No Short Cuts: Absent Compelling Circumstances, Attempting to Circumvent the Rules in Family Visit Appeals Via An Article 8 Claim Exceedingly Unlikely

Within the last 6 months, the Upper Tribunal has thrice published caselaw in relation to Article 8 of the ECHR as it applies to   visit appeals. Long after the removal of full rights of appeal in family visit cases, it is clear from these Decisions that  First Tier Tribunal Judges appear to be facing legal difficulties in this regards, still grappling with the applicability of Article 8 of the ECHR   as regards related visit appeals. First Tier Tribunal Judge are either still allowing appeals by reference to the Immigration Rules with a total disregard of Article 8 or if having regard to Article 8,  the correct approach is not being followed.

The cases of Mostafa, Adjei and now very recently, Kaur seek to set out the correct relevant principles applicable to this area of law.

By way of reminder, on 25 June 2013, Section 52 of the Crime and Courts Act 2013 abolished the full right of appeal in family visitor cases unless brought on grounds alleging that the decision shows unlawful discrimination or is unlawful under s.6 of the HRA 1998.

Paragraph 41 of the Immigration Rules previously set out the requirements to be met by a person seeking leave to enter the United Kingdom as a general visitor. As from 24 April 2015 Appendix V became effective and this now sets out the Immigration Rules for visitors. Part V4.1 of Appendix V sets out that the decision maker must be satisfied that the applicant meets all of the eligibility requirements in paragraphs V 4.2 – V 4.10. A person can therefore apply for a Standard Visitor visa to visit the UK to visit family and friends.

Because of the nature of the short durability of visitor visas, when the limited rights of appeal came into effect it might have been viewed that considerations of Article 8 in visit entry clearance appeals differed markedly from considerations in relation to leave to remain applications and appeals. The Upper Tier Tribunal ‘s recent decisions however make it clear that there are to be no “short-cut approaches” and that full consideration of relevant Article 8 assessments and caselaw is necessary. On this basis, having regard to the fact that in –country Article 8 claims mainly succeed with considerable effort, it would appear that the  mere availability of the limited right of appeal on Article 8 grounds in visit appeals may in practice and in terms of success be just illusory.

RELEVANT CASELAW- THREE DECISIONS OF THE UPPER TIER TRIBUNAL

Mostafa, Adjei and Kaur made applications for entry clearance prior to Appendix V coming into effect hence the references to Paragraph 41 of the Immigration Rules within the judgements. Among others, the requirement that an applicant must satisfy the decision maker that they are a genuine visitor and will leave the UK at the end of their visit still continues to apply under the new Rules as it did under the old and therefore the considerations in the said caselaw are still relevant today.

Mostafa (Article 8 in entry clearance) [2015] UKUT 112 (IAC):

The Appellant wished to visit his wife, a British citizen in the UK. Following the refusal of the visit application, the grounds of appeal to the First Tier Tribunal clearly expressed disagreement with the Entry Clearance Officer’s finding that the Appellant did not intend to return after the visit they additionally and unequivocally relied on Article 8 of the European Convention on Human Rights. The First Tier Tribunal Judge however allowed the appeal under the Immigration Rules but made no finding on the ground raising Article 8. The Upper Tier Tribunal made it clear that there can be no question of entertaining an appeal on grounds alleging that the decision was not in accordance with the law or the immigration rules and the initial Judge ‘s decision was set aside. The Upper Tribunal decided that the First Tier Tribunal did have the power to consider a ground of appeal contending that the decision was incompatible with the Appellant’s Convention rights but it neglected to consider that ground even though it was clearly raised. The Upper Tribunal however found that the Appellant had shown that refusing him entry clearance did interfere with his and his wife’s private and family lives and found it necessary to assess the evidence to see if the Appellant met the substance of the rules. The Tribunal clarified that the ability to satisfy the rules illuminates the proportionality of the decision to refuse the Appellant entry clearance. Having re-made the decision, it was concluded that the First Tier Tribunal should have allowed the appeal not under the Immigration Rules but on Article 8 grounds. The Upper Tribunal therefore allowed the appeal of the Appellant against the decision of the Entry Clearance Officer under Article 8 ECHR.

