Secretary of State for the Home Department v Abbas, Court of Appeal - Civil Division, September 28, 2017, [2017] EWCA Civ 1393

Issuing Organization:Civil Division
Actores:Secretary of State for the Home Department v Abbas
Resolution Date:September 28, 2017
 
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Case No: C5/2015/4000

Neutral Citation Number: [2017] EWCA Civ 1393

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE UPPER TRIBUNAL, IMMIGRATION AND ASYLUM CHAMBER

DEPUTY UPPER TRIBUNAL JUDGE MANUELL

VA/05309/2014

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 28/09/2017

Before :

LADY JUSTICE GLOSTER VICE PRESIDENT OF THE COURT OF APPEAL, CIVIL DIVISION

SENIOR PRESIDENT OF TRIBUNALS

and

LORD JUSTICE BURNETT

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Between :

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Ms Lisa Giovannetti QC and Mr Colin Thomann (instructed by Government Legal Department) for the Appellant

The Respondent was neither present nor represented

Hearing dates: Tuesday 13th June 2017

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JudgmentLord Justice Burnett:

Introduction

  1. The Respondent, Mr Abbas, is a Pakistani national now aged 33, who lives with his wife and three small children in Pakistan. He made an application for the family to visit the United Kingdom for four weeks from 15 August 2014 for the purpose of visiting an uncle and his grandmother who live here. His application was refused under the Immigration Rules for two reasons. First, under paragraph 320(7B) because he had previously been refused an entry clearance on the grounds of using deception by filing a non-genuine document. Secondly, and in any event, the Entry Clearance Officer was not satisfied that Mr Abbas and his family would leave the United Kingdom at the end of the suggested visit. There is no right of appeal against such a decision save on human rights or discrimination grounds. The First-tier Tribunal (``F-tT'') allowed Mr Abbas' appeal against the refusal of entry clearance on the basis that to deny him, and his family, entry into the United Kingdom violated his rights to develop a private life guaranteed by article 8 of the European Convention on Human Rights (``ECHR''). The Upper Tribunal (Immigration and Asylum Chamber) (``UTIAC'') dismissed the Secretary of State's appeal against that decision.

  2. The important point of principle which arises in this appeal is this:

    ``To what extent does the state have a positive obligation on grounds of private life (where no relevant family life exists) to grant entry clearance for an adult to visit an elderly relative located in the United Kingdom?''

    The appellant Secretary of State is represented by Ms Giovannetti QC and Mr Colin Thomann. The respondent has played no part in the appeal.

  3. In my judgment the answer to that question is that no such positive obligation exists. There is no sign of it having been recognised in the jurisprudence of the Strasbourg Court. It is inconsistent with the jurisprudence on the positive obligation under article 8 as regards family life which that court has recognised and would sit uneasily with its approach to the extra-territorial reach of the ECHR.

    The facts in outline

  4. The respondent's application for a visitor's visa was refused on 31 July 2014. The application dated 10 July 2014 indicated that he wished to travel with his wife and two children (then aged four and two). He provided details of previous visits. He answered questions relating to his employment and financial position. He indicated that the cost of the trip to him would be only £250 and that the balance of the costs was being paid by others. He stated that the purpose of the visit was to visit a family member, namely his uncle (who is a British citizen). The respondent explained that he had recently been refused entry clearance under paragraph 320(7A) of the Immigration Rules on the basis of producing a false document relating to his alleged employment but disputed that it was false. He produced a further document from the employer to confirm the position. He contended that the previous refusal ``was not fair at all'' and dealt with a query raised on that occasion about the origin of funds in his bank which had concerned the earlier Entry Clearance Officer. The respondent said that he and his family members had no intention of staying in the United Kingdom beyond the four weeks planned for the visit, despite having overstayed on a previous visit and despite his sponsor (his uncle) having said they would be visiting for two months. He also explained that large sums of money recently paid into his bank account had come from his uncle who wished to purchase land in Pakistan.

  5. The refusal decision referred to the mandatory ground of refusal already mentioned. The Entry Clearance Officer was not satisfied with the financial information provided, explaining in detail why, and also was not satisfied that the respondent and his family would leave the United Kingdom at the conclusion of the proposed visit.

    The Appeals to the F-tT and UTIAC

  6. The F-tT judge noted that the purpose of the proposed visit was to see both the respondent's uncle and grandmother, although she is not mentioned in the underlying application. He also noted that the appeal was limited to human rights grounds. Oral evidence was given by the uncle who said that his mother could not travel to Pakistan on her own. By the time of the appeal hearing in February 2015 the third child had been born to the respondent and his wife. The judge found that the respondent had complied with his visa requirements on four previous visits - an error given the respondent's own account of overstaying on one occasion. The judge accepted that the respondent was close to his uncle and grandmother and it was important that he see her. He said nothing relating to the other family members....

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