Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: VA/30883/2012

THE IMMIGRATION ACTS

Heard at Field House, London
Determination Promulgated
On 5th June 2013
On 14th June 2013

Before

upper tribunal JUDGE roberts

Between

mrs halima begum
(ANONYMITY DIRECTION NOT MADE)

Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr Rahman of AK Solicitors
For the Respondent: Mr Avery, Home Office Presenting Officer

DETERMINATION AND REASONS

1. In this determination I shall refer to the Secretary of State (on behalf of the ECO Dhaka) as the Respondent and Halima Begum as the Appellant.
2. This is the Respondent’s appeal against the decision of First-tier Tribunal Judge Wellesley-Cole who allowed the Appellant’s appeal against the decision of the Entry Clearance Officer Dhaka, not to grant her entry clearance for the purpose of a family visit to see her uncle and UK Sponsor Mufasil Ali.
3. Firstly let me set out one point. The only Appellant before me is Halima Begum. It is correct that she made an application to visit at the same time as her mother Hazera Begum. Hazera Begum’s original application was also refused by the Entry Clearance Officer and she too appealed that decision. First-tier Tribunal Judge Wellesley-Cole allowed her appeal as well as that of Halima.
4. So far as I am concerned however that decision stands. The Respondent has not sought to appeal that part of the First-tier Tribunal’s decision and therefore the only matter before me is the case of Halima Begum. Permission to appeal was granted to the Respondent on 26th April 2013 and thus the matter comes before me.
Consideration of Error of Law
5. Mr Avery appeared on behalf of the Respondent and Mr Rahman for the Appellant. I heard submissions from both representatives. Mr Avery’s submissions followed the lines of the grounds seeking permission. Put quite simply, he submitted, the First-tier Tribunal Judge misdirected herself by failing to recognise that the Appellant had a limited right of appeal; despite the Entry Clearance Officer pointing this out in the refusal notice. Mr Avery submitted that the Judge makes no reference to this in her determination and therefore she clearly falls into error. The appropriate course is for Halima Begum’s appeal to be dismissed.
6. Mr Rahman in response informed me that the Appellant’s appeal should be allowed, since her mother needed the Appellant to accompany her to the United Kingdom. He said that if Halima Begum’s appeal were not allowed, it would mean that Hazera Begum would be unable to travel. He then addressed me by trying to invoke Article 8 ECHR on behalf of the Appellant. He said that as her mother would not be able travel without her this would be contrary to her Article 8 rights.
Consideration and Decision
7. The Appellant’s application to visit her uncle was refused under the Immigration Rules with reference to the Immigration Appeals (Family Visitor) Regulations 2012. The application was made on 11th July 2012 and these Regulations came into force on 9th July 2012. This Appellant’s application is, therefore, caught by the above Regulations.
8. A proposed visit by the Appellant to her uncle is outwith the Regulations. Any right of appeal is limited to human rights grounds and/or race discrimination grounds. Neither ground was mentioned in the original grounds of appeal. The First-tier Tribunal Judge has clearly erred in this Appellant’s case since she ought to have addressed her mind to this point which was quite properly raised by the Entry Clearance Officer. That is a material error and one which requires the decision so far as Halima Begum is concerned, to be set aside and remade.
9. No further evidence or facts were put before me by either party. As I said above, Mr Rahman did try to invoke Article 8 ECHR on behalf of the Appellant. In my judgment this is a matter which does not even engage Article 8. What is proposed is a family visit for two months. There is nothing exceptional about the visit, the purpose being for the Appellant to accompany her mother to her uncle’s house. I do not see that family and/or private life is engaged for the purposes of Article 8. The issue of proportionality is therefore not engaged as the Article 8 appeal fails at the first stage.
DECISION
10. There is an error of law so far as the decision in Halima Begum’s case is concerned. I remake the decision. The appeal by Halima Begum (the Appellant) is dismissed.

No anonymity direction is made

Signature Dated
Judge of the Upper Tribunal

I have dismissed the appeal and therefore there can be no fee award.

Signature Dated