VA072682014

This is an appeal against the determination of First-tier Tribunal Judge Hetherington, promulgated on 6 th July 2015, following a decision at Birmingham on 23 rd June 2015. In the determination, the Judge allowed the appeal of Muhammad Asghar Khan whereupon the Respondent Secretary of State subsequently applied for, and was granted, permission to appeal to the Upper Tribunal, and thus the matter comes before me.

On 20 th September 2015, permission to appeal was granted by the First-tier Tribunal on the basis that the Judge had erred in law in allowing the appeal of the Appellant, in that the Judge was wrong to find that the Appellant met the requirements of the Immigration Rules as well as of Article 8 of the ECHR. Since 25 th June 2013 Grounds of Appeal for visit visa appeals have been restricted to human rights or race relations grounds.

The case of Adjei (visit visas - Article 8) [2015] UKUT 261 makes it clear that the primary question is whether Article 8 of the ECHR is engaged for visitor appeals at all. It will infrequently be involved. If it is not involved then the Tribunal does not have jurisdiction to embark upon an assessment of the decision of the ECO under the Rules and should not do so.

At the hearing before me on 12 th February 2016, Mr Mills, appearing as Senior Home Office Presenting Officer on behalf of the Respondent Secretary of State, submitted that the Judge had erred in law because the only right of appeal since 25 th June 2013 was on human rights grounds or on racial grounds. The hearing in this matter was in June 2015 and the President's guidance in Mostafa (Article 8 in entry clearance) [2015] UKUT 112 and in Adjei [2015] UKUT 261 was clear that appeal rights were restricted quite dramatically after 2015.

The Sponsor in this case was an adult daughter of the Appellant. The presumption in Mostafa is that Article 8 is not engaged. The Judge should have started with that presumption that Article 8 was not engaged. Instead, at paragraph 22 the Judge begins from the premise that "everyone has the right to respect for his private and family life, his income and his correspondence" and that "the obligation imposed by Article 8 is to promote the family life of those affected by the decision" (paragraph 22).