Tribunal decisions

The decision

IAC-fH-nl-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: va/04358/2014
va/05132/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 2 December 2016
On 4 January 2017

Before

DR H H STOREY
JUDGE OF THE UPPER TRIBUNAL

Between

Secretary of State for the Home Department
Appellant
and

MR LIAQUAT HUSSAIN KHAN
MRS AKHTAR JAN
(ANONYMITY DIRECTION NOT MADE)
Respondents

Representation:

For the Appellant: Mr L Tarlow, Home Office Presenting Officer
For the Respondents: Mr R Hussain of Counsel instructed by KJ & Co Solicitors

DECISION AND REASONS

1. The subject of this appeal is a decision of First-tier Tribunal (FtT) Judge Keane sent on 6 June 2016 allowing on Article 8 grounds an appeal by the respondents (hereafter the claimants) against a decision made on 23 June 2014 refusing to grant them entry clearance for a period of three months as visitors. At para 10 the judge concluded:

"The paramount issue which I was to resolve in deciding the human rights appeal concerned the proportionality of the respondent's decisions to refuse entry clearance to the appellants. I should carry out that balancing exercise enjoined by many decisions of the European Court of Human Rights. I acknowledge the respondent's laudable determination to achieve the legitimate aim of the maintenance of an effective immigration control by means of her immigration policy. Her determination is in the interest of the wider United Kingdom community and is not easily overridden. However, I strike the balance in favour of the appellants and I find that the decisions to refuse entry clearance to the appellants did not accord adequate respect with the appellants' and Mr and Mrs Khan's right to private life for reasons which I now give. First, although I was not prepared to characterise the family life which I found to have been established as family life under Article 8 of the Human Rights Convention I nevertheless find that a strong family life exists between the appellants and Mr and Mrs Khan. That family life has been fortified over the years by conventional means and by visits. Second, I have had regard to the particular facts as I have found those facts to be. For ease of reference I recite that part of the appellants' contentions which I mentioned earlier in this decision and as to which I have made unequivocally favourable findings of fact. Mr Khan is unable to visit the appellants on account of his poor health. He suffers from metabolic disorder in the form of glycogen storage disease type 1B. His most recent journey to Pakistan was cut short after three days because he was admitted to hospital suffering from a severe infection brought on by the climate and hygiene standard prevailing in Pakistan. His own father, Mr Shafait Khan, aged seventy years, is no longer able to travel to Pakistan in order to visit Mr Liaquat Khan, his brother, the family as a whole are extremely close and as a matter of practicality family links and connections may only be continued if the appellants are allowed to enter the United Kingdom for the purpose of making a family visit. I am driven to find that the inevitable consequence of the decisions to refuse entry clearance would be to sever that family life which has existed between the appellants, Mr and Mrs Khan and Mr Shafait Khan which has been manifested in visits and accordingly pleasurable face to face meetings and social connections. In short, that aspect of the appellants', Mr and Mrs Khan's and Mr Shafait Khan's, family life which had been manifested in visits and pleasurable face to face meetings and social connections could only have been continued at the date when the respondent made the decisions to refuse entry clearance if the appellants were allowed to enter the United Kingdom. The appeals on human rights (Article 8) grounds are allowed."

2. The grounds of challenge relied on by the appellant (hereafter the Entry Clearance Officer or ECO) were:

(i) that the FtT erred in propounding that a refusal of a visitor's entry clearance to enter the UK for a short period of time could be/was an interference with Article 8 in a case where there is no family life. It was submitted that there is no right to enter the UK for the purposes of visiting extended family members;

(ii) that pursuant to SS (Malaysia) [2004] UKIAT 00091 (Starred) private life, as distinct from family life, is not a basis upon which an ECHR right of entry can be based.

3. It is notable that the grounds contain no challenge to the judge's findings of fact in the appeal. That is important because those findings included an acceptance that "a strong family life exists between the[claimants] and [the sponsors] Mr and Mrs Khan" (para 10) and acceptance that Mr Khan was prevented by ill-health from visiting his (claimant) brother in Pakistan as he had been able to do in 2008, 2009, 2010, 2011 and 2013.

4. It is also clear from the judge's findings of fact that the claimants' intentions in relation to the proposed visit were accepted as genuine. The ECO has not sought in the grounds to re-assert the ECO's contrary finding regarding intentions.

5. I am grateful for the submissions I heard from both parties.

6. Given the very limited scope of the challenge raised in the grounds, I have decided that the ECO's challenge to the FtT's decision fails. That is for essentially two reasons.

7. First, to the extent that the grounds seek to contend that an Article 8 claim in visit cases can only succeed in family life cases, that contention is contrary to established case law which recognises that Article 8(1) can be engaged in the context of entry clearance/admission cases: see e.g. SS (Congo) [2015] EWCA Civ 387. The recent reported case of the Upper Tribunal, Abbasi & Another (visits - bereavement - Article 8) [2015] UKUT 00463 (IAC) which recognises that private life can be a valid basis for an Article 8 claim in a family visit case, reflects a correct legal interpretation. SS (Malaysia) is not authority to the contrary and even if it were, I have to apply the doctrine of judicial precedent and give precedence to higher court authority.

8. Second, the established case law makes clear that there is no binary distinction between private life and family life and that where private life ties include (as here) close relationships between family members, they must be given due weight when assessing the strength of the Article 8(1) relationships relied upon: see e.g. AA & UK app.no.8000/08, 20 September 2011.

Notice of Decision

For the above reasons, the appeal brought by the ECO against the decision of the FtT judge cannot succeed and the decision of the FtT judge is upheld.

No anonymity direction is made.

Signed Date

Dr H H Storey
Judge of the Upper Tribunal