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||Neutral Citation Number:  EWHC 972 (Admin)
||Case No: CO/4056/2011
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
||Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE WYN WILLIAMS
|| SARAH KHATOON
- and -
||THE ENTRY CLEARANCE OFFICER ISLAMABAD
Mr Rashid Ahmed & Ms Huma Price (instructed by Lambeth Solicitors) for the Claimant
Mr Matthew Barnes for the First Defendant and
Secretary of State for the Home Department (instructed by Treasury Solicitor)
The Second Defendant did not appear and was not represented
Hearing date: 11 April 2013
HTML VERSION OF JUDGMENT
Crown Copyright ©
Mr Justice Wyn Williams:
- In her claim form in these proceedings the Claimant seeks quashing orders in respect of decisions made by the First Defendant on 25 January 2010 and by the Second Defendant (Senior Immigration Judge Storey) on 2 February 2011. In his oral submissions before me Mr Ahmed, quite properly, did not persue the claim for a quashing order against the decision of the First Defendant. He concentrated on seeking to persuade me that I should grant a quashing order in respect of the decision of Senior Immigration Judge Storey made on 2 February 2011.
- Mr Barnes appeared for the First Defendant. However, he also appeared for the Secretary of State for Home Department who had an interest in whether or not the decision of 2 February 2011 should be quashed. Mr Barnes' submission, in a nutshell, was that the decision of Senior Immigration Judge Storey should not be quashed since it contained no error of law.
- Permission to apply for judicial review had been granted by HH Judge Rogers on 28 March 2012. The learned judge concluded that the stringent test for the grant of permission laid down in R (Cart) v the Upper Tribunal  1 AC 621 was satisfied. He concluded that the application for judicial review raised an important point of principle or practice and/or that there was some other compelling reason why permission should be granted.
- During the course of the oral submissions before me there was some debate about whether the test for permission had any relevance once permission had been granted. My attention was drawn to the decision of R (HS & Others) v the Upper Tribunal  EWHC 3126 (Admin) – a decision of Charles J. At paragraphs 30, 31 and 40 of his judgment, Charles J reasoned as follows:-
"30. At the first hearing, I raised with the parties the test that they submitted I should apply because I was unclear as to whether on an application for judicial review Cart decided that the second-tier criteria:
a) were to be applied at the permissions stage, with the result they are spent if permission is granted, or
b) were to be applied at the substantive stage on the basis that when granting permission the court had to consider and conclude whether they were arguable.
Having done so, I was content that their common approach that the second-tier appeals criteria were to be applied at the substantive hearing was correct.
31. However, on reflection and on consideration of their further submissions I have changed my mind and concluded that in Cart the Supreme Court has decided that:
a) at the permission stage, the court is to decide whether the second-tier appeals criteria are satisfied and not whether it is arguable that they will be satisfied at the substantive hearing, and so
b) if permission is granted on that basis (as with a second-tier appeal) the permission test is spent and is no longer the test to be applied at the substantive hearing.
40……I propose to adopt the changed common ground and proceed on the basis that the grounds for a successful review are not limited to the second-tier appeals criteria, and that I have to apply the well established grounds for judicial review in determining whether the decision of the UT refusing permission to appeal should be set aside."
- As I have said this point arose for the first time during the course of oral submissions. It seemed to me to be appropriate to give Mr Barnes some time in which to formulate arguments, if so instructed, to seek to persuade me that I should not follow the decision in HS. Accordingly, I directed that Mr Barnes' instructing solicitor should notify the court within 7 days of the date of the hearing whether the First Defendant and/or the Secretary of State for the Home Department wished to make detailed submissions upon the correctness of the approach of Charles J in HS. By letter dated 11 April 2013 I was informed that neither the First Defendant nor the Secretary of State for the Home Department wished to make submissions about HS.
- I propose to follow HS. Accordingly, this claim must be determined by applying the well established grounds upon which claims for judicial review are determined.
- The Claimant was born on 21 December 1991. She is a citizen of Pakistan. Her father is Mohammed Akram; her mother is Zarina Akhtar. The Claimant has 6 brothers.
- In 2002 or 2003 Mr Akram left Pakistan and came to the United Kingdom. On 20 August 2007 he was granted indefinite leave to remain in the UK as was one of his sons, Mohammad Ali.
