Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: VA/03007/2015
VA/03008/2015

THE IMMIGRATION ACTS

Heard at Centre City Tower Birmingham
Decision & Reasons Promulgated
On 6th September 2016
On 16th September 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE M A HALL

Between

THE ENTRY CLEARANCE OFFICER - ABU DHABI
Appellant

and

TARIQ AHMED
BUSHRA TARIQ
(ANONYMITY DIRECTION NOT MADE)
Respondents

Representation:

For the Appellant: Mr P Duffy, Senior Home Office Presenting Officer
For the Respondents: No representation

DECISION AND REASONS

Introduction and Background
1. The Entry Clearance Officer (the ECO) appeals against a decision of Judge Hawden-Beal of the First-tier Tribunal (the FtT) promulgated on 10th May 2016.
2. The Respondents before the Upper Tribunal were the Appellants before the FtT and I will refer to them as the Claimants.
3. The Claimants are husband and wife, and are citizens of Pakistan born 25th August 1963 and 4th April 1974 respectively. They applied for entry clearance to the United Kingdom to visit family members and to mourn and participate in prayers following the death of their grandfather in the United Kingdom who passed away on 8th November 2014.
4. The applications were refused on 11th December 2014 with reference to paragraph 41(i), (ii), and (vi) of the Immigration Rules, the ECO not being satisfied that the Claimants intended a genuine visit to the United Kingdom, nor that they would leave at the conclusion of the visit, and not being satisfied that adequate maintenance and accommodation would be available.
5. The Claimants appealed to the FtT relying upon Article 8 of the 1950 European Convention on Human Rights (the 1950 Convention), although it was also contended that they satisfied the requirements of the Immigration Rules.
6. The FtT decided the appeals together, on the papers, without an oral hearing, as requested by the Claimants. The ECO did not object to this.
7. The FtT observed that the Claimants had a limited right of appeal and the task of the FtT was to decide whether refusal of entry clearance was unlawful under section 6 of The Human Rights Act 1998.
8. The FtT referred to the Upper Tribunal decisions Mostafa [2015] UKUT 00112 (IAC), Adjei [2015] UKUT 0261 (IAC), and Abbasi [2015] UKUT 00463 (IAC). The FtT found the facts of these appeals, were similar to those in Abbasi and therefore found that Article 8 was engaged. The FtT went on to find that the decisions of the ECO interfered with the Claimants' protected rights under Article 8, and that the decisions were disproportionate. Therefore the appeals were allowed with reference to Article 8 of the 1950 Convention.
9. The ECO applied for permission to appeal to the Upper Tribunal. It was submitted that the FtT erred in law in finding that Article 8 was engaged. It was contended that the FtT had erred by finding that refusal of entry clearance as a visitor was an interference with Article 8 in a case where there is no family life.
10. The ECO submitted that there is no right to enter the UK for the purposes of visiting extended family members, and the FtT made no finding that either family or private life was engaged.
11. The ECO referred to Abbasi contending that the cases analysed by the Upper Tribunal in that decision concerned the family/private life of those already in the contracting State and in the present appeals, there was no finding of interference in the private life of those in the contracting State. The ECO referred to SS (Malaysia) [2004] UKIAT 00091 as authority for the proposition that private as distinct from family life is not a basis upon which an ECHR right of entry can be based.
12. Permission to appeal was granted by Designated Judge Murray in the following terms;
3. The judge refers to the case of Abbasi [2015] UKUT 00463 in his decision. This states that the refusal of a visa to a foreign national for the purpose of mourning with family members for the recent death of a close relative, is capable of constituting a disproportionate interference with the rights of persons concerned under Article 8. But it goes on to state that the question of whether Article 8 applies and if so is breached depends on the facts of the case. The judge here makes no finding that there is family or private life in this case. With regard to private life SS (Malaysia) has to be followed. The judge has not made it clear why the refusal of a visit of a short period would be an interference with Article 8.
13. Directions were issued making provision for there to be a hearing before the Upper Tribunal to decide whether the FtT decision contained an error of law such that it should be set aside.
The Upper Tribunal Hearing
14. There was no attendance by or on behalf of the Claimants. I was satisfied that proper notice of the hearing had been given and having considered rule 38 of the Tribunal Procedure (Upper Tribunal) Rules 2008, was satisfied that it was in the interests of justice to proceed with the hearing. A written response to the grant of permission had been submitted on behalf of the Claimants, and Mr Duffy was provided with a copy. This response contended that the FtT had not erred in law, had made reference to the appropriate case law, and made findings which were open to it to make on the evidence.
