Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: VA/02340/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 12 January 2017
On 21 April 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE HANBURY

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

Mr Nedjmudin Gjeladini
(ANONYMITY DIRECTION NOT MADE)
Respondent

Representation:
For the Appellant: Mr Jarvis, a Home Office presenting officer
For the Respondent: Mr Al Rashid of Counsel

DECISION AND REASONS

Introduction

1. In this decision, I will use the descriptions of the parties before the first-tier Tribunal (“FTT”).

2. The respondent appeals against the decision of First-tier Tribunal Judge Abebrese (“the Immigration Judge”) following a hearing at Taylor House on 15 July 2016. In his decision, the Immigration Judge decided to allow the appeal against the decision of the Entry Clearance Officer in Dubai (“the ECO”) against a refusal of entry clearance to the appellant on human rights grounds.

Background

3. The appellant is a citizen of Macedonia who was born on 10 August 1973. He married the sponsor, Mrs Khaloud Al-Mistari, who is a Syrian national, but who now lives in the UK. It seems that the family began their family life together in 2001 and that there are three children, born in Syria in 2002, 2006 and 2008. Unfortunately, following the outbreak of the Syrian war, Mrs Al-Mistari (“The Sponsor”) was expelled from the United Arab Emirates and came to the UK in December 2013. On 20 July 2014, the Sponsor and her three children, who were dependents, were granted asylum by the Secretary of State. They have lived in the United Kingdom since December 2013. There is no dispute in this case that the family have the right to respect for their family life. I have been told, and it is clear from the respondent’s decision and from the Immigration Judge’s decision, that in fact the relationship between the sponsor and the appellant has come to an end. Nevertheless, it is contended that there is a need to maintain contact with the appellant’s children and on that basis, it is argued that he ought to be granted entry clearance to the UK to continue his family life with them, albeit for the limited purpose of a family visit.

4. The appellant applied for a visit visa in 2014 but his application was rejected because the Entry Clearance Officer considered that he did not meet the requirements of Rule 41 of the Immigration Rules. In particular, the Entry Clearance Officer was not satisfied that this was a genuine family visit. The date of decision was 10 November 2014 but it was subject to an Entry Clearance Manager’s review. The Entry Clearance Manager upheld the decision of the ECO.

The Appeal to the Upper Tribunal

5. The respondent appealed to the Upper Tribunal with permission from First-tier Tribunal Judge Saffer on 2 December 2016. Judge Saffer considered that the grounds raised in the grounds of appeal were at least arguable and it appeared to him unclear that there were any compelling circumstances which existed within the meaning of Article 8 as it has been interpreted by the courts and tribunals. At the time of the hearing there were several appeals proceeding through the courts, including the appeals which subsequently reached the Supreme Court in R (on the application of Agyarko) (Appellant) v Secretary of State for the Home Department (Respondent) [2017] UK SC 11. Those cases considered the circumstances in which a court or tribunal could, exceptionally, consider article 8 of the ECHR even though the applicant did not meet the requirements of the Immigration Rules. Judge Safer decided to give permission to appeal.

6. Before me, the appeal was carefully presented by both advocates – Mr Jarvis for the respondent and Mr Al Rashid for the appellant.

7. Mr Jarvis took me through this case and explained that the test as set out in recent authorities, particularly the leading case of SS Congo [2015] EWCA Civ 387 and Kaur [2015] UKUT 487 (IAC), showed the limited circumstances in which entry clearance would be granted outside the Immigration Rules. The latter case was especially pertinent to this case because it involved an appeal against a decision by an ECO and the application of Article 8 to such a case. At paragraph 3 of the headnote of that case, Upper Tribunal Judge Storey said that unless an appellant can show that there are individual interests at stake covered by Article 8 which are “of a particularly pressing nature” to give rise to a strong claim that “compelling circumstances may exist to justify the grant of leave to enter outside the Rules”, it was “exceedingly unlikely” that such an application would succeed. In Judge Storey’s view, that proposition held good in relation to visit visa applications.

8. As a result of the changes introduced by the Immigration Act 2014 there is only one appeal against an immigration decision of this type and that is on a more limited basis than previously. Under section 84 (1) (c) specifies that human rights grounds are one of the three potential grounds for appeal. That is the ground of appeal here. Mr Jarvis pointed out that there clearly was a family life here, but the family life could continue via visits to Macedonia by the children, or visits to the United Arab Emirates (UAE), where the appellant has lived for a number of years. Mr Jarvis went on to say that difficulties in maintaining contact between the appellant and his children were insufficient to amount to a potential interference with his protected human rights. He submitted that the correct test was not one of difficulty but it was in fact much higher than that. Indeed, the circumstances must be compelling to justify the grant of leave to enter outside the Immigration Rules. The Immigration Judge did not properly identify in what ways there were any compelling circumstances in this case. Indeed, having re-read his decision shortly before I came into court, I could not see that the Immigration Judge set out in his decision the correct test as set out in the recent authorities, to which I was referred by the respondent.

