Upper Tribunal (Immigration and asylum chamber), 2016-02-12, VA/02510/2014
| Jurisdiction | UK Non-devolved |
| Date | 12 February 2016 |
| Published date | 01 December 2016 |
| Hearing Date | 01 February 2016 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Unreported |
| Appeal Number | VA/02510/2014 |
Appeal Number: VA/02510/2014
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: VA/02510/2014
THE IMMIGRATION ACTS
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Heard at Manchester Piccadilly |
Decision & Reasons Promulgated |
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On 1 February 2016 |
On 12 February 2016 |
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Before
DEPUTY UPPER TRIBUNAL JUDGE BIRRELL
Between
RASNA BEGUM
(ANONYMITY DIRECTION NOT MADE)
Appellant
And
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr Timson counsel instructed by Maya Solicitors
For the Respondent: Ms C Johnstone Senior Home Office Presenting Officer
DECISION AND REASONS
Introduction
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I have considered whether any parties require the protection of an anonymity direction. No anonymity direction was made previously in respect of this Appellant. Having considered all the circumstances and evidence I do not consider it necessary to make an anonymity direction.
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The Secretary of State for the Home Department brings this appeal but in order to avoid confusion the parties are referred to as they were in the First-tier Tribunal. This is an appeal by the Secretary of State against a decision of First-tier Tribunal Judge Simpson promulgated on 10 March 2015 which allowed the Appellant’s appeal under Article 8 against the decision of the Respondent to refuse her application for entry clearance as a family visitor for 8 weeks
Background
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The Appellant was born on 10 June 1979 and is a national of Bangladesh.
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On 27 March 2014 the Appellant applied for entry clearance to visit her husband, the Sponsor Muhammad Ajmat Ullah and their son who both live in the UK and are British citizens.
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On 9 April 2014 an Entry Clearance Officer refused the Appellant’s application. The refusal letter gave a number of reasons:
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There was no evidence of the Appellants financial circumstances in Bangladesh.
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The Appellant claimed to be financially reliant on her sponsor but there was no evidence of any property or assets in Bangladesh.
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The Appellant’s spouse claimed he would pay for the visit but his bank account at the Halifax showed a balance of 41 pence and at the TSB £810.94 which would not be sufficient to maintain the Appellant for 8 weeks.
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The refusal was therefore under paragraph 41 (i) (ii) (vi) and (vii) of the Rules.
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The letter set out that there was a limited right of appeal.
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There was a review dated 26 August 2014 by the Entry Clearance Manager after an appeal was lodged.
(a)The ECM did not accept that there was an interference with the Appellant’s right to family life.
(b) He notes that the Sponsor and their child having lived with her in Bangladesh made a choice to go and live in the UK and separate the family.
(c) There was no evidence that the Sponsor and his child could not visit her in Bangladesh.
(d) While it was asserted that the Sponsor’s claim for Disability Living Allowance would be resolved by June 2014 and the Appellant could then apply for settlement there was no evidence that such an application had been made.
(e)The decision to refuse the application was proportionate to the legitimate aim of immigration control.
The Judge’s Decision
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The Appellant appealed to the First-tier Tribunal. First-tier Tribunal Judge Simpson (“the Judge”) allowed the appeal against the Respondent’s decision under Article 8. The Judge:
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She found that the Sponsor was 82 years old and in extremely poor health.
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The sponsor was the primary carer for the couple’s 11 year old child.
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She found in the light of the claim for DLA by the sponsor the Appellants claim for entry clearance under the partner and parent route was likely to be successful as all matters appeared to be in place.
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The Appellant’s child had not seen his mother for some years and was being cared for by an elderly parent.
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She found that the Appellant would not remain in the UK illegally but would return to make a spouse application and therefore refusal of entry clearance in all the circumstances was disproportionate.
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The Judge found that in this case there were strong compassionate circumstances why she would allow the appeal under Article 8.
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Grounds of appeal were lodged arguing that the Judge had failed to give adequate reasons for finding that the decision was disproportionate; she did not address section 117B of the Nationality Immigration and Asylum Act 2002; that on the evidence before her it was not open to the Judge to find that the Appellants settlement application would succeed given, for example, there was no evidence as to her English language ability; there was insufficient reasons given as to why it was in the child’s best interests for her to come to the UK.
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On 7 May 2015 First-tier Tribunal Judge Fisher gave permission to appeal.
Submissions
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At the hearing I heard submissions from Ms Johnstone on behalf of the Respondent that :
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There was no restriction on the grounds.
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There had to be an assessment of whether family life exists at all.
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She relied the cases of Adjei (visit visas – Article 8) [2015] UKUT 0261 (IAC) and Kaur (visit appeals; Article 8) [2015] UKUT 487 (IAC)
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The caselaw was clear had to be an assessment of whether the Appellant would meet the requirements of the Rules as that was relevant to the assessment of proportionality. It was not clear that the Appellant would meet the language requirements or the financial requirements.
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There was no consideration of section 117B.
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If the intention was to make an application for settlement in the proper way why had there been no application by 9 April 2014. The remedy was to make a settlement application.
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On behalf of the Appellant Mr Timson submitted that:
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The grounds were limited in that the Judge had made clear that family life existed and in granting permission Judge Fisher only granted permission in relation to section 117B and proportionality.
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He submitted that the failure to refer to section 117B made no material difference: the fact that she did or did not speak English was irrelevant as she was a visitor and the Judge specifically dealt with the issue of return.
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In reply Ms Johnstone on behalf of the Respondent submitted:
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There was no assessment of maintenance at the time of the decision
Legal Framework
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In Adjei (visit visas – Article 8) [2015] UKUT 0261 (IAC) it was held that (i) 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.
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In Kaur (visit appeals; Article 8) [2015] UKUT 487 (IAC) it was stated that 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) (see Mostafa (Article 8 in entry clearance) [2015] UKUT 00112 (IAC) and Adjei (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. 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. 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.
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While the right of appeal is therefore in this case limited to human rights it is clear that the provisions of paragraph 41 of the Rules are to be considered and in this case those are:
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The requirements of Paragraph 41 that are put in issue by the Respondent are as follows:
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