Entry Clearance Officer (Accra) v Pricsilla Adjei

In a visit-visa appeal confined to human-rights grounds, the Tribunal must first decide whether Article 8 is engaged. If it is not, the Tribunal has no jurisdiction to decide whether the applicant met the Immigration Rules. If Article 8 is engaged, compliance with the Rules may be relevant to proportionality but is not determinative.

Family life between adult relatives requires more than ordinary emotional ties. In the absence of dependency or other exceptional features, adult relatives living separately do not establish family life for Article 8 purposes.

The Entry Clearance Officer refused the claimant, a Ghanaian national, entry clearance for a six-month family visit to relatives in London. The claimant appealed solely on the basis that refusal infringed Article 8 of the ECHR.

The First-tier Tribunal allowed the appeal under the Immigration Rules, finding that she was likely to return to Ghana and would not work in the United Kingdom. The Entry Clearance Officer appealed. The central issues were whether the First-tier Tribunal had decided the permitted ground of appeal and whether the claimant's relationships with her adult relatives engaged Article 8.

1. The Entry Clearance Officer's appeal was allowed. The First-tier Tribunal had made a material error of law. The claimant's available ground was infringement of Article 8, yet the judge decided instead whether she met the Immigration Rules. By doing so, the judge failed to determine the only ground before the Tribunal and determined a ground that was not available.

2. In a visit-visa appeal limited to human-rights grounds, the threshold question is whether Article 8 is engaged. If it is not engaged, the Tribunal must not assess the Entry Clearance Officer's decision under the Rules. If it is engaged, the applicant's ability to meet the substantive Rules may inform the ensuing proportionality assessment. It does not itself decide the appeal. The Tribunal explained Mostafa (Article 8 in entry clearance) [2015] UKUT 112 (IAC) on that basis.

3. The First-tier Tribunal's findings that the claimant met paragraph 41 of HC 395 carried little weight. They arose from a ground that had not been pleaded and were made without the Entry Clearance Officer having notice of, or representation on, that issue. A future application could take account of those findings, but the Entry Clearance Officer would not be bound by them.

4. Article 8 was not engaged on the facts. The claimant had established her own family life in Ghana. Her relationships with her father, stepmother and adult siblings disclosed neither dependency nor features beyond normal emotional ties between adult relatives living apart. The Tribunal applied the principles referred to in Nasri v France [1995] 21 EHRR 458, Advic v United Kingdom 20 EHRR CD 125 and Kugathas v IAT [2003] EWCA Civ 31.

5. The First-tier Tribunal's decision was set aside and remade. The claimant's appeal against refusal of entry clearance was dismissed.

• Upper Tribunal (Immigration and Asylum Chamber): allowed the Entry Clearance Officer's appeal and remade the decision by dismissing the claimant's entry-clearance appeal.
• First-tier Tribunal: by a determination promulgated on 22 October 2014, allowed the claimant's appeal under the Immigration Rules. That decision was set aside for material error of law.