9. The important point Mr Jarvis also made, in the context of this case, was that it was a family visit and it was necessary to look at the requirements of the Immigration Rules before deciding that they did not adequately reflect the need to protect the right to a private or family life under Article 8. He pointed out that, because of the findings, it is not clear whether the judge found that the relevant rule, Rule 41, would have been satisfied. If the appellant’s protected human rights would have been adequately protected by the respondent’s decision if an application were made, provided it were supported by proper evidence, there was no need to resort to article 8. The appellant could make a fresh application. In fact, Mr Jarvis submitted, there is a reasonable prospect that an application under that rule would now succeed.

10. Mr Al Rashid pointed out that the family had effectively been physically expelled from the United Arab Emirates and therefore there was little possibility of any contact taking place between the appellant and his children there. The family were separated but it was clearly in the best interests of the children and in accordance with the requirements of Section 55 of the Borders, Citizenship and Immigration Act 2009 for the appellant to be allowed to visit the UK. For that contact to continue to take place, having regard to the respondent’s responsibility for ensuring that he look account of the best interests of the children, it was necessary for the visit to take place. He accepted that the Immigration Judge found that it was difficult for contact to take place in Macedonia but he did not accept the Immigration Judge made no adequate finding in that respect. The Immigration Judge clearly pointed out there were significant problems flowing from the fact that the family were separated and living in different parts of the globe.

Conclusions – error of law

11. As Mr Al Rashid has acknowledged, the Immigration Judge appears to have treated the case as one of difficulty, rather than “compelling circumstances”. I accept Mr Jarvis’s submission, having re—read the case of Kaur, that “compelling circumstances” must be shown before a departure from the Immigration Rules would be justified. Article 8 of the ECHR does not give a freestanding discretion to a court or tribunal to allow an appeal because it appears desirable to do so. It is necessary to look at the framework within which the Immigration Rules were drafted. Parliament clearly intended there to be set a reasonably demanding threshold to be overcome before leave to enter must be given, and did not anticipate that in cases where the Immigration Rules were not met an applicant could circumvent those requirements by making an application under article 8 of the ECHR.

12. I therefore find it was a material error of law for the Immigration Judge to have found the respondent’ s decision to have been a “disproportionate” one. Visits between father and children were desirable and in the best interests of the child dependents. Their welfare was a primary consideration under section 55 of the Borders Citizenship and Immigration Act 2009. Nevertheless, the difficulties in continuing promoting contact between the appellant and his children were not compelling circumstances justifying a departure from complying with the requirements of the Immigration Rules. I Indeed, it is not clear that the appellant here would not be able to satisfy the requirements of the Immigration Rules if he now made an appropriate application, given the findings of fact made by the FTT. For these reasons, I find that the Immigration Judge erred in law in deciding the appellant qualified under article 8 of the ECHR and I have therefore decided to set-aside his decision.

Disposal

13. Both parties agreed that the findings of fact made by the FTT are sound and there is no requirement on me to make any fresh findings. Having regard to the fact that the appellant does have the option of making a fresh application supported, no doubt, by payment of a fresh fee, I take the view that this would be the appropriate course for him to take. Having found a material error of law I set aside the decision of the FTT. This is not a case where, based on the evidence, I would be able to find that the appeal against the respondent’s decision should be allowed on a “freestanding” article 8 basis, for the reasons given above. However, it is clear to me that an application under the Immigration Rules would now have a reasonable prospect of success. That is the course that I recommend that the appellant should take.

Decision

14. The decision to refuse leave to enter in this case was justified in the sense that there was no human rights ground on which it can be impugned. My decision today is that the appeal of the respondent against the decision of the FTT is allowed.

15. I remake the decision, which is to dismiss the appellant’s appeal against the ECO’s decision on human rights grounds but I add the postscript that if a fresh application is made it seems to me that it probably ought to be successful.

No anonymity direction is made.

Signed Date 18 April 2017

Deputy Upper Tribunal Judge Hanbury

TO THE RESPONDENT
FEE AWARD

The appellant’s appeal has not been successful and I therefore make no fee award in this case.

Signed Date 18 April 2017

Deputy Upper Tribunal Judge Hanbury