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
Before :
LADY JUSTICE GLOSTER VICE PRESIDENT OF THE COURT OF APPEAL, CIVIL DIVISION
SENIOR PRESIDENT OF TRIBUNALS
and
LORD JUSTICE BURNETT
Between :
SECRETARY OF STATE FOR THE HOME DEPARTMENT | Appellant |
- and - | |
TAHIR ABBAS | Respondent |
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
Judgment
Lord Justice Burnett:
Introduction
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.
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.
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
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.
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
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. The judge went on to find that the respondent “did not deliberately supply a false employers’ letter in his previous application” and then continued:
“9. The purpose of Article 8 is to prevent unlawful and disproportionate interference with a person’s family or private life.
10. In Kugathas v SSHD [2003] EWCA Civ 31, a case which concerned an adult’s relationship with his mother and adult siblings, the Court of Appeal thought that the following passage in S v United Kingdom [1984] 40 DR 196 was still relevant:
“…generally, the protection of family life under Article 8 involves cohabiting dependants, such as parents and their dependent minor children. Whether it extends to other relationships depends on the circumstances of the particular case. Relationships between adults … would not necessarily acquire the protection of Article 8 of the Convention without evidence of further elements of dependency, involving more than the normal emotional ties.”
11. Notwithstanding the closeness of the relationship between the [respondent] and his Uncle, given that the [respondent] is established in Pakistan with his own family unit, I do not consider that there is family life between him and his Uncle or Grandmother. However, I find that the concept of private life can include the maintenance of relationships between those who are other than co-habiting dependents involving normal emotional ties.
12. I find that the development of the [respondent’s] private life includes being able to visit his Uncle and Grandmother in the United Kingdom, provided he satisfies the requirements of the Immigration Rules.
13. Having heard [the uncle’s] evidence and considered the [respondent’s] strong ties in Pakistan, I am satisfied that he is a genuine visitor. I find that the refusal amounts to a disproportionate breach of the [respondent’s] private life contrary to Article 8 ECHR.”
The reasoning may be condensed into the following propositions:
Private life includes the maintenance of relationships outside those which count as family life;
The development of private life includes being able to visit the United Kingdom for that purpose, so long as the person concerned satisfies the rules;
There is a positive obligation under article 8 ECHR to allow a foreign national to enter the United Kingdom to develop his private life if he satisfies the rules;
The respondent in fact satisfies the rules;
Refusal of entry clearance was a disproportionate interference in his article 8 rights;
There was no separate consideration of the position of the respondent’s wife and small children, even though their position was clearly different factually. There was no consideration of the question whether the uncle and grandmother could travel to Pakistan.
The Home Office argued before the UTIAC that there was no interference with the respondent’s article 8 private life rights; that someone resident outside the United Kingdom has no private life in the United Kingdom; that the F-tT judge had effectively allowed an appeal under the rules, when parliament had denied such an appeal; and that in consequence there was an error of law.
The appeal was heard in July 2015. The Home Office was represented by a Presenting Officer and the respondent by counsel. The finding that there was no qualifying family life was not challenged. For the respondent it was argued that ‘private life’ was a broad concept which, relying on Pretty v United Kingdom (2002) 53 EHRR 1 at paragraph 61, included ‘the physical and psychological integrity of a person … Article 8 also protects a right to personal development, and the right to establish and develop relationships with other human beings and the outside world.’ The short visit sought by the respondent was designed to do just that.
In coming to the conclusion that the F-tT had made no error of law, Deputy Upper Tribunal Judge Manuell first noted the difficulty faced by individuals refused visitors’ visas because there was no right of appeal. Judicial review was a sledgehammer to crack a nut. The judge noted the UTIAC decision in Entry Clearance Officer (Accra) v Pricsilla Adjei [2015] UKUT 0261 (IAC) where UTJ Southern explained that in an appeal on human rights grounds against a refusal to grant a visitor’s visa:
“The first question to be addressed in an appeal against a refusal to grant an entry clearance as a visitor when 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 will need to look at the extent to which the claimant is said to have failed to meet the requirements of the rules because that will inform the proportionality balancing exercise that must follow.”
