Tribunal decisions

The decision

IAC-AH- -V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: VA/03032/2015
VA/03033/2015

THE IMMIGRATION ACTS

Heard at Birmingham ET
Decision & Reasons Promulgated
On 7 February 2017
On 16 March 2017

Before

UPPER TRIBUNAL JUDGE KAMARA

Between

Mr MUHAMMAD IDREES
MRS AMTUL MALIK
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: None
For the Respondent: Mr D Mills, Senior Home Office Presenting Officer

DECISION AND REASONS
Introduction
1. This is an appeal against the decision of First-tier Tribunal Judge AM Black, promulgated on 21 June 2016. Permission to appeal was granted by First-tier Tribunal Judge Martins on 18 October 2016.
Anonymity
2. No direction has been made previously, and there is no reason for one now
Background
3. The appellants sought leave to enter the United Kingdom as family visitors. The date of that application is not apparent from the documents on the file, however the partial visa application form indicates that a two week visit commencing 28 February 2015 was envisaged.
4. The notices of immigration decisions were dated 17 February 2015 and informed the appellants their rights of appeal were limited to the grounds referred to in section 84(1)(c) of the Nationality, Immigration and Asylum Act 2002.
5. The decision in relation to the first appellant concluded that the Entry Clearance Officer (ECO) was not satisfied he was genuinely seeking entry as a visitor for the limited period stated or that he intended to leave the United Kingdom as required by paragraphs 41(i) and (ii) of the Immigration Rules. The reasons provided were that the funds shown in the documents he presented were genuinely available to him or that the balance indicated in his bank statement was an accurate reflection of his usual financial position. It was also noted that there was no evidence of other family members or ties in Pakistan. In addition, it was not accepted that the appellant would be adequately maintained and accommodated in the United Kingdom as required by paragraph 41(vi) of the Rules. It was said that the documents presented did not show that the sponsor, the first appellant’s brother, was in a position to maintain and accommodate him and that several unsuccessful attempts had been made by UKVI to contact the sponsor in order to confirm his sponsorship. The reasons for the refusal of the second appellant’s application were identical.
6. The appellants’ grounds of appeal firstly emphasised that the purpose of the visit was owing to the death of their, mutual, grandmother. Reference was made to a death certificate which was included with the visa applications. With regard to the reasons for refusal, it was contended that their income was apparent from the bank statements provided. An explanation was provided for the deposits made into the appellants’ bank account prior to the application for entry clearance. It was said that the appellants had two dependent children and that the sponsor had not answered his telephone in response to UKVI’s calls because he was driving a taxi at the time. Otherwise, the extent of the appellants’ economic ties to Pakistan were emphasised as was their previous travel to the United Kingdom and elsewhere. Finally, the grounds argued that the relationships between the appellants and their family members in the United Kingdom amounted to family life for the purposes of Article 8 ECHR and requested that their human rights appeal be allowed.
7. An Entry Clearance Manager (ECM) reviewed the grounds of appeal and supporting documents on 27 April 2016 but was satisfied that the original decisions were correct.

