Mostafa (Article 8 in entry clearance)
| Jurisdiction | UK Non-devolved |
| Judge | Mr Justice Mccloskey,Perkins |
| Judgment Date | 19 December 2014 |
| Neutral Citation | [2015] UKUT 112 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 19 December 2014 |
[2015] UKUT 112 (IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
Mr Justice Mccloskey, President
Upper Tribunal Judge Perkins
Appellant: Mr I Jarvis, Senior Home Office Presenting Officer
Respondent: Mrs S E Medhat El Sheikh, Sponsor
Mostafa (Article 8 in entry clearance)
In the case of appeals brought against refusal of entry clearance under Article 8 ECHR, the claimant's ability to satisfy the Immigration Rules is not the question to be determined by the Tribunal, but is capable of being a weighty, though not determinative, factor when deciding whether such refusal is proportionate to the legitimate aim of enforcing immigration control.
There is no need for any order restricting publication of any facts relating to this case and we make no order.
The appellant, hereinafter “the Entry Clearance Officer”, has permission to appeal a decision of the First-tier Tribunal to allow the appeal of the respondent, hereinafter “the claimant”, against a decision of the Entry Clearance Officer on 5 September 2013 refusing him entry clearance to the United Kingdom for the purpose of a family visit. He said that he wanted to visit his wife who is a British citizen ordinarily resident in the United Kingdom but the Entry Clearance Officer was not satisfied that the claimant satisfied the requirements of paragraph 41(i) and (ii) of HC 395. In short the Entry Clearance Officer was not satisfied that the claimant intended a visit for the limited period stated by him or intended to leave the United Kingdom at the end of the period of the visit.
The Entry Clearance Officer's decision informed the claimant that his right of appeal was limited to the grounds identified at Section 84(1)(c) of the Nationality, Immigration and Asylum Act 2002, that is to say “that the decision is unlawful under Section 6 of the Human Rights Act 1998 … as being incompatible with the appellant's Convention rights.”
Although the grounds of appeal to the First-tier Tribunal clearly expressed disagreement with the Entry Clearance Officer's finding that the claimant did not intend to return after the visit they additionally and unequivocally relied on Article 8 of the European Convention on Human Rights. This approach was echoed in the skeleton argument which also developed the suggestion in the grounds that the findings of fact reflected an approach that was contrary to policy. The closing paragraphs of the skeleton argument refer to the decision being “not in accordance to (sic) the Immigration Rules, namely paragraph 41, not in accordance to (sic) the law and not in accordance with Article 8 of the ECHR.”
It is therefore slightly surprising that the First-tier Tribunal Judge allowed the appeal “under the Immigration Rules” but made no finding on the ground raising Article 8 of the European Convention on Human Rights (“ECHR”).
Predictably this was challenged by the Entry Clearance Officer who was given permission to appeal by an Upper Tribunal Judge. The grounds of appeal before the Upper Tribunal point out that, with effect from 25 June 2013, section 52 of the Crime and Courts Act 2013 amended section 88A of the Nationality, Immigration and Asylum Act 2002 so that there is no right of appeal against refusal of entry clearance in a family visitor case except on grounds alleging that the decision shows unlawful discrimination or is unlawful under Section 6 of the Human Rights Act 1998. This is wider than the limited grounds identified in the “Refusal of Entry Clearance” but nothing turns on this.
The Entry Clearance Officer's grounds continue at paragraph 6:
“Where there is a right of appeal on one of these grounds the First-tier Tribunal must only consider those grounds, it is not open to the First-tier Tribunal to consider whether the decision is in accordance with the Immigration Rules or otherwise in accordance with the law.”
We remind ourselves that section 85A of the 2002 Act applies and although the Tribunal can consider evidence that was not in existence, or not produced, at the date of decision it can only consider additional evidence of “circumstances appertaining at the time of the decision”.
Notwithstanding the way his case was pleaded (see above) Mr Jarvis made it plain that it was not his case that the First-tier Tribunal was bound by the findings of fact made by the Entry Clearance Officer. Those findings could be challenged in an appeal where the evidence was relevant. There were restrictions on that evidence, in this case restrictions limiting the evidence to matters in existence at the time of the decision but there was no basis on which the Tribunal could make a decision except by evaluating the evidence.
Clearly there can be no question of entertaining an appeal on grounds alleging that the decision was not in accordance with the law or the immigration rules. These are not permissible grounds. However if, as we find to be the case here, the claimant has shown that refusing him entry clearance does interfere with his, and his wife's, private and family lives then it will be necessary to assess the evidence to see if the claimant meets the substance of the rules. This is because, as is explained below, the ability to satisfy the rules illuminates the proportionality of the decision to refuse him entry clearance.
Here the First-tier Tribunal noted that the claimant and his sponsor were married and further found that the claimant intended only a short visit after which he would return to Egypt. These findings were not made without good reason. They clearly considered that refusal of entry clearance would have a significant impact on the claimant's right to enjoy family life: the claimant had strong ties with Egypt including those arising from his being in regular, rewarding work and his children living there. Additionally the sponsor had property in Egypt and had organised her affairs to spend long periods of time there. Further, although there have indeed been “widespread changes” in Egypt in recent times, as contended by the Entry Clearance Officer, the evidence showed that this claimant lived safely in a tourist area that was substantially unaffected and continued to attract tourists.
Nevertheless we agree with Mr Jarvis that the First-tier Tribunal had no basis for allowing the appeal “under the Immigration Rules”. There was no power in law to entertain an appeal on those grounds....
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