Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: VA012332015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 9th June 2016
On 20th June 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE M A HALL

Between

entry clearance officer - abu dhabi
Appellant

and

samina malik
(anonymity direction not made)
Respondent

Representation:

For the Appellant: Mr S Kandola, Senior Home Office Presenting Officer
For the Respondent: Mr A Jafar of Counsel instructed by My Legal Solicitors

DECISION AND REASONS

Introduction and Background
1. The Entry Clearance Officer (the ECO) appeals against the decision of Judge P J M Hollingworth of the First-tier Tribunal (the FTT) promulgated on 26th November 2015.
2. The Respondent before the Upper Tribunal was the Appellant before the FTT and I will refer to her as the Claimant.
3. The Claimant is a female citizen of Pakistan born 17th March 1954 who applied for entry clearance to the United Kingdom as a visitor. The application was made on the basis that the Claimant wished to visit her adult siblings and her mother in the United Kingdom and intended to stay for 60 days.
4. The Claimant explained that her mother has a critical heart condition and therefore she had applied for a two year visa so that she could visit her mother if there is an emergency.
5. The Claimant explained that she has two married children and grandchildren in Pakistan. She is a widow and receives a pension, and owns two apartments as well as having investments in national savings. The Claimant indicated that she had previously visited the United Kingdom between 6th May 2013 and 25th September 2013, following the death of her father in this country.
6. The application was refused on 15th January 2015. The ECO did not accept that the Claimant had proved that she intended a genuine visit, that she would leave the United Kingdom at the conclusion of her visit, nor that she could be maintained and accommodated in the United Kingdom without recourse to public funds or employment, or that she could meet the cost of a return or onward journey. The application was therefore refused with reference to paragraph 41(i), (ii), (vi) and (vii), of the Immigration Rules.
7. The ECO in the refusal notice pointed out that the Claimant only had a limited right of appeal, which the ECO contended was limited to section 84(1)(c) of the Nationality, Immigration and Asylum Act 2002 (the 2002 Act) which relates to a breach of human rights.
8. The Claimant entered an appeal, and the grounds are brief, contending that the ECO's decision breached her rights as an EEA national or the member of the family of an EEA national, and that the decision was unlawful as it breached her human rights, protected by the 1950 European Convention on Human Rights (the 1950 Convention).
9. The Claimant requested that her appeal be decided on the papers without an oral hearing.
10. The FTT decided the appeal on the papers, and found that the Claimant had established family life with her mother. The FTT found that the Claimant is able to speak English, and that adequate provision had been made for financial and economic self-sufficiency during her stay in the United Kingdom. The FTT took into account that the Claimant had previously visited the United Kingdom and returned. The FTT found that a pressing need had been established for the visit, that being the ill health of the Claimant's elderly mother. The appeal was therefore allowed.
11. The ECO applied for permission to appeal to the Upper Tribunal. It was contended that the FTT had committed a material misdirection of law in that family life for the purposes of Article 8 will not normally exist between adult siblings, parents and adult children unless something more exists than normal emotional ties. The FTT had erred by stating that dependency existed, and had failed to adequately explain how Article 8 was engaged on that basis.
12. It was contended that there was no evidence that the Claimant's mother was dependent in any way upon her. It was contended that the FTT had failed to take into account the guidance given by the Upper Tribunal in Adjei [2015] UKUT 0261 (IAC).
13. It was also contended that the FTT had carried out an inadequate proportionality assessment and had not explained why refusal of a visa which only allowed parties to be together temporarily was a disproportionate interference with Article 8 rights.
14. Permission to appeal was granted by Judge E B Grant in the following terms;
2. The grounds contend the FTTJ has materially misdirected himself and erred in law in his assessment of Article 8 in the visitor visa appeal for the adult Appellant in respect of a visit to her siblings and mother when it is settled law that Article 8 is generally not engaged between adult siblings and their parents in the absence of dependency.
3. The grounds may be argued.
15. Directions were subsequently issued that there should be an oral hearing before the Upper Tribunal to ascertain whether the FTT had erred in law such that the decision must be set aside.
Oral Submissions
16. Mr Kandola relied upon the grounds contained within the application for permission to appeal. It was submitted that there was no adequate reasoning to support the finding of dependency between the Claimant and her mother. The FTT had erred by finding that Article 8 was engaged.
17. In the alternative if Article 8 was engaged, the denial of a visit visa was not an unlawful infringement of Article 8 rights, and the proportionality assessment was inadequate.
18. Mr Jafar relied upon his skeleton argument dated 3rd June 2016 and argued that the FTT decision disclosed no material error of law.

