VA/15968/2013 & Ors.
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The decision
IAC-AH-pc-V1
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: VA/15968/2013
VA/15970/2013
VA/15971/2013
THE IMMIGRATION ACTS
Heard at Birmingham Sheldon Court
Decision & Reason Promulgated
On 5th December 2014
On 29th December 2014
Before
DEPUTY UPPER TRIBUNAL JUDGE JUSS
Between
(1) Master Bilal Ahmed Khalid
(2) Master Haris Ahmad Hassan
(3) Miss Amna Rida
(anonymity direction not made)
Appellants
and
entry clearance officer, abu dhabi
Respondent
Representation:
For the Appellants: No appearance
For the Respondent: Mr David Mills (HOPO)
DETERMINATION AND REASONS
1. This is an appeal against the determination of First-tier Tribunal Judge Ferguson, promulgated on 9th April 2014, following a hearing at Birmingham on 24th March 2014. In the determination, the judge allowed the appeal of the Appellants. The Respondent Secretary of State, subsequently applied for, and was granted, permission to appeal to the Upper Tribunal, and thus the matter comes before me.
The Appellants
2. The Appellants are the children of Mr Nasir Ahmed and Mrs Mansoura Nasir, both husband and wife, from Pakistan, and they are aged 13, 9 and 4 respectively. They applied for entry clearance to come to the UK as family visitors. Their sponsoring relative was Dr Nafees Hamid, who was the brother of Mrs Nasir. The applications of the parents, Mr Nasir Ahmed, and Mrs Mansoura Nasir, were allowed. The applications of the Appellant children were all dismissed.
The Judge's Findings
3. The judge heard evidence from the Sponsor, Dr Hamid, who explained that he had been living in the UK for fourteen years, coming here to complete his medical training, and that he could at any stage have sponsored his sister's family, but that the reason for their visiting now was so that his parents could spend some time with their grandchildren, who were growing up. He also explained that they would not claim asylum or engage in any other means to stay. (See paragraphs 3 to 4).
4. The judge concluded that the Sponsor was a "wealthy man who has always intended to finance the visit of his sister and her family (see VAF at question 88)." The judge recorded that,
"He provided evidence of his income for the last three years and his income from private work as a neurosurgeon when added to his NHS salary means that he earns at a level which requires him to pay the highest rate of tax. Mr Ahmed has sufficient funds in his business account to finance the amount he claimed, but it is apparent that he does not need to spend a disproportionate amount on the visit of his family because his Sponsor will fund the visit. The Appellants are travelling as a family unit ?" (paragraph 9).
The judge went on to conclude that,
"As a person of standing within his local Ahmadi community he was able to say with authority that he knew of people who followed the Ahmadi religion who visited and returned to Pakistan. He knew that his sister and her family had no problems in Pakistan because of their beliefs and they were a relatively well-off family who had no reason to claim asylum ?" (paragraph 10).
The appeal was allowed.
Grounds of Application
5. The grounds of application state that the judge misdirected himself because the decisions by the Entry Clearance Officer did not attract a full right of appeal after 9th July 2012. These children were visiting their uncle. Their applications were refused on 7th January 2013. Under the Immigration (Family Visitor) Regulations 2012, they did not have a right of appeal.
6. On 22nd April 2014, permission to appeal was refused by the First-tier Tribunal Judge on the basis that no explanation had been provided why the Home Office Presenting Officer present at the hearing did not raise the issue now forming the basis of the Respondent's application. Furthermore, it was stated that,
"It flies in the face of common sense and justice that the Appellants have no right of appeal on the basis put forward by the Respondent. The Appellants are dependent children of the principle Appellants, their mother and father who clearly did have a valid right of appeal and whose appeals were allowed".
7. It was further stated that, in any event, "if the Respondent's contention is correct it would be likely that the Appellants would succeed on Article 8 grounds". (Paragraph 5).
8. On 5th June 2014, however, the Upper Tribunal granted permission to appeal, on the basis that there was arguable merit in the Respondent's grounds "as a matter of law".
Submissions
9. At the hearing before me on 5th December 2014, Dr Nafees Ahmed Hamid was not in attendance to represent the Appellants in the way that he had done before the judge below. Mr David Mills, appearing on behalf of the Respondent, submitted that whatever the position in terms of fairness and justice, the fact was that the law did not grant a right of appeal. When each child was making a separate application, one can look at the position of each child separately.
