Immigration Law Update: Mostafa (Article 8 in entry clearance) v The Secretary of State for the Home Department [2015] UKUT 00112 (IAC)

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A case dealing with approach to Article 8 in entry clearance cases, and the significance of compliance/non-compliance with the terms of the Immigration Rules where there is no jurisdiction to consider a ground alleging that a decision is not in accordance with the Rules. In such a case the ability to satisfy the Rules represents a material consideration that illuminates the decision on proportionality in the context of an Article 8 inquiry, the relative significance of which can only be determined on case by case basis.

The Tribunal itself elaborated upon the above in the following way:

- With effect from 25 June 2013, section 52 of the Crime and Courts Act 2013 amended section 88A of the Nationality, Immigration and Asylum Act 2002 so that there is no right of appeal against refusal of entry clearance in a family visitor case, except on grounds alleging that the decision shows unlawful discrimination or is unlawful under Section 6 of the Human Rights Act 1998.
- There can be no question of entertaining an appeal on grounds alleging that the decision was not in accordance with the law or the Rules. These are not permissible grounds. Following the decision in Virk & Ors v SSHD [2013] EWCA Civ 652, that the parties cannot agree to the Tribunal exercising a jurisdiction that has not been given it by Parliament.
- In such a case the Tribunal does have power to consider a ground of appeal contending that the decision was incompatible with a claimant's Convention rights.
- The ability to satisfy the Rules, although not the question before the Tribunal, may be capable of being a weighty factor in an appeal based on human rights but they will not be determinative. They will only become relevant if the interference is such as to engage Article 8(1) ECHR and a finding by the Tribunal that an appellant does satisfy the requirements of the rules will not necessarily lead to a finding that the decision to refuse entry clearance is disproportionate to the proper purpose of enforcing immigration control. However it may be capable of being a strong reason for allowing the appeal that must be weighed with the others facts in the case.
- The decision in Shamin Box [2002] UKIAT 02212 is to be followed and the obligation imposed by Article 8 is to promote the family life of those affected by the decision.  Undoubtedly the paradigm Article 8 entry clearance case concerns applicants seeking to join close family members for the purposes of settlement. However it cannot be excluded that where one party to a marriage is entitled to be in the United Kingdom a qualified obligation to facilitate spousal unification for the limited purpose of a short visit and sojourn may arise.
- We refrain from suggesting that, in this type of case, any particular kind of relationship would always attract the protection of Article 8(1) or that other kinds of relationship would never come within its scope. We are, however, prepared to say that it will only be in very unusual circumstances that a person other than a close relative will be able to show that the refusal of entry clearance comes within the scope of Article 8(1). In practical terms this is likely to be limited to cases where the relationship is that of husband and wife or other close life partners or a parent and minor child and even then it will not necessarily be extended to cases where, for example, the proposed visit is based on a whim or will not add significantly to the time that the people involved spend together.
- 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 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.


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