Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: VA/02842/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 24th March 2017
07th April 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE ZUCKER

Between

ENTRY CLEARANCE OFFICER (NEW DELHI)
Appellant
and

mrs monowara begum
(ANONYMITY DIRECTION not made)
Respondent

Representation:
For the Appellant: Mr S Kotas, Senior Home Office Presenting Officer
For the Respondent: Mr M K Mustafa of Kalam Solicitors

DECISION AND REASONS
1. Mrs Begum is a citizen of Bangladesh whose date of birth is recorded as 5th May 1945. She made application for entry clearance to the United Kingdom as a visitor in order that she might visit her son, daughter and grandchildren in Birmingham.
2. On 12th March 2015, a decision was made to refuse the application. The primary reason given by the Entry Clearance Officer was a concern that the application was not being made for a genuine purpose having regard to paragraph 41 of the Immigration Rules HC 395 (as amended) [family visit] but rather for the purpose of seeking medical treatment.
3. Mrs Begum appealed on human rights grounds; that being the only basis upon which she was able so to do. The Entry Clearance Manager reviewed the case and raised the issue of whether there was any family life at all worthy of respect on the facts of this particular case.
4. On 3rd August 2016, the appeal was heard by Judge of the First-tier Tribunal Blake sitting at Taylor House. Judge Blake made some important findings. He found that the Sponsor was an honest and credible witness and importantly also, at paragraph 42, found that the application fell within the Immigration Rules under paragraph 41, in other words were this an appeal under the old regime, which had allowed appeals to be brought under the rules, rather than only on limited bases, he would have allowed the appeal.
5. Significantly, contrary to the concern of the Entry Clearance Officer, there is a positive finding by the judge that this was a genuine application. That is not a finding with which I find it necessary to interfere. It was a finding open to the judge and I say that notwithstanding the grounds to which I now come.
6. Not content with the decision of Judge Blake, by Notice dated 30th September 2016 the Entry Clearance Officer made application for permission to appeal to the Upper Tribunal. At ground 1 the Entry Clearance Officer raises the spectre of dishonesty on the part of the Appellant referring as he does to the case of AA (Nigeria) -v- Secretary of State for the Home Department [2010] EWCA. He does so on the basis that in completing the application form Mrs Begum, or her agent, had not referred to earlier medical treatment: even if Mrs Begum had not been dishonest that did not rule out the possibility of those acting for her being dishonest.
7. Given it is the Entry Clearance Officer who contends for dishonesty, he bears the legal burden of proof. Mrs Begum gave an explanation which was accepted by the judge. The explanation was that whilst in the United Kingdom, on 12 June 2013, she experienced sudden pain. She was taken to hospital; had treatment; was discharged; paid for the treatment; and left the United Kingdom, without overstaying. She had been advised by her agent in those circumstances that it was not necessary for her to make mention in the form of that medical treatment. The Judge clearly accepted that the evidential burden, which was then upon Mrs Begum had been discharged. Following the guidance in the case of Shen (Paper appeals; proving dishonesty) [2014] UKUT 00236 (IAC) the burden shifted back was on the Entry Clearance Officer if the point was to be maintained.
8. In fairness to Mr Kotas though he did not abandon the point he did not pursue it with any real vigour and he was right not to do so.
9. The second ground asserted that there was no established family life in in this case. I was assisted by the guidance in the cases of Adjei (Visit visas-Article 8) [2015] UKUT 261 and Kaur (Visit appeals; Article 8) [2015] UKUT 487. It is clear from the guidance that each case turn on its own facts. However particularly relevant to the facts of the instant appeal is paragraph 39 in the case of Kaur in which the panel said:
“We bear in mind the 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”.
10. On behalf of Mrs Begum, it was suggested that because there was a history of visits to the United Kingdom, there was evidence of something over and above normal emotional ties.
11. I do not agree that that is sufficient but with the same degree of realism with which Mr Kotas did not pursue the first ground, Mr Mustafa recognised that what was fatal in this particular decision was the absence of any finding of family life by Judge Blake in this appeal brought, as it only could be, on human rights grounds. Absent family life then the matter goes no further.
12. There is in my judgment no sufficient evidence upon which anything over and above normal emotional ties can be inferred from the Decision and Reasons. In those circumstances, I find a material error of law such that the decision is to be set aside to be remade.
13. I have already stressed that the judge at first instance found that this was a genuine application and that the relevant parties to the application had been honest with the Entry Clearance Officer not producing sufficient evidence to rebut that. If he wished to maintain there was dishonesty the burden was upon her. It follows that if Mrs Begum makes further application such should be considered on its merits having regard to the circumstances prevailing at the time of the application. It should not be held against her that there was any attempt to deceive because that matter has clearly been resolved in favour of Mrs Begum by Judge Blake (a finding in respect of which, I have already said would not justify being interfered with). This Decision, by me was given in the presence of the parties and Mr Kotas was content for me to make that observation.

Notice of Decision

The appeal to the Upper Tribunal is allowed. The decision of the First-tier Tribunal contained a material error of law and is set aside. The decision is remade such that the decision of the First-tier Tribunal is set aside.

No anonymity direction is made.

Signed Date: 24 March 2017

Judge Zucker
Deputy Judge of the Upper Tribunal