Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: VA/06438/2014
VA/06436/2014
VA/06443/2014
VA/06446/2014

THE IMMIGRATION ACTS

Heard at Cardiff
Determination issued
on 24 May 2016
on 31 August 2016

Before

UPPER TRIBUNAL JUDGE MACLEMAN

Between

Entry Clearance Officer, Abu Dhabi
Appellant
and

M N ANWARI + 3
Respondents

Representation:
For the Appellants: Ms C Grubb, instructed by Qualified Legal Solicitors, Newport
For the Respondent: Mr I Richards, Senior Home Office Presenting Officer

DECISION AND REASONS
1. The parties are as described above, but for continuity they are described in the rest of this decision as they were in the First-tier Tribunal.
2. The appellants are husband, wife and 2 children, all citizens of and resident in Afghanistan. Two older children are also members of the family unit, but no applications were made for them to visit the UK, and they are not part of these proceedings.
3. The "sponsors" are the brother and sister, both adults, of the first appellant.
4. The first appellant was lawfully in the UK as a visitor in October to December 2012 and in January to February 2013.
5. The four appellants made family visit visa applications which were refused on 18 September 2013. They appealed those decisions. In a determination promulgated on 6 June 2014 First-tier Tribunal Judge Archer found that the appellants' finances and intention to return were as they said (paragraph 19), but there was no appeal in respect of the Immigration Rules. In respect of Article 8 of the ECHR the judge found that the appellants had no family life with their relatives in the UK, because the sibling relationships were among adults with no evidence of any emotional or financial dependence (paragraph 22) so the appeals were dismissed.
6. The appellants then made the applications leading to these proceedings, which the ECO refused on 10 September 2014.
7. First-tier Tribunal Judge Suffield-Thompson allowed all four appeals by decision promulgated on 10 August 2015. At paragraph 46 the judge found that the relationship between the first appellant and the second sponsor was "far beyond what is normal with adult siblings". At paragraph 47 she found it in the best interests of the third and fourth appellants, being children, to develop personal relationships with their cousins. At paragraph 49 the judge said:
"It is clear that for this family it will be almost impossible for them to see each other if the [first] appellant is not allowed to visit the UK, either alone or with some or all of his family. I consider that to be entirely disproportionate and I allow the appeal."
8. The SSHD appeals to the Upper Tribunal on these grounds:
"?
3. It is established case law that family life within the meaning of Article 8 will not normally exist among adult siblings, parents and adult children. If family life does not exist then generally Article 8 will not be engaged. An application to come to the UK as a visitor is a temporary visit of limited duration ?
[paragraphs 4 and 5 cite MS [2004] UKIAT 00064 and Kugathas [2003] EWCA Civ 31 for the proposition that among adult family members there needs to be more than the normal emotional ties for Article 8 purposes, and that such relatives do not ordinarily share family life within the meaning of Article 8].
6. The proportionality assessment is inadequate, it does not explain why refusal of a visa which only allows the parties to be together temporarily is a disproportionate interference ? the appellants have not demonstrated that interference with the right to family and/or private life resulting from the refusal has given rise to such grave consequences as to engage Article 8.
7. ? The respondent's decision does not interfere with the established pattern of family life ? while the judge makes a finding that there is family life between the first appellant and [second] sponsor there is no such finding concerning the second, third and fourth appellants."
9. Mr Richards submitted further to the grounds as follows. The judge did not adequately explain why family life was constituted for Article 8 purposes among adult siblings who carry on their lives on separate continents. It was acknowledged from the phrasing of the decision the judge had in mind the case law on which the grounds are based, but no adequate reason was given to justify such unusual conclusions. The factor on which the judge relied was the first appellant's sympathy for his sister following upon her divorce. That did not go "far beyond" or even "beyond" what might be expected between brother and sister, and was simply irrational. In any event, the decisions of the Entry Clearance Officer did not interfere with such family life as existed among the parties. The outcome of the decisions left matters as they were, and did not even approach a disproportionate interference. The decisions had been based on lack of intention to return, an important point on which the judge had not expressed any findings. The decision should be set aside and remade.
10. I raised the question whether there might be different considerations applying to the various appellants, a point arising from paragraph 7 of the grounds. I also observed that the prospective development of links among cousins might be thought a somewhat far-fetched basis for finding a breach of a fundamental human right.
11. Ms Grubb submitted thus. It was fairly acknowledged by the respondent that the judge had not misdirected herself about the correct legal approach. She had used the terms of the case law cited in the grounds. There was no inadequacy of reasoning. Any error was immaterial, once the appellants' case reached stage 3 of Razgar. Judge Suffield-Thompson had rightly taken the findings of Judge Archer as her starting point. On those favourable findings, the interference of family life brought about by the decisions was not in accordance with the law. Judge Suffield-Thompson had thought, like Judge Archer, that the requirements of the Immigration Rules were all met. The appellants could not succeed on that point alone, having no statutory right of appeal under the Rules, but once they had shown that Article 8 was engaged, their cases succeeded. There was no point of distinction between present and previous appeals, so far as the Immigration Rules were concerned. As to the absence of any finding on whether the appellants would return, Judge Suffield-Thompson had found the sponsors to be credible witnesses, and they had stated that the appellants would do so. The judge was entitled to find that there were more than normal ties between siblings, for the reasons she gave. The Upper Tribunal should be slow to disagree with the factual findings of a judge who had properly directed herself as to the law. If there were no error in the finding that family life was constituted for Article 8 purposes, there was no material error. In any event, paragraph 49, read in the context of the whole decision, was an adequate explanation.
