Abbas v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Burnett,Sir Ernest Ryder,Lady Justice Gloster |
| Judgment Date | 28 September 2017 |
| Neutral Citation | [2017] EWCA Civ 1393 |
| Court | Court of Appeal (Civil Division) |
| Date | 28 September 2017 |
| Docket Number | Case No: C5/2015/4000 |
[2017] EWCA Civ 1393
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL, IMMIGRATION AND ASYLUM CHAMBER
DEPUTY UPPER TRIBUNAL JUDGE MANUELL
VA/05309/2014
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice Gloster VICE PRESIDENT OF THE COURT OF APPEAL, CIVIL DIVISION
SENIOR PRESIDENT OF TRIBUNALS
and
Lord Justice Burnett
Case No: C5/2015/4000
Ms Lisa Giovannetti QC and Mr Colin Thomann (instructed by Government Legal Department) for the Appellant
The Respondent was neither present nor represented
Hearing dates: Tuesday13thJune2017
Introduction
The Respondent, Mr Abbas, is a Pakistani national now aged 33, who lives with his wife and three small children in Pakistan. He made an application for the family to visit the United Kingdom for four weeks from 15 August 2014 for the purpose of visiting an uncle and his grandmother who live here. His application was refused under the Immigration Rules for two reasons. First, under paragraph 320(7B) because he had previously been refused an entry clearance on the grounds of using deception by filing a non-genuine document. Secondly, and in any event, the Entry Clearance Officer was not satisfied that Mr Abbas and his family would leave the United Kingdom at the end of the suggested visit. There is no right of appeal against such a decision save on human rights or discrimination grounds. The First-tier Tribunal ("F-tT") allowed Mr Abbas' appeal against the refusal of entry clearance on the basis that to deny him, and his family, entry into the United Kingdom violated his rights to develop a private life guaranteed by article 8 of the European Convention on Human Rights ("ECHR"). The Upper Tribunal (Immigration and Asylum Chamber) ("UTIAC") dismissed the Secretary of State's appeal against that decision.
The important point of principle which arises in this appeal is this:
"To what extent does the state have a positive obligation on grounds of private life (where no relevant family life exists) to grant entry clearance for an adult to visit an elderly relative located in the United Kingdom?"
The appellant Secretary of State is represented by Ms Giovannetti QC and Mr Colin Thomann. The respondent has played no part in the appeal.
In my judgment the answer to that question is that no such positive obligation exists. There is no sign of it having been recognised in the jurisprudence of the Strasbourg Court. It is inconsistent with the jurisprudence on the positive obligation under article 8 as regards family life which that court has recognised and would sit uneasily with its approach to the extra-territorial reach of the ECHR.
The facts in outline
The respondent's application for a visitor's visa was refused on 31 July 2014. The application dated 10 July 2014 indicated that he wished to travel with his wife and two children (then aged four and two). He provided details of previous visits. He answered questions relating to his employment and financial position. He indicated that the cost of the trip to him would be only £250 and that the balance of the costs was being paid by others. He stated that the purpose of the visit was to visit a family member, namely his uncle (who is a British citizen). The respondent explained that he had recently been refused entry clearance under paragraph 320(7A) of the Immigration Rules on the basis of producing a false document relating to his alleged employment but disputed that it was false. He produced a further document from the employer to confirm the position. He contended that the previous refusal "was not fair at all" and dealt with a query raised on that occasion about the origin of funds in his bank which had concerned the earlier Entry Clearance Officer. The respondent said that he and his family members had no intention of staying in the United Kingdom beyond the four weeks planned for the visit, despite having overstayed on a previous visit and despite his sponsor (his uncle) having said they would be visiting for two months. He also explained that large sums of money recently paid into his bank account had come from his uncle who wished to purchase land in Pakistan.
The refusal decision referred to the mandatory ground of refusal already mentioned. The Entry Clearance Officer was not satisfied with the financial information provided, explaining in detail why, and also was not satisfied that the respondent and his family would leave the United Kingdom at the conclusion of the proposed visit.