Adjei (visit visas – Article 8) [2015] UKUT 261 (IAC)

The Appellant applied for entry clearance so that she could visit her father, step mother and step siblings who lived in the UK. Upon refusal of the visit visa, she relied only upon grounds that the refusal infringed rights protected by Article 8 of the ECHR and that was the basis upon which the Appellant put her case to the First-tier Tribunal. The Upper Tier Tribunal decided that it was unambiguously clear that the decision of the First Tier Tribunal to allow the appeal disclosed material legal error. That was because despite the fact that the grounds for appealing were based, and could only be based upon the asserted infringement of the Appellant’s human rights, the Judge allowed the appeal on the basis that refusal was not in accordance with the immigration rules. There is no discussion in the First Tier Tribunal Decision at all of the grounds upon which the appeal was brought and it was plain that the Judge had simply not engaged with or considered the claim under Article 8. Therefore the decision to allow the appeal was set aside and the Upper Tier Tribunal proceeded to remake the decision afresh.

The Upper Tier Tribunal observed that the 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 entry clearance officer under the Rules and should not do so. If Article 8 is engaged, the Tribunal will need to look at the extent to which the applicant is said to have failed to meet the requirements of the rule because that will inform the proportionality balancing exercise that must follow.  The Upper Tier Tribunal in Adjei referred to the case of Mostafa (Article 8 in entry clearance) [2015] UKUT 112 (IAC), the head note of which states:

“In the case of appeals brought against refusal of entry clearance under Article 8 ECHR, the claimant’s ability to satisfy the Immigration Rules is not the question to be determined by the Tribunal, but is capable of being a weighty, though not determinative, factor when deciding whether such refusal is proportionate to the legitimate aim of enforcing immigration control.”

Mostafa was stated not to be authority for the proposition that, despite the legitimate legislative intention to remove a right of appeal against adverse entry clearance applications in visit cases on the grounds that the Entry Clearance Officer was wrong to find the claimant did not meet the requirements of the rules, the Tribunal can nonetheless continue to determine such issues. It was emphasised that the point being made in Mostafa at para [24] was simply that where it is established that Article 8 is in fact engaged, it will still be necessary to assess whether the claimant meets the substance of the rules:

“In the limited class of cases where Article 8 (1) ECHR is engaged the refusal of entry clearance must be in accordance with the law and proportionate. If a person’s circumstances do satisfy the Immigration Rules and they have not acted in a way that undermines the system of immigration control, a refusal of entry clearance is liable to infringe Article 8.”

A person who satisfies the Tribunal that he does meet the requirements of paragraph 41 of HC 395 does not succeed on that account. He still has to demonstrate that refusal represents an unlawful infringement of rights protected by Article 8 of the ECHR. For a person who does not satisfy the requirements of paragraph 41 to succeed in an appeal there would have to be cogent and compelling reasons demanding that he should succeed.

The Upper Tribunal in Ajdei also stated that it was made clear in Mostafa at para [24] that it was dealing with a very narrow range of claimants:

“… In practical terms this is likely to be limited to cases where the relationship is that of husband and wife or other close life partners or a parent and minor child and even then it will not necessarily be extended to cases where, for example, the proposed visit is based on a whim or will not add significantly to the time that the people involved spend together.”

Adjei decided that it is a question of fact in each case, whether relationships between adult relatives disclose sufficiently strong ties such as to fall within the scope of Article 8, however the Appellant in that case was noted to have established her own family life in Ghana with her partner and their daughter and while her adult siblings in the United Kingdom have not yet done so. The Upper Tribunal noted that it was established by Advic v United Kingdom (1995) 20 EHRR CD125 that the protection of Article 8 does not extend to links between adult siblings living apart for a long period where they were not dependant upon each other. There was no evidence of such dependence between these siblings or step-siblings. Finally it was well established that there must be more than the normal emotional ties between adult relatives for family life to exist for the purposes of article 8 of the ECHR: Kugathas v IAT [2003] EWCA Civ 31.

The Upper Tribunal in Adjei decided that it was clear that the circumstances of the Appellant and her relatives in the United Kingdom did not give rise to family life for the purposes of Article 8 of the ECHR and therefore the grounds of appeal advanced before the Tribunal were simply unarguable. The Upper Tribunal therefore substituted a fresh decision to dismiss the Appellant ’s appeal against the refusal to grant her entry clearance as a visitor.

