The scope of UK Family visit visas , Family visa appeal

Ajakaiye (visitor appeals - right of appeal) Nigeria [2011] UKUT 375 (IAC) (27 September 2011)

This Upper Tribunal case was heard at Field House on 21st June 2011.

Facts of the case

The appellant is a Nigerian national who applied for entry clearance to the UK to visit her sponsor for 2 weeks. She was refused entry by the entry clearance officer under paragraph 41 of the Statement of Changes in the Immigration Rules HC 395 (as amended) (herein after referred to as the Immigration Rules).

VisitingtheUK.aspx The appellant described her sponsor as her brother in law when she applied and stated that she would be staying at his address. In section 9 of the application form which allows for further information to be provided, the appellant mentioned that she would be staying with her brother in law and their kids. The appellant’s application was refused and she appealed against the decision. Her appeal was heard at the First Tier Tribunal in February 2011 and was subsequently dismissed. The immigration judge dismissed the appeal on the basis that it was not valid as the relationship between the appellant and the sponsor was too distant. The sponsor at the hearing had mentioned that they were ‘very distant cousins’ however, he was never asked to comment on the appellant’s contention that he was her brother in law.

The appellant’s appealed against the dismissal and the case came before the Upper Tribunal. The appellant argued that the entry clearance officer had not taken issue with the relationship claimed between the parties. The refusal notice dealt with whether or not the appellant was a genuine visitor and whether she intended to leave the UK at the end of her stay as required by the Immigration Rules. The refusal notice also did not accept that she could be maintained and accommodated without working or without recourse to public funds and that she would not be able to meet the costs of her return journey. Permission to appeal against the First Tier Tribunal decision was granted. The Upper Tribunal considered that the fact that the sponsor was a distant cousin would not preclude the sponsor from also being a brother in law to the appellant. This issue should have been properly addressed at the First Tier Tribunal. The Upper Tribunal was satisfied that there was an error of law in the decision of the first Tribunal. They then considered whether there was a valid appeal.

Legal Framework
The Tribunal looked at section 88A(1) of the Nationality, Immigration and Asylum Act 2002 which looks at the right of clearance (for persons described in the Regulations). The Regulations referred to are in section 88A(2) of the Immigration Appeals (Family Visitor) Regulations 2003 which describe what is meant by family members. It also stipulates that ‘first cousin’ means the son or daughter of his aunt or uncle.

Conclusion of the Upper Tribunal
The Tribunal was satisfied that there was a genuine intention on behalf of the appellant to visit the family in the UK. The decision was ultimately remade and the appellants appeal against the decision of the entry clearance officer was allowed. The Tribunal concluded the following for future clarification:

(1) In family visitor appeals, the question whether there is a right of appeal depends on whether the application “was made” for the purpose of visiting a relative to which the applicant is related in one of the ways described at paragraph 2 of the Immigration Appeals (Family Visitor) Regulations 2003.

(2) Ascertaining the purpose of the visit is primarily achieved by examining what the applicant said in the visit visa application form, although, as presently drafted, the forms may not provide sufficient opportunity to identify all relevant matters.

(3) In the event of ambiguity as to who is to be visited and whether they are a qualifying relative, regard may be had to extraneous evidence.

(4) Where a judge has embarked on the hearing of an appeal without objection and reaches the conclusion that the appellant was not seeking to visit a qualified person, there is a right of appeal to the Upper Tribunal. The right of appeal does not depend on the Immigration Judge's findings of fact.

(5) Although the Immigration Appeals (Family Visitor) Regulations 2003 distinguish between two classes of in-laws (see SB (family visit appeal: brother-in-law?) Pakistan, an intention to visit a nephew or niece is within its scope.

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4th October 2011

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