The judge went on to state that the decision of the Court of Appeal in Singh v Secretary of State for the Home Department [2015] EWCA Civ 630 “reiterates from a survey of ECHR jurisprudence that Article 8 ECHR in both its private and family life aspects is not territorially confined to persons in the United Kingdom.” That characterisation of the decision of this court in Singh is challenged by Miss Giovannetti. The judge concluded that the F-tT had given sustainable reasons for concluding why the respondent wished to develop and sustain his private life with his uncle and grandmother. He added that there was no realistic alternative to his visiting her because of her age. That was not, in fact, the evidence of the uncle who had indicated that his mother could not travel alone, or a finding made by the F-tT judge. Consideration of the rules was ‘vital’ in the proportionality assessment. I note that the Entry Clearance Officer in the instant application was bound to refuse entry on the basis of the previous refusal. In his consideration of the rules the F-tT judge had concluded that the earlier decision was wrong and also that the subsidiary reasoning of the Entry Clearance Office in refusing this application, namely that he was not satisfied the family would leave the United Kingdom at the end of the visit, was also wrong. The judge’s conclusion was that the F-TT:
“properly found that the interference with the Respondent’s private life was neither justified nor proportionate.”
The appellant’s case
The contentions of the Secretary of State are:
That the jurisdiction of the ECHR is primarily territorial;
A decision to refuse entry clearance to a foreign national who is outside the United Kingdom may engage article 8 in its family life aspect, where another member of the family is here;
The private life aspect of a foreign national outside the United Kingdom is not engaged by an application for entry clearance;
In any event the threshold for engagement of article 8 is only met when the refusal of a visitor visa has consequences of sufficient gravity;
The tribunal cannot use article 8 as “a general dispensing power” to circumvent the statutory denial of a right of appeal.
Discussion
Section 88A(1) of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”) provides that a person may not appeal against a refusal of an application for entry clearance, unless entering as a dependant in circumstances prescribed by regulations. Subsection (3) qualifies that prohibition by permitting an appeal on either or both of the grounds referred to in section 84(1)(b) and (c). Section 84(1)(b) of the 2002 Act concerns discrimination. Section 84(1)(c) allows an appeal on grounds
“that the decision is unlawful under section 6 of the Human Rights Act 1998 (c. 42) (public authority not to act contrary to the Human Rights Convention) as being incompatible with the appellant’s Convention rights.”
A combination of these provisions gave rise to the appeal on human rights grounds.
The Upper Tribunal judge considered the question whether a person outside the United Kingdom could rely upon the private life aspect of article 8 to gain entry. He concluded that there was no difference between family life and private life for these purposes, founding himself on the decision in Singh (see paragraph 12 above). Miss Giovannetti is correct to submit that Singh is not authority for that proposition. Furthermore, none of the case law of the Strasbourg Court cited in Singh supports the proposition either. Singh was a case in which two adults sought indefinite leave to remain in the United Kingdom relying upon article 8. They were not seeking to enter. The central issue in dispute was whether they had a family life with various relations who were in the United Kingdom. Sir Stanley Burnton reviewed a large number of domestic and Strasbourg authorities with a view to determining the boundaries of family life in that context. The approach in Kugathas was endorsed. The discussion of private life arose because there was no doubt that the adults in question, who had been in the United Kingdom for a long time, had developed a private life here. It was thus necessary to consider the proportionality of their removal in article 8 terms, whether or not they had a family life here. That is best illustrated by the decision of the Strasbourg Court in AA v UK [2012] INLR 1 at paragraph 49:
