Kaur (visit appeals; Article 8)
| Jurisdiction | UK Non-devolved |
| Judge | Upper Tribunal Judge Storey |
| Judgment Date | 28 July 2015 |
| Neutral Citation | [2015] UKUT 487 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 28 July 2015 |
[2015] UKUT 487 (IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
UPPER TRIBUNAL JUDGE Storey
DEPUTY UPPER TRIBUNAL JUDGE Bagral
For the Appellant: Mr N Bramble, Home Office Presenting Officer
For the Respondent: Mr J Dhanji of Counsel instructed by ATM Law
Kaur (visit appeals; Article 8)
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1. In visit appeals the Article 8 decision on an appeal cannot be made in a vacuum. Whilst judges only have jurisdiction to decide whether the decision is unlawful under s.6 of the Human Rights Act 1998 (or shows unlawful discrimination) (seeMostafa (Article 8 in entry clearance) [2015] UKUT 00112 (IAC)andAdjei (visit visas – Article 8) [2015] UKUT 0261 (IAC)), the starting-point for deciding that must be the state of the evidence about the appellant's ability to meet the requirements of paragraph 41 of the immigration rules.
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2. The restriction in visitor cases of grounds of appeal to human rights does not mean that judges are relieved of their ordinary duties of fact-finding or that they must approach these in a qualitatively different way. Where relevant to the Article 8 assessment, disputes as to the facts must be resolved by taking into account the evidence on both sides: see Adjei at [10] bearing in mind that the burden of proof rests on the appellant.
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3. Unless an appellant can show that there are individual interests at stake covered by Article 8 “of a particularly pressing nature” so as to give rise to a “strong claim that compelling circumstances may exist to justify the grant of LTE [Leave to Enter] outside the rules”: (see SS (Congo) [2015] EWCA Civ 387 at [40] and [56]) he or she is exceedingly unlikely to succeed. That proposition must also hold good in visitor appeals.
On 2 April 2014 the appellant (hereafter “Entry Clearance Officer” or “ECO”) refused the application by the respondent (hereafter the claimant) for entry clearance to visit the UK for six weeks. The claimant is a citizen of India and at the date of decision was an 83 year old army widow. She lives in District Karpulthala. She said she wished to come to the UK to visit her third son and sponsor, Mr G S Turna, her daughter-in-law and her grandchildren aged 19 and 13 respectively. She had been the subject of a previous refusal of entry clearance in July 2013. In a letter from her solicitors dated 3 March 2014 making a new application, it was accepted she had not previously provided evidence of her retirement and income from bank interest. The letter produced documents in support of her claim that her main source of income was from sale of crops. Evidence was also attached to show she received a state pension of Rs1,000 a month. It said she had two sons in India with whom she shared close ties.
In the refusal letter the ECO observed that although the claimant had stated she had two sons in India she had provided no evidence, or even any indication of whether they resided with her or lived separately and she had provided no evidence of their financial or economic circumstances or employment. The ECO noted that the passport issued to one of these sons, Mr M Singh, showed his address as in Goa. The ECO concluded that:
“[i]n the absence of better, personal circumstances in India, I am not satisfied that you plan to leave the UK at the end of your visit or that you are genuinely seeking entry as a general visitor for a period not exceeding 6 months (paragraphs 41(i) & (ii) of HC 395 (as amended)).”
The claimant was informed that her right of appeal was limited in this case to the grounds of appeal referred to in s.84(1)(c) of the Nationality, Immigration and Asylum Act 2002 (hereafter “the 2002 Act”). She appealed. Her grounds stated that the decision was not in accordance with the law or the immigration rules and was unlawful under s.6 of the Human Rights Act 1988 ( HRA 1998). An Entry Clearance Manager Review dated 22 October 2014 noted that no new documents had been submitted, that no reasons had been given for the assertion that the decision was not in accordance with the law, the immigration rules or unlawful under the HRA 1998.
