Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: VA/07705/2014
VA/07706/2014

THE IMMIGRATION ACTS

Heard at Field House, London
Decision & Reasons Promulgated
On 5 October 2016
On 6 October 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE GRIMES

Between

ENTRY CLEARANCE OFFICER WARSAW
Appellant
and

Mr BANUSH HAKA
Mrs FATIME HAKA
(ANONYMITY DIRECTION NOT MADE)
Respondents

Representation:
For the Appellant: Ms A Fijiwala, Home Office Presenting Officer
For the Respondent: Mr R Haka, the sponsor
DECISION AND REASONS
1. Although this is an appeal by the Entry Clearance Officer (ECO), for convenience I will refer to the parties in the determination as they appeared before the First-tier Tribunal.
2. The appellants are husband and wife and nationals of Albania. They appealed to the First-tier Tribunal against the decisions of the ECO of 10 November 2014 to refuse their applications for entry clearance to visit their son, the sponsor, in the UK for one month. First-tier Tribunal Judge Miller allowed the appeals. The ECO now appeals with permission to the Upper Tribunal.
3. As highlighted in the decisions to refuse entry clearance the appellants' right of appeal against the decisions of the ECO was limited to the grounds referred to in section 84(1) (b) and (c) of the Nationality, Immigration and Asylum Act 2002 (race relations and human rights grounds).
4. However the First-tier Tribunal Judge determined the appeals under paragraph 41 of the Immigration Rules and did not refer to the human rights ground which had been pleaded in the grounds to the First-tier Tribunal.
5. The ECO contends in the grounds of appeal to the Upper Tribunal that this failure amounts to an error of law and Permission to Appeal was granted on the basis that it is arguable that the Judge failed to make any findings or decisions on the only two grounds of appeal open to him, namely human rights and race discrimination.
Error of law
6. The ECO refused the applications not being satisfied that the appellants met the requirements of paragraph 41 (i), (ii), (vi) and (vii) of the Immigration Rules. The ECO was not satisfied that the appellants had demonstrated their financial or personal circumstances in Albania, or that they were able to finance their portion of their travel costs or afford their living costs in the UK or onward journey from the UK. In these circumstances the ECO was not satisfied that the appellants are genuinely seeking entry as visitors.
7. Section 52 of the Crime and Courts Act 2013 amended section 88A of the Nationality, Immigration and Asylum Act 2002 from 25 June 2013 restricting the right of appeal in family visit appeals to grounds alleging that the decision shows unlawful discrimination or is unlawful under section 6 of the Human Rights Act 1998. In this appeal there is no allegation of race discrimination in the appellant's grounds of appeal to the First-tier Tribunal or elsewhere. However the grounds of appeal to the First-tier Tribunal contend that the decisions breach the appellants' right to family life under Article 8 of the ECHR.
8. The issue for the First-tier Tribunal Judge was therefore to decide whether the decisions to refuse entry clearance breach the appellants' right to family life with their son and his family in the UK.
9. In reaching his decision the First-tier Tribunal Judge found that the appellants' travel costs would be paid by the sponsor who would also cover their accommodation and living expenses. The Judge took account of the fact that the appellants had previously visited the UK and returned to Albania, that the appellants live with their son in Albania, that their daughter lives nearby, and that the appellants farm three hectares as a vineyard. He concluded that the appellants are likely to return to Albania at the end of their visit. He found that the requirements of paragraph 41 had been met and allowed the appeals.
10. The Judge made no reference to the limitations to the grounds of appeal. He made no findings or decisions in relation to Article 8 of the European Convention on Human Rights.
11. I am satisfied that the First-tier Tribunal Judge erred in his approach to this appeal. The only ground of appeal which he could consider was Article 8 of the ECHR. He failed to do so and therefore made a material error of law. The findings in relation to the Rules cannot stand as they were not open to the Judge. In these circumstances I set aside the decision of the First-tier Tribunal in its entirety.
Remaking the decision
12. As set out above the only ground of appeal relevant in this case is that the decision is unlawful under section 6 of the Human Rights Act 1998. The relevant provision of the European Convention on Human Rights is Article 8 which protects the right to private and family life.