“An examination of the court’s case law would suggest that the applicant, a young adult of 24 years old, who resides with his mother and has not yet founded a family of his own, can be regarded as having family life. However, it is not necessary to decide the question given that, as Art 8 also protects the right to establish and develop relationships with other human beings and the outside world and can sometimes embrace aspects of an individual’s social identity, it must be accepted that the totality of social ties between settled migrants and the community in which they are living constitutes part of the concept of ‘private life’ within the meaning of Art 8. Thus regardless of the existence or otherwise of a ‘family life’ the expulsion of a settled migrant constitutes an interference with his right to respect for his private life.” (emphasis added)
There is no dispute that the Strasbourg jurisprudence supports the proposition that a person outside the territory of an ECHR state may rely upon the family life aspect of article 8 (albeit in very limited circumstances) to secure entry into an ECHR state. The principle was established firmly in Abdulaziz, Cabales and Balkandali v United Kingdom (1985) 7 EHRR 471. The Strasbourg Court rejected the argument that article 8 was not engaged at all in immigration cases involving husbands who wished to join their wives in the United Kingdom. However, the ECHR held that article 8 did not give them a right to choose where to live together. In the cases before the court there were no obstacles to the couples establishing their family life in the husbands’ countries of origin and not the United Kingdom. The claims failed. Similar cases have concerned parents who lived in an ECHR state but had left their children abroad. In Gül v Switzerland (1996) 22 EHRR 93 the Strasbourg Court concluded that family life could be enjoyed in the country of origin; in Sen v Netherlands (2001) 36 EHRR 81 the conclusion was to the contrary, with the result that family life would be enjoyed by the unit in the Netherlands.
The underlying basis on which the family life aspect of article 8 falls within the jurisdiction of the ECHR in an immigration case, even though the person seeking entry is not in an ECHR state, was explained in Khan v United Kingdom (2014) 58 EHRR SE15. It concerned a Pakistani national whose leave to remain in the United Kingdom was cancelled on national security grounds whilst he was in Pakistan. He argued that he was at risk of treatment contrary to article 3 ECHR if he remained in Pakistan and was not allowed to return to the United Kingdom:
“There is support in the Court’s case law for the proposition that the Contracting State’s obligation under art.8 may, in certain circumstances, require family members to be reunified with their relatives living in the Contracting State. However, that positive obligation rests, in large part, on the fact that one of the family members/applicants is already in the Contracting State and being prevented from enjoying his or her family life with their relative because that relative has been denied entry to the Contracting State … The transposition of that limited art.8 obligation to art.3 would, in effect, create an unlimited obligation on Contracting States to allow entry to an individual who might be at real risk of ill-treatment contrary to art.3, regardless of where in the world that person might find himself. The same is true for similar risks of detention and trial contrary to arts 5 and 6 of Convention.” (paragraph 27)
The Secretary of State has been unable to identify any case, still less a settled line of authority, in which the Strasbourg Court has held article 8 in its private life aspect to be engaged in respect of a person outside the Contracting State seeking to enter to develop that private life. Such a conclusion would have a striking effect and undermine the often repeated starting point of the Strasbourg Court that a state has the right as a matter of well-established international law and subject to their treaty obligations, including the Convention, to control the entry, residence and expulsion of aliens. Private life as a concept has a broad reach, by contrast with family life. Even though article 8 is a qualified right (unlike article 3) the prospect of a very large number of individuals relying on private life in support of applications for short and long-term stays would be inevitable. To accept that the private life aspect of article 8 could require a Contracting State to allow an alien to enter its territory would mark a step change in the reach of article 8 in the immigration context. As a matter of principle it would be wrong to do so. As a matter of binding authority on the approach to an expansion of the reach of the ECHR it would be impermissible to do so.