10. In this case they were applying to visit the uncle. There was no right of appeal granted. The fallback position for them would then be to have their case considered under Article 8. However, the judge had not allowed the appeal under Article 8. Therefore, the determination could not stand.
Error of Law
11. I am satisfied that the making of the decision by the judge involved the making of an error on a point of law (see Section 12(1) of TCEA 2007) such that I should set aside the decision and remake the decision. I come to this conclusion, notwithstanding the fact that what the Respondent Secretary of State was now arguing, had not been argued by the Presenting Officer before the judge, when the judge was hearing the appeal. It ill behoves a party to now say that there was no right of appeal, when the opportunity to so say had not been taken in a full appeal before a presiding judge. The judge himself is not to be criticised for running an appeal on a point which has not been taken. Nevertheless, the fact remains that as of mid-July 2012 the Rules changed, and "as a matter of law" there was no right of appeal under the Rules.
Remaking the Decision
12. I have remade the decision on the basis of the findings of the original judge, the evidence before him, and the submissions that I have heard today from Mr Mills. I am allowing this appeal on the basis of Article 8 alone. As the judge observed below the Appellants are "travelling as a family unit" (paragraph 9) and indeed to live as a "family unit" and this being so it would be incongruous to allow the parents to visit family members in the UK but to disallow the children from visiting their grandparents (see paragraph 4) in the way intended.
13. It is incongruous because it has a disproportionately arbitrary and unjustified impact on the right of the parents who appeal has been allowed. This is because in circumstances where the parents are living with their children, and they all comprise a single family unit, to allow the appeals of the parents but not of the children frustrates the exercise of the right to visit by the parents - a right conferred by law on the parents.
14. In fact, if the parents are given the right it strengthens even more the similar corresponding right of the children to do the same. It goes to the essence of family life. In the circumstances, this appeal is allowed on the basis of Article 8 because Article 8 is plainly engaged, and although the decision is in accordance with the law, it is not necessary in the public interest, and even more so, it is not proportionate to the legitimate public end that is sought to be achieved.
Decision
15. The decision of the First-tier Tribunal involved the making of an error of law such that it falls to be set aside. I set aside the decision of the original judge. I remake the decision as follows. This appeal is allowed on Article 8 grounds.
16. No anonymity order is made.
Signed Date
Deputy Upper Tribunal Judge Juss 27th December 2014
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: VA/15968/2013
VA/15970/2013
VA/15971/2013
THE IMMIGRATION ACTS
Heard at Birmingham Sheldon Court
Decision & Reason Promulgated
On 5th December 2014
On 29th December 2014
Before
DEPUTY UPPER TRIBUNAL JUDGE JUSS
Between
(1) Master Bilal Ahmed Khalid
(2) Master Haris Ahmad Hassan
(3) Miss Amna Rida
(anonymity direction not made)
Appellants
and
entry clearance officer, abu dhabi
Respondent
Representation:
For the Appellants: No appearance
For the Respondent: Mr David Mills (HOPO)
DETERMINATION AND REASONS
1. This is an appeal against the determination of First-tier Tribunal Judge Ferguson, promulgated on 9th April 2014, following a hearing at Birmingham on 24th March 2014. In the determination, the judge allowed the appeal of the Appellants. The Respondent Secretary of State, subsequently applied for, and was granted, permission to appeal to the Upper Tribunal, and thus the matter comes before me.
The Appellants
2. The Appellants are the children of Mr Nasir Ahmed and Mrs Mansoura Nasir, both husband and wife, from Pakistan, and they are aged 13, 9 and 4 respectively. They applied for entry clearance to come to the UK as family visitors. Their sponsoring relative was Dr Nafees Hamid, who was the brother of Mrs Nasir. The applications of the parents, Mr Nasir Ahmed, and Mrs Mansoura Nasir, were allowed. The applications of the Appellant children were all dismissed.
The Judge's Findings
3. The judge heard evidence from the Sponsor, Dr Hamid, who explained that he had been living in the UK for fourteen years, coming here to complete his medical training, and that he could at any stage have sponsored his sister's family, but that the reason for their visiting now was so that his parents could spend some time with their grandchildren, who were growing up. He also explained that they would not claim asylum or engage in any other means to stay. (See paragraphs 3 to 4).
