Tribunal decisions

The decision

Upper-Tier Tribunal
(Immigration and Asylum Chamber) Appeal Number: VA/07798/2014

THE IMMIGRATION ACTS

Heard at Field House, London
Decision & Reasons Promulgated
On the 23rd January 2017
On the 1st February 2017

Before:
DEPUTY UPPER TRIBUNAL JUDGE MCGINTY

Between:
MS BAYENESH WELDAIE
(Anonymity Direction not made)
Claimant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant in the Upper Tribunal

Representation:
For the Claimant: Ms Bustani (Counsel)
For the Secretary of State: Mr Tufan (Home Office Presenting Officer)

DECISION AND REASONS
1. This is the Secretary of State's appeal against the decision of First-tier Tribunal Judge Hussain, promulgated on the 17th May 2016, in which he allowed the Appellant's appeal against the Entry Clearance Officer's decision to refuse the Appellant entry clearance to the United Kingdom as a family visitor, on Human Rights grounds under Article 8 of the ECHR. Within the Grounds of Appeal, it is argued that the First-tier Tribunal Judge materially erred in law in finding that family life existed between the Appellant and the sponsor in this case. The sponsor is the adult daughter of the Appellant, and it is argued within the grounds of appeal that family life within the meaning of Article 8 does not normally exists between parents and adult children, unless there is an element of dependency going beyond "normal emotional ties", following the cases of Kugathas v Secretary of State for the Home Department [2003] EWCA Civ 31 and MS (Article 8-Family Life- Dependency-proportionality) Uganda [2004] UK IAT 00064. It is argued that the Appellant is employed and not financially dependent upon the sponsor and there was no evidence of dependency beyond normal emotional ties, such as to constitute family life for the purposes of Article 8.

2. It is further argued within the Grounds of Appeal that the proportionality assessment carried out by the First-tier Tribunal Judge is inadequate and does not explain why the refusal of a visit visa which would only allow the parties to get together temporarily was a disproportionate interference with the Appellant's Article 8 rights. It is further argued that the judge had found that the Appellant met the requirements of the Immigration Rules but due to the restricted appeal rights he had therefore simply allowed the appeal under Article 8 and was thereby using Article 8 as a general dispensing power. It is argued that the decision should be set aside.

3. Permission to appeal has been granted by Upper Tribunal Judge Martin on the 6th January 2017, when she found that "it is arguable, as asserted in the grounds that the Judge's finding that family life for the purpose of Article 8 between the Appellant and her adult child (the sponsor) is inadequately reasoned in light of Kugathas [2003] EWCA Civ 31 and also that the Judge arguably erred in allowing the appeal on Article 8 grounds simply because he found that the Appellant met the Immigration Rules rather than assessing proportionality as a balancing exercise".

Oral Submissions

4. In his oral submissions to the Upper Tribunal, Mr Tufan relied upon the Grounds of Appeal. He argued that the primary issue was whether or not Article 8 (1) was engaged and following the case of Kugathas, there needed to be dependency over and above ordinary emotional ties. He argued that here the sponsor was not financially dependent. He referred me to the case of Mostafa (Article 8 in entry clearance) [2015) UKUT 00112 (IAC), and to paragraph 24 of the decision of Upper Tribunal Judge Perkins and Mr Justice McCloskey, the President of the Upper Tribunal, in which the panel gave examples of the types of relationship which would attract protection under Article 8 (1) and to the reference that "we are, however, prepared to say that it would only be in very unusual circumstances that a person other than a close relative would be able to show that the refusal of entry clearance comes within the scope of Article 8 (1). In practical terms it is likely to be limited to cases where the relationship is that of husband and wife and other close life partners or to 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 not add significantly to the time that the people involved spent together".

5. Mr Tufan argued that the Judge stating at paragraph 15 of the determination that the "closeness of the ties" between the sponsor and the Appellant meant that family life was engaged was not the test and the Judge had applied the wrong legal test and that the decision was materially flawed in that regard.

