Secretary of State for the Home Department v Chioma Goodness Onuorah
| Jurisdiction | England & Wales |
| Judge | Lord Justice Singh,Lord Justice Sales,Lady Justice Gloster |
| Judgment Date | 03 November 2017 |
| Neutral Citation | [2017] EWCA Civ 1757 |
| Docket Number | Case No: C5/2016/1510 |
| Court | Court of Appeal (Civil Division) |
| Date | 03 November 2017 |
[2017] EWCA Civ 1757
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)
Deputy Upper Tribunal Judge Monson
[2016] UKAITUR VA051732014
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice Gloster, VICE PRESIDENT OF THE COURT OF APPEAL, CIVIL DIVISION
Lord Justice Sales
and
Lord Justice Singh
Case No: C5/2016/1510
John-Paul Waite (instructed by Government Legal Department) for the Appellant
Michael Biggs (instructed by Gans & Co LLP) for the Respondent
Hearing date: 12 October 2017
Judgment Approved
Introduction
This is an appeal by the Secretary of State against the decision of the Upper Tribunal (Immigration and Asylum Chamber) ("UT") promulgated on 7 January 2016. By that decision the UT dismissed the appeal by the Entry Clearance Officer in Abuja, Nigeria ("ECO") against the decision of the First-tier Tribunal ("FTT") dated 22 April 2015. Permission to appeal to this Court was granted by UT Judge Kekic on 4 March 2016.
By its decision the FTT allowed the present Respondent's appeal against the refusal of entry clearance dated 24 July 2014. The ECO had refused the application for a visa to visit the Respondent's brother in the United Kingdom for four weeks. The only ground of appeal which was available to an applicant in such circumstances was that there was a breach of section 6 of the Human Rights Act 1998 (" HRA") and in particular a breach of Article 8 of the Convention rights: see section 88A, read with sections 82(1) and 84(1)(c), of the Nationality, Immigration and Asylum Act 2002 ("the 2002 Act"). That argument succeeded before the FTT.
The UT decided that there was no error of law in the FTT's decision and so dismissed the ECO's appeal.
The Secretary of State now appeals to this Court and argues that the FTT did indeed err in law, in particular in finding that there was "family life" or "private life" for the purpose of Article 8 as between the Respondent and her brother.
Factual Background
The Respondent is a national of Nigeria and was born there on 17 March 1985. The Respondent is married to her husband, who lives in Nigeria. She has employment there.
The Respondent's brother, Franklin Chinedu Onuorah, who was her sponsor for the purpose of her visa application, has lived in the United Kingdom for 11 years and is a naturalised British citizen. He is married and has two young children in this country. Both the Respondent and her brother are adults.
The Respondent's application for entry clearance was made on 17 July 2014. It was considered by the ECO and refused on 24 July 2014. The application was considered under para. 41 of the Immigration Rules (HC 395). The ECO was not satisfied, on the balance of probabilities, that the Respondent was genuinely seeking entry as a visitor for a limited period not exceeding 6 months or that she intended to leave the UK at the end of her visit. Accordingly the ECO was not satisfied that she met all of the requirements of para. 41.
After that initial refusal the decision was reviewed by the Entry Clearance Manager ("ECM"). However, the ECM decided to uphold the refusal in a decision dated 20 November 2014.
The Decision of the First-tier Tribunal
The decision of the FTT was taken by Judge Manuell. The Judge noted that, in relation to applications for entry clearance made after 25 June 2013, it was no longer possible in "family visitor" cases for a person to appeal. He observed that the right of appeal to the FTT is now limited to alleged discrimination under the Equality Act 2010 and to Article 8 issues. It is only the latter that are relevant to the present case.
Mr Onuorah gave evidence before the FTT and adopted his witness statement dated 9 April 2015. He said that none of his family had been to see him in the UK in the 11 years he had lived here. He said that it was inconvenient for the Respondent's husband to travel and so he was happy for her to make the trip alone. The Judge was satisfied that Mr Onuorah was an honest witness and accepted his evidence in full. The Judge was also satisfied that the Respondent did in fact intend to return to Nigeria at the conclusion of her brief visit to the UK. Accordingly, if there had still been a right of appeal against the decision to refuse under para. 41 of the Immigration Rules, the Judge would have had no hesitation in allowing it: see para. [10] of the decision.