The decision of the First-tier Tribunal
8. The appellants elected to have a paper consideration of their appeals under Rule 4(g) of the Tribunal Procedure (First-tier Tribunal) (Immigration & Asylum Chamber) Rules 2014. The judge concluded that there was no family life between the appellants and their United Kingdom sponsor owing to the lack of evidence of dependency between them. Furthermore, the judge found that the appellants’ private and family lives were based in Pakistan.
9. Owing to the limited evidence before her, the judge considered that she was unable to find that the respondent’s decision interfered with their family or private lives.
The grounds of appeal
10. The grounds of appeal in support of this application argued that the judge ought to have considered the decision in Cvetkovs [Visa – no file produced – directions] Latvia [2011] UKUT 00212 and proceeded on the basis that the appeal was not opposed owing to the respondent’s failure to provide a bundle of documents. Secondly, it was said that the visa application form indicated that the visit was for humanitarian reasons and that the death certificate of the grandmother was enclosed. The same was also mentioned in the grounds of appeal and the certificate was reproduced in the appellants' bundle. The issue of the grandmother’s death was said to have been neglected by the judge. Reliance was placed on Abbasi & Anor (visits-bereavement – Article 8) [2015] UKUT 00463 (IAC).
11. Permission to appeal was granted on the basis that all grounds were arguable.
12. The respondent’s Rule 24 response, received on 17 November 2016, indicated that the appeals were opposed; that the First-tier Tribunal Judge directed herself appropriately and that her findings were adequate.
The hearing
13. There was no attendance on behalf of the appellants. The case file showed that notice of the hearing on 7 February 2017 had been sent to the appellants in Pakistan by air mail on 16 December 2016. Furthermore, the said notice was sent to their sponsor, Mr Mohammed Ramzan, to the nominated representative RKS Solicitors as well as to the respondent on the same date. Attempts by my clerk to telephone the sponsor were unsuccessful and when she telephoned RKS Solicitors, she was told that the firm had no record of representing the appellants. I was satisfied that the appellants and sponsor had been informed of the hearing date. I noted that the appellants had requested a paper appeal from the outset and that I could fairly proceed with the matter in these circumstances.
14. Mr Mills firstly addressed the first ground, regarding the apparent lack of an ECO's bundle. He referred me to a received stamp placed by Arnhem House on the front of the ECO's bundle indicating that the First-tier Tribunal received the item on 11 May 2016.
15. Indeed, the aforementioned date stamp was apparent on the ECO's bundle which I located in the IAC case files. Mr Mills argued that it would be unjust for the principle in Cvetkovs to be applied when the issue with the absence of a bundle was with the Tribunal's administration as opposed to any failure by the respondent.
16. Moving onto the second ground of appeal, Mr Mills argued that the "Abassi angle" had not been argued prior to the grounds sent with the application for permission to appeal. The First-tier Tribunal Judge had looked at the relationship between the appellants and their relatives in the United Kingdom and concluded that it did not amount to family life. He contended that at the time the visa application form was completed, the grandmother was still alive because her details were included at part 5 as a person to be visited in the United Kingdom. He argued that the said grandmother passed away at the same time the application was made. In any event, it was never said, either in the application or grounds of appeal that the purpose of the visit was to mourn. Distinguishing this case from that of the appellants in Abbasi, Mr Mills argued that while the details of the purpose of the visit was set out in the application of the appellants in Abbasi, in this case there was no evidence before the judge to show that it was anything more than a visit between adult siblings.
17. At the end of the hearing, I reserved my decision.
Decision on error of law
18. There is no substance to the Cvetkovs point in view of the clear evidence that the respondent served the ECO's bundle on the Tribunal, albeit not in accordance with directions, but around 28 days prior to the judge's consideration of the appeal. There was, therefore, no failure to provide a copy of the application and supporting evidence.
19. I now consider the second ground of appeal, the Abbasi point. Mr Mills argued that the appellants' relative passed away subsequent to the application for entry being made. Looking at the chronology of events, it is clear that this was not the case. The visa application form stated that the appellants intended to visit the United Kingdom for two weeks from 28 February 2015. According to the death certificate, their relative died on 25 January 2015. It is a fact that the late relatives' name is included in the list of relatives whom the appellants planned to visit, however I do not consider that to be an indication that she was still alive. It is apparent from the form that unlike the other relatives listed, the late grandmother had the letters NA written in place of an address and contact number. Furthermore, the sponsor's undertaking dated 15 February 2015 refers to the passing of the grandmother in the first paragraph and this predates the ECO's decisions by two days.