- Some time thereafter the Claimant's mother and the Claimant's three youngest brothers applied to the entry clearance officer for indefinite leave to enter the United Kingdom. The application was refused but an appeal to the Immigration and Asylum Tribunal was successful. As I understand it the Claimant's mother and brothers were notified of their successful appeal by letters dated on or about 5 August 2009.
- The Claimant did not apply for indefinite leave to enter the United Kingdom at the same time as her mother and brothers. However, she made such an application to the entry clearance officer on or about 27 October 2009.
- The application was made by completing a standard form. It was sent to the entry clearance officer under cover of a letter dated 27 October 2009 and a number of documents were also enclosed with the letter. Part of the letter reads as follows:-
"Subject: Settlement visa ...as dependent child)
The undersigned is one of the dependent children (under 18 years) of Ms Zarina Akhtar; the Appellant whose case has been decided by the Immigration & Asylum Tribunal. My mother Zarina Akhtar and 3 brothers, namely Mr Mohammad Umar, Mr Usman Ghani and Mr Mohammed Bilal have been granted settlement visa as per court decision…..the honourable court further stated "1. Other child was the subject of an outstanding application", that is me (copy of the Immigration & Asylum Tribunal Services and copy of Solicitors' letter is enclosed)
It is therefore requested that I may also be granted settlement visa so that I can join my father Mr Mohammed Akram and brother Mohammed Ali in London UK (they have indefinite visas) along with my other family members."
- In her application form the Claimant gave her address in Pakistan. She did not specify (as she could have done) how long she had lived there but in a later section of the form she identified the address as being the home of her mother.
- At paragraph 4.27 of the application form the Claimant asserted that she would be travelling to the UK with her mother. In paragraphs 4.31 and 4.32 she made it clear that she was seeking indefinite leave to remain and that she intended to stay with her father and one of her brothers, Mr Muhammed Ali. In section 6 of the form Mr Akram was named as the Claimant's sponsor.
- As I mentioned earlier the application form specified that the Claimant was living at the same address as her mother. At paragraph 6.52 she declared, expressly, that she was living in Pakistan with her mother and siblings but was supported by her father.
- In section 6.9 the Claimant provided details of her father's work and earnings. In summary he was said to be working for a company in south west London called Secure Ltd earning £1520.63 per month.
- At the time she made her application the Claimant was aged 17 years and 10 months. By the time the First Defendant made his decision on or about 25 January 2010 the Claimant was aged 18 years and 1 month.
- In the supplementary skeleton argument filed on behalf of the Claimant Mr Ahmed says that the Claimant's mother and 3 of her brothers travelled to the UK some time in November 2009. I have no reason to doubt what Mr Ahmed says. There is no evidence before me, however, which suggests that this information was communicated to the First Defendant before he made his decision on or about 25 January 2010.
- The First Defendant considered the Claimant's application in the context of paragraph 301 of the Immigration Rules. That was probably a mistake; he should have considered the application in the context of paragraph 297. There is only one material difference between the paragraphs; paragraph 301 is apposite if the applicant is seeking limited leave to enter/remain; paragraph 297 is the paragraph by which applications for indefinite leave are considered. The mistake was not material to the decision of the First Defendant, however, because the primary basis upon which the First Defendant refused the Claimant's application was that he was not satisfied that the Claimant was the daughter of Mr Akram and Ms Akhtar.
- The Claimant's appeal to the First-tier Tribunal (Immigration and Asylum Chamber) was heard on 28 November 2010. The appeal was dismissed in a determination promulgated on 16 November 2010. Immigration Judge Gurung-Thapa correctly considered the appeal in the context of paragraph 297 of the Immigration Rules. By the time of the hearing of the appeal evidence had been adduced which established, conclusively, that the Claimant's father was Mr Akram. However, the Immigration judge concluded that the Claimant could not meet the requirements of the paragraph relating to accommodation and maintenance in the UK.
- Following the rejection of the Claimant's appeal she sought permission to appeal to the Upper Tribunal. It was at this stage, for the first time, that the Claimant sought to rely upon Article 8 of the European Convention on Human Rights. A judge of the Upper Tribunal (but sitting in the First-tier Tribunal) refused permission to appeal and asserted that Immigration Judge Gurung-Thapa could not be "criticised for not deciding the appeal on human rights grounds when none were raised."