It would be wrong as a matter of principle because there is no equivalence for these purposes between private life and family life. The passage from Khan set out above recognises the unitary nature of a family for article 8 purposes with the consequence that the interference with the family life of one is an interference with the rights of all those within the ambit of the family whose rights are engaged. That is a feature of family life recognised, for example, in Beoku-Betts v Secretary of State for the Home Department [2009] AC 115 which held that the rights of all family members, and not only the person immediately affected by a removal decision, must be considered in the article 8 balance. As Lord Brown of Eaton-under-Heywood observed:
“Together these members enjoy a single family life and whether or not the removal would interfere disproportionately with it has to be looked at by reference to the family unit as a whole and the impact of the removal upon each member. If overall the removal would be disproportionate, all affected family members are to be regarded as victims.” (paragraph [20]).
Lady Hale put it this way:
“ … the central point about family life … is that the whole is greater than the sum of its individual parts. The right to respect for family life of one necessarily encompasses the right to respect for family life of others, normally a spouse or minor children, with whom the family life in enjoyed.” (paragraph 4)
No such reasoning could apply to the multifarious aspects of an individual’s private life.
In Ullah v Special Adjudicator [2004] 2 AC 323, amongst much else, the House of Lords considered how domestic courts should take account of Strasbourg jurisprudence. The answer was that, save in special circumstances, domestic courts should follow the clear and constant jurisprudence of the Strasbourg Court. At paragraph 20 of his opinion Lord Bingham added:
“It is of course open to member states to provide rights more generous than those guaranteed by the Convention, but such provision should not be the product of interpretation of the Convention by national courts, since the meaning of the Convention should be uniform throughout the states party to it. The duty of the national court is to keep pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less.”
The F-tT and UTIAC in this case have out-paced the Strasbourg Court by expanding the reach of article 8 in a way which is entirely novel. The “Ullah principle”, as it is often known, precludes them from doing so.
For these reasons of both principle and domestic law practice I would allow the appeal.
I turn briefly to the question of the jurisdiction of the ECHR. I accept Miss Giovannetti’s submission that the respondent (and his wife and young children) were not within the jurisdiction of the United Kingdom for the purposes of article 1. That provides:
“The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in section 1 of this Convention.”
The consistent approach of the Strasbourg Court to the question whether someone is within the jurisdiction of a Contracting State for the purpose of article 1 is to emphasise that it is primarily territorial. However, in exceptional circumstances acts producing effects outside the territory of a Contracting State may constitute an exercise of jurisdiction: see Al-Skeini v United Kingdom (55721/07) (2011) 53 EHRR 18 at paragraph 131. None of the exceptions thereafter identified by the Strasbourg Court has any bearing on the facts of this case.
In article 8 cases involving family life, even though the spouse or child seeking entry to the territory of a Contracting Party will be outside that territory, members of the family whose rights are affected are undoubtedly within it. That provides the jurisdictional peg. I have already indicated why that does not read over to private life claims, so no analogous argument relating to jurisdiction can succeed. No other argument to suggest that the respondent and his family were within the jurisdiction of the United Kingdom when making the application for entry clearance could prosper in the face of the decisions of the Grand Chamber of the Strasbourg Court in Bankovic v Belgium (Admissibility) (52207/99) (2007) 44 EHRR SE5 and Al Skeini.
Last, it is uncontroversial that a tribunal must not use article 8 as a general dispensing power: see Patel v Secretary of State for the Home Department [2014] AC 651 per Lord Carnwath at paragraph 57. However, it is unnecessary to consider whether that is what the F-tT did in this case because there were errors of law in connection with the approach to article 8.
Conclusion
There is no obligation on an ECHR state to allow an alien to enter its territory to pursue a private life. Article 8 was not engaged in the respondent’s application for entry clearance for his family to visit the United Kingdom. No question of proportionality arises for consideration. The F-tT should have dismissed his appeal. The Secretary of State’s appeal against the order of UTIAC upholding the order of the F-tT succeeds.
Sir Ernest Ryder, Senior President
I agree.
Lady Justice Gloster
I also agree.