Upper Tribunal (Immigration and asylum chamber), 2017-08-21, OA/08180/2014
| Jurisdiction | UK Non-devolved |
| Date | 21 August 2017 |
| Published date | 19 September 2017 |
| Hearing Date | 03 August 2017 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Unreported |
| Appeal Number | OA/08180/2014 |
Appeal Number: OA081802014
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA081802014
THE IMMIGRATION ACTS
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Heard in Birmingham |
Determination Promulgated |
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On Thursday 3 August 2017 |
On 21st August 2017 |
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Before
UPPER TRIBUNAL JUDGE SMITH
Between
MR SYED QAISER ABBAS
(NO ANONYMITY DIRECTION MADE)
Appellant
and
ENTRY CLEARANCE OFFICER, ISLAMABAD
Respondent
Anonymity
Rule 14: The Tribunal Procedure (Upper Tribunal) Rules 2008
Although anonymity was granted in my earlier decision, the appeals of the minor Appellants have been allowed and only the Second Appellant’s appeal remains. He is not a minor child and there is no reason therefore to continue the anonymity order.
DECISION AND DIRECTIONS
Procedural Background
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This is the third time that this appeal comes before me. By a decision promulgated on 17 March 2017, I allowed the appeals of this Appellant’s mother and siblings against the Respondent’s decision dated 16 December 2014 refusing them entry clearance to join their husband/father, Mr Shah, who is a British citizen. That decision is annexed to this decision for ease of reference. The Appellant’s mother and siblings have since entered the UK.
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By that decision, I directed that the appeal should remain in this Tribunal for re-making. However, I was unable to proceed directly with the re-making of the decision because a dispute arose as to the relevant date for my consideration of Article 8 ECHR (“Article 8”). Ms Rahman for the Appellant submitted that it was as at the date of the hearing before me. Mr Mills for the Respondent submitted that I could only consider circumstances as they existed at the date of the Respondent’s decision under appeal. I therefore directed that written submissions be made on that issue which I would determine in writing.
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By her written submissions, Ms Rahman conceded that I should deal with Article 8 as if the matter were before me at the date of the decision of the Respondent rather than as at the date of hearing. I emphasise that this is an appeal which proceeds under the regime prior to the amendments made by the Immigration Act 2014 and therefore, as I determined on 8 June 2017, sections 85 and 85A of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”) operate to prevent me dealing with circumstances which arise after the Respondent’s decision. I will say a little more about that when I turn to consider the legal background below. My decision on this issue dated 8 June 2017 is also annexed to this decision.
The Evidence
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In reaching my decision I have had regard to a volume of documentary evidence before me consisting of the following:-
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A bundle of documents submitted by the Appellants to the First-tier Tribunal (pages 1-342 – referred to as “AB/” below)
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A supplementary bundle of documents submitted by the Appellants to the First-tier Tribunal (pages 1-49)
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A supplementary bundle of documents submitted to this Tribunal including witness statements of the Appellant, his father, mother and the elder of his two sisters
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In addition to the usual Home Office bundle, I received some additional documents from the Home Office consisting of the CID records relating to the Appellant’s father’s entry into the UK and documents relating to an earlier appeal in relation to the Appellant and his sisters in 2011.
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I also heard oral evidence from the Appellant’s father, his mother and the elder of his two sisters.
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I confirm that I have read and taken account of all the evidence, both documentary and oral. However, I refer below only to that evidence which is pertinent to the issues which I have to determine.
The Factual Background
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The underlying facts in this case as they emerge from the evidence are as follows. The Appellant and his family are all nationals of Pakistan. In addition to his two sisters who, as I have noted, are now in the UK, he has an elder brother, Musarat, who continues to live in Pakistan with his own family, albeit in a different area. The Appellant’s uncles also live in the same area as Musarat. I was told that this was an area about one hundred miles from the Appellant’s family home which is in Rawalpindi.
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The date of the Respondent’s initial decisions in this case was 22 May 2014 but there was, at the time, a right of administrative review which the Appellant and his family exercised and the decision was upheld on 16 December 2014. Both parties accept that this is the relevant date for the purposes of my consideration of the relevant circumstances. The Appellant was born on 13 June 1992. Therefore, at the date of the decision, he was aged twenty-two years. His two sisters, who I refer to as TZ and AB were born on 4 September 1997 and 3 December 2002. They were accordingly, at the date of decision, aged seventeen and twelve years respectively.
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It is necessary to go back to the very beginning to understand the immigration history of this family. The father of the family and the sponsor in this case (“the Sponsor”), came to the UK in October 2003. I heard oral evidence from the Sponsor about this. He came as the spouse of his second wife who I understand was British and who he married in Pakistan in 2002. At the time that he came, his first wife, the Appellant’s mother, was pregnant with AB. It is of course permissible in Pakistani culture for a man to have more than one wife and I simply note this as part of the factual background.
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The Sponsor told me that in 2006/2007, his second wife left him. By that time, he had indefinite leave to remain. He has two children from that marriage but he does not know the whereabouts of those children or his second wife. He has no contact with them.
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The Sponsor decided not to return to Pakistan at that time or to try to bring his first family here to join him. His reasons were not entirely clear. He suggested that he did not need them because he had his other family but when pressed about this, since the question related to the period after that marriage breakdown, he said simply that he was trying to settle his life in this country. He obtained British citizenship in 2009.
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In 2010, an earlier application for entry clearance for his family was refused. Mr Mills produced the documents relating to that refusal and appeal in evidence and the Sponsor was asked questions about them. I deal with his evidence in this regard when reaching my decision below. I here record what the documents show was the evidence at that time.
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The application was made for the Appellant and his two sisters. The application did not include their mother. They applied to come to the UK as dependent relatives. It was said that their mother was physically unable to look after them and that their father was the only relative capable of providing for their care. The relevant decision of the Respondent at that time was dated 7 December 2010 and the appeal was determined on 5 September 2011 (wrongly dated as 5 August 2011) following a hearing on 22 August 2011. It is not entirely clear whether the Judge hearing that appeal was determining the issue as at December 2010 or August 2011 but since that is only a matter of months, little turns on it.
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The evidence at that time was that the Appellant was aged eighteen or over (he would have been eighteen or nineteen at the relevant dates). It was said that Musarat, then aged over twenty-one, was living independently but was making “all the decisions now and the Sponsor phones him every day to give advice.” It was there noted that Musarat had been caring for the Appellant and his siblings for some months and had “assumed responsibility for their welfare” but had relocated for work (although that was somewhat contradicted by evidence that Musarat was in full-time education). It was also said that Musarat was living with the Sponsor’s brother “some 3-4 miles away from the Appellant’s” and that the Sponsor’s brother was now working in Dubai.
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The Judge did not accept that the Appellant’s mother was so ill that she could not care for the children. The Sponsor was found therefore not to have sole responsibility on the basis that “the Sponsor shares responsibility for his children with his wife, eldest son and his uncle”. By “eldest son”, it is clear that the Judge is referring to Musarat. It was also found that “the Appellants live together with their mother and in close contact with their elder brother and uncle”.
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Turning then to the family’s living conditions in Pakistan, the family, prior to the Appellant’s mother and sisters relocating to the UK, lived in a house owned by the Appellant’s father although, it appears, transferred into the name of...
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