On 3rd September 2015, the Upper Tribunal published two determinations which provided a welcome approach to the consideration of Article 8 ECHR (right to a private/family life) for those who wish to visit family members in the UK and are limited to challenging a refusal on human rights grounds.  

In both of these cases, the Upper Tribunal considered the question of when human rights might be engaged in a visit visa case.

In the first case of Abbasi and another (visits – bereavement – Article 8 ECHR) [2015] UKUT 463, an application made by two brothers to visit their grandfather’s grave in the UK and mourn with their family members following his death, had been refused by the Entry Clearance Post (ECP) in Pakistan.  The First Tier Tribunal refused their appeal on human rights grounds on the finding that there could be no family life within the meaning of Article 8 between the appellants and those family members in the UK. In Kaur (visit appeals; Article 8) [2015] UKUT 00487 (IAC), the appellant was an elderly Indian woman who had been refused entry clearance to visit her son and his family in the UK as the ECP was not satisfied that she intended to return to India at the end of the visit.  In this case, the First Tier Tribunal had allowed the appeal.  This was appealed to the Upper Tribunal on the basis that the First Tier Tribunal Judge had been wrong to find that the appellant’s case did fall within the ambit of Article 8 ECHR. In both determinations, the Upper Tribunal found that there had been an error in law and re-made the decisions. Interestingly, the Upper Tribunal found that family life had been established in both cases (and in doing so, Mr Justice McCloskey in Abbasi engaged in a broad consideration of Strasbourg jurisprudence). It was good news for the appellants in Abbasi as their appeal was allowed (although possibly too late for the purposes of the visit) whereas in Kaur it was held that the refusal of her entry to the UK did not result a disproportionate interference to family life.

What is important to take from these cases is that the refusal of visit visa applications can be successful on human rights grounds as long as there is a strong argument that the visit engages human rights on some level. As found in Abbasi, this will depend upon the fact sensitive context of the particular case and the Tribunal must ensure that they adopt a structured and sequential approach to the human rights considerations that are raised. 

However, it is possible that even if following this approach, the Secretary of State will attempt to broaden what is meant by the Upper Tribunal in their findings that: Unless an appellant can show that there are individual interests at stake covered by Article 8 "of a particularly pressing nature" so as to give rise to a "strong claim that compelling circumstances may exist to justify the grant of LTE [Leave to Enter] outside the rules"… he or she is exceedingly unlikely to succeed.” [emphasis added]

The findings in these cases will also prove useful for the majority of other immigration appeals in which an appellant is now limited to arguing human rights grounds as it was confirmed once again that the ability to meet the requirements of the Immigration Rules is an important starting point in determining a human rights claim. It was also pointed out in Kaur that “…the restriction of grounds of appeal to human rights does not mean that judges are relieved of their ordinary duties of fact-finding or that they must approach these in a qualitatively different way”. 

We would, however, emphasise that for the best chances of success, those wishing to make an application for entry clearance must attempt to meet all of the requirements of the Immigration Rules and provide detailed evidence with their applications. This is particularly worth noting for those who wish to apply as a visitor.  Although a human rights argument can be made, it is extremely unlikely that this will be considered favourably by an Entry Clearance Post at the first instance. In addition, with appeal hearings being listed between 6 and 12 months after an appeal is lodged the purpose for a visit may no longer be relevant.

If you would like any advice or further information on visit visa applications/appeals or any other immigration matters in the UK, then you should contact a member of our Immigration Teams in Edinburgh and Glasgow.