Personal Immigration

Adjei (visit visas – Article 8) [2015] UKUT 0261 (IAC)

Recently the Upper Tribunal handed down a judgment in respect of Article 8 and visit visas in the case of Adjei (visit visas – Article 8) [2015] UKUT 0261 (IAC).

The appeal was successfully brought by the Entry Clearance Officer (ECO) against the decision of the First-tier Tribunal Judge S. Taylor who allowed the respondent’s appeal against refusal to grant her entry clearance for a family visit.

Ms. Adjei, a citizen of Ghana born in 1982, applied for entry clearance so that she could visit her father, step mother and step siblings in London. In 2012 she was granted entry clearance to the UK and stayed for 3 months. In 2013 she applied again for entry clearance, this time with the intention of staying for 6 months. She did not apply for entry clearance for her 2 year old daughter because she anticipated that if she had done so, it would have been assumed that she intended more than a brief family visit and that her application would therefore be refused.

The application was refused on 15 November 2013 because the ECO was not satisfied that Ms. Adjei was a genuine visitor who intended to leave the UK at the end of the visit, nor that she did not intend to take employment.

Ms. Adjei appealed against the decision of the ECO on the sole ground that it was a disproportionate interference with her rights under Article 8 of the ECHR. The First-Tier tribunal judge however, allowed the appeal on the basis that refusal was not in accordance with the Immigration Rules as Ms. Adjei satisfied all the requirements of the Rules.

The Upper Tribunal stated that this decision was incorrect: it was neither a permissible nor a pleaded ground of appeal that the application met the requirements of the immigration rules, and therefore the appeal allowed on that ground must be set aside and made afresh.

It was submitted, on behalf of the respondent, that the fact that she did meet the requirements of the applicable immigration rule ought to be a starting point for the assessment of whether refusal to grant her application for a visit visa would infringe the rights protected by Article 8, and Mostafa (Article 8 in entry clearance) [2015] UKUT 112 (IAC) was cited in support of this. This approach was, however, also rejected by the Tribunal, who stated that Mostafa clearly reiterated the approach set out by Lord Bingham of Cornhill in R v SSHD ex parte Razgar [2004] UKHL 27, which requires Article 8 rights to be considered prior to any consideration as to whether the application is in accordance with the immigration rules:

1. Will the proposed removal (or in this case, “the refusal”) be an interference by a public authority with the exercise of the applicant’s right to respect for his private or (as the case may be) family life?

2. If so, will such interference have consequences of such gravity as potentially to engage the operation of Article 8?

3. If so, is such interference in accordance with the law?

4. If so, is such interference necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others?

5. If so, is such interference proportionate to the legitimate public end sought to be achieved?

It was held in this case that it was of no significance in the appeal whether or not the ECO’s refusal to grant the visit visa was contrary to the law, as Article 8 was not engaged because Ms. Adjei was not dependent in any way on her parents or step siblings in the UK, and had quite clearly established her own family life in Ghana with her partner and their daughter. For those reasons, the appeal was allowed.

COMMENT

The judgement in this case effectively rejects the proposition that a lower threshold is applied when considering the balancing exercise/proportionality in respect of Article 8 rights in the context of Visitor Visas, which was implied in Mostafa (Article 8 in entry clearance) [2015] UKUT 00112 (IAC). In the latter, it was said that whilst it might be proportionate to refuse Entry Clearance when a spouse does not meet the rules, preventing a visit would not be a “technical or inconsequential interference” (see Sedley LJ in VW (Uganda) [2009] EWCA Civ 5) and should therefore be permitted, subject to the proportionate requirements of immigration control.

It was also said in Mostafa that the extent to which the Immigration Rules is satisfied will, though not determinative, be a weighty factor (at [23]). Reference to this was made by the Tribunal in Adjei, who quoted paragraph [24] of Mostafa:

“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.”

The Tribunal in Mostafa therefore appears to recognise that a meeting of the Rules should be sufficient to satisfy the proportionality test on the basis that the Rules accommodate the immigration control objectives. The Tribunal in Adjei however, appears to apply a higher threshold, suggesting that the above paragraph [24] means that “a person who satisfies the Tribunal that he does meet the requirements of para 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” (at paragraph [13], emphasis added). This effectively imposes an additional requirement on the Appellant to positively establish the infringement of rights, signalling a tougher stance towards the granting of Visitor Visas.

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