist family life for the purposes of Article 8 between two adult siblings. That much is clear from the Kugathas and Ghising [2012] UKUT 00161 (as approved in Gurung & others [2013] EWCA Civ 8) adopting the characterisation of the nature of family life adopted by the Upper Tribunal in that case). If a family life does not exist then by definition there can be no interference with it and there is of course therefore no need to consider questions 3, 4 and 5 as identified in Razgar and it would not be possible to make any finding on proportionality.
9. It is plain on the evidence that the relationship between the claimant and her sister does not constitute family life for the purposes of Article 8. While it is implicit that there is a close relationship between them, the evidence does not denote the existence of a relationship above the normal and usual emotional ties that exist between adult siblings who live independent lives. The explanation for the visit is that the claimant wishes to come and see her sister and her family and to provide her sister with some respite from caring for her disabled son. While I acknowledge the compassionate factors surrounding that latter purpose, there is no evidential basis from which I could conclude that there is any significant emotional dependency between the claimant and her sister or any member of her family.
10. In summary, I find that there was, as at the date of the Entry Clearance Officer's decision, no family life between the Appellant and the sponsor for the purposes of Article 8. In addition, I find that the claimant has failed to show that her private life rights are engaged. In respect thereof, the situation in which a person seeking to visit the United Kingdom will have established such a life here will be rare indeed. In addition, the 'exceptional' nature of Article 8 and its applicability to entry cases concerning family life has been clearly stated by the IAT in Sun Myung Moon (Human rights, entry clearance, proportionality) USA [2005] UKIAT 00112 (see paragraphs 68 and 73). While I take into account that the claimant has visited the United Kingdom previously, the evidence does not establish that there is a close connection between her and her sister's disabled son or that they are dependent upon any support the claimant could provide. In my judgement it is further implicit by the claimant's decision not to pursue her intention to visit the United Kingdom due to a change in her family circumstances that they are not so dependent, and the absence of the sponsor at the hearing fails to fill an evidential lacuna explaining why she cannot visit her sister without her son.
11. Whilst Article 8 has proven to be versatile in its application in other cases as illustrated in Abassi that case concerned death, burial, mourning and associated rites of family members which has no applicability here. On the facts of the present appeal, there is no conceivable basis for finding that the claimant had a private life for the purposes of Article 8. The Article 8 claims based on private life must fail at the first stage under the Razgar approach. On that basis it is unnecessary for me to consider the matter any further and in terms of the Razgar question it is unnecessary for me to answer questions 2 to 5.
12. Further, and in any event, even were I wrong in that matter I am not satisfied that any interference given the nature of the relationship which exists between two sisters who have equally established themselves independently and, who are likely to continue their relationship by means other than visits through other communications, that the interference is of sufficient gravity to engage the Convention in any event.

Decision

13. The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law.
14. The decision of the First-tier Tribunal to allow the appeal under Article 8 ECHR is set aside.
15. I substitute a fresh decision to dismiss the claimant's appeal under Article 8 ECHR.
No application for anonymity was made and I could see no reason to make such a direction.

Signed Date:

Deputy Upper Tribunal Judge Bagral

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

Signed Date:

Deputy Upper Tribunal Judge Bagral