15. In making oral submissions Mr Duffy relied upon the grounds contained within the application for permission to appeal. I was asked to accept that Abbasi did not give an automatic right for an individual to be granted entry clearance to attend family prayers or visit the grave of the deceased. I was asked to find that the FtT had given inadequate reasons for its conclusions, and the decision should be set aside and re-made at a further hearing.
16. At the conclusion of oral submissions I reserved my decision.
My Conclusions and Reasons
17. The ECO contends that the FtT materially erred in law by finding that Article 8 was engaged, and failed to give adequate reasons for that finding.
18. The starting point when considering an appeal of this nature is explained in Adjei and for ease of reference I set out below the first paragraph of the head note;
1. The first question to be addressed in an appeal against refusal to grant entry clearance as a visitor where only human rights grounds are available is whether Article 8 of the ECHR is engaged at all. If it is not, which will not infrequently be the case, the Tribunal has no jurisdiction to embark upon an assessment of the decision of the ECO under the rules and should not do so. If Article 8 is engaged, the Tribunal may need to look at the extent to which the Claimant is said to have failed to meet the requirements of the rule because that may inform the proportionality balancing exercise that must follow. Mostafa (Article 8 in entry clearance) [2015] UKUT 112 (IAC) is not authority for any contrary proposition.
19. I set out below Article 8;
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
20. The FtT did not explicitly state that it found that Article 8(1) was engaged and therefore was moving on to consider Article 8(2). Had it done so, there may have been no challenge to the decision.
21. However, I find that reading the decision as a whole, it is clear that the FtT found that Article 8(1) was engaged and gave reasons for this finding. The FtT made specific reference to Abbasi commenting upon the similarities between Abbasi, and the appeals under consideration. In Abbasi two grandsons applied for entry clearance for a period of four weeks to visit their grandfather's grave and mourn with family members. In this case the Claimants are husband and wife whose applications for entry clearance were for the same reasons as those in Abbasi. It has not been disputed that the deceased in these appeals is the grandfather of both Claimants.
22. The decisions to refuse entry clearance were reviewed by an Entry Clearance Manager who accepted that the Claimants "may have a family life with the Sponsor". The Sponsor is Nisar Ahmed who in his witness statement dated 17th March 2016, which was before the FtT, explained that the first Claimant is his wife's brother, and the second Claimant is his sister.
23. The FtT stated at paragraph 11;
"That case is almost on all fours with these appeals. In Abbasi two grandsons applied for entry clearance for a short time to join the family in prayers for the passing of their grandfather. The judgment in Abbasi made it clear that this particular aspect of family and private life is capable of protection under Article 8 and, following Razgar [2004] UKHL 27, the refusal of entry clearance does interfere with their right to respect for their family and private life."
24. I set out below the head note in Abassi;
1. The refusal of a visa to foreign nationals seeking to enter the United Kingdom for a finite period for the purpose of mourning with family members the recent death of a close relative and visiting the grave of the deceased is capable of constituting a disproportionate interference with the rights of the persons concerned under Article 8 ECHR.
2. The question of whether Article 8 applies and, if so, is breached will depend upon the fact-sensitive context of the particular case.
3. The Tribunal should adopt a structured and sequential approach to the Article 8 issues.
25. It is therefore clear that the submission by Mr Duffy that Abbasi does not provide an automatic right to be granted entry clearance is correct, and that each application is fact-sensitive.
26. The FtT recorded the similarities between these appeals and Abbasi, and in my view made no material error of law by finding that Article 8(1) was engaged, and then moving on to consider Article 8(2) and applying the five stage test advocated in Razgar.
27. The challenge by the ECO does not relate to the consideration of Article 8(2) by the FtT. However, for the sake of completeness, I find no error in the consideration of the FtT of Article 8(2). The FtT was clearly aware of the public interest considerations, and found that adequate maintenance and accommodation would be available and that the Claimants were seeking entry clearance for a short period of time for the specific purpose claimed.
28. I conclude that the grounds submitted by the ECO display a disagreement with the conclusions reached by the FtT, but do not disclose a material error of law.
Notice of Decision

The making of the decision of the FtT did not involve the making of an error on a point of law such that the decision must be set aside. I do not set aside the decision and the appeal of the ECO is dismissed.

Anonymity

No anonymity direction was made by the FtT. There has been no request for anonymity made to the Upper Tribunal and no anonymity order is made.

Signed Date: 9th September 2016

Deputy Upper Tribunal Judge M A Hall
TO THE RESPONDENT
FEE AWARD

Because the decision of the FtT stands so does the decision to make a partial fee award.

Signed Date: 9th September 2016

Deputy Upper Tribunal Judge M A Hall