(Immigration and Asylum Chamber) Appeal Numbers: VA 29463 2012
VA 29468 2012
THE IMMIGRATION ACTS
Heard at Field House
On 29 May 2013
On 10 June 2013
UPPER TRIBUNAL JUDGE PERKINS
ENTRY CLEARANCE OFFICER - CHENNAI
For the Appellants: Mr Z Malik, Counsel, instructed by Malik Law Chambers
For the Respondent: Mr T Melvin, Home Office Presenting Officer
DETERMINATION AND REASONS
1. The appellants are citizens of India. They are married to each other. The first appellant was born in January 1947 and the second appellant in June 1958.
2. They each appealed to the First-tier Tribunal decisions of the respondent to refuse them entry clearance to the United Kingdom as family visitors. Their appeals were dismissed by the First-tier Tribunal and came before me because it was arguable that the First-tier Tribunal had erred in law.
3. I begin by looking at the immigration decisions. In each case the respondent was not satisfied that the appellant intended to leave the United Kingdom at the end of the visit or that the appellant was genuinely seeking entry as a visitor for a period not exceeding six months. The applications were therefore refused with reference to paragraphs 41(i) and (ii) of HC 395.
4. Further the respondent asserted that the grounds of appeal were limited. The Refusal of Entry Clearance stated:
“Your right of appeal is limited to the grounds referred to in Section 84(1)(c) of the Nationality, Immigration and Asylum Act 2002”.
5. This is a statutory ground. It provides that:
“The decision is unlawful under Section 6 of the Human Rights Act 1998 (c.42) (Public Authority not to act contrary to Human Rights Convention) as being incompatible with the appellant’s Convention rights.”
6. It was clearly the respondent’s case, although this is not explained in the respondent’s papers, that the rights of appeal were contained in the Immigration Appeals (Family Visitor) Regulations 2012. These Regulations restrict the meaning of “family visitor” to persons who are in a defined close relationship with the applicant and, for these purposes, settled in the United Kingdom. Although the person the appellants said that they intended to visit was lawfully in the United Kingdom he was not settled there.
7. The decisions are dated 24 July 2012. Somewhat disappointingly, given what follows, the Notice of Immigration Decision did not state when the application was made.
8. First-tier Tribunal Judge Mayall explained in his determination the limited circumstances in which a family visitor has a general right of appeal and said at paragraph 10 that in his judgment the appeal was limited to human rights grounds.
9. Mr Melvin suggested that Counsel for the appellants in the First-tier Tribunal (not Mr Malik) had accepted that the appeal could only be brought on human rights grounds but I am not persuaded that any such concession was made. Certainly Counsel confined himself to human rights grounds but that appears to be after the judge had given a ruling on the scope of the appeal and whilst the point may not have been argued with any great vigour it is wrong to say that Counsel conceded that the appeal could only succeed on human rights grounds. In any event counsel’s concessions do not decide the law.
10. Judge Mayall dismissed the appeal on human rights grounds. He did not consider private life to be engaged at all and said:
“I do not consider that family life within the meaning of Article 8 is engaged in this case. The sponsor is an adult. There is no evidence placed before me to suggest that the ties between him and his parents go beyond those which would normally be expected between adult dependents.”
11. The application for permission to appeal to the Upper Tribunal was supported by three grounds. They are commendably short and the supporting submissions are the appropriately brisk. The grounds are as follow:
“Ground 1: The FTT erred in law in holding that the 2012 Regulations apply to this appeal and that the Appellant has no right to challenge the ECO’s decision on the grounds that it was not in accordance with the Immigration Rules.
Ground 2: The ECO took no point as to the jurisdiction during the appeal proceedings and therefore it was not open to the FTT to take it on its own motion.
Ground 3: The FTT erred in law in holding that Article 8 is not engaged.”
12. Ground 2 is, I find, essentially misconceived. Certainly paragraph 9 of the Asylum and Immigration Tribunal (Procedure) Rules 2005 prescribes a mechanism whereby the Tribunal may determine as a preliminary issue whether or not to accept an appeal in a case where its jurisdiction is in doubt. I do not accept that it follows from this that the point can only be taken before the appeal is listed for a hearing. Mr Malik drew my attention to the case of Ajakaiye (Visitor appeals – right of appeal) Nigeria  UKUT 00375 (IAC) where the Tribunal (Blake J President, SIJ Gill) acknowledge that where the Tribunal has embarked upon an appeal without with any objection it may become too late to decide it has no adjudicative jurisdiction. This line of reasoning is supported by the judgment of Sedley LJ in Ngopengeyo & Others  EWCA Civ 1275 but any suggestion that the jurisdiction point could only be taken by one of the parties was dispelled by the Court of Appeal in Nirula, R (on the application of) v First-Tier Tribunal (Asylum & Immigration Chamber) & Anor  EWCA Civ 1436 at paragraph 31. Mr Malik very properly drew this to my attention.