- The Claimant pursued her application for permission to appeal to the Upper Tribunal. Senior Immigration Judge Storey refused permission for the following reasons:-
"The five issues identified in the grounds were all primarily issues of fact. The IJ decided those in the light of the evidence as a whole. Issue (iv) was decided in favour of the Appellant. Like SJ Perkins I have some reservations about the accommodation assessment (issue (iii)) but I can find no arguable error in the IJ's treatment of other issues and that being so the appeal could have had no other outcome.
The grounds contend that the IJ approached matters relating to Article 8 (issue (v)) "with a negative mind" and that she failed to take into account all relevant circumstances. It is true that the IJ did not address Article 8 at all, but, in addition to the fact that neither the grounds of appeal nor the Appellant's representatives at the hearing had raised Article 8, the evidence before the IJ did no more than establish that the Appellant did not lead an independent life because the Appellant was still living with her aunt. It was not a case therefore where the Appellant had no existing family life support. In relation to the failure of the Appellant to show that there would be adequate maintenance, the Strasbourg Court has made clear in its judgments that it is proportionate for a State to require would-be entrants to meet maintenance requirements. Hence, on the evidence before the IJ the Appellant's Article 8 grounds had no real prospect of success.
As regards the allegation that the IJ approached matters with a negative mind, there is nothing to indicate that the IJ did other than consider the evidence as a whole with an open mind. The Appellant dislikes the outcome, understandably, but that does not establish bias or lack of objectivity."
Nationality, Immigration and Asylum Act 2002
- By virtue of section 82(1) Nationality, Immigration and Asylum Act 2002 the Claimant had a right of appeal against the First Defendant's decision. Section 84 of that Act provides:-
"(1) An appeal under section 82(1) against an immigration decision must be brought on one or more of the following grounds –
a) that the decision is not in accordance with Immigration Rules;
c) That the decision is unlawful under section 6 of the Human Rights Act 1998 c) (42) (public authority not to act contrary to Human Rights Convention) as being incompatible with the Appellant's Convention rights;
e) that the decision is otherwise not in accordance with the law;
- Section 85(4) and (5) provide:-
"(4) On an appeal under section 82(1) …..against a decision the Tribunal may consider evidence about any matter which it thinks relevant to the substance of the decision, including evidence which concerns a matter arising after the date of the decision.
(5) But in relation to an appeal under section 82(1) against refusal of entry clearance…..
a) sub-section (4) should not apply, and
b) the Tribunal may consider only the circumstances appertaining at the time of the decision to refuse."
- By virtue of section 85(5) of the 2002 Act the duty of the Tribunal on an entry clearance appeal is to consider the circumstances which existed at the time of the decision to refuse. That does not mean that the Tribunal cannot receive evidence which was not before the entry clearance officer. In this case, for example, the evidence of a DNA test was correctly admitted by the Tribunal (notwithstanding that the DNA test had not been performed at the time of the decision of the First Defendant) because the test was properly referable to the circumstances which had existed at the time of the First Defendant's decision.
- Section 85(5) of the 2002 Act is also applicable in an appeal brought against a decision of an entry clearance officer on the basis that the decision in question infringes the human rights of an appellant. That is the clear effect of the decision of the House of Lords in AS (Somalia) v Secretary of State for the Home Department  1WLR 1385. The ratio of this decision is that section 85(5) of the 2002 Act is not incompatible with the European Convention. However, it is to be noted that there are passages in the speeches in the House – particularly the speech of Baroness Hale – which leave open the possibility that the Tribunal might infringe an Appellant's human rights if it proceeded on the basis of the circumstances existing at the time of the decision before the entry clearance officer but those circumstances had changed, markedly, by the time of the hearing before the Tribunal. That said, I need not consider this aspect of the decision in AS (Somalia) since this point has not been pursued before me – no doubt for the very good reason that there is no evidence available of a marked change of circumstances in the Appellant's life since the First Defendant made his decision.
