VA178362013 & VA178352013

The Appellants are both nationals of Georgia. They are sister and brother. They have permission to appeal against the decision of the First-tier Tribunal (Judge Higgins) who on the 17 th April 2014 dismissed their linked appeals against decisions to refuse to grant them entry clearance as visitors. Those decisions had been served in Istanbul on the 21 st August 2013.

The Appellants wished to come to the UK in order to see their father, Mr Boris Gelashvili. They did not however have a full right of appeal to the First-tier Tribunal pursuant to the Immigration Appeals (Family Visitor) Regulations 2012 because their father is not settled in the UK. He has a right of residence in the UK as the family member (spouse) of an EEA national exercising her free movement rights. As such they do not get a full right of appeal. They are however entitled to appeal to the First-tier Tribunal on human rights grounds, and this is what they did.

�13. The judgement I have to make is whether the prejudice to the family life enjoyed by the Appellants was sufficiently serious to amount to a breach of Article 8 bearing in mind all the considerations in favour of enforcing immigration control strictly. The interests of the wider community have to be weighed against the prejudice to the Appellants� rights that exclusion was likely to have caused.

The requirements in paragraph 41 of the Rules that an applicant for entry clearance demonstrate that he is a genuine visitor and it is his intention to leave the UK are legitimate and proportionate restrictions on the freedom of foreign nationals to visit this country. I am satisfied that refusal of entry clearance on the basis that those requirements were not met was proportionate to the legitimate public end sought to be achieved . I therefore dismiss the appeals on the only ground it was open to the Appellants to bring them� [my emphasis].

The Respondent did not supply a Rule 24 response but in his submissions Mr Duffy agreed that if the failure to consider the evidence was material to the consideration of proportionality then this would be an error of law. He however submitted that the consequences of the decision for the Appellants could not be of such gravity for it to be disproportionate. Their father can visit them at home if he wishes.