Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: VA/07525/2014
VA/07526/2014
VA/07528/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision and Reasons Promulgated
On 13 September 2016
On 16 September 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE FROOM

Between

THE ENTRY CLEARANCE OFFICER, DHAKA
Appellant
and

AMIR ALI KHAN (1)
MOSAMMAT SELINA BEGUM (2)
ASMA AKHTER BHUYIAN (3)
(NO ANONYMITY DIRECTION MADE)
Respondents

Representation:
For the Appellant: Mr E Tufan, Home Office Presenting Officer
For the Respondent: Mr D Balroop, Counsel

DECISION AND REASONS

1. The appellant in this case is the Entry Clearance Officer, who appeals with the permission of the First-tier Tribunal against the decision of Judge of the First-tier Tribunal M J Gillespie to allow the appeals of Mr Khan, Mrs Begum and Mrs Bhuyian, Bangladeshi nationals born on 7 January 1939, 7 January 1955 and 4 February 1983 respectively, against decisions dated 9 October 2014 refusing them entry clearance in order to visit family members in the UK.

2. The sponsor, Mr Md Shah Alam Khan, is the adult son of the first and second respondents. He resides in the UK. His brother, Mr Samsul Alam Khan, also resides in the UK. The third respondent is his wife and therefore the daughter-in-law of the first and second respondents.

3. It is more convenient to refer to the parties as they were before the First-tier Tribunal. From now on I shall refer to Mr Khan, Mrs Begum and Mrs Bhuyian as "the appellants" and to the Entry Clearance Officer as "the respondent".

4. I was not asked and saw no reason to make an anonymity direction.

5. The appeals were allowed by Judge Gillespie, who found the decisions represented a disproportionate lack of respect for family life. In reaching that conclusion he overturned the decision of the entry clearance officer that the appellants had used deception in a previous application by presenting false bank documents. A document verification report was relied on but the Judge noted that a copy of the alleged forged document had not been provided and there was no evidence the second and third appellants were aware of it. The appeal had been adjourned in order to give time to obtain the documents relied on in the document verification report but it transpired that the documents were unavailable. The Judge found that deception had not been established. That aspect of his decision has not been challenged. It is fair to say the whole of the reasoning for refusing entry clearance rested on the deception allegation.

6. The Judge then decided the appeals as follows:

"14. The effect of my decision is to show that the decision to invoke the general reason for refusal has not been shown by the respondent to be in accordance with the law. The consequence of the same is that the decision to refuse the visit visa is based upon an unlawful consideration. Nevertheless, I may not intervene, as I have already mentioned, in the absence of disproportionate interference by the respondent in the rights of family and private life of the appellants. I consider that such disproportionate interference has been demonstrated. The effect of the refusal is to impose a ban upon issue of entry clearance for up to ten years. This, enforced against elderly parents separate from their sons, and against a young wife, newly married to her husband and wishing to join him, is disproportionate, at least in circumstances where the respondent has failed to show the truth of the allegation of deception against one or other or any of the appellants. There is no public interest in the perpetuation of a potential unfairness of this nature."

7. Permission to appeal was granted in the following terms:

"? it is arguable that the Judge materially erred in law in concluding that compelling circumstances or family ties beyond those usually existing between adults existed such as to mean that article 8 was engaged, and that even if it was engaged, that consequences of gravity may exist such as to mean that it was even necessary to consider proportionality, or that if it did why it would be disproportionate to require the Sponsors to visit the Appellants in Bangladesh."

Error of law

8. I heard submissions as to whether the Judge erred in law.

9. Mr Tufan described the decision as "perplexing" because, in his opinion, the Judge had not dealt directly with article 8. In the case of the first and second appellants, the Judge had not grappled with the question of whether there was extant family life for the purposes of article 8.

10. Mr Balroop argued strongly that the decision does not contain any material errors. He pointed out the respondent accepted there was family life between the third appellant and her husband in the UK. The husband's witness statement made clear he had a pending application for indefinite leave to remain. It was clearly disproportionate to impose a ten-year ban on the third appellant re-applying for entry clearance. He also argued that article 8 was also clearly engaged in the case of the first and second appellants. He relied on Kaur (visit appeals: Article 8) [2015] UKUT 00487 (IAC) in which the UT upheld a finding that there was family life between the appellant and her adult son.

11. Mr Balroop also argued that the inability of the Judge to allow the appeals outright on the deception point was a breach of article 13, the right to have an effective remedy.

12. I have carefully considered the arguments made although, for reasons which will become clear, it was not necessary to decide Mr Balroop's point about article 13. He was, after all, seeking to defend the decision.

13. I have decided the decision is vitiated by material error of law and should be remitted to the First-tier Tribunal to make additional findings. My reasons are as follows.

