Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: VA/02632/2015
VA/02633/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 2 February 2017
On 27 February 2017

Before

UPPER TRIBUNAL JUDGE JORDAN

Between

The Entry Clearance Officer, Abu Dhabi
Appellant
and

(1) Mrs Mukhtaran Bibi
(2) Ms Sarafeen
Respondents

Representation:
For the appellant: Mr S. Walker, Home Office Presenting Officer
For the respondents: Mr Q.S. Anisuddin of SZ Solicitors

DECISION AND REASONS

1. The Entry Clearance Officer appeals against the determination of First-tier Tribunal Judge Cockrill promulgated on 11 August 2016 allowing the appeal of Mrs Bibi and her daughter against the twin decisions made on 25 March 2015 (now some 2 years ago) refusing them entry clearance to the United Kingdom in order to enjoy a short visit to one of Mrs Bibi's daughters. I shall refer to Mrs Bibi as the appellant or the first appellant as she was before the First-tier Tribunal.

2. The first appellant has a given date of birth as 1 January 1940. She was 75 years old when she applied to the Entry Clearance Officer in Abu Dhabi for entry clearance as a visitor. Her daughter has a given date of birth of 1 January 1972. The daughter is deaf and dumb, raising particular difficulties in any form of communication by electronic means. Both intended to visit the first appellant's daughter (the second appellant's sister) who lives in Aldershot and is the manager of a care home.

3. In the course of consideration of the application the Entry Clearance Officer attempted to contact the sponsor to verify her circumstances. He made three attempts to do so but, unsurprisingly as the sponsor was at work, he was not able to make contact. He refused the application for that reason. He said:

I do not consider it unreasonable to expect the sponsor to answer some questions in relation to their support for your UK visa application, particularly if they have signed a sponsorship declaration stating that they are meeting the travel, maintenance and accommodation costs for your visit. We have therefore been unable to verify her support for UK visa application. This further causes me to doubt your intentions and taking this into account I am not satisfied that you have adequately demonstrated your sponsor's intentions to meet the maintenance and accommodation requirements for your visit.

4. The other reasons for refusal flowed from or were influenced by this reasoning.

5. The sponsor was out or at work when the calls were made. It follows that because the sponsor was absent when the Entry Clearance Officer telephoned, the Entry Clearance Officer concluded the appellants had failed to meet the requirements for entry clearance.

6. At the hearing of the appeal the sponsor gave evidence. The First-tier Tribunal Judge accepted her evidence that the Entry Clearance Officer left only one message as a result of the three telephone calls and, unfortunately, left no telephone number for her to return the call. The Judge concluded:

I accept that was indeed the factual position. I accept specifically that the sponsor is working as a care home manager and her assessment was that in all likelihood she was out at work at the time and I accept that description.

7. The Judge rightly concluded that it was only because of that failure to get through to the sponsor that the entry officer concluded there would not be adequate maintenance and accommodation. Having heard the evidence which he described as 'ample' he was satisfied the sponsor had sufficient means to support both her mother and her sister and that there was adequate accommodation. He also found that the sponsor and her two sisters in Belgium are supporting their mother.

8. These findings are more than sufficient to establish that the applicants met the requirements for entry clearance as visitors in accordance with the Immigration Rules as they then applied. Furthermore, I am satisfied that it was unfair for the Entry Clearance Officer to reach a decision in which he made adverse findings against the appellants' intentions by reason only of the sponsor not being present in the house at the time the calls were made. It would have been a simple matter for the Entry Clearance Officer to have left a telephone number at which he could have been contacted. I use the term 'unfair' advisedly. In legal parlance, the approach was irrational in the sense that it was unlawful and this is what I mean by unfair but 'irrational' seems to be a pejorative word to adopt when I am speaking of an Entry Clearance Officer who was attempting to do his best.

9. For these reasons had I been dealing with this case as a statutory appeal I would undoubtedly have determined the appeal in favour of the appellant. The decision was an unlawful one and was not made in accordance with the law. In any event the decision was factually incorrect as the First-tier Tribunal Judge was satisfied that the requirements for entry clearance had been met.

10. There is no difficulty at all in making those findings. The difficulty arises in how those findings of fact (which I am satisfied had to be made in order to ascertain the public interest in a proportionality balance) should be factored into a decision that is exclusively directed towards whether the decision represents a violation of the applicants' human rights.

11. I am also satisfied that it was a decision that would have been susceptible to judicial review. I am further satisfied that it was open to the appellants to make a fresh application for entry clearance which, on the material before the Judge, would have resulted in establishing the grounds for entry clearance. That would have been a far cheaper process than the process of appeal. It would have been resolved in a matter of weeks. Furthermore, I find it difficult to see how the Human Rights Act is engaged (where it is predicated upon a violation of an individual's human rights) by the making of a poor decision when the overall process makes available to the appellants a simple remedy of making a fresh application. I would not readily infer that it is a breach of my human rights when, in error, Barclaycard refuses to allow me the cash to fund a visit with my family to the Tower of London. Arguably, the difference between the instant appeal and this is not substantial.

