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Family visit appeal fails on human rights grounds

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.

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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.

Colin Yeo
Colin Yeo A barrister specialising in UK immigration law at Garden Court Chambers in London, I have been practising in immigration law for 15 years. I am passionate about immigration law and founded and edit the Free Movement immigration law blog.

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