13. I am satisfied that if a party (usually the respondent) does not assert at the first opportunity that the Tribunal has no jurisdiction to hear an appeal there comes a point where the progress in the appeal is such that it is too late for anyone to take the point. The right to object to the adjudicative jurisdiction of the Tribunal does not last throughout the proceedings. Failure to take the point at an early stage can lead to a fait accompli. This, I find, is the reasoning of Sedley LJ in Anwar v SSHD  1WLR 2552.
14. In the two appeals that I have to decide the respondent made it absolutely plain that it was the respondent’s contention that jurisdiction was limited to an appeal brought on human rights which is how the case proceeded. Indeed the respondent specifically asked for the matter to be listed as a preliminary issue.
15. I note that in the respondent’s papers there is an assertion that the appellant’s cannot raise human rights grounds because they were not raised in the Notice of Appeal to the First-tier Tribunal. They clearly were raised and the First-tier Tribunal was right to hear the appeal on human rights grounds.
16. It is not in doubt that the appellant’s son was not settled in the United Kingdom. The point of contention is whether or not the application was made before or after the Immigration Appeals (Family Visits) Regulations 2012 came into force on 9 July 2012. If the application was made before that date, the appellants’ proposed visit would be to a person in the wider class of relatives where there is a full right of appeal but if the applications were made on or after that date then the Regulations applied with the result that the appellants application to visit a person not settled in the United Kingdom was not appealable except on human rights grounds.
17. Given the extreme importance of the date of application I find it regrettable that the Notices of Immigration Decisions referred rather airily to the applicant having applied for entry clearance without identifying when the application was said to be made. It was refused on 24 July 2012 which is clearly after the date that the more restrictive rights of appeal came into law.
18. Extraordinarily, given the importance of this point to both parties’ cases, I arrived at the hearing room without either party having produced any evidence concerning the date of application. Each party purported to correct this deficiency at the hearing. Mr Melvin, for the respondent, produced a print out of application details referring to the application being made on 11 July 2012, which is clearly after the relevant date. I find it probable that the application was said to have been made on 11 July 2012 because that is when the fee was paid and any additional requirements were satisfied.
19. Mr Malik countered by producing a copy of an email message dated 14 June 2012, that is before the critical date, bearing the subject heading “Visa for UK – Completed Application”. It comes from “firstname.lastname@example.org” which is clearly acting on behalf of the government of the United Kingdom. On a plain reading this indicates that the application was made on 14 June 2012. The message includes a warning that supporting documents are required as well as “the appropriate fee (unless paid on-line with this application)” and that “Failure to submit documents will result in a delay and/or lead to the refusal of your application”. It does not strain language to find that an application can be made before the fee was paid or other documents supplied. Such an application might not be processed until the other requirements are met and if they are not met the application may be refused but the application can still have been made. Indeed it cannot be refused unless it was made and the email threatens to refuse the application if the “documents” are not submitted.
20. Mr Melvin submitted that no application was complete without these necessary extras but that is not what the rules say and it is not what the email says.
21. Rule 30 of the Immigration Rules states:
“An application for an entry clearance is not made until any fee required to be paid under the Consulate Fees Act 1980 (including any Regulations or Orders made under that Act (has been paid).”
22. The Immigration and Nationality (Cost Recovery Fees) Regulations 2012 set a fee of £78 from a visitor intending to stay for less than 6 months. These regulations are made under sections 51(3) and 52(1), (3) and (6) of the Immigration, Asylum and Nationality Act 2006 and not the Consulate Fees Act 1980. Clearly there is no basis for applying provisions dealing with an application made with reference to the Consulate Fees Act to an application not concerned with that Act. Far from supporting the contention that an application is never made until a fee is made the fact that the rules specify that an application is not made in cases where the Consulate Fees Act 1980 applies tends to suggest that an application can exist without a fee where that Act does not apply.
23. Mr Malik referred me to paragraph 34G(iv) of HC 395. This is a Rule under the heading “Determination of the date of application or claim (or variation of an application or claim) in connection with immigration”. Rule 34G(iv) provides
“For the purposes of these Rules, the date on which an application or claim ... is made is as follows:
(iv) where the application is made via the online application process, on the date on which the online application is submitted”
24. This, Mr Malik submitted, was entirely clear. The appellant had taken advantage of the online process and, by reason of definition, the application was made when the online application form was submitted. No contrary meaning could be given to this Rule.
25. Rule 34 clearly show that some applications can be made when they are submitted on line but that is the extent to which it informs these appeals. Rule 34 is concerned with applications for leave to remain by certain categories of migrant. It is nothing to do with entry clearance and, I find, is not particularly relevant to the application before me.