13. An assessment under Article 8 involves consideration of the 5 stages set out by Lord Bingham in the case of R v SSHD ex parte Razgar [2004] UKHL 27. Lord Bingham set out the following five questions to be addressed where removal is resisted in reliance on Article 8 as follows, these questions equally apply in the case of a decision to refuse entry clearance;
(1) Will the proposed removal be an interference by a public authority with the exercise of the applicant's right to respect for his private or family life?
(2) If so, will such interference have consequences of such gravity as potentially to engage the operation of Article 8?
(3) If so, is such interference in accordance with the law?
(4) If so, is such interference necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others?
(5) If so, is such interference proportionate to the legitimate public end sought to be achieved?
14. As set out above the first stage is to establish whether family life exists between the appellants and their son and his family in the UK. In the case of Adjei (visit visas - Article 8) [2015] UKUT 0261 (IAC) the Upper Tribunal gave the following guidance as summarised in the head note:
"1. The first question to be addressed in an appeal against refusal to grant entry clearance as a visitor where only human rights grounds are available is whether article 8 of the ECHR is engaged at all. If it is not, which will not infrequently be the case, the Tribunal has no jurisdiction to embark upon an assessment of the decision of the ECO under the rules and should not do so. If article 8 is engaged, the Tribunal may need to look at the extent to which the claimant is said to have failed to meet the requirements of the rule because that may inform the proportionality balancing exercise that must follow. Mostafa (Article 8 in entry clearance) [2015] UKUT 112 (IAC) is not authority for any contrary proposition.
2. As compliance with para 41 of HC 395 is not a ground of appeal to be decided by the Tribunal, any findings concerning that will carry little weight, especially if based upon arguments advanced only by the appellant. If the appellant were to make a fresh application for entry clearance the ECO will, if requested to do so, have regard to the assessment carried out by the judge but will not be bound by those findings to treat the appellant as a person who, at least at the date of the appeal hearing, met the requirements of paragraph 41."
15. In considering whether family life such as to engage Article 8 exists in this case I note that the appellants live with their son in Albania. Their daughter also lives there. The sponsor told me that the purpose of the proposed visit was for the appellants to visit the sponsor and his wife for Christmas when they intended to tell the appellants that they were expecting their first child. Their child has since been born and the sponsor and his child visited the appellants in Albania during the summer. The sponsor said that he can visit his parents in Albania. He said that they have no health issues and are both working.
16. In the case of Kugathas [2003] EWCA Civ 31 the Court of Appeal said that there is no presumption of family life between adult family members and that "relationships between adults?would not necessarily acquire the protection of Article 8 of the Convention without evidence of further elements of dependency, involving more than the normal emotional ties ".
17. On the basis of the evidence before me I find that the relationship between the appellants and the sponsor and his family is not enough to establish that they have ties over and above the normal emotional ties between adults and their parents. In these circumstances I find that the decision of the ECO to refuse to grant entry clearance does not interfere with the appellants' right, or that of the sponsor or his family, to private or family life. Article 8 is not therefore engaged in this appeal.
18. I find that the appellants have not demonstrated that the decisions of the ECO interfere with their private or family life. I therefore dismiss the appeals.
Conclusion:
The making of the decision of the First-tier Tribunal did involve the making of a material error on a point of law.
I set the decision aside and remake it by dismissing it.
No anonymity direction is made.

Signed Date: 5 October 2016

A Grimes
Deputy Judge of the Upper Tribunal

TO THE RESPONDENT
FEE AWARD
I have dismissed the appeal and therefore there can be no fee award.

Signed Date: 5 October 2016

Deputy Upper Tribunal Judge Grimes