Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: VA/07699/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 8 January 2016
On 20 January 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE PEART

Between

SAEEDA NASIR
(anonymity direction NOT MADE)

Appellant
and

ENTRY CLEARANCE OFFICER, ABU DHABI

Respondent

Representation:

For the Appellant: Mr Bajwa of Counsel
For the Respondent: Mr Nath, Senior home Office Presenting Officer

DECISION AND REASONS

1. The appellant is a citizen of Pakistan. She was born on 3 June 1955. She appealed against the respondent's decision to refuse her leave to enter as a family visitor dated 3 November 2014. The respondent was not satisfied the appellant's circumstances were as she claimed or that she was genuinely seeking entry as a visitor for a limited period. The Entry Clearance Officer was not satisfied the appellant intended to leave the United Kingdom.
2. Judge of the First-tier Tribunal Hillis, in a decision promulgated on 29 July 2015, dismissed the appellant's appeal on human rights grounds, because he found that as the appellant's brother, whom she intended to visit passed away on 5 November 2014, the appellant had no family life with him.
3. The grounds, claimed the oral hearing was a nullity, that the findings made by the judge were incorrect and that the applicable law assisted the appellant. She claimed that she satisfied the Immigration Rules such that refusal to grant her a visa would be a disproportionate lack of respect to her private life. She called for the judge's decision to be set aside. Whilst she acknowledged that the Sponsor had died, she said she had another brother in the United Kingdom.
4. Judge Page granted permission to appeal. He said as follows:
"The judge correctly observed that as this was not an in-country appeal, the judge could only take into account facts up to the date of the decision, namely 3 November 2014. The appellant claimed that the respondent's decision was in breach of her protected right under Article 8 to family life with her brother by reason of the respondent's refusal to grant her leave to enter the UK ...... had prevented her visiting her brother who was terminally ill. At the hearing the respondent had relied on the contents of the refusal letter dated 3 November 2014. In dismissing the appeal the judge noted that the appellant's brother had passed away on 5 November 2014 as shown on his death certificate dated 7 November 2014. At paragraph 16 of the decision the judge said: 'As the appellant's sponsor has now passed away there could be no family life between him and the appellant within the terms of Article 8 of the ECHR.' Consequently the judge found there was no family life to engage Article 8 in this appellant's appeal. In the appellant's application for permission to appeal she makes reference to paragraph 16 of the judge's decision and asked that the judge's decision is reviewed. The appellant is not represented so I have taken a purposive approach to this appeal. There is what I consider to be an obvious error of law in the judge's decision because the judge acknowledged that he had to consider the evidence as at the date of the decision to refuse and as at the date of the decision to refuse the appellant's brother was seriously ill. It could not have been known by the Entry Clearance Officer that the appellant's brother was to die within days of the decision to refuse. The judge in dismissing the appeal said that there was no family life between the appellant and her brother because her brother had died. If he had died before the decision that would have been a different matter. The facts is that the appellant's brother died after the decision under appeal so this required the judge to decide the appeal on the facts extant at the time of decision when the appellant's brother was alive. I have considered whether this was a material error given that the appellant would not be granted entry clearance now to visit her brother, given the change of circumstances. It is material in the sense that the appellant may wish to make a further application for a visitor's visa and if this decision stands it would appear on her record may cause her to be treated unfairly in the future. As there is a material error in the judge's decision permission to appeal is granted."
5. The respondent served a Rule 24 response on 17 November 2015 claiming that the judge directed himself appropriately. The judge had said at [17] that no adverse credibility findings had been made against the appellant. It was open to the appellant to make a fresh application if she wished to visit another family member. The judge was correct in taking into account that the appellant's brother had passed away and had made a finding that there was no family life at the date of the decision and no evidence of dependency or a relationship beyond normal family life.
Submissions on Error of Law
6. Mr Bajwa relied upon the grounds. The judge was obliged to consider the circumstances as of the date of the decision and ignore the fact that the sponsor had died.
7. Mr Nath relied upon the Rule 24 response.
Conclusion on Error of Law
8. The appellant was not represented at the hearing. The judge took into account the documentary evidence provided. Judge Page dealt with the permission to appeal application. It was not open to Judge Page to conclude as he did that there was a material error of law in the judge's decision; that was for me to decide at the error of law hearing.
9. The appellant had applied to visit the sponsor who sadly had died between the date of the respondent's decision and the hearing. The judge found that due to the change of circumstances, the appeal had to be dismissed because the family life relied upon had ended with the sponsor's death.
10. It might appear obvious that given the sponsor's death, the judge would have had to dismiss the appeal, but it was argued in the grounds that the appellant had another brother here who she had wanted to visit in lieu of the deceased and in any event, the judge was obliged to consider the circumstances under Article 8 as of the date of the decision, given the appellant was out of country.
11. I find in a technical sense, because the appellant was out of country, the judge was obliged to consider the circumstances with regard to Article 8 as of the date of the decision. The judge was aware of that issue which he referred to at [8] of his decision. I therefore find the judge erred in taking into account the change in the appellant's circumstances due to the death of the sponsor.
12. I next consider in terms of a common sense approach, whether the judge's error was material. There could have been no family life as of the date of the hearing because the sponsor was deceased. The judge did not engage with the reasons for refusal but dismissed the appeal solely because of the change of circumstances, stressing that he was not making any adverse credibility findings.
13. I find given the change of circumstances that the judge's error was not material. The fundamental nature of the appeal had changed between the decision and the hearing. The purpose of the visit in terms of the application was to stay with the sponsor. The appellant might well have had other relatives in the United Kingdom but her relationship(s) with those persons was not the basis of her application to the Entry Clearance Officer. Whilst in a technical sense the judge had to consider the circumstances as of the date of the respondent's decision, he did not err materially in taking the death of the sponsor into account, notwithstanding that the death occurred subsequent to the date of the decision.
14. In summary, I conclude that the decision does not contain a material error of law, such that the decision of the First-tier Tribunal should be set aside.
Decision
15. The decision of the First-tier Tribunal contains no error of law and shall stand.

No anonymity direction is made.

Signed Date 8 January 2016

Deputy Upper Tribunal Judge Peart