Tribunal decisions

The decision

IAC-fH-nl-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: va/06839/2014

THE IMMIGRATION ACTS

Heard at Field House
Given extempore
Decision & Reasons Promulgated
on 9th December, 2016
On 04th January, 2017

Before

Upper Tribunal Judge Chalkley

Between

Secretary of State for the Home Department

Appellant
and

MS MST ANWARA BEGUM
(ANONYMITY DIRECTION Not made)

Respondent

Representation:

For the Appellant: Mr T Wilding, Home Office Presenting Officer
For the Respondent: No appearance by or on behalf of the respondent

DECISION AND REASONS

1. The appellant in this appeal is the Secretary of State and to avoid confusion I shall refer to her as being the, "claimant".

2. The respondent is a national of Bangladesh, aged 71, having been born on 4th February, 1945. She made application to the Entry Clearance Officer in Dhaka for the grant of a family visit visa. The Entry Clearance Officer refused the application on 1st October, 2014. The Entry Clearance Officer was not satisfied that the respondent had presented a clear and cogent picture of her overall circumstances and means of support in Bangladesh. The Entry Clearance Officer was not satisfied that the respondent was seeking entry as a visitor for the limited period stated by her and that she intended to leave at the end of her visit.

3. The respondent appealed and her appeal was heard by First-tier Tribunal Judge P B Conrath at Taylor House on 29th January, 2016. The judge considered the reasons for the Entry Clearance Officer's decision and concluded that the Entry Clearance Officer was wrong in deciding as he did. The judge concluded, therefore, that that the Entry Clearance Officer acted both unlawfully and unfairly. At paragraph 24 the judge said:

"I therefore find that it has been established on a balance of probabilities, that the Appellant is a 'genuine visitor' and she intends to return to Bangladesh at the conclusion of her visit. I find, therefore, that it has been established that she meets the requirements of sub-sections (i) and (ii) of paragraph 41 of the Immigration Rules. Following on from that, I find that the Entry Clearance Officer acted unlawfully and unfairly in coming to the conclusions he did, and that those were incompatible with the Appellant's Convention rights, and amounted to a breach of Section 6(1) of the Human Rights Act 1988."

In paragraph 25 of the determination the judge said this:

"I find that it is a breach of both the Appellant's rights under Article 6 and Article 8 of the ECHR in the circumstances."

4. The judge went on to allow the appeal.

5. The claimant, dissatisfied with the decision, sought leave to appeal and in granting permission First-tier Tribunal Judge Holmes said this:

"2. In is arguable that the Judge erred in addressing himself to Article 6 in an entry clearance appeal rather than confining himself to Article 8; Sun Myung Moon [2005] UKIAT 112.

3. It is also arguable that the Judge erred in his approach to the issue of whether 'family life' existed between the [Respondent], an adult, and those she declared an intention to visit, who were also adults. On the evidence offered it is arguable that 'family life' could not exist with the {Respondent's] grandchildren. Absent the existence of 'family life' at the date of decision then arguably Article 8 was not engaged at all by the decision under appeal. The assumption appears to have been since there was some family relationship with the individuals in the UK then they necessarily all enjoyed 'family life' together and thus the decision must necessarily engage Article 8. Arguably that approach was incorrect and failed to apply the relevant jurisprudence.

4. In any event it is arguable that the Judge then erred in his approach to proportionality. The approach appears to have been that since he had concluded this was as he put it a 'genuine visit' it was necessarily disproportionate to refuse it. Again, arguably, that approach was flawed, and took no account of the fact that the sponsor and his family were perfectly capable of visiting the [respondent] in Bangladesh so that either there was no material interference in the 'private life' or 'family life' of either the [respondent] or the sponsor or, that there was no adequate assessment of the proportionality of the decision under appeal in the light of s117A; Kaur [2015] UKUT 487."

6. At the hearing before me today Mr Wilding appeared on behalf of the claimant. There was no appearance by or on behalf of the respondent. Notice of the Hearing had been sent to both the sponsor and to the respondent's solicitors by prepaid first class post on 23rd November, 2016. The respondent's solicitors responded by letter to the Tribunal on 7th December, 2016, indicating that they were without instructions and would not be attending the hearing. I delayed starting the hearing until 11:10 but by 11:10 there was still no appearance by, or on behalf of the sponsor who, in the Notice of Hearing had been advised to attend fifteen minutes prior to the hearing which was listed at 10:00am. In the circumstances, I concluded that I had been offered no explanation for the sponsor's non-appearance and concluded that I was required to proceed with the hearing of the appeal in the absence of the sponsor.

7. Mr Wilding drew my attention to paragraphs 24 and 25 of the judge's determination and suggested that that was where the judge appeared to first get into difficulties. He told me that he would be relying on Adjei (visit visas - Article 8) [2015] UKUT 0261. I reserved my decision.

8. I have concluded that the judge did materially err in his determination. The judge's consideration of Article 8 starts at paragraph 27of the determination. I agree with Mr Wilding, that the judge first started getting into difficulty at paragraphs 24 and 25. There is no appeal under the Immigration Rules, Parliament having decided to withdraw appeal rights in respect of visit visa appeals. The judge was wrong therefore, to find that the respondent is a "genuine visitor". However, the Tribunal in Mostafa (Article 8 in entry clearance) [2015] UKUT 00122 found that in cases of appeals brought against refusal of entry clearance under Article 8 of the ECHR the respondent's ability to satisfy the Immigration Rules is not the question to be determined by the Tribunal. It is capable of being a weighty though not determinative factor when deciding whether the refusal is proportionate to the legitimate aim of enforcing control. J makes it clear that the first question to be addressed in appeals against refusal of entry clearance as a visitor where only human rights grounds are available, is whether Article 8 of the ECHR is engaged at all. Judge Conrath did not do that.

9. The judge appears to have assumed that there was Article 8 family life in existence. The Tribunal pointed out in J that if Article 8 is not engaged, which will not infrequently be the case, the Tribunal has no jurisdiction to embark on an assessment of the decision of the Entry Clearance Officer under the Rules "and should not do so" [My emphasis]. If Article 8 is engaged, then the Tribunal may need to look at the extent to which the claim is said to have met the requirements of the Rules, because they may inform the proportionality balancing exercise that may follow.

10. It is clear that Judge Conrath did not first consider whether or not there was family life, but merely assumed that it existed. The relationship between the respondent and her adult son is one between adult relatives disclosing no aspect of any dependency or being any different from what one might expect to be the case between an adult mother and her adult son. There is no evidence of any particularly strong relationship between the respondent and her son over and above that relationship and no evidence of any financial dependency. There is no reason why those relationships between an adult respondent and her adult son and infant grandchildren cannot be maintained in a way that relatives who have chosen to live in different countries manage to do. There is no good reason why UK based relatives cannot visit the respondent in Bangladesh, although I accept that at the time the respondent's reasons for coming to the United Kingdom were to see her eldest son and grandchild and to attend her eldest granddaughter's birthday party which was due to take place on 15th November, 2014.

Notice of Decision

11. Having concluded that Article 8 is not engaged, I believe that the judge has materially erred in law since, on the evidence before the judge, the circumstances of this respondent and her son and this respondent and her grandchildren did not give rise to family life for the purposes of Article 8. I substitute a fresh decision to dismiss the respondent's appeal against refusal to grant her entry clearance as a visitor.

7. No anonymity direction is made.

Richard Chalkley
A Judge of the Upper Tribunal

TO THE RESPONDENT
FEE AWARD

There is no fee award.

Richard Chalkley
A Judge of the upper Tribunal