- BY Colin Yeo
Family visit appeal fails on human rights grounds
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In the case of Adjei (visit visas – Article 8) [2015] UKUT 261 (IAC) the Upper Tribunal dismisses an appeal against refusal of a family visit visa. This is despite the First-tier Tribunal finding that the application in question in truth met the requirements of the Immigration Rules and that the visit was between parent and child, albeit that both were adults.
Inexplicably, the tribunal gives no consideration at all to the private life element of Article 8 nor does the tribunal have any truck with the idea that the concept of a threshold for establishing family life might be a flexible one that is looser in the context of a mere visit within the immigration rules rather than a full on settlement application in breach of normal immigration rules.
The headnote reads:
1. 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. Mostafa (Article 8 in entry clearance) [2015] UKUT 112 (IAC) is not authority for any contrary proposition.
2. As compliance with para 41 of HC 395 is not a ground of appeal to be decided by the Tribunal, any findings concerning that will carry little weight, especially if based upon arguments advanced only by the appellant. If the appellant were to make a fresh application for entry clearance the ECO will, if requested to do so, have regard to the assessment carried out by the judge but will not be bound by those findings to treat the appellant as a person who, at least at the date of the appeal hearing, met the requirements of paragraph 41.
It is a disappointing decision for those struggling with low quality Entry Clearance Officer refusals of visit visas that closely follows the Home Office’s preferred vision of the scope of human rights grounds. Following Mostafa it had seemed that there would be little need for judicial review of family visit visa applications, but this decision resurrects the possibility that it may be needed where the visit is between adults.
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3 responses
Have I understood this correctly?
ECOs required to make decisions with consideration of the immigration rules supposed to already encompass Article 8. Application is refused and goes to FtT on grounds of article 8 – being the only permissible grounds of appeal. Judge finds ECOs did not actually apply even the base immigration rules correctly, let alone article 8. So in ruling that he allows the appeal under the rules, he made a mistake cos his jurisdiction extended only to article 8?
What recourse do applicants then have when ECOs cannot be held accountable for not applying the rules correctly even by judges, other than re-applying with tribunal determination in hand where judge said applicant met the rules and ECO made a mistake but s/he is dismissing the appeal anyway. Why should the applicant have to pay AGAIN and lose out on months or even years? What stops ECO from again refusing application under the rules?
If the above is in fact how it works then it’s absolutely absurd. Surely there must be a point in law that stops HO from getting away with abusing its monopoly position with a decrease in standards, rise in fees and even then not be held accountable for wrong decision making ??
This will come out in the wash. It would make sense for the govt to reintroduce a ground of appeal ‘breach of the immigration rules’ for such cases. As it stands, some of those with a human rights appeal, but who could not possibly win that appeal on established Article 8 principles, would be better off with an admin review. It would be a starker example than Adjei, but a partner appeal that met the rules could similarly be refused if, for instance, the couple were not able to show it was unreasonable for them to live in another country together. On a Razgar approach, the judge would not need to consider either the legality of the decison or proportionality if the decison was found not to interfer.
Great. I had an appeal heard before Mostafa for grandparents who were denied based on alleged deception. I advised the appeal was unlikely to succeed and we should JR if it didn’t. Then Mostafa came out before the FTT’s decision against them so on my advice we have put in a permission to UT application to the FTT. Now this. Clients are elderly and will be banned for ten years if we don’t find a way around this. Though arguably that is more likely to engage Art 8 than refusal of a single application.