- Paragraph 297 of the Immigration Rules provide:-
"297. The requirements to be met by a person seeking indefinite leave to enter the United Kingdom as the child of a parent, parents or a relative present and settled or being admitted for settlement in the United Kingdom are that:
i) is seeking leave to enter to accompany or join a parent, parents or a relative in one of the following circumstances:
a) both parents are present and settled in the United Kingdom; or
b) both parents are being admitted on the same occasion for settlement; or
c) one parent is present and settled in the United Kingdom and the other is being admitted on the same occasion for settlement; or
d) one parent is present and settled in the United Kingdom or being admitted on the same occasion for settlement and the other parent is dead; or
e) one parent is present and settled in the United Kingdom or being admitted on the same occasion for settlement and had sole responsibility for the child's upbringing; or
f) one parent or a relative is present and settled in the United Kingdom or being admitted on the same occasion for settlement and there are serious and compelling family or other considerations which make exclusion of the child undesirable and suitable arrangements have been made for the child's care; and
ii) is under the age of 18; and
iii) is not leading an independent life, is unmarried and is not a civil partner, and has not formed an independent family unit; and
iv) can, and will, be accommodated adequately by the parent, parents or relative the child is seeking to join without recourse to public funds in accommodation which the parent, parents or relative the child is seeking to join for their own or to occupy exclusively; and
v) can, and will, be maintained adequately by the parent, parents or relative the child is seeking to join, without recourse to public funds; and
vi) hold a valid United Kingdom entry clearance for entry in this capacity."
- Paragraph 27 of the Rules provides:-
"An application for entry clearance is to be decided in the light of the circumstances existing at the time of the decision, except that an Applicant will not be refused an entry clearance where entry is sought in one of the categories contained in paragraphs 296-316 solely on account of his attaining the age of 18 years between receipt of his application and the date of the decision on it."
- Mr Ahmed submits that paragraph 27, properly interpreted, compels an entry clearance officer (and the Tribunal on appeal) to treat a person who was under the age of 18 at the time of an application (but who attains the age of 18 before a decision is made) as if he/she had remained under the age of 18 at the time of the decision.
- Mr Barnes disagrees. He submits that paragraph 27, properly interpreted, simply means that if all other requirements of the relevant Immigration Rules are met i.e. in the context of this case the requirements of paragraph 297, entry clearance is not to be refused in respect of a person who was under 18 at the date he/she made his/her application but who has attained the age of 18 prior to a decision being made.
- In my judgment Mr Barnes' submission on the interpretation of paragraph 297 is clearly right. That is the natural meaning of the words used and I can think of no reason why the words should not be given their natural meaning given the context in which they appear.
Legal Issues not raised before the Entry Clearance Officer/Tribunal
- It is common ground that the Claimant did not raise, expressly, any human rights issues in her application for entry clearance. Further, Mr Ahmed concedes that her grounds of appeal against the First Defendant's decision, as presented to the First-tier Tribunal, did not raise any human rights issues. The first time that the Claimant sought to rely upon human rights (Article 8) was when she sought permission to appeal against the decision of Immigration Judge Gurung-Thapa.
- In Mundeba v Entry Clearance Officer – Nairobi  UKUT 88(IAC) the Upper Tribunal (Immigration and Asylum Chamber) (the President and UT Judge Dawson) had this to say about the obligation of an entry clearance officer who is considering an application by a child who is a minor under paragraph 297 of the Immigration Rules.
"36. The exercise of the duty by the Entry Clearance Officer to assess the application under the Immigration Rules as to whether there are family or other considerations making the child's exclusion undesirable inevitably involves an assessment of what the child's welfare and best interests require. Where an immigration decision engages Article 8 rights, due regard must be had to the UN Convention on the Rights of the Child. An entry clearance decision for the admission of a child under 18 is "an action concerning children….undertaken by ….administrative authorities" and so by Article 3 "the best interests of the child shall be of primary consideration". Although the statutory duty under s.55 UK Borders Act 2009 only applies to children within the UK, the broader duty doubtless explains why the Secretary of State IDI invites Entry Clearance Officers to consider the statutory guidance issued under s.55.
37. Family considerations require an evaluation of the child's welfare including emotional needs. 'Other considerations' come into play where there are other aspects of a child's life that are serious and compelling – for example where an Applicant is living in an unacceptable social and economic environment. The focus needs to be on the circumstances of the child in the light of his or her age, social background and developmental history and will involve inquiry as to whether:-
i) there is evidence of neglect or abuse;
ii) there are unmet needs that should be catered for;
iii) there are stable arrangements for the child's physical care.
