Entry Clearance Officer - New Delhi v Pritam Kaur

In a visitor-entry-clearance appeal confined to human-rights grounds, the Article 8 assessment must begin with the evidence bearing on compliance with paragraph 41 of the Immigration Rules HC 395. The Tribunal must determine disputed facts from the evidence on both sides, with the burden on the appellant.

Failure to satisfy the visitor rules ordinarily demonstrates a weighty public interest against admission. A claimant seeking leave to enter outside the rules must show Article 8 interests of a particularly pressing nature and compelling circumstances. Practical or financial convenience in arranging family visits will not ordinarily meet that standard.

The Entry Clearance Officer refused an Indian widow entry clearance for a proposed six-week visit to her son, daughter-in-law and grandchildren in the United Kingdom. The refusal rested on insufficient evidence of her family ties in India and consequent concern that she did not genuinely intend a temporary visit under paragraph 41 of the Immigration Rules HC 395.

The First-tier Tribunal allowed her appeal on Article 8 grounds. It found protected family life and treated the public interest in refusal as weak. The Entry Clearance Officer appealed, contending that the judge had failed properly to assess the visitor-rule evidence and proportionality.

The Upper Tribunal considered the proper relationship between visitor rules and an appeal limited to unlawful discrimination or incompatibility with section 6 of the Human Rights Act 1998.

1. The Entry Clearance Officer’s appeal was allowed. The First-tier Tribunal had materially erred in law. Its decision was set aside and the claimant’s appeal was remade and dismissed.

2. An appeal against refusal of a visit visa on human-rights grounds cannot be determined as a free-standing Article 8 claim. Although the Tribunal had no jurisdiction to allow the appeal simply because the decision failed to comply with the visitor rules, the evidence relevant to paragraph 41 was the necessary starting point for deciding whether the refusal was incompatible with Article 8.

3. Disputed facts relevant to Article 8 had to be resolved on all the evidence, rather than by accepting either the Entry Clearance Officer’s view or the claimant’s assertions alone. The claimant bore the burden of showing that she genuinely intended only a visit. The First-tier Tribunal had failed to evaluate the absence of adequate evidence concerning her family circumstances in India and had given no adequate reason for rejecting the Entry Clearance Officer’s concern that she might not leave.

4. The visitor rules reflected the public interest both generally, through immigration control, and specifically, where an applicant had not met their requirements. The First-tier Tribunal had failed to weigh that public interest. The practical difficulty and expense of UK-based relatives travelling to India were not compelling family circumstances.

5. The claimant did establish family life within Article 8(1). Her role in bringing up the grandchildren created ties exceeding ordinary emotional ties between an elderly mother or grandmother and adult family members. The refusal also interfered with that family life. However, she had not shown that her intended visit was genuine or that compelling circumstances justified leave to enter outside the rules. The interference was therefore proportionate.

• Upper Tribunal (Immigration and Asylum Chamber): Allowed the Entry Clearance Officer’s appeal, set aside the First-tier Tribunal’s Article 8 decision, and remade the decision by dismissing the claimant’s appeal: [2015] UKUT 487 (IAC).
• First-tier Tribunal: Allowed the claimant’s appeal on Article 8 grounds in a determination sent on 29 January 2015. No citation was stated.