6. In her oral submissions, Ms Bustani explained that she had not filed a Rule 24 Reply, as the notice of appeal hearing had only been sent out on the 10th January 2017, and she herself had only been instructed on the Friday before the appeal hearing on the Monday. She sought to argue that there was no material error of law in the decision and that the Judge had correctly applied the two-stage approach in firstly determining whether or not Article 8 was engaged, and then if it was, considering proportionality. She argued that the ability to meet the Immigration Rules was a weighty consideration when determining the question of proportionality, and sought to argue that in the case of Mostafa that was a case where a husband wanted to apply for a visit visa to see his wife, and that the relationship was very different in that case, and she further argued that in respect of the case of Adjei (visit visas-Article 8) [2015] UKUT 261, in that case she argued that there was clearly an error on the part of the Judge in allowing the appeal under the Immigration Rules which was very different from the determination here. She further referred me to the case of Kaur (visit appeals; Article 8) [2015] UKUT 487 IAC and particularly to paragraphs 13, 14 and 31 of the decision. She argued that each case is fact sensitive. She further argued that the Judge should have applied his mind and considered that there were more than normal emotional ties and that the Judge had clearly taken account of 5 factors, in her submission, being the fact that she argued that the Judge had found that there was no less than 11 trips over a ten-year period, that one of the grandchildren lived in Saudi Arabia in the Appellant's household, the Appellant's age, the fact that financial dependency was not a requirement, and the fact that the Appellant could not sponsor family members to visit her in Saudi Arabia because of her status there.

7. Ms Bustani further argued that if there was a material error, that I should preserve the findings of fact made by the by First-tier Tribunal Judge Hussain that the Appellant was able to meet the requirements of the Immigration Rules, under paragraph 41 of the Immigration Rules.

My Findings on Error of Law and Materiality

8. In the case of asked Kugathas v Secretary of State for the Home Department [2003] EWCA Civ 31, Lord Justice Sedley accepted that the approach of the Commission in the case of S v United Kingdom (1984) 40DR 196 was correct and that as stated by the Commission at page 198 of the report "generally, the protection of family life under Article 8 involves cohabiting dependents, such as parents and their dependent minor children. Whether it extends to other relationships depends on the circumstances of the particular case. Relationship between adults, a mother and her 33-year-old son in the present case, 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".

9. In the decision of First-tier Tribunal Judge Hussain, he found that there was a "close emotional bond" between the Appellant and her daughter, bearing in mind her advanced years and went on to find that "the assessment of family life is not simply about financial dependency, but requires a holistic assessment of the closeness of ties between individuals. Taking that approach, I am satisfied the Appellant and sponsor enjoy family life".

10. As stated by Lord Justice Sedley at [19] of Kugathas "Neither blood ties nor the concern and affection that ordinarily go with them are, by themselves altogether, in my judgement enough to constitute family life. Most of us have close relations of whom we are extremely fond, and whom we visit or who visit us, from time to time; but none of us would say on those grounds alone that we share a family life with them in any sense capable of coming within the meaning and purpose of Article 8". Although First-tier Tribunal Hussain found that there is a close emotional bond between the Appellant and her daughter and considers the closeness of the ties between the individuals, he has seemingly not applied the correct test as set out by the Court of Appeal in Kugathas, as to whether or not there were "elements of dependency, involving more than the normal emotional ties." There is no reference to the case Kugathas and no reference to the test set out therein. The learned Judge has not considered whether or not the close emotional bond between the Appellant and her daughter goes beyond normal emotional ties, and has therefore failed to apply the correct test in determining whether or not Article 8 is engaged in the first place, before going on to consider whether or not the requirements of paragraph 41 of the Immigration Rules were met, which then is capable of being a weighty, though not determinative factor when deciding whether such refusal is proportionate to the legitimate aim of enforcing immigration control for the purpose of Article 8. The decision of First-tier Tribunal Judge Hussain therefore does contain a material error of law in that regard.

