Tribunal decisions

The decision

IAC-AH-VP-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: VA/02534/2015
VA/02535/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 17th January 2017
On 7 February 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE MAHMOOD

Between

ENTRY CLEARANCE OFFICER-NEW DELHI
Appellant
and

ms rabya begum
mISs roshima begum
(anonymity direction NOT MADE)
Respondents

Representation:
For the Respondents: Mr Mohammed Hasan, Solicitor
For the Appellant: Ms Julie Isherwood, Senior Presenting Officer

DECISION ON ERROR OF LAW
1. The Appellant in this case is the Entry Clearance Officer but for ease I shall continue to refer to Ms Rabya Begum and Miss Roshima Begum as the Appellants. The Appellant's appeal against the Entry Clearance Officer's decision to refuse entry clearance was heard by First-tier Tribunal Judge Macintosh at Taylor House on 29th July 2016. The judge had said he was allowing the appeal both under the Immigration Rules and pursuant to Article 8 of the European Convention on Human Rights. The Entry Clearance Officer had sought permission to appeal against that decision by way of grounds which in summary stated,
"The appeal is restricted to residual grounds contained in Section 84(1)(b) and (c) of the 2002 Nationality, Immigration and Asylum Act on 25th June 2013 Section 52 of the Crime and Courts Act was commenced. This restricted the appeal rights for visitors coming to visit family members in the UK. The restrictions apply to any application made on or after 25th June 2013. The instant application was made on 9th March 2015".
The Entry Clearance Officer's grounds had stated that there was a material misdirection of law. That was said to be because the judge had allowed the appeal under the Immigration Rules but he had no jurisdiction to do so. In respect of human rights grounds it was contended:
"It is established case law that family life within the meaning of Article 8 will not normally exist between adult siblings, parents and adult children. If family life does not exist then generally Article 8 will not be engaged. An application to come to the UK as a visitor is a temporary visit of limited duration and the requirements that need to be met to qualify under the Rules are necessary for legitimate aims and are proportionate".
2. During her submissions to me today Ms Isherwood said there was a material error of law and she referred to various parts of the judge's decision. For example, to paragraph 18 where the judge had said, "In reaching my decision I have taken into account all the available information in the appeal file the evidence from the Sponsor and the submission from the respective representatives". She referred to paragraph 21 "I find that these factors are strong valid indicators of the fact that the Appellant shall return to Bangladesh at the end of their stay in the United Kingdom in accordance with the Immigration Rules. The judge referred at paragraph 23 to Article 8 and at 24 the factual matrix was as follows. The Sponsor is the first Appellant's eldest son. She relies upon him to remain in regular contact with her and he provides her with financial support. His daily telephone contact is to ensure that she is taking her daily medication and to reassure her that he was well. There is clearly a close bond between the Appellant and her Sponsor although she is able to travel to Bangladesh on occasions he is unable to do so on a regular basis because he is self-employed and with anyone who is self-employed is unable to receive payment whilst on vacation and does not receive holiday pay. I was taken to the Upper Tribunal's decision in Adjei (Visit visas - Article 8) [2005] UKUT 261 (IAC), and also to the Upper Tribunal's decision in Pritam Kaur (Visit appeals; Article 8) [2015] UKUT 487 (IAC). In short Ms Isherwood said she submitted on behalf of the Entry Clearance Officer that the judge has taken an impermissible approach by dealing with the Immigration Rules aspect of the appeal and then insofar as Article 8 is concerned was to come to a leap in terms of what the options were in terms of the necessary requirements which had to be met.
3. During his submissions Mr Hasan said that in fact I needed to take into account that there was a further case not just Adjei and Kaur but also the decision in Mostafa and, I can summarise his submission, there appeared to be a conflict insofar as the authorities were concerned but that he was content to rely on the decision in Pritam Kaur for the way in which this was to be resolved. He said the starting point must be the ability to meet the requirements in respect of entry clearance that judges are not restricted to consider only Article 8. A starting point is whether or not applicants meet the visit visa Rules. It was not in dispute he said that the appeal had limited rights of appeal.
4. He referred to paragraphs 12 and 15 of Kaur and that he took me to paragraph 28 and 31 of Kaur. Additionally he took me to paragraph 38 and at my invitation Mr Hasan also dealt with paragraph 39 of the decision in Kaur.
