Upper Tribunal (Immigration and asylum chamber), 2017-01-17, HU/00258/2015
| Jurisdiction | UK Non-devolved |
| Date | 17 January 2017 |
| Published date | 22 June 2021 |
| Hearing Date | 22 December 2016 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | HU/00258/2015 |
Appeal Number: HU/00258/2015
IAC-FH-NL-V1
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/00258/2015
THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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On 22 December 2016 |
On 17 January 2017 |
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Before
UPPER TRIBUNAL JUDGE RIMINGTON
Between
Secretary of State for the Home Department
Appellant
and
MRS MANDLINE NGOZI LADY OKEKE
(aNONYMITY DIRECTION NOT MADE)
Respondent
Representation:
For the Appellant: Mr E Tufan, Home Office Presenting Officer
For the Respondent: Mr M Hoshi Counsel instructed by Sabeers Stone Green Solicitors
DECISION AND REASONS
The Appellant
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The application for permission to appeal was made by the Secretary of State but nonetheless I shall refer to the parties as they were described before the First-tier Tribunal that is Mrs Okeke as the appellant and the Secretary of State as the respondent.
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The Secretary of State or respondent applied for permission to appeal against the decision of Judge of the First-tier Tribunal Blake who allowed the appeal of the appellant, a citizen of Nigeria, against the decision of the Entry Clearance Officer dated 6 May 2015 in which she was refused entry clearance to the UK as a visitor with reference to paragraph 41 of the Immigration Rules HC395, as amended.
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The Entry Clearance Officer’s refusal identified that the appellant applied to visit the United Kingdom for two months and that she would be funding her visit herself. The Entry Clearance Officer did not accept the financial circumstances of the appellant and also noted that the appellant had previously made an application to the Home Office for indefinite leave to remain as a dependent parent and that application had been rejected on 7 November 2013. He concluded that given her previous intention to remain through settlement, the Entry Clearance Officer was not satisfied that she was now entering for a different purpose, that being that of a visitor on this occasion. He was not satisfied as to her intentions in wishing to travel to the United Kingdom for a limited time and purpose and refused the application under paragraph 41(i)(ii)(vi) and (vii) of HC395. An Entry Clearance Manager maintained that decision and confirmed that he was satisfied the decision had not violated the appellant’s human rights as provided under Section 6 of the Human Rights Act 1998.
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The Secretary of State appealed against the First-tier Tribunal’s decision on two grounds:
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in order for there to be a right of appeal under Section 82 it was necessary for a decision to have been taken to refuse a human rights claim and it was submitted that no such human rights claim was made in this case and there was no decision to refuse a human rights claim and therefore the Tribunal made a material error of law in hearing the appeal and had no jurisdiction to do so;
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furthermore it was submitted that in any event there was no family life for the purpose of Article 8 between the appellant and sponsor because there was no evidence of additional dependency beyond normal emotional ties set out at paragraph 25 of Kugathas v Secretary of State for the Home Department [2003] EWCA Civ 31.
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At the hearing before me Mr Tufan maintained that there was indeed no jurisdiction because on reading Section 82 of the Nationality, Immigration and Asylum Act 2002 no human rights claim had been made and there was no jurisdiction.
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He also applied to vary his grounds of appeal. There was reference at paragraph 28 to a previous visit visa appeal and determination in relation to the appellant but that was not placed before the Tribunal. That was an appeal against a previous visit visa refusal and the Tribunal in that case had clearly found that there was no Article 8 protected rights.
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Nevertheless Mr Tufan also stated the decision was wrong in law and there was a necessity to establish whether there was family life and the judge did not engage with that issue at all. There must be dependence beyond normal emotional ties and that was not the case here.
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Hr Hoshi submitted that the Home Office at the First-tier Tribunal had not mentioned the previous decision from the First-tier Tribunal in relation to the visit visa. It was accepted that all points under the Immigration Rules had been met by the appellant and human rights grounds had been referred to in the grounds of appeal. The Home Office had every opportunity to raise the previous decision and had not done so and therefore Devaseelan [2002] UKIAT 00702 did not apply. The appellant had made it clear that she was visiting her family and grandchildren and had referred to this in her grounds of appeal. The judge’s finding was not an error of law and he had applied Mostafa (Article 8 in entry clearance) [2015] UKUT 112. The Home Office could not hide behind the fact that the Entry Clearance Officer had made no reference to Article 8 in the decision, particularly if Article 8 was engaged.
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There was some discussion as to the date relevant for the purposes of deciding the appeal but Mr Tufan was emphatic that Article 8 was not engaged. Mr Hoshi submitted that any decision must be human rights compliant under Section 6 of the Human Rights Act. There was nothing specifically in the applicant’s appeal but there was a reference to an application to visit the children and grandchildren. Mr Hoshi accepted that although the financial point was conceded by the Secretary of State there was still the issue of the intention to return which was not conceded at the First-tier Tribunal hearing. Finally both representatives appeared to agree that the relevant date for deciding the decision further to the new Section 85 of the Nationality, Immigration and Asylum Act 2002 was in fact the date of the hearing.
Conclusions
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I do not accept Mr Tufan’s submission that there was no jurisdiction for the Tribunal to consider this application. It is quite clear that the nature of the application was for a visit visa and at question 64 the applicant stated that she was visiting her daughter, grandchildren and son-in-law spending time with her family and son who is a student in the UK studying. Mr Tufan submitted that in order for there to be a human rights appeal there needed to be a human rights claim and although the appeal was not anything other than opaque it nonetheless made reference to the fact that the Entry Clearance Officer’s decision had breached the appellant’s rights to visit her children and grandchildren in the UK and by “rights” I conclude that the appellant was referring to her human rights. It is clear that for the purposes of paragraphs 41 to 46 of the Immigration Rules referred to general visitors including persons who come to the United Kingdom as tourists but nonetheless the application by the appellant clearly set out that she wished to visit her family which may raise a human rights issue.
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The appeal rights regime has altered since 2014 by amendments to Section 82 of the Nationality Immigration and Asylum Act 2002 and there has been a restriction of the rights of appeal but there remains a right of appeal where the Secretary of State has decided to refuse a human rights claim (Section 82(1)(b). I find this can apply to visit visa appeals in relation to family visits.
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The Home Office policy document entitled Rights of Appeal: Guidance on when there is a right of appeal against decisions in immigration cases, including mechanisms to prevent repeat rights of appeal and prevent delays from appeals against unfounded claims Version 3.0” (undated) provides a list of Immigration Rules deemed to engage Article 8 and in relation to the entry clearance decisions, a decision in relation to paragraphs 40 to 46, that being visit visa applications, does not encompass that of a human rights nature. That however is the decision by the Home Office in relation to guidance on a human rights claim and it is not definitive or necessarily determinative of what is a human rights claim.
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In support of my contention that a human rights claim can be inferred is the decision was made is that the Entry Clearance Manager was also satisfied that the decision had not violated the appellant’s human rights as provided under Section 6 of the Human Rights Act 1988. Nowhere does Section 82 preclude an appeal on human rights grounds against a visit visa decision by an Entry Clearance Officer and the case of Mostafa (Article 8 in entry clearance) [2015] UKUT 00112 (IAC) clearly envisages that a visit visa application can engage human rights and a refusal result in subsequent appeal on...
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