Aneeq Mahmood Abbasi v Entry Clearance Officer of Karachi

A refusal of a short-term entry visa sought to mourn with relatives and visit the grave of a close family member is capable of engaging Article 8. Whether Article 8 is engaged, and whether refusal is justified, depends on the particular facts. A tribunal must not confine its assessment to where an applicant’s established family life is ordinarily based.

The proper approach is sequential: determine whether the requested facility falls within protected private or family life; whether refusal interferes with that right; whether a legitimate aim is engaged; and whether the interference is proportionate. A finite visit for bereavement purposes may outweigh the public interest in immigration control where the interference is profound and the purpose cannot otherwise be achieved.

The appellants, brothers and Pakistani nationals, applied for four-week visit visas to travel to the United Kingdom after their grandfather’s death. They wished to visit his grave and mourn with relatives settled in the United Kingdom. The Entry Clearance Officer refused the applications, doubting that the visits would be temporary and that the appellants would leave at their end.

The First-tier Tribunal dismissed their human-rights appeals. It held that their inability to visit relatives during mourning did not breach Article 8 because their established family life was in Pakistan and family contact could continue in other ways.

The Upper Tribunal considered whether refusal of a time-limited visit for bereavement and grave visitation fell within Article 8 and, if so, whether it was proportionate.

1. Appeals allowed. The First-tier Tribunal had made an error of law. It adopted an impermissibly narrow view of Article 8 by concentrating on the appellants’ established family life in Pakistan and failing to consider the discrete private- and family-life interests engaged by mourning with relatives and visiting a grandfather’s grave.

2. Matters concerning death, burial, mourning and related rites are capable of falling within Article 8. The relevant preliminary question was whether the particular facility sought—here, a finite entry visa for bereavement purposes—was protected by Article 8. The answer depended on all the circumstances, rather than on a requirement that the appellants already have an established family life in the United Kingdom.

3. Following the structured approach in Razgar v SSHD [2004] UKHL 27, the tribunal had to determine: whether Article 8 protected the interest asserted; whether refusal interfered with it; whether a legitimate aim was engaged; and whether the interference was proportionate.

4. On remaking the decision, the Tribunal found that Article 8(1) protected the appellants’ proposed visit and that the refusals interfered with the private and family life of the appellants and affected relatives. Maintaining firm immigration control was a legitimate aim, with statutory support in section 117B(1) of the Nationality, Immigration and Asylum Act 2002.

5. The interference was nevertheless disproportionate. It was substantial and profound because the appellants could not otherwise visit the grave or grieve with their relatives. The proposed visit was modest and finite, and its cultural and religious importance was evident. The decision of the First-tier Tribunal was set aside and the appeals were remade and allowed. The Entry Clearance Officer was required to make fresh decisions guided by the judgment.

• Upper Tribunal (Immigration and Asylum Chamber): Allowed the appellants’ appeals, set aside the First-tier Tribunal’s decision for error of law, and remade the decisions.
• First-tier Tribunal: Dismissed the appeals on the basis that refusal of the proposed visits did not engage the appellants’ Article 8 family-life rights.