12. The Tribunal has made a number of decisions on the relationship between the non-existent statutory appeal and an appeal expressed in terms that the decision violates the appellant's human rights. They begin with a case of Mostafa [2015] UKUT 112 (IAC), (McCloskey J, the President and Upper Tribunal Judge Perkins). They continue with the decision of Upper Tribunal Judge Southern in Adjei [2015] UKUT 261 (IAC) and conclude with Kaur (visit visa appeals; Article 8) [2015] UKUT 487 (IAC) where the panel was made up of Deputy Upper Tribunal Judges Storey and Bagral.

13. In Kaur, the panel decided the claimant had established the ties that she enjoyed with the sponsor's son and his family constituted a protected family life within Article 8 (1). It noted that visitor appeals involving close relatives such as a married couple were identified as the paradigm Article 8 (1) example, but the Tribunal in Mostafa did not rule out other cases. In paragraph 38 of the determination in Kaur the panel, relying upon well-established authorities, concluded that the ties between a parent and adult children or between a grandparent and children will not as a rule constitute protected family life unless there is a dependency over and above normal emotional ties. Nevertheless, it accepted that, even though not financially dependent on her sponsor's son, the claimant enjoyed ties with him and his family that went beyond the normal emotional ties between an elderly mother/grandmother and her sponsor's son/grandchildren. Consequently, the possibility of establishing a protected family life was a matter open to the First-tier Tribunal Judge. The panel in Kaur was readily able to accept that the Entry Clearance Officer's decision was an interference. It concluded, however that the decision which caused the interference was proportionate because the applicant had failed to establish the requirements of the Immigration Rules were met; in particular, the crucial requirement in paragraph 41 that the appellant intended a genuine visit. These circumstances do not arise in the instant appeal.

14. Provided the Human Rights Act is engaged at all, there is no public interest in refusing the appellants entry clearance given the requirements of Rules have been met. Absent a public interest against refusal, there is nothing to act as a counterweight in the proportionality balance. Unlike the case of Kaur where it was decided that in order to succeed in the claim outside the Rules, a claimant had to show a particularly pressing need so as to give rise to compelling circumstances justifying a departure from the Rules, no such departure is required in the current appeal. Further, there is no public interest in seeking to prevent entry clearance when the reasons in support of the decision are themselves unlawful. It is true that the sponsor can herself travel to Pakistan (a country which she has visited periodically, the last as recently as September 2015) but that is not determinative.

15. Accordingly, the only issue is whether it was open to the First-tier Tribunal Judge to conclude that Article 8 was engaged at all. It is not necessary for me to be satisfied that Article 8 was engaged in this appeal (and it is preferable that I offer no view) but I am satisfied that it was open to the First-tier Tribunal Judge to conclude on the evidence before him that it was. In particular, he regarded the decision as disproportionate because the second appellant was deaf and dumb. One of the consequences of this state of affairs, he recorded, was that she was likely to value face-to-face contact very much more. The quality of contact, he concluded, was significantly enhanced over that capable by the use of electronic means. He concluded, rather touchingly, that the daughter can use her other senses; touch, sight and smell and in that way appreciate how her sister was living fully in the United Kingdom. For these reasons, I am satisfied that it was open to the Judge to conclude that Article 8 was engaged by reason of the particular circumstances of this appeal.

16. I question the impact this decision ultimately makes. No directions were made for entry clearance. Given that the application was made in 2015, it is inevitable that it will have to be reassessed when the appellants apply for entry clearance on the strength of this determination. It follows that the Entry Clearance Officer will have a further opportunity of considering the application. The sponsor must make plain to the Entry Clearance Officer how she can be contacted and can provide the material necessary to establish that the factual situation outlined to the Judge in August 2016 (and found by him to be true) continues to prevail. The Entry Clearance Officer will be bound to consider that material. He will also be guided by the lawful findings of fact made by the First-tier Tribunal Judge and should only depart from them with care. Accordingly, whether the appeal is allowed as I do or dismissed (and a further application made), the Entry Clearance Officer will have an opportunity of contacting the sponsor if this is necessary. The outcome is not dissimilar to the position that would have prevailed had the Entry Clearance Officer being required pursuant to proceedings for judicial review to make a fresh and lawful decision.

DECISION

(i) I dismiss the appeal of the Entry Clearance Officer to the Upper Tribunal.
(ii) The Judge made no error on a point of law and the original determination of the appeal shall stand.

ANDREW JORDAN
JUDGE OF THE UPPER TRIBUNAL
3 February 2017