26. Thus I find that the rules do not show when an application for entry clearance is made.
27. It seems to me that there are two main contenders for deciding when an application is made. They are “when the application is sent to the decisions maker” and “when all of the necessary fees and documents supporting the application, together with the application form are sent to the decision maker”.
28. I am satisfied that the respondent genuinely believes that the application was made on 11 July 2012. The appellants were given an appointment at the UK Visa Application Centre in Hyderabad 10 July 2012 and, I assume, handed over payment that was recorded as being made the next day.
29. I am also satisfied that the respondent is wrong to hold that opinion. Whilst I see the attraction of Mr Melvin’s submission that an application is not made until the fee is paid he could not point me to any statutory or regulatory basis for such a claim. As indicated above, the fact that applications that must be supported by fees required by the Consular Fees Act 1980 are not made until the fees are paid inclines me to the view that applications that must be supported by fees under a different Act are not so restricted.
30. Further the plain meaning of the “Completed Application” e-mail suggests that the respondent’s agents clearly think that an application can be made before the fee is paid. In ordinary language it can and, in the absence of contrary provisions, I find that an application can be made before a necessary fee is paid.
31. Neither party has provided much evidence about payment. It seems that they have each relied solely on evidence about one appellant and invite me to assume that the other appellant’s circumstances are similar, and the appellants’ evidence is not unequivocally relevant to the instant cases at all. Neither representative objected to my relying on the evidence the other produced and in all the circumstances I am satisfied (just) that the appellants probably did apply, together, on 14 June 2012 and then present the appropriate fees and additional documents on 10 July 2012 which is why the respondent says, wrongly, that the applications were not made until 11 July 2012.
32. It follows that the First-tier Tribunal clearly erred materially. With respect to Judge Mayall (who, I suspect, had much less help than was given to me) there was no evidence before him capable of supporting the conclusion that he reached. I set aside his decision solely as it relates to the decision to dismiss the appeal under the immigration rules.
33. Ground 3 complains that the appeal was determined wrongly on human rights grounds. I asked Mr Melvin, rhetorically, if there could be a greater interference with an obligation to promote family life than to refuse entry clearance to a person who wanted to visit the United Kingdom to attend his son’s wedding. I did not have to be persuaded that such interference might be proportionate but that is a quite separate issue. Mr Malik contended that, following AG (Eritrea) v SSHD  EWCA Civ 80 and VW (Uganda) v SSHD  EWCA Civ 5 it was plain beyond argument that Article 8(1) is engaged when there is any interference that was not merely technical or inconsequential.
34. That much I accept and regard as trite law. I also accept that the United Kingdom’s obligations under Article 8 are not to be confined to refraining from interfering with a person’s private and family life but are to promote positively that person’s private and family life. This much has been clear since the ECO Dhaka v Box [ UKIAT 02212 if it was not clear before. I accept just as readily that AAO v Entry Clearance Officer  EWCA Civ 814 and Pun (Ghurkhas – Article 8 Nepal  UKUT 377 (IAC) are examples of the courts recognising the duty under Article 8 is to promote positively a person private and family life. However these cases are all in the context of dependency.
35. Having reflected on the situation and without being referred to more helpful authority, I have concluded that there is no general obligation to promote contact between independent adults even if they are closely related and particularly not in the context of a short separation consequent on a decision to live in the United Kingdom with limited permission. The situation might be different if that migrant became a permanent resident but I am not inclined to assume that the obligation to promote a person’s private and family life extends to promoting contact between independent adults even if they are parent and child. The situation may well be different in the case of a husband and wife or longstanding close committed parties who are not married and parents and minor children but that is not the position here.
36. It follows that although I do not think I would have drawn the sharp distinction between “private life” and “family life” shown by Judge Mayall, I am satisfied that he was entitled to say that he did not “consider that family life within the meaning of Article 8 is engaged in this case”.
37. It follows therefore that I am not persuaded there is any material error of law in the decision to dismiss the appeal on human rights grounds.
38. Mr Malik contended that in the event of the appeal against the decision to dismiss the appeal under the immigration rules being allowed the appeal should be remitted to the First-tier Tribunal as there had been no assessment of the inherent merits of the appeal. I agree with that submission.
39. The decision to dismiss the appeal on human rights grounds was sound and I uphold that decision.
40. I set aside the decision of the First-tier Tribunal to dismiss the appeals under the Immigration Rules. I am satisfied that the Tribunal has jurisdiction to entertain the appeal and I order the First-tier Tribunal to determine again the appeals under the Immigration Rules.
Judge of the Upper Tribunal
Dated 10 June 2013