Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: VA/02901/2015

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On 17 August 2016
On 25 August 2016

Before

DEPUTY JUDGE OF THE UPPER TRIBUNAL I A M MURRAY

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

MRS REHANA KAUSAR
Respondent

Representation:
For the Appellant: Mr Tarlow, Home Office Presenting Officer
For the Respondent: No-one

DECISION AND REASONS
1. The appellant in these proceedings is the Secretary of State. However, for convenience I shall now refer to the parties as they were before the First-tier Tribunal.
2. The appellant is a citizen of Pakistan born on 28 February 1966. She appealed against the decision of the respondent dated 31 March 2015 refusing to grant her entry clearance to the UK as a visitor under paragraph 41 of the Immigration Rules. The right of appeal is limited to the grounds referred to in section 84(1)(c) - whether the refusal constitutes a breach of the appellant's human rights under the Human Rights Convention. Her appeal was heard by Judge of the First-tier Tribunal Williams on 25 January 2016. The appeal was allowed on human rights grounds in a decision promulgated on 4 February 2016.
3. An application for permission to appeal was lodged. Permission was granted by Judge of the First-tier Tribunal Woodcraft on 19 July 2016. The permission states that the appellant wishes to come to the United Kingdom to participate in prayers for her deceased grandmother but the respondent argues that a private life claim of this kind cannot be made out of country following SS (Malaysia) [2004] UKIAT 0091. One of the grounds of onward appeal is that there is no right to visit extended family members but the permission states that that of itself is not a good argument since the appeal is under Article 8 only, not paragraph 41 of the Immigration Rules. However, it goes on to state that if the appellant cannot bring herself within the paragraph that might affect the proportionality exercise in accordance with existing Article 8 case law. The judge did not consider this.
4. There is a Rule 24 response on file. This states that the permission is void and null because the grounds of application were submitted late and Judge Woodcraft did not grant an extension of time but granted permission to appeal.
5. Reference is made in the response to Antwi and Others v Norway No 26940/10 14 February 2012. The response states that that case should be distinguished from the present case as it concerned a visit to a living grandmother who was unable to travel or fly anywhere and she could not enjoy family and private life in Pakistan. The response states that in the present case the application for entry clearance was made while the appellant's grandmother was gravely ill but she has now died. It states that it stands to reason that the visitation and maintenance of her grave and the act of grieving with others is an intrinsic feature of a civilised society throughout the world and falls into the category of exceptional circumstances for leave to be granted outside the Rules. The response states that Judge Williams clearly explained his findings under Article 8 which led to the appeal being allowed.
The Hearing
6. There was no appearance at the hearing of this appeal on behalf of the appellant. I was able to deal fairly with the hearing based on the submissions of the Presenting Officer and the evidence on file.
7. This is a case where the appellant is out of country so the time limit for the grounds of application to be submitted is 28 days which means the respondent's grounds were not submitted late.
8. The Presenting Officer submitted that he is relying on the grounds of application and submitted that Article 8 has not been dealt with in a proper manner by the judge. I was asked to find that there is a material error in the First-Tier Judge's decision and I was asked to remake the decision and set the First-tier Judge's decision aside.
9. The grounds of application state that the judge misdirected himself in finding the decision of the Entry Clearance Officer, to refuse the appellant entry clearance, constituted an interference of a gravity crossing the minimum threshold for engagement of Article 8 of ECHR. The grounds state that the judge erred in his proposition that the refusal of a visitor's entry clearance to enter the UK for a short period of time was an interference with Article 8 in a case where there is no family life. There is no right to enter the United Kingdom for the purpose of visiting extended family members but in this case only Article 8 is being considered. At paragraph 14 the judge found that he was not satisfied that the appellant has family life in the United Kingdom but at paragraph 16 found that the appellant has a private life with her family in the United Kingdom.
10. The grounds state that the judge erred in his analysis of private life. The refusal of entry clearance in a visit case without anything extra does not constitute an interference with the private life of an appellant and his extended family members. Reference is made in the grounds to the case of Abbasi and Another [2014] UKUT 00463 (IAC) and it is pointed out that there are a number of decisions on burial cases in which Article 8 is engaged, but these concern the family/private life of those already in the contracting state, which is not the case here. The case of SS (Malaysia) [2004] UKIAT 00091 is referred to. This states that private life is not a basis on which an ECHR right of entry can be based, since neither the ECHR nor the 1999 Act can be construed as providing for all those whose private lives are restricted in a signatory or non-signatory country.
11. Although the judge has allowed the appeal, at paragraph 21 of his decision he states "I am satisfied that it would be proportionate to refuse the appeal." When the said case of SS (Malaysia) is followed a private life claim of this kind cannot be made out of country so the findings of the judge were not open to him.
12. Article 8 is not engaged based on the appellant's private life. A refusal of entry clearance to the UK for a short period of time is not an interference with Article 8 in a case where there is no family life. Private life as distinct from family life is not a basis on which an ECHR right of entry can be based.
DECISION
13. There is a material error of law in the First-tier Tribunal Judge's decision. The decision of First-tier Tribunal Judge Williams promulgated on 4 February 2016 must be set aside.
14. The appellant's appeal for entry clearance as a visitor to the UK is dismissed on all grounds.
15. No anonymity direction has been made.

Signed Date 25 August 2016

I A M Murray
Deputy Judge of the Upper Tribunal