Tribunal decisions

The decision

IAC-FH-AR-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: VA/05860/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 30 August 2016
On 02 September 2016

Before

UPPER TRIBUNAL JUDGE MCGEACHY

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

Mrs ILKAY DELER
(ANONYMITY DIRECTION NOT MADE)
Respondent

Representation:
For the Appellant: Mr S Walker, Home Office Presenting Officer
For the Respondent: Mr Richardson, Counsel, instructed by Miya Solicitors

DECISION AND REASONS

1. The Entry Clearance Officer, Istanbul appeals with permission against a decision of Judge of the First-tier Tribunal Wellesley-Cole who in a determination promulgated on 26 January 2016 allowed the appeal of Mrs Ilkay Deler against a decision of the Entry Clearance Officer to refuse her entry clearance as a visitor under the provisions of paragraph 320 (7) A on the basis that he believed that the appellant had exercised deception in her application.

2. In this case I will refer to Mrs Ilkay Deler as the appellant as she was the appellant before the First-tier Judge. Similarly I will refer to the Entry Clearance Officer, Istanbul as the respondent as he was the respondent in the First-tier.

3. The appellant is a citizen of Turkey born on 1 February 1964. She applied for entry clearance stating that she wished to visit her son in Britain. She was interviewed by the Entry Clearance Officer and the Entry Clearance Officer stated that she should be refused under paragraph 320 on the basis that she had not made any reference to her daughter here and also because of the address which she had given for the place where she would stay during her visit. It follows from the allegation that deception has been used that the appellant would not be able to enter Britain for ten years on the basis that she had fallen foul of paragraph 320(7A) and (7B) of the Immigration Rules.

4. Judge Wellesley-Cole heard evidence from the appellant's son and daughter, and took into account evidence from the appellant by way of a witness statement and the grounds of appeal. It was the view of Judge Wellesley-Cole that no deception had been exercised, that this was a genuine visit and that the Entry Clearance Officer had been wrong to state that deception had been used.

5. The judge allowed the appeal substantively. She did not go further to deal with the issue of human rights. The Entry Clearance Officer appealed and made it quite clear when appealing that the issue of the judge's findings in relation to paragraph 320(7A) were not in issue: the Entry Clearance Officer accepted that the judge had been correct to find that no deception had been used. However, the grounds of appeal went to on to refer to Section 52 of The Crimes and Courts Act 2013 which had restricted the rights of appeal for visitors coming to visit family members in Britain. Those restrictions applied to any application made on or after 25 June 2013. This application was, of course, made after that date.

6. The Crimes and Courts Act 2013 had amended Section 88A of the Nationality, Immigration and Asylum Act 2002 to remove the right of appeal for persons visiting specified family members but it did leave in place the residual grounds in respect of human rights and race relations.

7. There is an error of law in the determination of Judge Wellesley-Cole in that she erred in considering that she had jurisdiction in this case in respect of the substantive refusal. I therefore set aside her decision. Nevertheless, her findings that there had been no deception have not been challenged. Those findings make it clear that if the decision under Section 320(7A) is left in place the effect of my merely overturning Judge Wellesley-Cole's decision there would be a clear injustice.

8. It therefore falls to me to remake the decision. It has been very properly accepted by Mr Walker as indeed he accepted before the First-tier Judge that human rights come into play. There is a clear case that Article 8 is engaged in this case and that a decision to stop the appellant coming to Britain under the provisions of paragraph 320 when it has been accepted that that paragraph had been wrongly invoked by the Entry Clearance Officer would be entirely disproportionate.

9. For that reason, and I accept that this is a somewhat unusual case, I having set aside the decision of Judge Wellesley-Cole, remake the decision and having dismissed the appeal for want of jurisdiction under the substantive grounds, make a decision on human rights grounds that this appeal should be allowed.

Notice of Decision

This appeal is allowed on human rights grounds.

Signed Date

Upper Tribunal Judge McGeachy