The Entry Clearance Officer (ECO, Cairo) appealed the decision of the First-tier Tribunal to allow Mostafa’s appeal against the ECO’s decision in September 2013 to refuse him entry clearance to the UK as a family visitor to visit his wife, a British citizen ordinarily residing in the UK. The refusal of entry clearance related to the ECO’s reservations about Mostafa visiting the UK for a limited period and that he would leave at the end of the visit. The refusal advised Mostafa that his right of appeal was limited to section 84(1)(c) of the Nationality, Immigration and Asylum Act 2002, that the decision was unlawful under section 6 of the Human Rights Act 1998 as being incompatible with Mostafa’s Convention rights. The First-tier judge allowed the appeal on the Immigration Rules but made no finding on article 8, which was “unequivocally” raised in the grounds of appeal and skeleton argument. In mounting his appeal, the ECO argued that was not open to the First-tier Tribunal to consider whether the decision was in accordance with the rules or otherwise in accordance with the law.
McCloskey J and Perkins UTJ said at para 9 that the question of entertaining an appeal on the basis that the decision was not in accordance with the law or the rules did not arise because these grounds were impermissible. On the other hand, as in Mostafa’s case, where an appellant had demonstrated that the refusal of entry clearance interfered with article 8 rights, it was necessary to assess the evidence and see if the substance of the rules had been met by the appellant because the potential to satisfy the rules informed the proportionality of the decision to refuse entry clearance.
The judges approved of the First-tier Tribunal’s decision that Mostafa and his sponsor were married and that he only wanted to make a brief visit and would return to Egypt afterwards. They inclined towards the view that the refusal of entry clearance significantly impacted Mostafa’s right to enjoy family life. His ties with Egypt were strong and arose out of gainful employment and children living in that country. Moreover, the sponsor had property in Egypt and lived there for long periods of time. Despite all the political turmoil in Egypt over the past few years, it was the case that Mostafa was resident in a safe tourist area that continued to be attractive for tourists.
The Upper Tribunal was of the view that the First-tier Tribunal’s decision to allow the appeal under the rules was misconceived and the judges said at para 11 that “[t]here was no power in law to entertain an appeal on those grounds.” Following Virk  EWCA Civ 652, the parties cannot agree to the tribunal exercising a jurisdiction that has not been given to it by Parliament and the decision to allow the appeal under the rules was a manifest error of law. Noting that there was no representation for Mostafa, save the sponsor and her friend, who were no match for the wily Home Office Presentation Officer (HOPO), McCloskey J and Perkins UTJ said that:
We are quite satisfied that the First-tier Tribunal was wholly wrong to allow the appeal in the way that it did and we set aside the decision. It had no power to entertain a ground of appeal alleging that the decision was not in accordance with the Immigration Rules, still less to allow the appeal on that ground. It did have the power to consider a ground of appeal contending that the decision was incompatible with the claimant’s Convention rights but it neglected to consider that ground even though it was clearly raised.
Alive to the approach in Razgar  UKHL 27, the Upper Tribunal observed that the paradigm article 8 entry clearance case involved settlement. But it also applied when the sponsor wanted to live in the UK for a short while and her husband wanted to visit her to share her UK relationships and so the refusal, which would have been proportionate if Mostafa did not comply with the rules, materially impacted their right to enjoy family life. Ultimately, their wish to spend time together in the UK was “very human and understandable”: para 16. There was no doubt that the refusal interfered with Mostafa and his wife’s private and family lives and that article 8 was engaged and the point was uncontested.
Conscious that Mostafa was professionally unrepresented, even the HOPO said that on the above basis the judges should proceed to conclude that the ECO’s decision is not in accordance with the law. However, the invitation was not accepted. First of all, the decision in question might reflect a sensible finding on the evidence before the ECO even if the judge arrived at a different conclusion on the totality of the evidence she/he had to consider. Moreover, and more crucially, it was pointless for the judge to address the question as no power existed to entertain an appeal under the “not in accordance with the law” ground. However, the First-tier judge’s approach in relation to whether Mostafa satisfied the rules was the right one. After all, article 8 was raised and a decision on satisfying the rules would steer the balancing exercise.
McCloskey J and Perkins UTJ did not see any basis for disturbing the finding that Mostafa satisfied the substantive requirements of the rules. In answering the question whether refusing entry clearance interfered disproportionately with Mostafa and his wife’s private and family lives, the ECO needed to justify the interference and establish that it was proportionate. The Upper Tribunal allowed the appeal on article 8 and said at para 21 that there was “no justification for stopping a husband joining his wife” where “their circumstances satisfy the requirements of the rules”. The two exceptions to this rule arise in relation to (a) a couple’s candour and cooperation; and (b) the impact of refusal on the relationships that have to be promoted. In relation to the latter, it was said at para 21 that refusing “entry clearance will not always interfere disproportionately with such a relationship.” Against this, the decision nevertheless praises human rights and McCloskey J and Perkins UTJ explain at para 24 that:
It is the very essence of Article 8 that it lays down fundamental values that have to be considered in all relevant cases.
Because each case turns on its own fact and issues, the judges thought that it would “be extremely foolish to attempt to be prescriptive” but they did say that in practice the protection afforded by article 8(1) is:
24. … 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 addition to the above, the presidential tribunal went on to explain that article 8 would only be engaged in a “limited class of cases”. However where an applicant meets the requirements of the rules and has not undermined the dignity of the UK’s immigration system, “a refusal of entry clearance is liable to infringe article 8.” Accordingly, allowing the ECO’s appeal in part, McCloskey J and Perkins UTJ gave the following guidance:
In the case of appeals brought against refusal of entry clearance under Article 8 ECHR, the claimant’s ability to satisfy the Immigration Rules is not the question to be determined by the Tribunal, but is capable of being a weighty, though not determinative, factor when deciding whether such refusal is proportionate to the legitimate aim of enforcing immigration control.
The judges fleetingly said that it would be “extremely foolish to attempt to be prescriptive” about article 8. However, one problem with this decision is that it can be (and no doubt will be) abused to make a sweeping statement about all article 8 cases. The other problem was recorded at para 12 of McCloskey J and Perkins UTJ’s decision:
The claimant’s wife, Mrs El-Sheikh, was supported by a friend but neither of them claimed to be legally qualified. She had taken advice from the claimant’s former representatives. She read out some of that advice to us but did not make any argument against the points outlined above.
Read out of context, the guidance in the headnote and the comments about the duty of candour and cooperation (compounded with the problem that untutored immigration judiciary simply will not listen) are potentially deadly for people relying on article 8 in entry clearance matters. The judges said “that there are duties of candour and co-operation on all applicants” and that Mr and Mrs El-Sheikh, who had property in Egypt, had discharged the said duties.
Without prejudice to Mr and Mrs El-Sheikh, there will no doubt be cases where the applicant will be a minor girl in a war-torn African country (where rape and murder are rampant) and her surviving parent will be a refugee in London. Discharging difficult duties for them will not be easy. They will be very poor people. Unrepresented, they too will rely on article 8. Because of their “comparable misdemeanour” of poverty, for all we know some unsympathetic judge will happily cite the president’s wise words that the refusal of “entry clearance will not always interfere disproportionately with such a relationship.”