Adjei (Visit Visas - Article 8)
| Jurisdiction | UK Non-devolved |
| Judge | Southern,Southern UTJ |
| Judgment Date | 06 May 2015 |
| Neutral Citation | [2015] UKUT 261 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 06 May 2015 |
[2015] UKUT 261 (IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
Upper Tribunal Judge Southern
For the Appellant: Ms A. Fijiwala, Senior Home Office Presenting Officer
For the Respondent: Ms E. Aryee of Immigration Practitioners Service LLP
Adjei (visit visas — Article 8)
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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. 1 Mostafa (Article 8 in entry clearance) [2015] UKUT 112 (IAC) is not authority for any contrary proposition.
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2. As compliance with para 41 of HC 395 is not a ground of appeal to be decided by the Tribunal, any findings concerning that will carry little weight, especially if based upon arguments advanced only by the appellant. If the appellant were to make a fresh application for entry clearance the ECO will, if requested to do so, have regard to the
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assessment carried out by the judge but will not be bound by those findings to treat the appellant as a person who, at least at the date of the appeal hearing, met the requirements of paragraph 41.
The Entry Clearance Officer (“the ECO”) has been granted permission to appeal against the decision of First-tier Tribunal Judge S. Taylor who, by a determination promulgated on 22 October 2014, allowed the respondent's appeal against refusal to grant her entry clearance for a family visit. To avoid confusion, I shall refer to the respondent as “the claimant”.
The claimant, who is a citizen of Ghana born on 14 September 1982, applied for entry clearance so that she could visit her father, step mother and step siblings who live in London. She explained that she had lived as part of that family unit before they moved to the United Kingdom in 1994. She remained in Ghana because, as she was over 18 years of age when the family decided to travel to the United Kingdom, it was anticipated that she would not be able to secure entry clearance for settlement. In 2012 she made a 3 month long visit to the United Kingdom and this time wished to stay for 6 months. She had secured unpaid leave from her employment as well as the agreement of her partner in Ghana. She did not apply for entry clearance for her 2 year old daughter because she anticipated that if she had done so it would have been assumed that she intended more than a brief family visit and so her application would be refused.
That application was refused by a decision of the ECO made on 15 November 2013 because the ECO was not satisfied that the claimant was a genuine visitor who intended to leave the United Kingdom at the end of the visit, nor that she did not intend to take employment.
Recognising that she could bring her appeal only upon grounds that refusal infringed rights protected by Article 8 of the ECHR, that was the basis upon which the claimant put her case to the First-tier Tribunal:
“The appellant maintains that the entry clearance Officer's decision to refuse her leave to enter into the UK is against her human rights, in particular her rights under the Art 8 of the ECHR.
The appellant says she has an established family life with her father Mr Adjei who is her sponsor.
The appellant also says she has formed family life with her step mother and siblings in the UK.
The appellant says that the ECO's decision to refuse her case is [a] disproportionate interference to her right to family life. The appellant says that it is cheaper for her to visit her family in the UK to maintain the family life they have established than for the family to visit her in Ghana.”
It is unambiguously clear that the decision of the judge to allow the appeal discloses material legal error. Quite properly, Ms Aryee made no attempt to suggest otherwise. That is because, despite the fact that the grounds for appealing were based, and could only be based, upon the asserted infringement of the claimant's human rights, the judge allowed the appeal on the basis that refusal was not in accordance with the immigration rules.
It is not altogether difficult to see why the judge, on the basis of the information before him, thought that the claimant did meet the requirements of the rules so that the ECO was wrong to conclude otherwise. The judge had regard to the earlier visit, completed in compliance with the terms of the entry clearance granted, noted that the claimant had family ties and employment in Ghana and that the claimant had arranged for her mother, who lives in Ghana, to care for her two month old child while she was away. The judge said there was no reason to doubt that the claimant's employer had granted unpaid leave for the visit so that her employment remained available upon return. The judge said:
“On the evidence before this Tribunal I find no basis to conclude that she would seek employment in the UK or that she would not return at the end of the visit.”
and concluded by saying:
“DECISION
The appeal in respect of the Immigration Rules is allowed.”
There is no discussion in the determination, at all, of the grounds upon which the appeal was brought and it is plain that the judge has simply not...
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Upper Tribunal (Immigration and asylum chamber), 2016-07-21, VA/04029/2014
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