4. The judge concluded that the Sponsor was a "wealthy man who has always intended to finance the visit of his sister and her family (see VAF at question 88)." The judge recorded that,
"He provided evidence of his income for the last three years and his income from private work as a neurosurgeon when added to his NHS salary means that he earns at a level which requires him to pay the highest rate of tax. Mr Ahmed has sufficient funds in his business account to finance the amount he claimed, but it is apparent that he does not need to spend a disproportionate amount on the visit of his family because his Sponsor will fund the visit. The Appellants are travelling as a family unit ?" (paragraph 9).
The judge went on to conclude that,
"As a person of standing within his local Ahmadi community he was able to say with authority that he knew of people who followed the Ahmadi religion who visited and returned to Pakistan. He knew that his sister and her family had no problems in Pakistan because of their beliefs and they were a relatively well-off family who had no reason to claim asylum ?" (paragraph 10).
The appeal was allowed.
Grounds of Application
5. The grounds of application state that the judge misdirected himself because the decisions by the Entry Clearance Officer did not attract a full right of appeal after 9th July 2012. These children were visiting their uncle. Their applications were refused on 7th January 2013. Under the Immigration (Family Visitor) Regulations 2012, they did not have a right of appeal.
6. On 22nd April 2014, permission to appeal was refused by the First-tier Tribunal Judge on the basis that no explanation had been provided why the Home Office Presenting Officer present at the hearing did not raise the issue now forming the basis of the Respondent's application. Furthermore, it was stated that,
"It flies in the face of common sense and justice that the Appellants have no right of appeal on the basis put forward by the Respondent. The Appellants are dependent children of the principle Appellants, their mother and father who clearly did have a valid right of appeal and whose appeals were allowed".
7. It was further stated that, in any event, "if the Respondent's contention is correct it would be likely that the Appellants would succeed on Article 8 grounds". (Paragraph 5).
8. On 5th June 2014, however, the Upper Tribunal granted permission to appeal, on the basis that there was arguable merit in the Respondent's grounds "as a matter of law".
Submissions
9. At the hearing before me on 5th December 2014, Dr Nafees Ahmed Hamid was not in attendance to represent the Appellants in the way that he had done before the judge below. Mr David Mills, appearing on behalf of the Respondent, submitted that whatever the position in terms of fairness and justice, the fact was that the law did not grant a right of appeal. When each child was making a separate application, one can look at the position of each child separately.
10. In this case they were applying to visit the uncle. There was no right of appeal granted. The fallback position for them would then be to have their case considered under Article 8. However, the judge had not allowed the appeal under Article 8. Therefore, the determination could not stand.
Error of Law
11. I am satisfied that the making of the decision by the judge involved the making of an error on a point of law (see Section 12(1) of TCEA 2007) such that I should set aside the decision and remake the decision. I come to this conclusion, notwithstanding the fact that what the Respondent Secretary of State was now arguing, had not been argued by the Presenting Officer before the judge, when the judge was hearing the appeal. It ill behoves a party to now say that there was no right of appeal, when the opportunity to so say had not been taken in a full appeal before a presiding judge. The judge himself is not to be criticised for running an appeal on a point which has not been taken. Nevertheless, the fact remains that as of mid-July 2012 the Rules changed, and "as a matter of law" there was no right of appeal under the Rules.
Remaking the Decision
12. I have remade the decision on the basis of the findings of the original judge, the evidence before him, and the submissions that I have heard today from Mr Mills. I am allowing this appeal on the basis of Article 8 alone. As the judge observed below the Appellants are "travelling as a family unit" (paragraph 9) and indeed to live as a "family unit" and this being so it would be incongruous to allow the parents to visit family members in the UK but to disallow the children from visiting their grandparents (see paragraph 4) in the way intended.
13. It is incongruous because it has a disproportionately arbitrary and unjustified impact on the right of the parents who appeal has been allowed. This is because in circumstances where the parents are living with their children, and they all comprise a single family unit, to allow the appeals of the parents but not of the children frustrates the exercise of the right to visit by the parents - a right conferred by law on the parents.
14. In fact, if the parents are given the right it strengthens even more the similar corresponding right of the children to do the same. It goes to the essence of family life. In the circumstances, this appeal is allowed on the basis of Article 8 because Article 8 is plainly engaged, and although the decision is in accordance with the law, it is not necessary in the public interest, and even more so, it is not proportionate to the legitimate public end that is sought to be achieved.
Decision
15. The decision of the First-tier Tribunal involved the making of an error of law such that it falls to be set aside. I set aside the decision of the original judge. I remake the decision as follows. This appeal is allowed on Article 8 grounds.
16. No anonymity order is made.
Signed Date
Deputy Upper Tribunal Judge Juss 27th December 2014