5. Mr Hasan said that these two Appellants had been granted visit visas and there was no issue in terms of an ability to maintain, that I should look at paragraphs 24 and 25 of the judge's decision and that in terms of the dependency it was recorded there was financial dependency. He said the matters were beyond normal emotional ties and that the way in which the Entry Clearance Officer's refusal letter had looked at the matter was more like an adult dependent relative case. However, the Appellant's had only made an application to come to the UK as visitors. He said that there was no material error of law.
6. Ms Isherwood in reply said she acknowledged that there had been previous visit visas but that was before the new restrictive rights of appeal were introduced and that in any event I should look at paragraph 39 of the decision in Kaur but even if one meets the Immigration Rules Article 8 may not be sufficient.
Decision on Error of Law
7. I find that there is a material error of law in the judge's decision. In my judgment the submissions on behalf of the Entry Clearance Officer are correct. The judge has taken an impermissible approach in relation to the way in which he dealt with the Immigration Rules. He sought to allow the appeal under the Immigration Rules when there was no basis or jurisdiction to enable him to do so.
8. Then when he considered Article 8 he did so in a wholly inadequate way. His reasoning at paragraph 25 was insufficient and erroneous in law when he referred to, "? a degree of interference with the Appellant's family life in that if she is unable to travel to see and be with her Sponsor, the frequency of which they would be able to have face to face contact shall be much reduced. I find that Article 8 is engaged. I consider the interference is not in accordance with the law as the Appellants meet the requirements of paragraph 41 of the Immigration Rules. The issue as to proportionality is whether the interference is necessary for the economic wellbeing of the country. I find the decision is disproportionate given that the Appellants are able to meet the financial requirements".
9. That is because the Upper Tribunal in Pritam Kaur made it quite clear at paragraph 49 "We bear in mind 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 ?". It is not clear as to whether the judge had this in mind at all. In any event the Upper Tribunal in Kaur said at paragraph 41 "Regrettably we are wholly unpersuaded however that the decision lacked proportionality. Like the ECO we consider that the Claimant had not shown she met the requirements of paragraph 41 to show that she intended only a genuine visit". In my judgment, the way in which the judge dealt with proportionality in the very brief way that he did at paragraph 25 despite having previously having dealt with the Immigration Rules shows that there was a material error of law. The judge needed to set out in some detail what the basis for the finding of the family life was, what the basis of the dependency was and why for example paragraph 39 of the decision in Kaur could be found in favour of the Appellant.
10. It is unfortunate that I have come to this decision because I know the Sponsor has attended the hearing today. He has heard me give this judgment and I know that he and the Appellants will have been waiting for some time for the appeal to be finally concluded. I am sure they will be disappointed with the result which has followed but in my judgment, it is quite clear that there has been a failure to apply the case law. It may well be that Appellants consider that having visited the United Kingdom in the past then then the previous rules ought to have applied, but as Ms Isherwood pointed out, that the new regime applied and therefore the judge erred in his approach to the case.
11. I have considered whether this is a case which should continue to be heard at the Upper Tribunal but having done so, in my judgment the matter ought to return to the First-tier Tribunal for a further hearing. The favourable findings which have been made by the First-tier Tribunal Judge shall remain. It will give the Appellants an opportunity, if they seek to take it up, to put forward further evidence in relation to matters which go to the required Kugathas standard.
Directions
The matter is remitted to the First-tier Tribunal for rehearing. The previous favourable findings of the Judge shall stand. The First-tier Tribunal shall deal with any further directions.

Notice of Decision
The Entry Clearance Officer's appeal is allowed. The First-tier Tribunal Judge's decision which had sought to allow the appeal based on the Immigration Rules and Article 8 is therefore set aside.
The matter is remitted to the First-tier Tribunal for rehearing.
No anonymity direction is made.

Signed Date

Deputy Upper Tribunal Judge Mahmood

TO THE ENTRY CLEARANCE OFFICER
FEE AWARD
I have dismissed the Appellants' appeals and therefore there can be no fee award.

Signed Date

Deputy Upper Tribunal Judge Mahmood