Right to private life does not extend to foreign nationals seeking to visit UK

The decision by the Court of Appeal in London came following an application by a Pakistani man who was seeking to enter the UK to visit an elderly relative.

Ms Lisa Giovannetti QC and Mr Colin Thomann (instructed by Government Legal Department) represented the Appellant.

Right to a private and family life

Lady Justice Gloster, Vice President of the Court of Appeal Civil Division, sitting with the Senior President of Tribunals and Lord Justice Burnett, heard that the respondent, Tahir Abbas, 33, made an application for himself, his wife and three children to visit the UK for four weeks from August 2014 for the purpose of visiting his uncle, who is a British citizen, and his grandmother – both of whom live here.

His application included details of his previous visits, as well as his employment and financial information.

He indicated that the cost of the trip to him would be only £250 and that the balance of the costs was being paid by others.

However, his application was refused under the Immigration Rules: firstly, under paragraph 320(7B), because he had previously been refused an entry clearance on the grounds of using deception by filing a non-genuine document; and secondly, in any event, the entry clearance officer was not satisfied that Mr Abbas and his family would leave the UK the end of the proposed visit.

There is no right of appeal against such a decision save on human rights or discrimination grounds.

‘Genuine visitor’

Mr Abbas challenged the decision and the First-tier Tribunal (FTT) allowed his appeal against the refusal of entry clearance on the basis that to deny him, and his family, entry into the UK violated his “right to a private life” guaranteed by article 8 of the European Convention.

Having heard the uncle’s evidence and considered the respondent’s “strong ties” in Pakistan, the FTT judge was satisfied that he was a “genuine visitor” and found that the refusal amounted to a “disproportionate breach” of the respondent’s private life contrary to Article 8 ECHR.

The FTT held that private life included the maintenance of relationships outside those which count as family life; and that the development of private life includeds being able to visit the UK for that purpose, so long as the person concerned satisfied the rules.

Further, the FTT held that there was a “positive obligation” under article 8 ECHR to allow a foreign national to enter the UK to develop his private life if he satisfied the Immigration Rules.

‘Error of law’

The Secretary of State for the Home Department argued before the Upper Tribunal (Immigration and Asylum Chamber) (UTIAC) that there was no interference with the respondent’s article 8 private life rights; that someone resident outside the United Kingdom has no private life in the United Kingdom; that the FTT judge had effectively allowed an appeal under the rules, when parliament had denied such an appeal; and that in consequence there was an “error of law”.

However, the UTIAC dismissed the Home Secretary’s appeal against the FTT’s decision, but the Home Secretary challenged the decision in the Court of Appeal.

It was argued that the jurisdiction of the ECHR was primarily “territorial” and that a decision to refuse entry clearance to a foreign national outside the UK may engage article 8 in its family life aspect where another member of the family was here, but the private life aspect of a foreign national outside the UK was “not engaged” by an application for entry clearance.

In any event it was contended that the threshold for engagement of article 8 was only met when the refusal of a visitor visa had consequences of “sufficient gravity”.

It was further submitted that the tribunal cannot use article 8 as “a general dispensing power” to “circumvent” the statutory denial of a right of appeal.

Handing down the judgment of the court, Lord Justice Burnett said: “There is no obligation on an ECHR state to allow an alien to enter its territory to pursue a private life.

“There is no sign of it having been recognised in the jurisprudence of the Strasbourg Court. It is inconsistent with the jurisprudence on the positive obligation under article 8 as regards family life which that court has recognised and would sit uneasily with its approach to the extra-territorial reach of the ECHR.”

He added: “Article 8 was not engaged in the respondent’s application for entry clearance for his family to visit the United Kingdom. No question of proportionality arises for consideration.

“The FTT should have dismissed his appeal. The Secretary of State’s appeal against the order of UTIAC upholding the order of the FTT succeeds.”