Kaur (visit appeals; Article 8) [2015] UKUT 487 (IAC):

The Appellant wished to visit her third son who was the sponsor, her daughter-in-law and her grandchildren aged 19 and 13 respectively. Following refusal of entry clearance her grounds stated that the decision was not in accordance with the law or the immigration rules and was unlawful under s.6 of the Human Rights Act 1988 (HRA 1998). The First Tier Tribunal Judge allowed the appeal on Article 8 grounds. At further appeal in the Upper Tribunal, it was accepted by those representing the Appellant that the Judge gave cursory attention to the matter of the Appellant’s ability to meet the immigration rules for visitors. The Upper Tribunal noted that in visit appeals the Article 8 decision on an appeal cannot be made in a vacuum. The Judge cannot ignore the decision in front of him. Whilst such requirements are clearly not Article 8 considerations there is at least one obvious overlap in subject-matter when the applicant seeks to visit family members, namely that the genuineness of the intentions behind the visit and may be highly material to the issue of whether there is family life within the meaning of Article 8(1) and/ or the issue of whether there are strong family life reasons for the visit that are to be weighed in the balance under Article 8(2). In this context an inability to maintain and accommodate without recourse to public funds or employment may also be material to any Article 8 proportionality exercise. Whilst therefore Judges only have jurisdiction to decide whether the decision is unlawful under s.6 of the HRA 1998 (or shows unlawful discrimination), the starting-point for deciding that must be the state of the evidence about the applicant’s ability to meet the requirements of Paragraph 41.

The upper Tribunal observed that it was also important to bear in mind in Article 8 visit appeals that the restriction 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. But where there is a dispute about the facts that is relevant to the Article 8 assessment, the Judge must seek to resolve it by taking into account the evidence on both sides, bearing in mind that the burden of proof rests on the appellant.

The Upper Tribunal noted that the question arises as to whether the visitor rules are also relevant in an additional way, as evidence of the public interest in the maintenance of effective immigration control. It seemed to the Upper Tribunal in Kaur, that this question was one that Judges must ask as part of their duty to apply a two-stage approach to Article 8 considerations. It was decided that as is clear from cases such as MM & Ors [2014] EWCA Civ 985, the two-stage approach is not confined to in-country appeals; it applies to entry clearance appeals also.

The visitor rules must in common sense be seen as part of parcel of the system of controls and as reflecting the public interest in regulation of entry and exit, by preventing unrestricted access for overseas visitors (including those seeking to visit family members in the UK) and requiring them whilst in the UK to avoid being a burden on public funds and health and education services and to refrain from engagement with the labour market. The Upper Tribunal decided that against this background, the need (emphasised in Adjei) to look at the extent to which the applicant is said to have failed to meet the requirements of the rules is important for an additional reason. For if an applicant has failed to meet the rules, that is apt to demonstrate that the refusal is in the public interest at a general and particular level. This background fortified the Upper Tribunal in their view that a Judge limited to deciding whether the refusal of entry clearance to an appellant is compatible with Article 8 cannot – and must not – avoid taking the factual situation as regards the ability of the appellant to meet paragraph 41 as a starting point.

In deciding whether Article 8(1) is engaged, for example, the Judge must be satisfied that there is a factual content to the claimed private and family life. If the evidence relating to the ability to meet the requirements of paragraph 41 discloses to the judge that the visitor has no real family ties or that the visitor does not genuinely intend a visit, that may have a direct material bearing on the decision as to whether Article 8(1) is engaged. Similarly, evidence regarding the applicant’s ability to meet the requirements of the rules may sound on whether the decision constitutes interference and also on whether, if there is interference, it is proportionate.

Overall, 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 leave to enter outside the rules” he is exceedingly unlikely to succeed. That proposition must also hold good in visitor appeals.

The Upper Tier Tribunal in Kaur also stated that having considered the two cases of Mostafa and Adeji there was no conflict between them. Both Panels were properly concerned to establish the limited ambit of an Article 8 appeal in the visit visa context, tribunal Judges having no jurisdiction to allow or dismiss an appeal on the basis of it not being in accordance with the rules (or the law). Both were also concerned to establish that the rules on visitors and Article 8 constitute two separate legal regimes. Even if a person meets the requirements of paragraph 41, that does not necessarily establish they win under Article 8; e.g. Article 8(1) may not even be engaged. That is why in Mostafa it was emphasised that applicants need to establish that denial of a visit has a material impact on their Article 8(1) rights. Both were also fully aware that the proportionality assessment conducted under Article 8 has to weigh the interests of the individual against the interests of the state in the maintenance of effective immigration control.

The First Tier Tribunal Judge was considered to have materially erred in law and his decision was set aside- first, the Judge wholly or largely ignored the findings of the Entry Clearance Officer as regards the Appellants ’s overall family circumstances and its relevance to ascertainment of her true intentions. Other departure from a correct approach concerned the Judge’s conduct of the Article 8 balancing exercise. Despite beginning and ending with sentences referring to the public interest, the Judge did not weigh anything on the public interest side of the scales at all – neither the public interest at the general level nor at the particular level.