The assessment involves considerations as to whether the combination of circumstances are sufficiently serious and compelling to require admission.
38. As a starting point the best interests of the child are usually best served by being with both or at least one of their parents. Continuity of residence is another factor; change in the place of residence where a child has grown up for a number of years when socially aware is important: see also SG (Child of a Polygamous Marriage) Nepal  UKUT 265 (IAC);  IM.AR 939."
- No doubt the same approach should be adopted by the Tribunal on an appeal against a refusal to grant entry clearance brought by a child who is a minor and who wishes to join a parent or parents in the UK – see SS (Sri Lanka) v Secretary of State for the Home Department  EWCA Civ 945 paragraph 17.
- What is the position if a young adult child is appealing against a refusal of entry clearance in circumstances in which he or she wishes to join a parent or parents and siblings some of whom are minors? In an appropriate case paragraph 27 of the Immigration Rules would apply; otherwise there may be a possibility that Article 8 of the European Convention on Human Rights will be engaged. The fact that Article 8 is not relied upon in the grounds of appeal presented to the First-tier Tribunal does not mean, necessarily, that the Tribunal has no obligation to consider whether a decision to refuse entry would constitute a breach of Article 8. In R (Robinson) v the Secretary of State for the Home Department  QB 929 the Court of Appeal defined the circumstances in which the Tribunal ought to consider issues which had not been raised as express grounds of appeal or mentioned, specifically, in argument advanced either by an Appellant or his legal representative. It is sufficient to refer to paragraphs 38 and 39 of the judgment of the court:-
"38. It is now, however, necessary for us to identify the circumstances in which it might be appropriate for the tribunal to grant leave to appeal on the basis of an argument not advanced before the special adjudicator, or for a High Court Judge to grant leave to apply for judicial review of a refusal of leave by the tribunal in relation to a point not taken in the notice of appeal to the tribunal.
39. Because the rules place an onus on the asylum-seeker to state his grounds of appeal, we consider that it would be wrong to say that mere arguability should be the criterion to be applied for the grant of leave in such circumstances. A higher hurdle is required. The appellate authority should of course focus primarily on the arguments adduced before them, whether these are to be found in the oral argument before the special adjudicator or, so far as the tribunal is concerned, in the written grounds of appeal on which leave to appeal is sought. They are not required to engage in a search for new points. If there is readily discernible an obvious point of Convention law which favours the Applicant although he has not taken it, then the special adjudicator should apply it in his favour, but he should feel under no obligation to prolong the hearing by asking the parties for submissions on points which they have not taken but which could properly be categorised as merely "arguable" as opposed to "obvious". Similarly, if when the tribunal reads the special adjudicator's decision there is an obvious point of Convention law favourable to the asylum-seeker which does not appear in the decision, it should grant leave to appeal. If it does not do so, there will be a danger that this country will be in breach of its obligations under the Convention. When we refer to an obvious point we mean a point which has a strong prospect of success if it is argued. Nothing less will do. It follows that leave to apply for judicial review of a refusal by the tribunal to grant leave to appeal should be granted if the judge is of the opinion that it is properly arguable that a point not raised in the grounds of appeal to the tribunal had a strong prospect of success if leave to appeal were to be granted."
- Robinson was decided in the context of the 1951 Convention concerning refugees. However, it is now well established that the principle in Robinson is of general application whatever the context of the case with which the Tribunal is concerned. Similarly, of course, Robinson was decided at a time when there was a different procedural regime for appeals against decisions of the type in question in this case. However, no one has suggested that Robinson is not applicable to the appellate regime in this case. Indeed there is powerful authority which suggests that it does – see AA (Afghanistan) v The Secretary of State for the Home Department.  EWCA Civ 12 at paragraph 36.
- Mr Ahmed submits that the First Defendant should have treated the Claimant as a child under the age of 18 years at the time he determined her application. He says that was the effect of paragraph 27 of the Immigration Rules and the First Defendant's failure to treat the Claimant as a minor was a clear error of law. Mr Ahmed acknowledges that this, of itself, does not avail the Claimant because she enjoyed and she exercised a right of appeal against the decision. However, Mr Ahmed next submits that the Tribunal made the very same error of law as had been made by the First Defendant. Neither the First-tier Tribunal nor the Upper Tribunal treated the Claimant as if she were a child under the age of 18 at the material time i.e. the date of the First Defendant's decision.
