Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: VA/05695/2014
va/05696/2014, va/05697/2014
va/05698/2014, va/05699/2014
va/05700/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 22nd September 2016
On 7th October 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE I A M MURRAY

Between

azhar [m] (1)
sumaira [a] (2)
[H k] (3)
[m k] (4)
[w k] (5)
[a a] (6)
(ANONYMITY DIRECTION not made)
Appellants
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellants: No-one
For the Respondent: Ms Z Ahmad, Home Office Presenting Officer

DECISION AND REASONS
1. The Appellants are nationals of Pakistan born on 15th February 1972, 28th January 1977, 7th September 2007, 20th January 2003, 29th March 2000 and 9th April 2010 respectively. The First Appellant is the husband of the Second Appellant and the father of the remaining Appellants. They appealed against the decision of the Respondent dated 14th August 2014 refusing them entry clearance to visit the United Kingdom for a period of fifteen days. Their appeals were heard by Judge of the First-tier Tribunal Swinnerton on 8th March 2016 and allowed in a decision promulgated on 16th March 2016.
2. An application for permission to appeal was made on behalf of the Respondent. Permission to appeal was granted by First-tier Tribunal Judge Lambert on 8th August 2016. The permission states that the judge's decision makes findings as to and allows the appeal under paragraph 41 of the Immigration Rules. It fails to take into account the restriction of this visit appeal to human rights grounds and fails to make any findings relating to Article 8.
3. There is no Rule 24 response.
The Hearing
4. There was no appearance by the Appellants' Sponsor or by a representative of the Appellants. I decided to go ahead with the hearing based on the papers on file and hearing submissions from the Presenting Officer.
5. The Presenting Officer submitted that there are four matters raised in the grounds of application for permission. She submitted that on 25th June 2013 Section 52 of the Crime and Courts Act was commenced and this restricted the appeal rights for visitors coming to visit family members in the United Kingdom. The restrictions apply to any applications made on or after 25th June 2013. This application was made in August 2014 and she submitted that there is therefore a limited right of appeal. An appeal can only be brought on the residual grounds in Section 84(1)(b) and (c) of the 2002 Act namely on human rights and race relations grounds. She submitted that family visitors are restricted to these two Grounds of Appeal and the judge should have known that. She submitted that he was unable therefore to consider the merits of the case under paragraph 41 of the Immigration Rules.
6. She submitted that the second ground is that the judge failed to make findings on the Appellants' human rights and Section 117B of the Nationality, Immigration and Asylum Act 2002. I was referred to the case of Virk and Others [2013] EWCA Civ 652 at paragraph 23. This establishes that statutory jurisdiction cannot be conferred by waiver or agreement or the failure of the parties or the Tribunal to be alive to the point. She submitted that the judge has gone beyond his jurisdiction and has therefore erred in law and his decision should be set aside. She submitted that because there are no findings in the decision about Article 8 the judge was unable to allow the appeal.
7. She submitted that if I find there to be a material error of law in the judge's decision I should remake the decision. She referred me to the case of Priscilla Adjei [2015] UKUT 0261 (IAC) which is on the same point. She referred me to paragraphs 15 and 17 of that decision. These deal with the relationship between adult relatives and dependency. She submitted that there is no evidence to suggest that there is a stronger relationship than normal between the Appellants and the Sponsor which could mean that Article 8 is engaged and there is no evidence of dependency by the Appellants on the Sponsor. She submitted that it has been shown that the Appellants can finance their visit. The First Appellant is self-employed and she submitted that there is no dependency here.
8. I was asked to find that Article 8 is not engaged and I was asked to set the decision aside.
Decision and Reasons
9. There is a clear material error of law in the judge's decision as he had no jurisdiction to make a decision under paragraph 41 of the Immigration Rules. He did not take into account, the changes made by the Crime and Courts Act which amended Section 88A of the Nationality, Immigration and Asylum Act 2002 as inserted by the 2006 Act, to remove the right of appeal for persons visiting specified family members, although there can be an appeal on residual grounds.
10. The judge's decision is based on paragraph 41 of the Rules and no consideration has been given to Article 8 of ECHR which is the only matter the Appellants could have succeeded on.
11. Based on what was before the judge I have considered Article 8 of ECHR. The judge made no decision about this. There was no evidence before him that there was anything more in the relationship between the Appellants and the Sponsor than a normal relationship between relatives. The child Appellants are clearly dependent on their parents Appellants 1 and 2. There is also no evidence of dependency. It seems that there is no dependency as the Appellants applied to visit and based on the evidence they supplied, they were able to afford to visit.
12. I have considered the said case of Priscilla Adjei. There is no evidence of any particularly strong relationship between the Appellant visitors and the Sponsor and their relationships can be maintained in the way relatives who have chosen to live in different countries do. The UK Sponsor can visit the Appellants in Pakistan. There is also no evidence of sufficiently strong ties which would make this claim fall within the scope of Article 8.
Notice of Decision

There are clear errors of law in the judge's decision. I direct that his decision is set aside.

Based on what was before the judge I am re-making the decision and dismissing the appeals.

Anonymity has not been directed.

Signed Date 7th October 2016

Deputy Upper Tribunal Judge I A M Murray