Entry Clearance Officer, Cairo v Medhat Mohamed Ibrahem Mostafa

In an entry-clearance appeal brought on human-rights grounds, the Tribunal cannot determine whether the refusal complied with the Immigration Rules as a free-standing ground of appeal. It may, however, assess whether the applicant substantively met the Rules when deciding whether refusal was a proportionate interference with Article 8 family life.

Satisfaction of the Rules may be a weighty factor, but it is not determinative. The proportionality assessment remains fact-sensitive and includes the strength of the family relationship, the practical impact of refusal, the public interest in immigration control, and any lack of candour or co-operation by the applicant.

The Entry Clearance Officer refused the claimant entry clearance for a short visit to his British-citizen wife. The refusal was based on concern that he did not genuinely intend to make a time-limited visit or leave the United Kingdom afterwards under paragraph 41 of the Immigration Rules.

The First-tier Tribunal allowed the appeal under the Immigration Rules, although the available appeal ground was incompatibility with Convention rights under section 6 of the Human Rights Act 1998. The Entry Clearance Officer appealed.

The Upper Tribunal had to decide whether the First-tier Tribunal had jurisdiction to allow the appeal under the Rules and, on remaking the decision, whether refusal of entry clearance was proportionate under Article 8.

1. The Entry Clearance Officer’s appeal was allowed to the extent that the First-tier Tribunal’s decision was set aside. The First-tier Tribunal had no jurisdiction to allow a family-visitor appeal on the ground that the refusal was contrary to the Immigration Rules. The claimant’s appeal was instead remade and allowed on Article 8 grounds.

2. The Tribunal could consider only the statutory human-rights ground. It nevertheless had to evaluate admissible evidence, including evidence of circumstances existing at the date of decision, in deciding proportionality. Whether the claimant met the substantive requirements of paragraph 41 was therefore relevant to, but did not itself determine, the Article 8 appeal.

3. Applying the five-stage approach in R v SSHD ex parte Razgar [2004] UKHL 27, refusal interfered materially with the claimant’s and his wife’s family life. The rights of all persons closely affected had to be considered. A short visit by a spouse need not be treated as inconsequential merely because it is not sought for settlement.

4. On the findings preserved from the First-tier Tribunal, the claimant intended a short visit and would return to Egypt. He had strong ties there, and neither he nor his wife had acted without candour or otherwise undermined immigration control. In those circumstances, refusing a visit to a spouse where the substantive Rules were met was disproportionate.

5. The Tribunal stressed that no relationship category automatically engages Article 8, and meeting the Rules does not automatically make refusal disproportionate. Entry-clearance cases involving persons other than close relatives will only unusually engage Article 8(1); each case requires a contextual proportionality assessment.

• Upper Tribunal (Immigration and Asylum Chamber): allowed the Entry Clearance Officer’s appeal insofar as it set aside the First-tier Tribunal’s decision, then substituted a decision allowing the claimant’s appeal under Article 8.

• First-tier Tribunal: allowed the claimant’s appeal under the Immigration Rules following refusal of entry clearance for a family visit. That decision was set aside because the Tribunal lacked jurisdiction to allow the appeal on that ground.