14. The Judge correctly identified the restricted ground of appeal. In paragraph 3 he identified that the appeals were grounded on a complaint of a breach of article 8. He cited the three leading UT decisions on article 8 in the context of visitor appeals and he reminded himself that the Tribunal had no jurisdiction to investigate the merits of the decision under the rules. However, where article 8 was engaged in principle, then whether the rules were met or not was a potentially weighty factor which might inform the proportionality balancing exercise. As seen, in paragraph 14, having found the allegation of deception was not made out, he reminded himself that he could not intervene unless the appellants could show there had been a disproportionate interference with their protected rights.

15. It is for the appellants to show there would be an interference with their right to family life, although in entry clearance cases the correct approach to this issue may be to assess whether the decisions amount to an unjustified lack of respect for family life, focusing on the UK's positive obligations to facilitate family reunion (Shamim Box [2002] UKIAT 02212). Article 8 is a qualified right expressed in such a way as to allow for exceptions and it is for the respondent to show that the lack of respect is lawful and in pursuit of a legitimate aim. It is then necessary to assess whether the decisions are disproportionate to that aim.

16. It is important that, in deciding an article 8 ground of appeal outside the rules, the Tribunal addresses the five questions set out in paragraph 17 of Razgar [2004] UKHL 27. The importance of doing so was confirmed in Mostafa (Article 8 in entry clearance) [2015] UKUT 00112 (IAC) and Adjei (visit visas - Article 8) [2015] UKUT 0261 (IAC) and this approach was also applied in Kaur.

17. With the greatest of respect to the Judge, I do not consider that paragraph 14 of his decision adequately addresses the five-stage test or provides a sufficiently structured approach. My reasons are as follows.

18. In relation to the first and second appellants, they wished to visit their adult sons in the UK, as they have done on a number of occasions in the past. Both sons are married and the sponsor has children.

19. In Mostafa the UT stated as follows:

"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, in this type of case, 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. In the limited class of cases where Article 8 (1) ECHR is engaged the refusal of entry clearance must be in accordance with the law and proportionate. If a person's circumstances do satisfy the Immigration Rules and they have not acted in a way that undermines the system of immigration control, a refusal of entry clearance is liable to infringe Article 8."

20. The Kaur case, relied on by Mr Balroop was decided on its own particular facts. The appellant's grandchildren had been living with her. The UT recognised the finding of family life between adult family members was unusual (see paragraph 39).

21. The question of whether family life exists between adult family members was considered in detail in paragraphs 50 to 62 of Ghising (family life - adults - Gurkha policy) [2012] UKUT 00160 (IAC). The guidance given by the UT in that case was subsequently approved by the Court of Appeal in paragraph 46 of Gurung & Others [2013] EWCA Civ 8. Most of the case law has been concerned with adult children living with their parents. The thrust of the guidance is that each case depends on its own facts. However, in the circumstances such as those pertaining in the current case that the first and second appellants' sons have left home, moved abroad and found their own life partners, it is difficult to see how, without more, it should be accepted that there is extant family life.

22. There was scant evidence regarding the relationships before the Judge in this case. The issue of dependency was not explored. The reader of the decision cannot know on what basis the Judge decided article 8 was engaged, simply through the reference to them being elderly. Plainly the Judge was of the view that the decisions were disproportionate and his reasoning on that count is unimpeachable. The problem is that he did not show how he reached that question.

23. The issue in relation to the third appellant is different. The respondent acknowledged in her grounds seeking permission to appeal that the finding of family life was not challenged. As set out above, the UT in Mostafa acknowledged that there could be cases of visits by partners not engaging article 8 because "the proposed visit is based on a whim or will not add significantly to the time the people involved spend together."

24. The Judge in this case states that the third appellant is a young wife wishing to join her husband. According to the witness statements, whilst the third appellant's husband had applied for ILR and was therefore planning to remain in the UK for the foreseeable future, she intended only a short visit to see family and sight-see. That is perfectly plausible and she has always abided by the terms of her visa in the past. The husband's indeterminate status meant she could not yet apply to join him on a permanent basis. On the other hand, the question of her intentions does not appear to have been explored at all by the Judge. His use of the word "join", in place of "visit", might not be an intentional indicator that he foresaw the third appellant seeking to remain in the UK for longer than the planned visit but it is another matter about which the reader of the decision is left in the dark due to the paucity of reasoning.

25. I am therefore driven to conclude that the respondent's appeal must be allowed and the decision set aside. The appeals are remitted to another Judge to make findings on whether article 8(1) is engaged with respect to any of the appellants. It is likely that, if it is found that article 8 is engaged, the Judge's conclusion regarding proportionality would be restored. His finding on deception is preserved.

NOTICE OF DECISION

The Judge of the First-tier Tribunal made an error of law and his decision is set aside.

The appeals must be re-heard in the First-tier Tribunal to make findings under article 8(1).

No anonymity direction.

Signed Date 14 September 2016

Judge Froom, sitting as a Deputy Judge of the Upper Tribunal