MOSTAFA (ARTICLE 8 IN ENTRY CLEARANCE) (2015) UKUT 112 (IAC)
SUMMARY OF THE CASE
In an appeal against refusal of entry clearance (otherwise known as a ‘visa’) from abroad, 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 if the refusal to grant a visa is proportionate to the aim of enforcing Immigration control.
THE FACTS OF THE CASE
The appellant in this case was the Entry Clearance Officer, who was appealing the decision of the First Tier Tribunal to allow the appeal of the Claimant, against the decision of the Entry Clearance Officer (the ‘ECO’) to refuse him a visa to visit his wife in the UK.
The ECO was not satisfied that the claimant intended to leave the UK at the end of the trip.
The claimant was only allowed an appeal on Human Rights Grounds.
The claimant’s grounds of appeal disputed the findings of the ECO and also relied on Article 8 private and family life.
The First Tier Judge allowed the appeal ‘under the Immigration rules’ but made no finding on Article 8.
The ECO appealed on the basis that the Tribunal should only consider the grounds on which there was a right of appeal, namely Article 8. The ECO also stated it was not open to the Tribunal to consider whether the decision was in accordance with the Immigration rules.
The Tribunal in the hearing of this appeal found that they could not entertain the appeal on the basis the decision was not in accordance with the law or the Immigration rules, but that if the claimant could show that the decision to refuse a visa interfered with his and his wife’s right to family life, then it was necessary to look at the evidence to see if he met the requirements of the rules for a visit visa. This is becuase, they found, that the ability to satisfy the rules demonstrates the proportionality of the decision to refuse a visa.
It was found by the Tribunal that the claimant did have good reasons to leave the UK at the end of his trip to the UK, but that the First Tier Tribunal had no basis in law for allowing the appeal ‘under the Immigration rules’ as opposed to Article 8 family life, which it did not consider.
They found that the First Tier Tribunal SHOULD have allowed the appeal on Article 8 grounds, which is what they did.
They also said that it would be unusual for the case of anyone other than a close relative to show the refusal of a visa would come within the scope of Article 8, ie husband/wife, close life partners or a parent and minor child.
Within that class of cases, if a person’s circumstances do satisfy the Immigration rules and they have not acted in anyway that infringes the system of Immigration control, then refusal of a visa would be liable to infring Article 8.
WHAT DOES THIS MEAN FOR YOU ?
It means that if you do fall within that class of close family relationship (although this is not a comprehensive list), and you can show that you do meet the requirements of a visit visa, then an appeal on Article 8 grounds re family and private life is quite likely to succeed. Good news !
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