The Upper Tribunal decided that as regards the Appellants ’s ability to meet the requirements of the visitor rules, they did not consider that she had discharged the burden of proof on her to establish that at the date of decision she intended only a family visit. In conjunction with the fact that the Appellant’s latest witness statement still lacked vital details about her sons’ circumstances in India, the Upper Tribunal concluded that her family life ties in India had not been shown to be sufficiently strong for her to have any incentive to return there if she went to the UK. She had not shown only a genuine visit was intended.

The Upper Tribunal was however prepared to accept that even though not financially dependent on her sponsor son, the Appellant enjoyed ties with him and had family that went beyond the normal emotional ties between an elderly mother/grandmother and her sponsor son/grandchildren and fall within the scope of Article 8(1). Although the Upper Tribunal aside the decision of the First-tier Tribunal Judge, they considered that in relation to the issue of whether Article 8(1) was engaged he was entitled to attach particular weight to the evidence that the Appellant had played a central role in bringing up the two grandchildren. The Upper Tribunal however found that there was a weighty public interest in not permitting the Appellant to enter the UK by way of a visit for family purposes.

Furthermore, in order to succeed in a claim outside the visitor rules, an Appellant must show a particularly pressing need so as to give rise to compelling circumstances justifying a departure from the rules. The circumstances identified by the Appellant as arising in her case, in particular the difficulties in the way of the sponsor son and his family visiting the claimant in India, did not in the Upper Tribunal’s judgment amount to compelling circumstances. Indeed, given her age it would if anything appear physically easier for the sponsor son and his family to undertake the necessary journey than the claimant to travel the other way. Bearing in mind that the claimant had some family ties in India, the Upper Tribunal did not consider it disproportionate for her connection with her sponsor son and his family in the UK to be maintained by them visiting, even if that could not be done concurrently. Because the Appellant could not show only a genuine visit was intended, she failed under Article 8(2) no matter how strong her family ties with her sponsor son and his family. The Upper   Tribunal therefore dismissed the Appellant’s appeal.

CONSIDERATIONS AND CONCLUSION

The Appellants in Kaur and Adjei failed in their appeal under Article 8 of the ECHR. Mostafa succeeded. It was however noted  in Mostafa by the Upper Tribunal that a refusal of entry clearance would have a significant impact on the Appellant’s right to enjoy family life with his spouse: the Appellant had strong ties with Egypt including those arising from his being in regular, rewarding work and his children living there. Additionally the sponsor had property in Egypt and had organised her affairs to spend long periods of time there. The Sponsor wanted to return to her country of nationality (the United Kingdom) for a time and her husband wanted to be with her, not with a view to settlement but so that he could share her life and relationships in the United Kingdom. The refusal decision had a material impact on their right to enjoy family life. Further it was considered that the First-tier Tribunal had correctly decided that the Appellant satisfied the substantive requirements of the Rules.

Following a refusal of a visa application in family cases, some   applicants might seriously consider whether an appeal should in fact be lodged in comparison to re-applying when circumstances significantly change to a sufficiently compelling level. The principles mentioned in the above caselaw   await any such lodged appeal. Kaur makes it clear that unless there are strong compelling circumstances, Article 8 appeals in visit appeals are very unlikely to succeed.

Even where family life can be established, an appeal may fail having regard to considerations of proportionality. With these risks in mind, some applicants may also not lodge appeals as upon following consideration at appeal,  any last negative decision of the Tribunal may fall for adoption by the entry clearance officer in future refusal decisions unless   circumstances can be said to be truly compelling at the time of that next application.

An applicant may present his own visit visa application or may chose a legal representative to assit. Either way, it may be best to seek to present the very initial visit application anticipating and   having full consideration to the legal issues relating Article 8 that might arise at appeal in the event of a refusal. Addressing the five Razgar questions identified by Lord Bingham of Cornhill within initial accompanying representations would therefore be essential when requesting within the  visit application that the entry clearance officer   consider Article 8 in the alternative. Therefore making substantive clarifications   also by way of evidence  as “ exhaustively” as possible   in relation to  both the Sponsor and applicant’s personal circumstance and intentions as regards the visit is necessary.

In light of Kaur, preparing  visit applications in family cases with a complacent view that any “gaps or defects” in the evidence or facts can be rectified at appeal in the event of a refusal, will therefore mean the difference between either wholly succeeding at that future appeal, partly succeeding as regards positive findings in relation to article 8 engagement but failing on proportionally or  totally falling from inception to convince the entry clearance officer that Article 8 arises in the first   place thus very possibly resulting in an -outright denial of a right of appeal in family visit cases.

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