19. Mr Jafar submitted that the FTT had not acted perversely, and was entitled to find that family life was engaged between the Claimant and her mother on the basis of dependency. I was asked to accept that the FTT had identified eleven factors which constituted dependency and set these out in paragraphs 7-9 of the decision.
20. Mr Jafar submitted that the grounds relied upon by the ECO amounted to a disagreement with the sustainable conclusion reached by the FTT and did not amount to an error of law. The proportionality assessment was not inadequate, and took into account the public interest considerations set out in section 117B of the 2002 Act.
21. At the conclusion of oral submissions I reserved my decision.
My Conclusions and Reasons
22. The correct approach to be followed when considering an appeal against refusal of entry clearance when reliance is placed upon Article 8 of the 1950 Convention is set out in the first paragraph of the headnote to Adjei which for ease of reference I set out below;
"1. 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 of the ECHR 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. If Article 8 is engaged, the Tribunal may need to look at the extent to which the Claimant is said to have failed to meet the requirements of the rule because that may inform the proportionality balancing exercise that must follow. Mostafa (Article 8 in entry clearance) [2015] UKUT 112 (IAC) is not authority for any contrary proposition."
23. The FTT recognised that the initial question to be answered was whether Article 8 was engaged, and concluded in paragraph 10;
"10. I find that in the light of the factors to which I have referred which have been identified that dependency has come into existence in the circumstances of this case. I find that family life is therefore led on that footing."
24. It is well established that in order for Article 8(1) to be engaged on the basis of family life, between an adult child and his surviving parent or other siblings, something more must exist than the normal emotional ties. This was held to be the case in Kugathas [2003] EWCA Civ 31. More recently the Upper Tribunal in Ghising [2012] UKUT 00160 indicated that Kugathas may have been interpreted too restrictively in the past and ought to be read in the light of subsequent decisions of the domestic and Strasbourg courts (paragraph 56). The Upper Tribunal stated in paragraph 62 that rather than applying a blanket rule with regard to adult children, each case should be analysed on its own facts, to decide whether or not family life exists within the meaning of Article 8(1).

25. Therefore each case is fact sensitive. I do not, however, find that the FTT has adequately explained the conclusion that a family life exists between the Appellant and her elderly mother. There is no finding that family life exists between the Claimant and her two adult siblings.
26. There was no evidence before the FTT that the Claimant and her mother had lived together in recent times. Both had lived in different countries for a very considerable number of years. Evidence indicated that they had each formed their own family lives, the Claimant's mother in the United Kingdom, and the Claimant in Pakistan. The Claimant had only visited the United Kingdom once in the last ten years, according to her application form, and there was no evidence to indicate when if at all, the Claimant's mother had visited Pakistan.
27. This is not a case where the Claimant is a young adult, who has recently left her mother's home, as the Claimant was 60 years of age at the date of refusal of entry clearance.
28. I do not find that the FTT had identified factors in paragraphs 7-9 which indicated that family life exists between the Claimant and her mother. In those paragraphs the FTT set out the Claimant's mother's medical condition and reference is made to the Claimant being unable to visit the United Kingdom until after the death of her father and there is reference to the contention that the relationship is a close one between the Claimant and her mother. These factors do not adequately explain why the FTT decided that there exists dependency over and above the normal emotional ties.
29. There is a lack of evidence to indicate that the Appellant is dependent upon her mother, or that her mother is dependant upon her. Evidence indicates that the Appellant's mother has been dependent upon her two adult children in the United Kingdom.
30. I therefore conclude that the FTT erred in law in failing to take into account that for family life to be engaged between an adult child and surviving parent, there must be dependency over and above the normal emotional ties.
31. I therefore set aside the decision of the FTT. I have carefully considered all of the evidence that was before the FTT, and conclude that in the absence of satisfactory evidence, it has not been established that there is dependency between either the Claimant and her adult siblings, or the Claimant and her mother. There is no dependency over and above the normal emotional ties, and therefore the Claimant has not established that Article 8 is engaged either on the basis of family or private life.
32. As Article 8 is not engaged, the Claimant's appeal cannot succeed, and it is not necessary to go on and consider the issue of proportionality.
33. I have considerable sympathy for the Claimant who wishes to visit her mother in the United Kingdom, and it is clear that her mother is elderly and has health difficulties. However the appropriate course of action, in my view, would be to submit a further application for entry clearance and supply sufficient evidence to satisfy the Immigration Rules. It is on record that the Claimant visited the United Kingdom following the death of her father and returned to Pakistan. I am afraid that in this case, it is my view that Article 8 cannot be used to assist the Claimant. It is not contended that the Claimant is an E.E.A. national or the family member of an E.E.A. national.
Notice of Decision

The decision of the First-tier Tribunal involved the making of an error of law such that it is set aside.

I re-make the decision by dismissing the Claimant's appeal on human rights grounds.

Anonymity

No anonymity direction was made by the FTT. There has been no request to the Upper Tribunal for anonymity and I make no anonymity direction.

Signed Date 13th June 2016

Deputy Upper Tribunal Judge M A Hall

TO THE RESPONDENT
FEE AWARD

The Claimant's appeal is dismissed. There is no fee award.

Signed Date 13th June 2016

Deputy Upper Tribunal Judge M A Hall