Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: VA/02745/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 17 November 2016
On 22 December 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE BAGRAL

Between

ENTRY CLEARANCE OFFICER - PRETORIA
(ANONYMITY DIRECTION NOT MADE)
Respondent
And

KRISHNAVELLI SIGAMONEY
Claimant

Representation:
For the Respondent: Mr S Walker, Home Office Presenting Officer
For the Claimant: Ms P Yong, of Counsel, instructed by Davies, Blunden & Evans

DECISION AND REASONS

Background

1. The claimant, a national of South Africa, born on 15 October 1975, applied for leave to enter the United Kingdom as a family visitor to come and see her partner Mr Alan Caulfield (hereafter "the sponsor").

2. The Respondent refused entry clearance to the claimant by a decision made on 26 March 2015, with reference to paragraph 41 (i) and (ii) of the Immigration Rules. The Notice of Decision informed the claimant that her right of appeal was limited to the grounds identified in s.84(1)(c) of the Nationality, Immigration and Asylum Act 2002. She appealed that decision to the First-tier Tribunal.

3. The grounds of appeal made no reference to unlawful discrimination, but they can and should be read as asserting that the decision was unlawful under s.6 of the Human Rights Act 1998. The Entry Clearance Manager reviewed the decision to refuse entry clearance on that basis on 20 October 2015, but chose to uphold it.

4. The claimant's appeal against the refusal was allowed in a decision promulgated on 8 July 2016 by First-tier Tribunal Judge Anstis.

5. On 21 October 2016, First-tier Tribunal Judge Holmes granted the Respondent permission to appeal.

6. Thus the matter comes before me to decide whether the Judge erred in law. In this regard it was the submission of Mr Walker that the Judge erred in concluding that Article 8 was engaged and failed to consider whether the relationship could continue in South Africa. Ms Yong essentially submitted that any error(s) were immaterial, and that, the Judge's findings were open to him on the evidence by reference to the decisions in Mostafa (Article 8 in entry clearance) [2015] UKUT 112 and Kaur (visit appeals; Article 8) [2015] UKUT 487.

7. Mr Walker made no reply.

Decision on Error of law

8. While the Judge's decision could have been more comprehensive, I am satisfied that the findings made were open to him on the evidence.

9. The claimant and sponsor are unmarried partners. They have been in a relationship since 2008 and they married in a customary ceremony in March 2009. The claimant has since visited the sponsor in the UK on twelve occasions, through which, she has developed her relationship with the sponsor and in turn his children. Whilst the sponsor has also spent time living with the claimant in South Africa, it is through the claimant's visits to the United Kingdom, that the sponsor has been able to forge closer bonds with his children. The Judge heard the sponsor attest to that background and considered the various documents relating to the claimant's links with South Africa.

10. The Judge then considered the relevant principles and authorities relating to Article 8. The Judge recognised that the first question that must be answered was whether Article 8 was engaged. The Judge accepted the sponsor's evidence, which was not in dispute, about the nature of his relationship with the claimant and thus concluded that the Respondent's decision interfered with their right to respect for family life. The Judge set out the applicable sub-paragraphs of the relevant Immigration Rules, paragraph 41, and concluded that the Rules were met [32].
11. At paragraph 38 the Judge found that the refusal of entry clearance was not proportionate under Article 8. In his reasoning he noted that the assessment of whether the decision under appeal was proportionate may depend particularly upon whether or not the claimant met the requirements of the Immigration Rules.
12. The judge also considered the various factors identified in section 117B of the 2002 Act. Having regard to all these factors, and approaching the evidence holistically, the Judge was of the view that proportionality fell in favour of the claimant.
13. The Entry Clearance Officer sought to appeal on the basis that the Judge made a material misdirection of law and gave inadequate reasons. Mr Walker argued briefly that the Judge was not entitled to find that Article 8 was engaged and that the proportionality assessment was inadequate.
14. I have into account the authority of Mostafa (supra) and Kaur (supra). I am satisfied that upon a proper application of the principles enunciated therein that the judge reached a sustainable decision. Whilst the claimant and sponsor are unmarried partners it was apparent from the evidence that they shared a close relationship akin to that of husband and wife. That relationship had developed in part through the claimant's visits to the UK which, in turn, allowed her to establish relationships with the sponsor's children. In Mostafa a Presidential panel of the Tribunal said this at [16]:
"Mr Jarvis could not argue against the suggestion that excluding the claimant interfered with his and his wife's right to respect for family life. We regard it as settled law that in an Article 8 balancing exercise the rights of all those closely affected, not only those of the claimant, have to be considered. It is our view that the decision in Shamin Box [2002] UKIAT 02212 is to be followed and that the obligation imposed by Article 8 is to promote the family life of those affected by the decision. Undoubtedly the paradigm Article 8 entry clearance case concerns applicants seeking to join close family members for the purposes of settlement. However it cannot be excluded that where one party to a marriage is entitled to be in the United Kingdom a qualified obligation to facilitate spousal unification for the limited purpose of a short visit and sojourn may arise and does arise here. Mrs El-Sheikh wanted to return to her country of nationality (the United Kingdom) for a time and her husband wanted to be with her, not with a view to settlement but so that he could share her life and relationships in the United Kingdom. The refusal decision had a material impact on their right to enjoy family life. He did not want to settle but to visit her, and subject to permissible qualifications, he should be entitled to do that. Whilst it would almost certainly be proportionate to refuse him entry clearance if he did not comply with the rules his, and his wife's, desire to be together in her home area, albeit for purposes of a visit, are very human and understandable. Preventing that would not be a "technical or inconsequential interference" (see Sedley LJ in VW (Uganda) [2009] EWCA Civ 5) and should be permitted, subject to the proportionate requirements of immigration control."
15. In view of that guidance I am entirely satisfied that the Judge was entitled to find on the evidence that not only was there family life but that the refusal of entry clearance constitutes a breach with that family life.
16. The Judge went on to consider whether the breach was lawful and then considered whether the refusal was proportionate in all the circumstances. In considering proportionality the Judge specifically found that the claimant had met all the requirements of the Immigration Rules. The judge gave sustainable reasons for his conclusion that the claimant only intended to enter the United Kingdom as a visitor, having regard to the substantial links that she maintained with South Africa.
17. Having thus found that the Immigration Rules were met the judge went on to consider the relevant factors in section 117B of the 2002 Act. The Judge was clearly aware of the significance of the public interest at [35]-[38], and gave appropriate weight to those factors and, noting that the requirements of the Immigration Rules were met, concluded that the decision to refuse entry clearance was disproportionate. This was a decision that was open to the Judge on the evidence before him and for the reasons that he gave. In these circumstances I can identify no material error of law and I dismiss the Entry Clearance Officer's appeal and uphold the initial decision by the First-tier Tribunal.

Notice of Decision
The decision of the First-tier Tribunal contained no error of law.
The decision of the First-tier Tribunal allowing the appeal stands.
No anonymity direction is made.

Signed Date 22/12/2017

Deputy Upper Tribunal Judge Bagral