Two years after full rights of appeal were abolished for family visitors comes the welcome case of Mostafa (Article 8 in entry clearance)
Our readers will be aware that full rights of appeal have already been removed for certain categories under the Immigration Act 2014, and these will be extended to other routes for applications made after 06 April 2015.
Unfortunately the Immigration Act 2014 has been made unnecessary complicated as to which migrants will lose full rights of appeal and which migrants will still have a full right of appeal for those applications lodged before 06 April 2015. Currently all Points Based System migrants can only appeal on asylum or human rights grounds.
In the case of Mostafa, a husband had applied to visit his British wife in the UK. His application was refused under the visitor Immigration Rules. An appeal was lodged and the appeal was allowed.
The First-Tier Judge held that the Immigration Rules were satisfied and the husband did have the required intention to return and thus allowed the appeal. The issue however was that the appeal was allowed under the Immigration Rules and not on human rights grounds. However, since the only way the appeal could be allowed was on human rights grounds, unsurprisingly the Entry Clearance Officer appealed against the decision and permission to appeal was granted.
The Honourable Mr Justice McCloskey (President of the Upper Tribunal Immigration and Asylum Chamber) found that the Tribunal was not bound by the facts as established by the Entry Clearance Officer, as had been argued in the grounds of appeal and instead applied the five-step Razgar approach to the determination of human rights issues and found that human rights were engaged on the facts of this particular case. President McCloskey held:
We regard it as settled law that in an Article 8 balancing exercise the rights of all those closely affected, not only those of the claimant, have to be considered. It is our view that the decision in Shamin Box  UKIAT 02212 is to be followed and that the obligation imposed by Article 8 is to promote the family life of those affected by the decision.
However, President McCloskey did add some caveats in his determination and stated:
We are, however, prepared to say that it will only be in very unusual circumstances that a person other than a close relative will be able to show that the refusal of entry clearance comes within the scope of Article 8(1). In practical terms this is likely to be limited to cases where the relationship is that of husband and wife or other close life partners or a parent and minor child and even then it will not necessarily be extended to cases where, for example, the proposed visit is based on a whim or will not add significantly to the time that the people involved spend together.
In light of this very useful determination, it may well be argued in certain cases e.g. spouse entry clearance applications which are lodged after 6 April 2015 that Human Rights are engaged and even though there is no right of appeal in that category, an applicant may still be able to get the valuable right of appeal on human rights grounds.
We would say to all our clients and readers that before proceeding with any kind of application please seek legal advice because failure to do so may seriously jeopardise your application and your right to appeal.