The appeal came before First-tier Tribunal (FtT) Judge Farmer on 22 January 2015. In a determination sent on 29 January 2015 he allowed the appeal on Article 8 grounds. The judge noted that the claimant had produced a bundle of documents which included a detailed written response to the Notice of Refusal. The judge stated that he heard evidence from the claimant's son/sponsor and the granddaughter. The judge went on to find:
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(i) that the claimant enjoys a family and private life with her sponsor son and grandchildren. In this regard he noted that the oldest grandchild was 19 and the second grandchild was 13 and both had lived with the claimant until two and a half years ago (July 2012).
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(ii) that the decision constituted an interference with the claimant's family and private life and as such engaged Article 8. In this regard the judge highlighted that both children had lived with the claimant for the majority of their lives and “her granddaughter gave compelling evidence of the fact that the [claimant] effectively brought them up. They have not seen her since they left India.”
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(iii) that the decision disproportionately interfered with the claimant's right to a private and family life with her son and grandchildren. The judge's reasons for this finding were embodied in paragraphs 11 – 13 as follows:
“11. I was invited to consider the reasons given for the refusal when considering the public interest. I find that the basis for the refusal was weak. The reasons given were that the appellant had not provided details of her family's circumstances in India. She had provided her own circumstances and that of her family she hoped to visit in the UK. The respondent concluded that they were not satisfied that the appellant would leave at the end of her visit, without basing this conclusion on any facts found. I accept that the appeal does not lie against the merits of the decision but against the breach of Article 8 rights, however I put it into the balance when considering the public interest behind refusing permission to visit the UK.
12. The respondent relied on the fact that there is nothing to prevent the family in the UK visiting the appellant in India. This was responded to in two ways. Firstly there is the economic reality of the cost of transporting 4 people to India as opposed to one person visiting here. Secondly, and more importantly there is the logistic and practical difficulty in arranging a visit. I accepted the evidence that the family here do not manage a family holiday together, even in the UK. They find it difficult to find a period of time when everyone is available. The appellant's son works for himself and when he is not working he does not earn anything. It is therefore costly for him to take time off work. Secondly his wife is in a full time job which only allows her 4 weeks off a year and only in blocks of a maximum of 2 weeks. Finally the children are both in education and are more attainable an objective for the appellant to travel to the UK to spend time with her family than vice versa.
13. I find that there is no good reason for finding that there is a public interest in not permitting the appellant to enter the UK for a 6 week holiday and that the decision disproportionally interferes with the Appellant's right to a private and a family life with her son and grandchildren.”
In amplifying the ECO's grounds, Mr Bramble said he relied on the principles set out in Mostafa (Article 8 in entry clearance) [2015] UKUT 00112 (IAC) and Adjei (visit visas – Article 8) [2015] UKUT 0261 (IAC). He said the judge was wrong to find there was family life within the meaning of Article 8 because (i) her sponsor son was an adult; (ii) she had not seen him for two and a half years; (iii) it was his family's choice that they moved away from their family life setting in India with the claimant; (iv) there was no evidence to suggest that since the grandchildren moved to the UK the claimant exercised any control over their upbringing or financially supported them.
Mr Bramble drew our attention to what had been said by the Tribunal in Mostafa at [24] that:
“It will only be in very unusual circumstances that a person other than a close relative will be able to show that the refusal of entry clearance comes within the scope of Article 8(1). In practical terms this is likely to be limited to cases where the relationship is that of husband and wife or other close life partners or a parent and minor child…”
As regards the judge's findings of interference and lack of proportionality, Mr Bramble submitted that the judge had given wholly inadequate reasons for considering that the public interest was reduced or outweighed. Factors such as the costs of a visit or the greater logistical convenience of the claimant coming to the UK rather than the sponsor and his family going to India, were not compelling circumstances.
Mr Dhanji submitted that even though the judge did not refer to any case law dealing with Article 8 in visit visa cases under the limited grounds of appeal imposed by s.88A of the 2002 Act, his decision was clearly faithful to Mostafa in that he considered that the claimant intended only a 6 weeks visit, which was evidence capable of being weighty. The judge had also applied the very approach enjoined by Adjei, namely (1) first to ask whether Article 8 is engaged at all; and (2) second, if it is, then [paragraph 1 of head note to Adjei] “the Tribunal may need to look at the extent to which the claimant is said to have failed to meet the requirements of the rules because that may inform the proportionality balancing...
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