Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: VA/07868/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision and Reasons Promulgated
On 17 November 2016
On 30 November 2016

Before

UPPER TRIBUNAL JUDGE KEKI?

Between

JAGDEEP SINGH
(anonymity order not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
For the Entry Clearance Officer
Respondent

Representation:
For the Appellant: R Rai, Counsel, instructed by Gills Immigration Law
For the Respondent: Mr T Melvin, Senior Home Office Presenting Officer

DETERMINATION AND REASONS
1. This appeal is brought by the Secretary of State however for convenience I shall refer to the parties as they were before the First-tier Tribunal.
Background
2. The appellant is a national of India born on 8 November 1994. In October 2014, he applied for entry clearance to visit the sponsor, but the application was refused on 25 November 2014 because the ECO was not satisfied that the appellant had demonstrated sufficiently strong ties to India or that he would leave on completion of his visit. The appellant argued that the requirements of the rules had been met and also that the decision breached his human rights in that it prevented him from visiting extended family members. According to the visa application form, the appellant was refused entry clearance previously on 30 October 2014.
3. The thrust of the appellant's article 8 claim was that he and the sponsor's son, A, were like brothers. The latter had developed Guillen Barre Syndrome (GSB) in 2014 and was autistic and epileptic. It was proposed that the appellant would assist him in his recovery for two months because they got on well and A was inclined to listen to the appellant. A and the sponsor had made regular annual trips to India and had last been there in the Easter holidays. The sponsor is said to be the appellant's maternal grandfather's sister's son. The sponsor's son is, however, described as a cousin by the judge although, plainly, that is not what he is.
4. The appeal was heard by First-tier Tribunal Judge Widdup at Harmondsworth on 8 June 2016 and in a determination promulgated on 20 June 2016, the appeal was allowed on human rights grounds.
5. The judge applied the Razgar steps. He found the sponsor to be a credible witness and noted that there had been no challenge to the sponsor's or appellant's financial circumstances. He accepted that the sponsor had made frequent visits to India and that his son had therefore developed a close relationship with the appellant. He found that there was "a dependency of sorts" on the appellant, and that the relationship was "either a significant part of their private lives or amounts to some degree of family life". He considered the guidance in Mostafa (article 8 in entry clearance) [2015] UKUT 00112 (IAC) which covered a narrow range of very closely related appellants but, nevertheless, concluded it could apply to cousins. He found that the relationship could continue by way of visits, telephone, skype and emails as it had always done but that the appellant had been unable to assist his cousin with his recovery from GBS which made the decision a breach of article 8. He considered that as A was a minor (he was born in June 2000), his welfare was of primary importance.
6. The respondent obtained permission to appeal on the basis that the judge had failed to adequately reason his article 8 findings and conclusions.
The Hearing
7. The sponsor attended the hearing and I heard submissions from the parties. For the respondent, Mr Melvin submitted that there was insufficient analysis of family life and pointed out that, in granting permission, First-tier Tribunal Judge Hollingworth had found that to be an arguable point. He submitted that the relationship between the two parties was remote; they saw each other during annual visits and made use of modern means of communication the rest of the year. As such, the finding of family life between them, by First-tier Tribunal Judge Widdup, did not stand up to scrutiny. He submitted that the decision should be set aside and that the appeal should be dismissed.
8. Mr Rai submitted that the judge had properly directed himself on the facts and had been mindful of the best interests of the child and the law. The judge had found the sponsor to be credible. The sponsor's son, A, was epileptic and autistic and had been diagnosed with GBS. Just a month later, the appellant applied for entry clearance to visit and assist him. He referred me to the witness statements of the appellant and the sponsor. It was acknowledged that the appellant and A were not brothers as claimed in the statement but Mr Rai submitted that they viewed one another as such and the judge was faced with a unique situation of a relationship akin to brothers. The judge properly directed himself in law and concluded that the relationship was an important part of the appellant's private life. The appellant's presence was required to assist A. The family had a good immigration history. The rules had been met. It was not in A's best interests for the appellant to make a fresh application for entry clearance relying on the judge's positive findings as time was of the essence and a delay was not in A's best interests.
9. Mr Rai submitted that the respondent was wrong to only cite two paragraphs of the determination as containing the analysis on family life. He submitted that the respondent's challenge was unfounded and the determination should be preserved.
