Upper Tribunal (Immigration and asylum chamber), 2015-07-29, [2015] UKUT 463 (IAC) (Abbasi and another (visits – bereavement – Article 8))
| Jurisdiction | UK Non-devolved |
| Judge | The Hon. Mr Justice McCloskey, President, Deputy Upper Tribunal Judge Doyle |
| Status | Reported |
| Date | 29 July 2015 |
| Published date | 03 September 2015 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Subject Matter | visits – bereavement – Article 8 |
| Hearing Date | 29 May 2015 |
| Appeal Number | [2015] UKUT 463 (IAC) |
Upper Tribunal
(Immigration and Asylum Chamber)
Abbasi and another (visits – bereavement – Article 8) [2015] UKUT 00463 (IAC)
THE IMMIGRATION ACTS
|
Heard at Eagle Building, Glasgow |
Determination Promulgated |
|
On 29 May 2015 |
|
|
|
|
Before
Mr Justice McCloskey, President
Deputy Upper Tribunal Judge Doyle
Between
ANEEQ MAHMOOD ABBASI
ASHAN MAHMOOD ABBASI
Appellants
and
ENTRY CLEARANCE OFFICER OF KARACHI
Respondent
Representation:
Appellants: Mr G Singh of Ethnic Minorities Law Centre
Respondent: Ms C Johnstone, Senior Office Presenting Officer
1. The refusal of a visa to foreign nationals seeking to enter the United Kingdom for a finite period for the purpose of mourning with family members the recent death of a close relative and visiting the grave of the deceased is capable of constituting a disproportionate interference with the rights of the persons concerned under Article 8 ECHR.
2. The question of whether Article 8 applies and, if so, is breached will depend upon the fact sensitive context of the particular case.
-
The Tribunal should adopt a structured and sequential approach to the Article 8 issues.
DECISION AND REASONS
-
The factual matrix of this appeal is uncontroversial. The Appellants are brothers, both nationals of Pakistan, aged 29 and 21 years respectively. They applied to the Entry Clearance Officer of Karachi (the “ECO”) for a visa to enter the United Kingdom and remain for a period of 4 weeks. In their applications they represented that the purpose of their travel was to visit their grandfather’s grave and mourn with family members. Their applications were refused by the ECO, whose core reason for thus deciding was expressed as follows:
“… I am not satisfied that you have accurately presented your circumstances or intentions in wishing to enter the UK. This means that I am not satisfied that only a short visit is intended or that you will leave the UK at the end of the period stated.”
This was followed by a reference to paragraph 42(i) and (ii) of the Immigration Rules. The Appellants’ mother made a similar application which was also refused but was granted upon review by the Entry Clearance Manager. As a result, her appeal to the First-tier Tribunal (“the FtT”) was not pursued.
-
The appeal to the FtT was based on the Appellants’ contention that the decisions of the ECO were incompatible with their rights under Article 8 ECHR. The Judge noted that the ECO’s decisions were made on 21 November 2013. The Appellants’ grandfather had died on 28 September 2013 and their applications for entry clearance were made, tellingly, on 02 October 2013. Their grandfather had been terminally ill. The Judge rehearsed the uncontentous facts that the grandfather had wished to see his daughter and grandchildren before dying and that they had entertained the aspiration, unfulfilled, of doing so. The Appellants’ mother has two, or three, brothers who are settled in the United Kingdom. Reunification of all family members for the purpose of mourning was sought. The core of the FtT’s reasoning in dismissing the appeals is found in the following passage:
“It is understandable that the Appellants may wish to visit family members in the UK during a period of mourning for their grandfather but not being able to do so does not amount to a breach of right to family life under Article 8. The Appellants’ close family members, including their parents, are in Pakistan. The Appellants’ established family life is in Pakistan. They have family members who have chosen to settle in the UK including three uncles but the Appellants have not had and do not have an established family life in the UK …………..
There has not been any evidence to demonstrate that the Appellants and their family members cannot maintain family ties as before or that family members in the UK cannot visit them in Pakistan.”
