Tribunal decisions

The decision

IAC-FH-LW-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: VA/02982/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 6 February 2017
On 10 February 2017

Before

UPPER TRIBUNAL JUDGE McWILLIAM

Between

the Secretary of State for the Home Department

Appellant
and

CECILIA ADENIKE FALUSI
(ANONYMITY DIRECTION not made)

Respondent

Representation:

For the Appellant: Mr N Bramble, Home Office Presenting Officer
For the Respondent: In person

DECISION AND REASONS

1. I will refer to the respondent as "the appellant" as she was before the First-tier Tribunal. She is a citizen of Nigeria and her date of birth is 15 September 1952.

2. The appellant made an application for entry clearance to visit her adult children and grandchildren here in the UK and her application was refused by the ECO in a decision of 23 March 2015. The ECO concluded that the appellant was issued with entry clearance to visit the UK as a family visitor on 19 January 2011 for five years. However, the ECO made reference to the appellant having stated in her Visa Application Form that on her last visit to the UK she stayed from 15 February 2014 until 2 December 2014, which was nearly ten months, and for this reason the ECO refused the application under paragraph 320(7B) of the Immigration Rules. The ECO went on to state that the appellant had indicated in the Visa Application Form that she intended to spend fourteen weeks in the UK, but in the light of her recent immigration history the ECO was not satisfied that this was the case and the application was refused under the Immigration Rules with specific reference to paragraph 41(i) and (ii) of HC 395.

3. The appellant appealed against that decision and her appeal was allowed by First-tier Tribunal Judge Devittie following a hearing at Taylor House on 19 July 2016 in a decision that was promulgated on 19 August 2016. Permission has been granted to the Secretary of State by First-tier Tribunal Judge Astle on 3 January 2017, thus the matter came before me today.

4. Judge Devittie had before him an appellant's bundle which contained the appellant's witness statement, the witness statements of her adult daughter (Miss Taiwo Falusi) and her adult son (Mr Kehinde Oladapo Falusi), and in addition Mr Falusi attended the hearing and gave oral evidence. The judge set out the appellant's evidence in her decision, namely that she is a retired Chief Police Superintendent. She retired in 2008 and she has adult children here in the UK and grandchildren. Her first visa was issued in 2004. She last entered the UK on 15 February 2014 and she was stopped and it was alleged that she had fraudulently obtained Nigerian entry stamps and her leave was cancelled. However, the appellant appealed against that decision and her appeal was allowed on 1 October 2014. She remained in the UK pending that appeal and therefore she was not an overstayer. She was here legally.

5. The appellant in her witness statement focuses primarily on the issue of whether or not she had overstayed during the period alleged by the ECO in the decision letter. The appellant's daughter's evidence is that her mother has established a private and family life with her children and grandchildren here. Miss Falusi stated to me today that her mother visits the UK every year and there is no reason to believe that that evidence was not before the First-tier Tribunal. Mr Falusi's evidence was that his mother has a loving and genuine relationship with all her grandchildren and when she comes here she normally stays with her daughter. She has been visiting and spending time with the family here since 2004. Mr Falusi is a British citizen and Miss Falusi is settled here. The appellant has never overstayed and she has always left the UK before the expiry of her visa and that the family here miss her, she is part of the family.

6. In the appellant's bundle there is also a copy of Judge of the First-tier Tribunal Afako's decision which was promulgated on 24 October 2014. The appellant appealed against the decision of the Immigration Officer on 15 February 2014 to cancel her leave and her appeal was allowed.

7. Judge Devittie made the following findings:-

"6. It is not contested that the appellant remained in the UK for a period of 10 months after her entry on a visit visa. It is not contested that her leave as a visitor was curtailed and that she remained in the UK pending the determination of her appeal, after which she left the UK, her appeal having been allowed. I think that there is merit in the contention that the appellant had 3C leave, pending the determination of her appeal. I also take into account that the appellant made no effort in the application that forms the subject of this appeal, to conceal the fact that she remained in the UK for 10 months in order to pursue her appeal.

7. I accept that the refusal of entry clearance to the appellant interferes with her family life and that of her family in the UK. I accept that such interference is in accordance with the law. The appellant has been visiting her family in the UK since 2004, and on no occasion has she breached the conditions of her visa. I accept that in the instant case, she genuinely felt compelled to remain in the UK to pursue her appeal. I do not consider that it would be proper to visit upon her the adverse consequences of the respondent's delay in processing the determining of her appeal.

8. The appellant has been able in the last decade to build a strong bond with her family including grandchildren in the UK. I therefore ask myself whether interference with her family life would be proportionate? I do not consider that there are strong public interest considerations that weigh against the appellant. I am satisfied that to the extent that she overstayed on her last visit this was for the lawful purpose of pursuing her in country right of appeal. I am satisfied too that she intends to leave the UK and that she meets the financial and accommodation requirements.

9. I find that the consequences of depriving the appellant the opportunity to continue to visit her family in the UK as she has done in the past decade are sufficiently grave to outweigh the public interest. I would accordingly allow the human rights appeal."

8. The Secretary of State's grounds of appeal are twofold. The first ground is that the judge has not made a clear finding in relation to whether or not family life exists and/or failed to properly assess proportionality. Mr Bramble indicated that ground 2 was no longer pursued. It asserts that the judge wrongly concluded that the appellant had 3C leave, but Mr Bramble accepted that this was not material because the appellant, under the statutory regime, was entitled to remain in the UK to pursue her appeal and therefore the appeal was properly allowed under paragraph 320. The judge properly considered paragraph 320 of the Immigration Rules insofar as he concluded that there have been no breach of immigration laws and the appellant was lawfully in the UK pending her appeal. The application was refused under para 41 (i) and (ii) on the basis that the appellant had overstayed. There was no issue raised independent of this.

9. I have had regard to the skeleton argument relied upon by the appellant and to the case of Kaur (visit appeals; Article 8) [2015] UKUT 487. What is clear from Judge Devittie's decision is that he does not make a finding in respect of whether or not there is family life that would engage Article 8(1) of the 1950 Convention on human rights and this was a material error of law. I set aside the decision to allow the appeal under Article 8. This was communicated to the parties.

10. I went on to remake the appeal. On the evidence it is unarguable that there was family life that would engage Article 8(1). There was no evidence of dependency over and above normal emotional ties in this case in contrast to that of the appellant in Kaur. In any event, considering proportionality through the lens of section 117B can only result in a decision in favour of the Secretary of State. I have dismissed the appeal under Article 8 and I have no jurisdiction to determine the appeal under the Immigration Rules relating to visit visas.

11. In respect of paragraph 41, the refusal is based on the decision under 320(7B) of the Immigration Rules that the appellant has breached UK immigration laws as a result of overstaying which has now been conceded by Mr Bramble on behalf of the Secretary of State. At the date of the decision the appellant was able to meet the requirements of paragraph 41 and it seems to me that unless there is a change of circumstances between then and any application and decision, it will be very difficult for an Entry Clearance Officer to justify refusal under para 41. I would suggest that if the appellant is to go down the route of making another application, that this decision is put before the Entry Clearance Officer.

Notice of Decision

12. The Secretary of State's application is allowed. The decision of the First-tier Tribunal to allow the appeal is set aside. The appeal is dismissed under Article 8. My decision was communicated to the parties at the hearing.

13. No anonymity direction is made.

Signed Joanna McWilliam Date 9 February 2016

Upper Tribunal Judge McWilliam

TO THE RESPONDENT
FEE AWARD

I have dismissed the appeal and therefore there can be no fee award.

Signed Date

Upper Tribunal Judge McWilliam