10. Mr Melvin responded. He argued that the determination was inadequately reasoned. It was difficult to see how a finding of family life could be made in circumstances where only a two-month visit was proposed. In the absence of medical evidence, it was also difficult to see how the appellant would be able to assist A. The doctor's letter had been written at the request of the sponsor. The circumstances did not amount to family life. There was no evidence of dependency and the findings came close to justifying an irrationality challenge. He referred me to Adjei (visit visas - article 8) [2015] UKUT 0261 (IAC) and argued that for an appeal to succeed outside the rules, there had to be compelling reasons. No such reasons existed in this case and the judge should have considered whether article 8 was engaged at all.
11. Those were the submissions on the issue of whether or not the judge had made an error of law. I then invited submissions on the substantive merits in the event that I proceeded to re-make the decision.
12. Mr Melvin submitted that in article 8 cases, the nature of the relationship was very important. He questioned whether family life could be envisaged in this case, where there was no dependency. He submitted that A's welfare was not dependent upon the appellant. Whilst they spoke on skype, this was not part of family or private life.
13. Mr Rai submitted that the circumstances were unique. The welfare of the child must be considered. The matter should be considered in a sensitive manner.
14. At the conclusion of the hearing I reserved my determination which I now give.
Findings and conclusions: error of law
15. The respondent takes issue with the findings of the First-tier Tribunal on family life. I have considered the submissions and the evidence with great care and appreciate I am dealing with sensitive matters. I also appreciate that A's illness must be causing the sponsor and his family a great deal of anxiety and stress.
16. The fact remains, however, that Judge Widdup has failed to properly consider what constitutes family life for article 8 purposes. Whilst the authorities do not rule out other relationships, article 8 is designed to maintain close family ties, such as between parents and minor children and spouses or partners. It may, in certain cases extend to grandparents and grandchildren, siblings and parents and adult children. I have not come across any authority where a relationship between cousins permanently living in different countries is considered to be family life deserving of protection, still less of a relationship between an individual and his mother's father's sister's son's son, where both parties live in their own nuclear families, lead separate lives and have contact via annual visits and modern means of communication.
17. I fully appreciate that the appellant wishes to visit A so as to help him whilst he is unwell and also that the sponsor is keen for the appellant to visit so as to help with his son's recovery but these amount to good reasons for a visit and are not a basis for a finding that there is family life between the appellant and A.
18. I agree with Mr Melvin that the findings of the judge are inadequately reasoned. Judge Widdup commences his analysis and findings at paragraph 27 by setting out the Razgar questions. At paragraph 28, he finds the sponsor's evidence to be credible and finds that there was no challenge to the evidence relating to the financial circumstances of the sponsor and the appellant's family. The absence of any challenge in that respect goes to the issue of whether the requirements of paragraph 41 can be met.
19. At paragraph 29 the judge accepts, presumably on the sponsor's evidence (as nothing else is referred to), that the appellant and A have a close relationship as a result of frequent visits to India and, perhaps, because he does not have any brothers himself (only sisters). From this, however, he reaches the conclusion that there is "a dependency of sorts" and "more than the usual emotional ties" between them. No reasons are given for why he reached this conclusion. The form of dependency is not clarified or expanded upon and it is not explained why a relationship presumably of camaraderie between extended family members constitutes more than what would usually be expected. The judge then goes on to find that the relationship is "either a significant part of their private lives or amounts to some degree of family life". No clarification is provided.
20. The judge then considers Mostafa and notes that the guidance applied to a "very narrow range of claimants" but he concludes, nevertheless, that "there will still be cases in which an appeal on human rights grounds against the refusal of a visit visa can succeed even if the relationship is between cousins (sic)". He does not say why he takes that view.
21. He finds at paragraph 34 that article 8 is engaged as the decision means that the "relationship cannot be developed at a time of particular importance" to A who will not "receive such assistance with his recovery as the appellant can provide". I presume here the judge is seeking to address the second Razgar question but it is unclear what development he has in mind if he is already of the view that there is family or private life.
