Entry Clearance Officer v FA

Facts

FA is a 67-year-old Palestinian woman resident in Gaza who wished to travel to the United Kingdom for private medical treatment for spinal stenosis, staying with her daughter, who has lived in the United Kingdom since 2006 and would fund and accommodate her. FA applied for entry clearance as a visitor on 8 December 2023 under Appendix V to the Immigration Rules, and her solicitors made detailed representations that refusal would be incompatible with her right to respect for family life under Article 8 of the Convention. By letter of 24 May 2024 the entry clearance officer refused the visit visa, being unsatisfied that FA would leave the United Kingdom, and stated that the application was not capable of engaging human rights so that no human rights claim had been made and no right of appeal arose. The First-tier Tribunal held it had no jurisdiction because no human rights claim had been refused, and in the alternative found no family life. The Upper Tribunal held that a human rights claim had been refused, set aside the decision, remade it, found family life on the basis of "effective, real and committed support", found FA a genuine visitor, and allowed the appeal. The entry clearance officer appealed on eight grounds.

Decision

Issues

• Whether the entry clearance officer had decided to refuse a human rights claim, so that the First-tier Tribunal had jurisdiction to entertain an appeal.
• Whether the Upper Tribunal was entitled to set aside the First-tier Tribunal's alternative findings rather than preserve them.
• Whether the Upper Tribunal applied the correct test for the existence of family life under Article 8.
• Whether refusal of entry clearance interfered with private life.

Reasoning

Lewis LJ, giving the leading judgment, drew a distinction between a decision to refuse a human rights claim and the non-determination of such a claim. An application for entry clearance as a visitor does not inherently involve a claim that refusal would be incompatible with Convention rights, and the entry clearance officer relied on MY (Pakistan) v Secretary of State for the Home Department, where Underhill LJ held that an application for leave and a human rights claim are conceptually distinct so that the Secretary of State may refuse one while deferring the other. That was not this case: reading the decision letter fairly and as a whole, the officer had considered the solicitors' representations, concluded that the mother-adult daughter relationship fell outside family life, and refused discretionary leave outside the Rules — in substance a refusal of a human rights claim under section 113 of the Nationality, Immigration and Asylum Act 2002, carrying a right of appeal under section 82(1)(b) of the Nationality, Immigration and Asylum Act 2002. The officer's assertion that no right of appeal arose did not follow. Ground 1 accordingly failed, as did grounds 2 and 3: under section 12 of the Tribunals, Courts and Enforcement Act 2007 the Upper Tribunal had a discretion whether to preserve findings, and its view that the jurisdictional error may have infected the family life findings was open to it. Ground 4 succeeded. Following IA v Secretary of State for the Home Department, the test is whether there are "additional elements of dependence, involving more than the normal emotional ties", a higher threshold than the "real, committed or effective support" formulation derived from Kugathas. The Upper Tribunal had identified and applied the lower test. Remaking the decision on undisputed facts, Lewis LJ held that daily contact, long-standing financial provision and the sharing of intimate confidences fell short of the required dependency. FA had no private life in the United Kingdom, and her daughter's private life here was unaffected; Andrews LJ added that such a claim was bound to fail on Burnett LJ's reasoning in Secretary of State for the Home Department v Abbas. Grounds 6 to 8 did not arise, though Lewis LJ observed provisionally, echoing Elisabeth Laing LJ in Entry Clearance Officer v Spence, that a tribunal should not decide for itself whether the Immigration Rules are met, as the Upper Tribunal had done in reliance on TZ (Pakistan). Andrews LJ hoped the erroneous Home Office guidance would be withdrawn.

Case history