The Appeals to the F-tT and UTIAC
The F-tT judge noted that the purpose of the proposed visit was to see both the respondent's uncle and grandmother, although she is not mentioned in the underlying application. He also noted that the appeal was limited to human rights grounds. Oral evidence was given by the uncle who said that his mother could not travel to Pakistan on her own. By the time of the appeal hearing in February 2015 the third child had been born to the respondent and his wife. The judge found that the respondent had complied with his visa requirements on four previous visits – an error given the respondent's own account of overstaying on one occasion. The judge accepted that the respondent was close to his uncle and grandmother and it was important that he see her. He said nothing relating to the other family members. The judge went on to find that the respondent "did not deliberately supply a false employers' letter in his previous application" and then continued:
"9. The purpose of Article 8 is to prevent unlawful and disproportionate interference with a person's family or private life.
10. In Kugathas v SSHD [2003] EWCA Civ 31, a case which concerned an adult's relationship with his mother and adult siblings, the Court of Appeal thought that the following passage in S v United Kingdom [1984] 40 DR 196 was still relevant:
"…generally, the protection of family life under Article 8 involves cohabiting dependants, such as parents and their dependent minor children. Whether it extends to other relationships depends on the circumstances of the particular case. Relationships between adults … would not necessarily acquire the protection of Article 8 of the Convention without evidence of further elements of dependency, involving more than the normal emotional ties."
11. Notwithstanding the closeness of the relationship between the [respondent] and his Uncle, given that the [respondent] is established in Pakistan with his own family unit, I do not consider that there is family life between him and his Uncle or Grandmother. However, I find that the concept of private life can include the maintenance of relationships between those who are other than co-habiting dependents involving normal emotional ties.
12. I find that the development of the [respondent's] private life includes being able to visit his Uncle and Grandmother in the United Kingdom, provided he satisfies the requirements of the Immigration Rules.
13. Having heard [the uncle's] evidence and considered the [respondent's] strong ties in Pakistan, I am satisfied that he is a genuine visitor. I find that the refusal amounts to a disproportionate breach of the [respondent's] private life contrary to Article 8 ECHR."
The reasoning may be condensed into the following propositions:
• Private life includes the maintenance of relationships outside those which count as family life;
• The development of private life includes being able to visit the United Kingdom for that purpose, so long as the person concerned satisfies the rules;
• There is a positive obligation under article 8 ECHR to allow a foreign national to enter the United Kingdom to develop his private life if he satisfies the rules;
• The respondent in fact satisfies the rules;
• Refusal of entry clearance was a disproportionate interference in his article 8 rights;
There was no separate consideration of the position of the respondent's wife and small children, even though their position was clearly different factually. There was no consideration of the question whether the uncle and grandmother could travel to Pakistan.
The Home Office argued before the UTIAC that there was no interference with the respondent's article 8 private life rights; that someone resident outside the United Kingdom has no private life in the United Kingdom; that the F-tT judge had effectively allowed an appeal under the rules, when parliament had denied such an appeal; and that in consequence there was an error of law.
The appeal was heard in July 2015. The Home Office was represented by a Presenting Officer and the respondent by counsel. The finding that there was no qualifying family life was not challenged. For the respondent it was argued that 'private life' was a broad concept which, relying on Pretty v United Kingdom (2002) 53 EHRR 1 at paragraph 61, included 'the physical and psychological integrity of a person … Article 8 also protects a right to personal development, and the right to establish and develop relationships with other human beings and the outside world.' The short visit sought by the respondent was designed to do just that.
In coming to the conclusion that the F-tT had made no error of law, Deputy Upper Tribunal Judge Manuell first noted the difficulty faced by individuals refused visitors' visas because there was no right of appeal. Judicial review was a sledgehammer to crack a nut. The judge noted the UTIAC decision in Entry Clearance Officer (Accra) v Pricsilla Adjei [2015] UKUT 0261 (IAC) where UTJ Southern explained that in an appeal on human rights grounds against a refusal to grant a visitor's visa:
"The first question to be addressed in an appeal against a refusal to grant an entry clearance as a visitor when only human rights grounds...
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