- This failure led the Tribunal (both First-tier and Upper) into further important errors of law, submits Mr Ahmed. No account was taken of Article 3 of the UN Convention of the Rights of the Child and policy documents issued by UKBA such as "Immigration Directorate Instructions" (IDI) and "Every Child Matters". Mr Ahmed submits that had the Tribunal treated the Claimant as a child under the age of 18 and taken account of the relevant matters contained within the Convention and the policy documents mentioned above (essentially and in summary that decision makers should take account of the welfare and best interests of a minor and treat those interests as paramount considerations) the Claimant's appeal would have succeeded, or, at least, would have very likely succeeded.
- Mr Ahmed relies not just on his contention that the Claimant was a child under the age of 18 at the relevant time. He submits that when the First Defendant made his decision her circumstances were that she had remained in Pakistan only on a temporary basis in the belief that she would be permitted to join her father, mother and some of her brothers. Further, there was evidence (accepted by the Tribunal) which suggested that the Claimant's father had been supporting her financially while she was living in Pakistan. All these factors taken together, submits, Mr Ahmed were more than sufficient to justify allowing the Claimant's appeal.
- Mr Barnes does not accept that it was appropriate to regard the Claimant as a child under the age of 18 at the time the First Defendant made his decision. He submits that the plain fact is that at the date of the decision the Claimant was over 18 years of age. Paragraph 27 of the Immigration Rules did not require that she should be treated as if she was under the age of 18.
- I agree with Mr Barnes' analysis. As I have found (see paragraph 30 above) paragraph 27 of the Immigration Rules did not require the First Defendant to treat the Claimant as if she was under the age of 18 at the time he made his decision. The Claimant was an adult when the First Defendant made his decision.
- It follows that there was no requirement upon the First-tier Tribunal or Upper Tribunal to take account of the UN Convention on the Rights of a Child or the other documents referred to in paragraph 37 above.
- That is not, necessarily, the end of the claim. Mr Ahmed submits that even if the Claimant was properly to be regarded as a young adult the Tribunal fell into error in failing to take account of her rights under Article 8 of the European Convention. He submits that it should have been obvious to the First-tier Tribunal that a decision to refuse entry clearance would very likely infringe the Claimant's rights under Article 8 and that Senior Immigration Judge Storey was wrong to conclude otherwise.
- As is clear from the extracts from Robinson set out in paragraph 34 above an appellant who does not raise an issue as a specific ground of appeal to the Tribunal bears a heavy burden in seeking to persuade this court that the Tribunal erred in law in failing to take and determine that issue of its own motion. The Tribunal is not required to "search for new points"; it is not required to seek submissions upon points which are "merely arguable" as opposed to "obvious". The appellant must satisfy this court that the Tribunal has failed to take and determine a point which is obvious in the sense that it must be one "which has a strong prospect of success if it is argued."
- In Güll v Switzerland  22 EHRR 93 the Claimant had been permitted to reside in Switzerland with his wife and daughter, but two sons were left behind in Turkey. At a later date he sought to sponsor his sons' entry into Switzerland but was refused. The European Court of Human Rights rejected his complaint. The Court acknowledged that the family situation was "difficult from the human point of view" but that Switzerland had not failed to fulfil the obligations under Article 8(1) and there was therefore no interference in family life within the meaning of that Article. In reaching that conclusion the European Court said:-
"38. The court reiterates the essential object of Article 8 is to protect the individual from arbitrary action by the public authorities. There may in addition be positive obligations inherent in effective "respect" for family life. However the boundaries between the State's positive and negative obligations under this provision do not lend themselves to precise definition. The applicable principles are, nonetheless, similar. In both contexts regard must be had to the fair balance of the individual and the community as a whole; and in both contexts the State enjoys a certain margin of appreciation.
The present case contains not only family life but also immigration and the extent of the State's obligation to admit to its territory relative of settled immigrants will vary according to the particular circumstances of the persons involved and the general interest. As a matter of well established international law and subject to its treaty obligations, a State has the right to control the entry of non-nationals into its territory.
Moreover, where immigration is concerned, Article 8 cannot be considered to impose on a State a general obligation to respect the choice of married couples of the country of matrimonial residence and to authorise family reunion in its territory. In order to establish the scope of the State's obligations, the facts of the case must be considered."
