Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: VA/03263/2014

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On 27th September 2016
On 29th September 2016

Before

DEPUTY JUDGE OF THE UPPER TRIBUNAL
GA BLACK

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

MR PARVAIZ IQBAL
(NO ANONYMITY ORDER MADE)
Claimant/Respondent

Representation:
For the Appellant: Mr K Norton (Home Office Presenting Officer)
For the Respondent: Mr Iqbal (Sponsor)

DECISION AND REASONS
1. I shall refer to the parties in this matter as "the Secretary of State", who is the appellant, and to Mr P Iqbal as "the Claimant".
2. The Secretary of State appeals against a decision and reasons by the First-tier Tribunal (Judge Majid) ("FTT") promulgated on 12th April 2016 in which the Claimant's appeal was allowed under the Family visitor Immigration Rules paragraph 41.
FTT decision
3. In the decision and reasons the FTT found that the Claimant was a genuine visitor who wished to come to stay with his brother and other family members and that he intended to return to Pakistan at the end of the visit. The FTT further found that there was evidence to show that the Claimant could afford the visit and was self financing in Pakistan. The Secretary of State does not now seek to challenge those findings.
Grounds of application for permission
4. In grounds of application for permission the Secretary of State argued that the FTT erred in law by allowing the appeal outright under the Rules where there was no statutory right of appeal. The right of appeal in family visit matters was restricted by section 84(1)(c) of the Nationality, Immigration & Asylum Act 2002. There were no grounds of appeal arguing for consideration of Article 8 nor race discrimination and the FTT did not consider the issue. The FTT had no jurisdiction to allow the appeal on the basis that it did.
Permission
5. Permission on all grounds was granted by FTTJ Davidge on 25th August 2016.
Error of law hearing
6. At the error of law hearing the sponsor attended on behalf of the Claimant. As he was not legally represented I explained to him the reasons for the hearing before this Tribunal and the grounds argued by the Secretary of State. He confirmed that he understood the procedure and what was to be considered. He stated that his brother had visited previously and always returned at the end of the visit. I heard submissions from Mr Norton. He provided the sponsor with a copy of Kaur (visit appeals; Article 8) [2015] UKUT 487 (IAC) and the grounds of appeal and in oral submissions expanded on the same.
Discussion and decision
7. I find that there was a material error of law in the FTT decision and reasons. The FTT failed to have regard to the statutory restriction to grounds of appeal under section 84 (as cited above). The FTT treated the appeal as a fact finding exercise with reference to only the Family visit rules under paragraph 41 and allowed the appeal under those rules. There was no consideration given to the scope of the rights of appeal under section 84(1)(c) which limits the right of appeal to matters engaging Article 8 ECHR and/or unlawful by reason of discrimination. As there were no grounds put on this basis the FTT should have gone on to dismiss the appeal for lack of jurisdiction. Accordingly I allow the appeal, I set aside the decision and reasons but I preserve the findings of fact made as set out in paragraph 3 above.
Remaking the decision
8. Following the approach in Kaur (visit appeals; Article 8) [2015] UKUT 487 (IAC) I rely on the findings of fact made by the FTT. I consider if there is a right of appeal under section 84 (1)(c), namely a claim under human rights or unlawful discrimination. On the evidence that was before the FTT I am satisfied that the Claimant has failed to show that there are individual interests at stake covered by Article 8 (SS (Congo) [2015] EWCA Civ 387). The Claimant is the brother of the Sponsor and there was no evidence before the FTT (and none before me) to show that there was any dependency above or beyond the ordinary ties as between adult relations. Therefore Article 8 is not engaged. Similarly there was no ground argued that there had been any discrimination in reaching the decision.
9. I dismiss the appeal as the Claimant has no right of appeal under section 84. However, I am satisfied that the FTT found that the Claimant met the relevant rules under paragraph 41. This was accepted by Mr Norton, who confirmed, that in the event that the Claimant makes a fresh application, and provided that there are no material changes, there is no reason why it should be refused. I agreed and confirmed to the sponsor that a copy of this decision could be added to the Claimant's application if he so wished, making it clear that the FTT found the rules to be met.
Decision
10. There is a material error of law. The decision is set aside save for the findings preserved in paragraph 3 above. I remake the decision and dismiss the appeal.

Signed Date 27.9.2016

GA Black
Deputy Judge of the Upper Tribunal

NO ANONYMITY ORDER

NO FEE AWARD AS I HAVE DISMISSED THE APPEAL.

Signed Date 27.9.2016

GA Black
Deputy Judge of the Upper Tribunal