Quite some while ago, in 2013, the Government removed the full right of appeal to the Immigration Tribunal for family visitor visa applications. The grounds of appeal for unsuccessful family visitor applicants are now limited to arguments based on race discrimination and human rights.
Everyone knows that race discrimination arguments can hardly ever succeed in the context of immigration law and some people feared that family visitor visa appeal arguments based on human rights might not be very strong either. Human rights applications are very often based on Article 8 of the European Convention on Human Rights, the right to private and family life, but these are qualified rights, not absolute rights.
Thus a decision-making Tribunal or Court has to carefully balance the rights of the applicant to family life against the right of the UK Government to control immigration and, depending on the facts, the decision can go either one way or the other. Because a visit is, by definition, for a short temporary period, it was widely feared that refusal of a family visitor visa application would not be of sufficient gravity to engage Article 8 very strongly.
At last one of these cases, titled “Mostafa”, has reached the Upper Immigration Tribunal (the higher tier of the immigration tribunal system), and the result has been encouraging. The Upper Tribunal indicated that an Article 8 human rights family visitor visa appeal argument could potentially succeed if the facts were strong.
In this case the visa applicant, Mr Mostafa, an Egyptian national, was married to a British wife, and she divided her time between Egypt and the UK. He applied for a visitor visa so that he could come to the UK and be with her for a temporary period whilst she was in the UK.
The visa application was refused by the British Embassy on the grounds that he did not meet the requirements of the Immigration Rules – specifically that he had not shown sufficiently convincingly that he intended to leave the UK at the end of the visit.
He appealed against the decision and the case was successful at the First-Tier Immigration Tribunal (the lower tier of the immigration tribunal system). But because of some technical errors by the Immigration Judge the case was referred to the Upper Tribunal. But this at least gave the Upper Tribunal the opportunity to explain its understanding of the legal issues involved.
The Upper Tribunal said that the parties’ wish to be together for the proposed temporary period in the UK was “very human and understandable” – which clearly indicated that it was looking favourably at the human rights angle.
The Upper Tribunal also said that, in its opinion, Mr Mostafa did satisfy the requirements of the Immigration Rules, and that this was helpful to him in the human rights assessment (the clear implication being that, if he did not satisfy the Immigration Rules, the human rights assessment might have gone against him).
So Mr Mostafa was successful at the Upper Tribunal in his human rights argument and he will get the visa.
This will be very helpful for family visitor visa applicants in future, because decisions of the Upper Tribunal are binding on the First-Tier Tribunal, ie it has to follow them where they are relevant to the case in hand. It may be that other family visitor visa appellants in the future, in similar situations to Mr Mostafa’s, may also succeed. Not only that, but this case may in some cases be helpful for appellants in other visa categories.
