Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: VA/02259/2015
VA/02249/2015

THE IMMIGRATION ACTS

Heard at Bradford
Decision & Reasons Promulgated
On 22nd August 2016
On 26 August 2016

Before

upper tribunal DEPUTY judge ROBERTS

Between

The secretary of state for the home department
Appellant
and

maqbool BEGUm
and
shakeela bi
(ANONYMITY DIRECTION not made)
Respondents

Representation:
For the Appellant: Mrs Pettersen, Senior Home Office Presenting Officer
For the Respondents: No representation (Mohammed Malik attended as a relative)

DECISION AND REASONS
1. This is an appeal by the Secretary of State for the Home Department on behalf of the Entry Clearance Officer Abu Dhabi (ECO) against the decision of the First-tier Tribunal (Judge O'Hanlon) allowing the appeals of both respondents, against the ECO's refusal of 15th March 2015, to grant them entry to the UK, as visitors. For the sake of clarity, in this decision, I shall refer to the Secretary of State/ECO as "the Respondent" and to the Respondents as "the Appellants." This reflects their respective positions before the First-tier Tribunal.
Background
2. The Appellants are citizens of Pakistan. They are mother and daughter-in-law born 1st January 1941 and 12th February 1979 respectively.
3. Both Appellants made applications for entry clearance as visitors to the UK for a period of six weeks. They intended to travel together. The purpose of their visit was to see family members. Both were sponsored by Ms Thanzeela Naz (the Sponsor), the granddaughter of the first Appellant and the niece of the second. The ECO decided to refuse both applications under paragraph 41 of the Immigration Rules. In particular, he noted that the Appellants were seeking to travel together and that Shakeela Bi's husband was already in possession of a valid visa allowing him to travel to the UK, at any time during the currency of that visa.
4. It was considered therefore, that the Appellants had not demonstrated that there remained sufficient ties in Pakistan to show that they would leave the UK on expiry of their visas. The applications were therefore refused.
First-tier Tribunal Hearing
5. The Appellants appealed the ECO's refusal to the First-tier Tribunal. Their appeals came before Judge O'Hanlon. After taking evidence from the Sponsor, the judge issued two decisions. Both decisions contained identical paragraphs in respect of the relevant parts affecting this decision. Under a heading of Findings he said at [11] (Maqbool Begum) and [7] (Shakeela Bi)
"7. In relation to the suggestion that there has been a breach of the Human Rights Convention I do not find that this is the case. The case of Sun Myung Moon v ECO Seoul [2005] UKIAT 112 decided that the only arguable Human Rights Convention that could be involved in an entry clearance appeal is Article 8 and that is only in relation to family life. There is no evidence before me to indicate that the Appellant has any family life with the UK Sponsor and even if they have, the Appellant has not shown any interference with that because they can continue to enjoy that family life in the same way as they have done previously. It is also the case that any right under Article 8 is a qualified right proportionate with the need to maintain an effective immigration and border control. Although the Sponsor has indicated that it would be easier for the Appellant to visit this country, rather than family to visit her, I do not find that this is a satisfactory reason to explain why the Appellants' relatives in the United Kingdom would be unable to travel to Pakistan or a third country to be with her. I therefore find that the decision was justified by the requirement to maintain an effective immigration and border control, that being in the public interest."
6. Having decided that neither Appellant could meet the requirements of Article 8 ECHR the judge then went on to consider matters, improperly it would appear, under the Immigration Rules. He failed to recognise that the Rules had been changed by Section 52 of the Crime and Courts Act 2013, wherein the rights of appeal for family visitors under the Rules were revoked for any decisions after 25th June 2013. Effectively family visit visa appeals were restricted to grounds showing human rights and/or race relation issues.
7. Despite the judge's findings at [7] and [11] of his decisions, he allowed both appeals.
Onward Appeal
8. The Respondent sought and was granted permission to appeal. Thus the matter comes before me to determine whether the First-tier Tribunal's decision contains an error of law requiring it to be set aside and remade.
9. Before me, Mrs Pettersen attended on behalf of the Respondent. Mr Mohammed Malik, (the father of the Sponsor) attended speak on behalf of the Appellants. The procedure was outlined to Mr Malik. Mrs Pettersen made submissions keeping to the lines of the grounds seeking permission. She submitted that there was a clear error on the part of the First-tier Tribunal judge who seemed to be totally unaware of the changes brought about in the Immigration Rules by the 2013 Act . There was nothing in the decision, nor in the evidence which could have led a judge properly directed to allow these appeals.
10. She accepted that the judge had made clear findings that Article 8 was not engaged. There had never been any suggestion that these appeals were pleading Race Relation issues. She invited me to set aside the decisions and dismiss both appeals.
11. After the circumstances were explained to Mr Malik, I asked him to tell me what he would wish to say on behalf of the Appellants. It amounted to this. He could not understand why the ECO had refused the applications, because so far as the family was concerned, the financial papers were in order. His mother and sister-in-law simply wished to travel to see all their relatives in the UK. He explained that his mother had been to the UK before and had returned to Pakistan. He explained that she had a large number of relatives in the UK and it would be far more costly for them to all go to Pakistan rather than to have his mother visit here. His sister-in-law was coming in order to accompany his mother who being an elderly lady needed another female to travel with her.
Error of Law
12. Following the submissions made by Ms Pettersen, I find I am satisfied that the decisions of the First-tier Tribunal contain errors of law requiring them to be set aside. I find I am satisfied that the evidence on behalf of the Appellants is not sufficient to amount to a breach of Article 8 ECHR rights. Judge O'Hanlon made clear findings on that aspect of the appeal at least. The only platform upon which the Appellants could appeal is one of human rights/race relations. There has been no grounds or any evidence put forward, concerning race relations. These appeals are therefore restricted to whether the decision of the Entry Clearance Officer amounts to a breach of the Appellant's Article 8 ECHR rights. I am satisfied that the evidence shows that it does not. Accordingly I set aside Judge O'Hanlon's decisions and remake them dismissing both appeals.
Notice of Decision
13. The appeal of the Secretary of State on behalf of the Entry Clearance Officer is allowed in both matters
14. The decisions of the First-tier Tribunal are set aside.
15. The appeals of Maqbool Begum and Shakeela Bi against the Entry Clearance Officer's refusal to grant them entry clearance as visitors are hereby dismissed.

No anonymity direction is made.

Signed C E Roberts Date 26 August 2016

Upper Tribunal Deputy Judge Roberts

TO THE RESPONDENT
FEE AWARD
The First-tier Tribunal did not make a fee award in either case and that decision stands.

Signed C E Roberts Date 26 August 2016

Upper Tribunal Deputy Judge Roberts