20. The judge made no reference to the death of the grandmother in her findings. The death of the grandmother was mentioned in the form of the provision of the death certificate with the visa application and the mention in the sponsor's undertaking.
21. The fact is that the judge did not have the ECO's bundle at the time of her consideration owing to the Tribunal's administrative failure to attach the bundle to the file. More importantly, the sponsor provided a witness statement dated 26 May 2016 which was before the judge. It is notable that he explains, at length, that the reason for the trip was that the appellants' grandmother had passed away and was buried in the United Kingdom. Furthermore, the sponsor explained that the appellants' sought to visit the sponsor because he was present during the final days of their grandmother and that they wanted to take part in activities which could not be undertaken outside of the United Kingdom such as participation in prayers in the location of the death of the deceased. The sponsor goes onto explain that a funeral is a matter of great importance in family life and there is specific reference to the decision in Abbasi. Given the content of the sponsor's statement, I reject Mr Mills' contention that there was no evidence nor argument before the judge indicating that the purpose of the visit was to mourn. I therefore conclude that the judge materially erred in law in failing to consider the evidence and arguments before her and therefore set her decision aside in its entirety. I now proceed to re-make the decision on the evidence before me.
Remaking
22. I will firstly consider the extent to which the Rules were said to be unmet. As set out above, the ECO raised a series of objections in relation to the appellants’ intentions and the ability of the sponsor to maintain and accommodate them. I consider that the appellants answered those criticisms in more than adequate detail in the grounds of appeal. Essentially, the first appellant is a retired army officer receiving a pension who, with his wife, has visited a number of countries in the past, including the United Kingdom, and returned promptly to Pakistan. The appellants have two dependent daughters residing in Pakistan. The grounds of appeal painstakingly go through the copious financial information before the ECO, drawing attention to the supporting evidence both of funds and circumstances which were considered to be missing.
23. In view of the guidance in Abbasi, I accept that the appellants' intention to visit for the purpose of mourning and prayers amounts to private or family life protected by Article 8 ECHR. Evidently, the ECO's decisions interfere with this aspect of the appellants' private or family lives. In considering the issue of legitimate aim, I have had regard to the public interest in the maintenance of immigration control as well as to the other provisions of section 117B of the Nationality, Immigration and Asylum Act 2002. I have particularly noted that the appellants would be financially dependent on the sponsor. Lastly, I consider the appellants' response to the ECO's concerns as to their intention and note that reliable documentary evidence was provided with the notice of appeal which fully addressed those concerns.
24. Considering the proportionality, of the ECO's decision, and mindful that each case is fact sensitive, the circumstances of this case are on all fours with Abbasi. In the said case, the prevention of a visit to the grandfather's grave and grieving was said to be a "substantial and profound" interference with Article 8 rights."
25. The sponsor spoke not only of the desire to pray and visit the graveside but also of the need of the appellants to visit him, in particular, because he had been present during their grandmother's final days. As stated at [15] of Abbasi; "The visitation and maintenance of the graves of family members and the act of grieving with others, whether ritualistic or otherwise, is an intrinsic feature of civilised society throughout the world." The appellants sought a visit of limited duration, just two weeks, in order to grieve their grandmother in a way which would not be possible from Pakistan. Considering all the circumstances, including that the appellants demonstrated in the grounds of appeal that they were in a position to meet the requirements of the Rules; while giving substantial weight to the public interest, I conclude that the decisions in question amount to a disproportionate interference with the appellants' right to respect for their private and family lives.

Conclusions
The making of the decision of the First-tier Tribunal involved the making of an error on a point of law.
I set aside the decision to be re-made.
I substitute a decision allowing the appeal on human rights grounds.
No application for anonymity was made and I saw no reason to make such a direction.

TO THE RESPONDENT
FEE AWARD
As I have allowed the appeal and because a fee has been paid or is payable, I have considered making a fee award and make a whole fee award of any fee which has been paid or may be payable for the following reason. The evidence before the ECO was sufficient for entry to have been granted for the compassionate reasons raised in the application.

Signed
Date: 10 February 2017

Upper Tribunal Judge Kamara