- This extract from Güll was cited in the decision of the Court of Appeal in AAO v Entry Clearance Officer  EWCA Civ 840. In that case the court was considering whether the Immigration and Asylum Tribunal had properly considered the Article 8 rights of a mother who was seeking entry clearance to join her adult daughter in the UK. At paragraph 35 of his judgment Rix LJ said:-
"As for the position of parents and adult children, it is established that family life will not normally exist between them within the meaning of Article 8 at all in the absence of further elements of dependency which go beyond normal emotional ties: see S v United Kingdom  40 DR196, Adulaziz, Cabales and Balkandali v United Kingdom  7 EHRR 471, Advic v United Kingdom EHRR 57, Kugathas v SSHD  EWCA Civ 31 and JB (India) v ECO  EWCA Civ 234. That is not to say that reliance on the further element of financial dependency will bring a breach of Article 8: no case in which it has in the present context has been discovered."
- I have quoted Güll and AAO not to show that an Article 8 claim on behalf of the Claimant was bound to fail had it been pursued by the Claimant's advisors, appropriately, in the Tribunal; rather these cases demonstrate that such a claim would have been a difficult one and one which could not properly be described as having a "strong prospect of success" if it was argued.
- In her skeleton produced for the purpose of the permission application in these proceedings Ms Price argued that the Claimant was a young single woman living in a country where "living alone" would be regarded as socially unacceptable. She also argued that the Claimant was vulnerable and that these circumstances should have led the Tribunal to regard her circumstances as being exceptional.
- There was no evidence before the Tribunal that the Claimant was living alone or was vulnerable. Such evidence as there was about the Claimant's living arrangements at the time that the First Defendant made his decision (and for that matter subsequently) was that the Claimant was living with her father's sister-in-law (the Claimant's aunt) in Islamabad. There was no evidence to the effect that this living arrangement was precarious or likely to be available in the short term only or that the Claimant was vulnerable in any way.
- I should also record that Mr Ahmed relies upon the fact that the Claimant was intending to rejoin her brothers in the United Kingdom some of whom were minors. She had, apparently, lived with them in her mother's home before mother and brothers had left for the United Kingdom. However, that was the sum total of the information available to the tribunal about any relationship between the Claimant and her brothers.
- The reality is that the information available to the Tribunal about the Claimant's links to her immediate family was limited and sketchy. Such information as was put before the Tribunal was never presented with a view to demonstrating a claim under Article 8. In summary, all that the Tribunal knew was that the Claimant was a young adult who had lived with her mother while the mother and some of her siblings were in Pakistan and who was to some degree financially dependent upon her father who had lived in the United Kingdom for many years. There was a paucity of evidence as to the extent of the Claimant's financial dependence upon her father – certainly a paucity of documentary evidence relating to such a dependency – and IJ Gurung-Thapa reached a conclusion on the evidence available (which has not been challenged) that the Claimant had not proved that she would be adequately maintained without recourse to public funds should she be permitted to enter the UK with indefinite leave to remain. To repeat, the Claimant was living with an aunt in Islamabad and she was receiving some financial support from her father.
- In my judgment IJ Gurung-Thapa cannot be criticised for failing to consider an Article 8 claim on the part of the Claimant on the basis of the facts presented to her. Put another way, she did not err in law in failing to consider such a claim.
- Senior Immigration Judge Storey did consider Article 8. That is clear from his reasons for refusing permission to appeal. He considered the information available and reached the conclusion that an Article 8 claim had no real prospect of success.
- The assessment of the Article 8 claim made by the Senior Immigration Judge may have been unduly trenchant. I am completely satisfied, however, that he was fully entitled to conclude that the Article 8 claim was more likely to fail than succeed.
- I have reached the clear conclusion that neither the First-tier Tribunal nor the Upper Tribunal made any material error of law. The First-tier Tribunal did not err in law by failing to consider an Article 8 claim on behalf of the Claimant; Senior Immigration Judge Storey made no error of law when he refused to grant permission to appeal to the Upper Tribunal in respect of a potential claim under Article 8. Accordingly, this claim must be dismissed.
- I propose to hand down judgment in this case on Friday 26 April 2013 at 10.00am. If the parties can agree an order consequent upon my judgment there need be no attendance at the handing down.
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