22. In considering proportionality, the judge essentially concludes that as the appellant meets the requirements of the visitor rules, and as the welfare of a minor is involved, there is no public interest in requiring a fresh entry clearance application to be made. For that reason, the decision is found to be disproportionate. What the judge fails to do, however, is to consider how the refusal of a visa which only allows the parties to be together for a short period can be a disproportionate interference with article 8 rights. In so far as A's welfare is concerned, he has failed entirely to consider the help and support provided to A by his parents, sisters and the NHS and the progress A has made in that he was discharged from hospital.
23. For these reasons, therefore, I conclude that the judge made errors of law such that his decision must be set aside.
24. I acknowledge that there was no challenge to the findings, albeit brief, on the requirements of paragraph 41 having been met, and despite the judge's reliance on a post decision fact in respect to the appellant's education (at paragraph 43). Normally those would be preserved but in view of the guidance in Adjei (to which I shall refer later), the Tribunal only has jurisdiction to make findings under paragraph 41 where article 8 has been found to apply. As the judge's decision on that aspect of the case has been set aside, it follows that those findings cannot be preserved.
Re-making the decision
25. Having indicated to the parties that I would proceed to re-make the decision if an error of law were found and having provided them with an opportunity to make any further submissions in that respect, I now proceed to do so.
26. I have taken account of the authorities to which reference was made and which were submitted to Judge Widdup. In the case of Kaur (visit appeals; article 7) [2015] UKUT 00487 (IAC), the Tribunal held that "unless an appellant can show that there are individual interests at stake covered by article 8 'of a particularly pressing nature' so as to give rise to a 'strong claim that compelling circumstances may exist to justify the grant of LTE outside the rules': (see SS (Congo) [2015] EWCA Civ 387 at [40] and [56]) he or she is exceedingly unlikely to succeed. That proposition must also hold good in visitor appeals" (head note 3).
27. In Mostafa (article 8 in entry clearance) [2015] UKUT 00112 (IAC) the Tribunal said "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 people involved spend together" (paragraph 24).
28. In Adjei (visit visas - article 8) [2015[ UKUT 0261 (IAC), the Tribunal directed that "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 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" (head note). That case also warns that whether an applicant meets the requirements of paragraph 41 should not be the starting point for an article 8 assessment (at paragraphs 8 and 9).
29. There was no challenge to the contents of the witness statements prepared by the sponsor and the appellant and I accept that the appellant is fond of A and that he is sincere in his desire to assist him. I also accept that they have a good friendship. However, I cannot find that this amounts to family life in circumstances where the parties live thousands of miles apart in different countries, where they see each other once or twice a year and where they live with their respective families and have their own family lives with those relatives. No dependency has been shown. The appellant is a young adult and claims to be dependent upon his own parents for support. A is under 18 and dependent upon his family in the UK for support. The interaction between the appellant and A does not amount to dependency of any kind. Rather, it characterises their friendship.
30. The appellant's case focused on the need for him to visit A in order to assist in his recovery. That is a laudable and understandable reason for a visit application but despite the able submissions made by Mr Rai cannot amount to family life between them. Whilst I accept that the decision to seek entry clearance to visit was not made on a whim (see Mostafa), it equally cannot be said to add significantly to the time the people involved will spend together. Moreover, it was accepted on the appellant's behalf that his relationship with A continues via modern means of communication and, presumably, it will also continue by future visits when A has recovered or when the appellant gains entry clearance. Meanwhile no reasons were given as to why the appellant could not assist A by way of Skype or telephone conversations, if it is his ability to persuade A to take medication and so on which is considered particularly helpful. I have had regard to the best interests of A but find that these are met by his being in a family unit with his parents and sisters and having the support of the NHS.
31. For all these reasons, I conclude that the appellant has failed to show that he has family life with A and it follows that article 8 is not engaged in this case. Given that conclusion, I have no jurisdiction to make any findings on whether the requirements of paragraph 41 have been met.
32. Should the appellant make a fresh application for entry clearance, I would hope that it would be considered as a matter of urgency given the particular circumstances of A and the reasons for the visit.

33. Decision
34. The determination contains errors of law such that the decision to allow the appeal is set aside. I substitute a fresh decision and dismiss the appellant's appeal against the Entry Clearance Officer (via the Secretary of State).

Signed

Upper Tribunal Judge

Date: 30 November 2016