12. Turning to the point about possible differentiation among the appellants, Ms Grubb accepted that lines have to be drawn somewhere among extended families for the purposes of the Immigration Rules and of Article 8. However, she submitted that in this case the family unit of the appellants should be considered only as a whole. It should also be kept in mind that there is an obligation on the state to allow family ties to develop. Collective family ties were part and parcel of the family life to be protected. Any point of differentiation gave rise to considerations of procedural fairness. There is no general right of appeal under the Rules, so if only the first appellant were to succeed in terms of Article 8, the other three appellants would be left only with proceedings by way of judicial review. Given the history and the findings in their favour they would have a powerful case. They should not have to take multiple proceedings to vindicate their position.
13. Finally, Ms Grubb said that she had been instructed to request that if the decision were to be set aside, the Upper Tribunal should proceed to remake it on the basis of the evidence and submissions to date, in which the case for the appellants has been fully advanced.
14. I reserved my determination.
15. I think it is immediately clear that there is nothing in the decision of Judge Suffield-Thompson, or in the evidence on which it was based, by which the outcome in favour of the second, third and fourth appellants might survive the criticisms made in the SSHD's grounds. The decision contains no finding that they have family life protected for Article 8 purposes with either of the sponsors. There was no evidence on which such a finding could sensibly be reached.
16. It may of course be a normal healthy expectation in many families that relations should be promoted among cousins or among uncles, aunts, nephews and nieces; but such natural wishes fall well outside the established jurisprudence on the extent to which family life is protected as a fundamental human right through Article 8.
17. I find it somewhat more problematic whether the judge went wrong in law by finding family life to exist between the first appellant and the second sponsor. I accept in principle the submission by Ms Grubb that even if many judges might not have found family life to be constituted, so long as the correct test was applied and adequate reasons given, the Upper Tribunal should not interfere.
18. Ms Grubb referred to Mostafa [2015] UKUT 00112 to support her argument on the importance of the findings in this case, based on the decisions of both judges, that the requirements of the Immigration Rules were met. That was a well taken point, so far as it went. However, the final paragraph of Mostafa is of some importance:
"24. It is the very essence of Article 8 that it lays down fundamental values that have to be considered in all relevant cases. It would therefore be extremely foolish to attempt to be prescriptive, given the intensely factual and contextual sensitivity of every case. Thus we refrain from suggesting that ? any particular kind of relationship would always attract the protection of Article 8(1) or that other kinds of relationship would never come within its scope. We are, however, prepared to say that it will only be in very unusual circumstances that a person other than a close relative will be able to show that the refusal of entry clearance comes within the scope of Article 8(1). In practical terms this is likely to be limited to cases where the relationship is that of husband and wife or other close life partners or a parent and minor child and even then it will not necessarily be extended to cases where, for example, the proposed visit is based on a whim or will not add significantly to the time that the people involved spend together ?"
19. This is not a case of husband and wife, or similar partners, or parent and child. The proposed visit is not based on a whim, and might add quite significantly to the time the siblings spend together, but the expectation is that they will continue to live their long term family and private lives separated by a great distance. I find force in the Presenting Officer's submission that sympathy for a divorcing sibling does not go beyond what might naturally be expected.
20. In my opinion, the judge went wrong in law by holding family life to exist between the appellant and second sponsor. The evidence which she took to support that conclusion was legally inadequate for the purpose.
21. There were in this case no "very unusual circumstances" taking the limits of protection beyond the usual core limits.
22. The judge's findings at paragraph 49 are illogical. It is not impossible for the family members to see each other unless the first appellant comes to the UK. The same expenditure would cover travel in the other direction, or meeting in a third country. It is not explained why the first appellant's right, if he had one, would extend to all or any of his wife and children.
23. Even if the judge was entitled to find a relationship protected by Article 8, there was nothing to justify a finding that the ECO's decision-making represented a serious interference with that right.
24. Put another way, the evidence did not lawfully admit of a finding that the case went beyond Razgar questions 1 and 2. The decisions of the Entry Clearance Officer did not constitute an interference with the exercise of the appellants' rights to respect for private and family life, and did not have consequences of such gravity as potentially to engage the operation of Article 8.
25. Regarding intention to leave, the judge ought perhaps to have dealt with that explicitly; but the point is incidental.
26. Article 8 is for the protection of fundamental rights where family life exists. It is not an alternative route to an appeal under the Rules.
27. The decision of Judge Suffield-Thompson is set aside, and the following decision is substituted; the appeals of all four appellants, as originally brought to the First-tier Tribunal, are dismissed.

26 May 2016
Upper Tribunal Judge Macleman