Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: VA/07695/2014
VA/07696/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision Promulgated
On 15 August 2016
On 17 August 2016

Before

UPPER TRIBUNAL JUDGE CANAVAN

Between

ENTRY CLEARANCE OFFICER
(PAKISTAN c/o ABU DHABI)
Appellant
and

MUHAMMAD ALI AYUB KHAN
NAHEED ANJUM BIQEES
Respondent

Representation:
For the Appellant: Mr T. Wilding, Senior Home Office Presenting Officer
For the Respondent: Mr A. Malik, counsel instructed by Malik Law Chambers Solicitors

DECISION AND REASONS

1. For the sake of continuity I will refer to the parties as they were before the First-tier Tribunal although technically the Entry Clearance Officer is the appellant in the appeal to the Upper Tribunal.

2. The appellants appealed against the respondent's decision dated 10 November 2014 to refuse entry clearance as family visitors. The appellants could not appeal on the ground that the decision was not in accordance with the immigration rules. They could only appeal on the limited grounds that the decision was unlawful on human rights or race relations grounds.

3. First-tier Tribunal Judge Herbert ("the judge") allowed the appeal on human rights grounds. The judge set out the reasons given for refusing the entry clearance applications [4-11]. He also took into account the grounds of appeal [12] and noted that the Entry Clearance Manager (ECM) review simply reiterated the reasons for refusal albeit that it was noted that the first appellant visited the UK on a previous occasion [13-15]. He directed himself to the correct burden and standard of proof [16]. The judge went on to note the immigration history of both appellants, which included a number of previous visits to the UK. Even if the first appellant stayed a little longer than intended on his previous visit in 2008, the judge noted that he did not breach the conditions of his visa [18-19]. The fact that the second appellant had visited the UK on six previous occasions was ignored [20]. The judge also noted that the ECO failed to take into account the fact that the first appellant had a settled job as the Deputy Assistant Director of a company since 2012 [21]. The First-tier Tribunal also observed that there had been a previous appeal in which the UK sponsor was found to be a credible witness [25].

4. The focus of the judge's findings was on the respondent's failure to give weight to material matters such as the appellants' immigration history. He concluded that "the rationale and logic adopted by the ECO and in fact by the ECM fell far below the standards that one should normally expect in such a serious decision" and took a selective view of their immigration history [29-30]. He made the following findings:

"32. I also have regard to the level of distress that is often caused to families [where] legitimate visits are refused for what appears to be gratuitous reasons which bear little or no relationship to the information placed before the ECO or ECM.

33. The UK citizen and his family have a right to see their extended family provided they comply with the immigration rules applicable. I have absolutely no doubt that both the first and second appellant will comply with the conditions of their visit visa as they have done in the past.

34. I consider their application as well not only under section 41 of the immigration rules of HC 395 but also under Article 8 of the ECHR.

35. I have considered the five stage test set out by Lord Bingham in Razgar [2004] UKHL 27. I do not seek to rehearse the five steps but the determinant factor is whether or not such a decision is proportionate legitimate aim to maintain immigration control."

5. In assessing whether the decision to refuse entry clearance was proportionate to the legitimate aim of maintaining an effective system of immigration control the judge took into account the positive immigration history of both appellants. He took into account the previous positive First-tier Tribunal decision. He found that the entry clearance decision failed to take into account matters that were clearly relevant. He also found that there was a lack of security in many provinces in Pakistan, which meant that "the sponsor cannot easily go to north-western province" to visit his family because it would render him and his family vulnerable to kidnapping [36-41].

6. The respondent seeks to appeal the First-tier Tribunal decision on the following grounds:

(i) The First-tier Tribunal erred in failing to make any clear findings as to whether family life between adult relatives was engaged and/or whether there would be an interference with family life of sufficient gravity to engage the operation of Article 8: Kugathas v SSHD [2003] EWCA Civ 31 referred.

(ii) The First-tier Tribunal failed to conduct an adequate proportionality assessment.

Decision and reasons

7. After having considered the grounds of appeal and oral arguments I satisfied that the First-tier Tribunal decision involved the making of an error on a point of law.

8. The points made by the judge regarding the failure of the respondent to consider material issues such as the appellants' previous compliance with immigration control and other evidence of ties that were likely to act as incentives for them to return to Pakistan had some force on the facts of this case. It was open to the judge to make those findings. The judge clearly considered that the entry clearance officer had given little scrutiny to the individual facts of the application.

9. However, it is incumbent on a judge to give adequate reasons for a decision: see MK (duty to give reasons) Pakistan [2013] UKUT 00641 and Shizad (sufficiency of reasons: set aside) [2013] UKUT 85. While a judge need not provide extensive reasons on each and every point he must give sufficient reasons to explain how and why he comes to his conclusions.

10. In this case it is not clear from the decision whether the judge appreciated the fact that the appeal was limited to human rights grounds. The wording of paragraph 34 suggests that he may have considered the terms of the immigration rules. His summary at paragraph 42 states that the decision "flies in the face of the immigration rules". It is not clear from the conclusion whether the judge was purporting to allow the appeal under the immigration rules or solely on human rights grounds.