At para. 11 the FTT noted that the Respondent lives in Nigeria and so has no family life in the UK, "or at least one which is maintained at a distance." However the FTT was of the view that there was "rather more to the appeal than that."
The FTT said that there was at least one British citizen directly affected by the decision, namely the Respondent's brother, as well as his British citizen children. It continued, at para. [12]:
"… The particular form of family life which the Appellant [the present Respondent] enjoys with her brother is necessarily limited as they are both adults with their own families but nonetheless the connection between them is real. The Tribunal finds on the facts of the appeal that the refusal decision is an interference with the family life of persons in the United Kingdom. The fact that it is also an interference with the Appellant's family life is not relevant as she is not present in the United Kingdom."
Mr Michael Biggs, who appeared before this Court on behalf of the Respondent, accepts that that last sentence was wrong, since (he submits) there is authority from the Supreme Court that there is a single family life in such cases, which should not be sub-divided in this way: see Beoku-Betts v Secretary of State for the Home Department [2009] 1 AC 115. However, he submits that the error was immaterial because what is important is that the Judge found there to have been family life as between the Respondent and Mr Onuorah for the purposes of Article 8.
At para. [13] the FTT stated:
"The Entry Clearance Officer's decision is in accordance with the law, in the sense that there was power to make it. The key issue in the … analysis for the Tribunal is proportionality … while there was power to make the decision, the Tribunal finds that the decision was incorrect and that the Appellant's application should have been allowed. That must have a major bearing on proportionality, in that the Tribunal finds that the Appellant would have complied and will comply with her visa conditions. The public interest under Article 8.2 ECHR is satisfied because there was no evidence to show that the Appellant is likely to breach her visa conditions or otherwise infringe United Kingdom law if she is permitted to visit the United Kingdom for a brief period as she declared she intended."
Accordingly, at para. [14], the FTT allowed the appeal by the present Respondent. Further it made a direction under section 87 of the 2002 Act to require the ECO to issue her with a UK Visit Visa in the category for which she had paid the correct fee.
The ECO sought to appeal against that decision to the UT. Although permission was initially refused on 29 June 2015 it was later granted on 13 August 2015.
The Decision of the Upper Tribunal
The appeal before the UT was heard by Deputy UT Judge Monson.
At para. [6] the UT noted that:
"It is established case law that family life within the meaning of Article 8 would not normally exist between adult siblings, parents and adult children. Where family life does not exist, generally Article 8 will not be engaged."
In the same paragraph it referred to the decision of this Court in Kugathas v Secretary of State for the Home Department [2003] EWCA Civ 31; [2003] INLR 31. In particular it noted that "unless something more exists than mere emotional ties" family life will not be established between an adult and other siblings.
At para. [7] the UT noted that none of the criteria identified in authorities such as Kugathas appeared to be met in the present case, because the Respondent was found to have strong ties to Nigeria in the form of her marriage.
However, from para. [20] of the judgment, the UT stated that two different themes are discernible in the domestic jurisprudence relating to Article 8 claims in the context of family visitors. It suggested that there was support for "the restrictive approach" in some decisions of the UT but that there was also support for "a more elastic approach". At para. [24] the UT said:
"Where a person is seeking entry clearance for the purpose of settlement, and he cannot bring himself within the relevant requirements of the applicable rules, there is no good reason to depart from the orthodox requirement that for such a person to maintain a family life claim outside the Rules, the Kugathas dependency criteria must be met." (My emphasis)
At para. [25] the UT stated:
"However, where a person is only seeking entry clearance for a limited purpose such as a short visit, satisfaction of the Kugathas dependency criteria is wholly antithetical to such a person being granted admission under the Rules, as the incentive for him to return to his home country is objectively much weaker than is the incentive for him to remain in this country with the family member on whom he is emotionally dependent. In addition, provided that the applicant complies with the requirements of a visit visa, there is no potential downside from an immigration control perspective, whereas a person admitted for the purposes of settlement is potentially a future burden on the taxpayer." (My emphasis)
In my view, the error disclosed by that passage is that the UT confused the concept of justification for any interference with the right to...
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