-
The issue of law raised in this appeal is illuminated by several decisions of the European Court of Human Rights (“ECtHR”). In Znamenskaya v Russia (Application no. 77785/01), the issue was whether a mother could assert a right under Article 8 to change the family name on the tombstone of her still born child. She asserted a failure by the domestic authorities to discharge their positive obligation to ensure effective respect for her private and family life, invoking the principle that “….biological and social reality prevail over a legal presumption which …………. flies in the face of both established facts and the wishes of those concerned without actually benefiting anyone” [Kroon v The Netherlands, Series A Number 297-C, at 40]. The ECtHR held that the application was admissible.
-
In Dodsbo v Sweden [2007] 45 EHRR 22, the ECtHR assumed, without deciding, that a refusal to authorise the transfer of the urn containing the Applicant’s husband’s ashes from one graveyard to another interfered with her rights under Article 8(1). By a majority of 5 to 3 it was held that the reasons proffered by the Swedish authorities for their decision were relevant and sufficient and that the interference was not disproportionate in consequence, giving determinative weight in the balancing exercise to the principle of the sanctity of graves.
-
In Yildirim v Turkey (Application no. 25327/02) the Court accepted that Article 8 was engaged in circumstances where a mother complained that the hospital authorities had refused her permission to take the corpse of her still born child for religious and burial purposes. The complaint was declared inadmissible on a factual basis, the Court noting the absence of any convincing evidence to counter the Government’s claim that the Applicant and her husband had not claimed the baby’s body and were well aware that, in such circumstances, the authorities would proceed with the burial.
-
The decisions summarised above illustrate the versatility of Article 8 ECHR, together with the difficulty of drawing a clear boundary between its private and family life dimensions in certain factual contexts. While each belongs to its discrete factual context, these decisions nonetheless illustrate that matters relating to death, burial, mourning and associated rites have been held to fall within the ambit of Article 8. Three further decisions of the ECHtR have a factual matrix closely comparable to that of the present appeals.
-
The first is Sargsyan v Azerbaijan [2011] ECHR 2337, where the Applicant, who had been forcibly displaced from his home during Government military activities, complained that a failure to facilitate his proposed visit to cemeteries for the purpose of visiting and maintaining the graves of deceased relatives infringed his rights under Article 8. He contended that he had sufficient and continuous links and/or concrete and persisting links with the location concerned. The Grand Chamber held that his complaint was admissible.
-
In Kochieva v Sweden [2012] ECHR 549 a mother and three children were in the process of appealing against asylum refusal decisions when one of the children was killed in a road accident and buried in Sweden. One of the contentions which they advanced was that their expulsion from Sweden would make it impossible for them to visit the child’s grave there, in contravention of their rights under Article 8. In declaring their complaint manifestly ill founded, the ECtHR reasoned, inter alia, that the Applicants would be at liberty to apply for visits to visit Sweden for the purpose concerned.
-
Finally, in Sabanchiyeva v Russia [2014] 58 EHRR 14 the Applicants, invoking Article 8 ECHR, complained about a refusal to return to them the bodies of certain relatives who had died in an attack on military agencies. The Court, having reviewed some of its earlier decisions, including that in Dodsbo, reiterated that the concepts of private life and family life are broad, not susceptible to exhaustive definition. It held that the complaints fell within the ambit of Article 8 and that, in 18 of the 19 cases, an interference was established. Having found that the interference was in accordance with the law and that it had a legitimate aim, namely the suppression of terrorist propaganda and the avoidance of inter- ethnic and religious tension, it turned to examine the question of proportionality. The court said the following, at [138]:
“Turning to the circumstances of the present case, the Court notes that ………….. the Applicants were deprived of an opportunity, otherwise guaranteed to the close relatives of any deceased person in Russia, to organise and take part in the burial of the body of a deceased family member and also to ascertain the location of the grave site and to visit it subsequently. The Court finds that...
To continue reading
Request your trial