11. I bear in mind that some consideration of the immigration rules might be relevant to the overall assessment of Article 8. In Mostafa (Article 8 in entry clearance) [2015] UKUT 00112 the Tribunal found that the appellant's ability to satisfy the immigration rules is capable of being a weighty factor but was not determinative when deciding whether refusal is proportionate to the legitimate aim of enforcing immigration control.

12. In Adjei (visit visas - Article 8) [2015] UKUT 261 the Tribunal found that the first question to be addressed in an appeal against refusal of entry clearance as a family visitor where only human rights grounds are available is whether Article 8 is engaged at all. If it is not, the Tribunal has no jurisdiction to embark upon an assessment of the decision under the rules. If Article 8 is engaged the Tribunal may consider the extent to which the appellant might meet the requirements of the rules, but it was only relevant in so far as it might inform the proportionality balancing exercise.

13. In Kaur (visit appeals; Article 8) [2015] UKUT 487 the Tribunal considered the previous decisions and concluded that the starting point for consideration of an appeal on human rights grounds should be to make findings of fact on the evidence relating to the appellant's ability to meet the requirements of paragraph 41 of the immigration rules. Disputes about the facts must still be resolved. The Tribunal considered the Court of Appeal decision in SSHD v SS (Congo) and Others [2015] Imm AR 1036. While the ability of an appellant to meet the requirements of the immigration rules might be relevant to the issue of whether the decision shows a lack of respect for Article 8 rights, unless an appellant can show that there are individual interests giving rise to "compelling circumstances" that might justify a grant of entry clearance outside the rules, he is unlikely to succeed.

14. In light of the guidance given in the above cases it was open to the judge to make findings regarding the genuine nature of the visit and to come to some conclusion as to how closely the appellants met the requirements of the immigration rules. Given that the appellants have visited the UK on previous occasions, and there were positive findings from a previous First-tier Tribunal judge, it was open to the judge in this case to conclude that the appellants were genuine visitors.

15. However, in an appeal that was restricted to human rights grounds, it was still incumbent on the judge to make adequate findings in relation to the five-stage test in Razgar. While he referred to the case it is clear from his brief statement in paragraph 35 that he made no findings in relation to the first two questions outlined by Lord Bingham i.e. whether the decision showed a lack of respect for the appellants' family life and any interference was of sufficient gravity to engage the operation of Article 8.

16. There is some distinction between the terms of the immigration rules, which assess the intentions and affordability of a visit, and the terms of Article 8, which is designed to protect fundamental rights relating to family life. In assessing whether 'family life' is engaged for the purpose of Article 8 it was necessary for the judge to consider basic principles relating to Article 8 arising out of cases such as Kugathas. On the facts of this case the appellants are adult relatives who live in a different country to the sponsor. It was necessary to make findings as to whether 'family life' existed for the purpose of Article 8.

17. Whether refusal of entry clearance interfered with Article 8 rights also required consideration of whether it would be reasonable to expect the sponsor to visit the appellants in Pakistan. While the judge made some reference to problems in north-west province he gave no consideration to the possibility of a visit to one of the larger cities elsewhere in Pakistan where conditions might be quite different. These considerations were relevant to the issue of whether the decision amounted to an interference with their right to family life of sufficient gravity to engage the operation of Article 8. While I bear in mind that a judge is not required to give extensive reasons, in this case, it was insufficient for the judge merely to state that the appellants had a "right to see their extended family" without explaining how or why he considered the first two questions of the approach outlined in Razgar were satisfied.

18. The points that the judge took into account when considering the proportionality of the decision were ones that were open to him to give weight to. However, I find that his overall assessment was not consistent with the approach required by the Court of Appeal in SS (Congo) and the various tribunal decisions outlined above.

19. Although it was not argued in the grounds I am also obliged to note that since 28 July 2014 courts and tribunals are required to have regard to the public interest considerations outlined in section 117B of the Nationality, Immigration and Asylum Act 2002 ("NIAA 2002") when considering whether an interference with a person's right to respect for family life is justified under Article 8(2). In this case the entry clearance decision was made on 10 November 2014. The judge's failure to consider those public interest considerations also amounts to an error of law.

20. For the reasons given above I conclude that the First-tier Tribunal decision involved the making of an error on a point of law. It is necessary to remit the appeal to the First-tier Tribunal for a fresh hearing.

21. The findings of fact made by the judge were open to him to make on the evidence. It was also open to the judge, and there was some real force in what he said, to find that the decision failed to take into account material considerations such as the lawful immigration history of both appellants. The respondent has a public law duty to take into account relevant matters in coming to her decision, not least because applicants are now required to pay increasingly large fees for visa applications and are entitled to fair and proper scrutiny of the application in return.

22. The judge made a clear and unambiguous finding that the appellants are likely to be genuine visitors. Given that the only reason for refusing the entry clearance applications was said to be doubts about their intentions it would be open to the respondent to review these applications in order to consider whether to exercise discretion and grant entry clearance. This might avoid further delay and the expense of a fresh hearing. However, it is entirely for the respondent to decide whether this is an appropriate course of action in light of the sustainable findings of fact made by the First-tier Tribunal.

DECISION

The First-tier Tribunal decision involved the making of an error on a point of law

I set aside the decision and remit the appeal to the First-tier Tribunal for a fresh hearing

Signed Date 16 August 2016

Upper Tribunal Judge Canavan