11. Further, at [23], Judge Hussain found that "for all the reasons given above, I am satisfied that the Appellant meets the requirements of the Immigration Rules. I see no other reason to exclude the Appellant from the United Kingdom. As a result, I find the decision to exclude is disproportionate". However, there is no reference within that paragraph or elsewhere within the decision of First-Tier Tribunal Judge Hussain, to the fact that as was stated by the Upper Tribunal in the case of Mostafa (Article 8 in entry clearance) [2015] UKUT 00112, that "the Claimant's ability to satisfy the Immigration Rules is not the question to be determined by the Tribunal, but is capable of being a weighty, though not determinative, factor when deciding whether such refusal is proportionate to the legitimate aim of enforcing immigration control".

12. Judge Hussain appears to have simply concluded that the fact that the Appellant met the requirements of the Rules, without any other reason to exclude the Appellant from the United Kingdom meant that the decision to exclude was disproportionate, and has not taken account of the fact that it is a weighty, though not determinative, factor when deciding whether such refusal is proportionate, and although as was stated by the Upper Tribunal in Mostafa "if the persons circumstances do satisfy the Immigration Rules and they have not acted the way that undermines the system of immigration control, refusal of entry clearance is liable to infringe Article 8".

13. Judge Hussain has not set out what the competing public interest considerations are, that he has taken into account, if any, in conducting the balancing exercise. Nor has he made any reference to Section 117 A-D of the Nationality, Immigration and Asylum Act 2002 in that regard to which the Tribunal must have regard in all cases when required to determine whether a decision made under the Immigration Acts breaches a person's right to respect private and family life under Article 8 and as a result would be unlawful under Section 6 of the Human Rights Act 1998, by virtue of Section 117 A of the Nationality, Immigration and Asylum Act 2002. The learned First-tier Tribunal Judge therefore failed to demonstrate that he has properly conducted the balancing exercise required in the Article 8 consideration as to whether or not the decision is proportionate or not to the legitimate public end sought to be achieved, and in such circumstances, his consideration of proportionality in this regard is also inadequately explained. This further amounts to a material error of law.

14. In such circumstances, the decision of First-Tier Tribunal Judge Hussain does contain material errors of law and is set aside.

15. However, I do preserve the findings of fact of First-tier Tribunal Judges Hussain that on the evidence before him the Appellant was able to satisfy the requirements of paragraph 41 of the Immigration Rules HC395, as although Mr Tufan sought to argue the First-tier Tribunal Judge when making those findings had not refereed to the fact that the Appellant had previously applied to settle in the UK the First-tier Tribunal Judge had properly, adequately and sufficiently explained his reasons in respect of that issue and as to whether or not the Appellant thereby did intend to come as a visitor, at [22] of his decision.

16. The First-tier Tribunal Judge has further given adequate and sufficient reasons for his findings in respect of the Appellant's ability to satisfy the requirements of paragraph 41 of the Immigration Rules. However, clearly, the appeal cannot simply be allowed on that basis, given the change to the appeal rights. The issue as to whether or not Article 8 is engaged at all in this case, and if it is, the question as to whether or not the decision is proportionate to the legitimate public end sought to be achieved still needs to be determined. Given that this will involve a significant degree of fact-finding, I remit the case back to the First-tier Tribunal for these issues to be considered and determined afresh.

Notice of Decision

The decision of First-tier Tribunal Judge Hussain does contain material errors of law and is set aside, saved for the preserved findings of fact, referred to above.

The case is remitted back to the First-tier Tribunal for rehearing before any First-tier Tribunal Judge other than First-tier Tribunal Judge M.B. Hussain.

I make no anonymity order; no such order having been sought before me.

Signed

Deputy Upper Tribunal Judge McGinty Dated 24th January 2017