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I am often asked to advise on visit visa appeals in my work as a direct access immigration barrister. As an immigration lawyer I have seen over the years the Secretary of State cut the number and nature of appeals not only in country but also abroad. Indeed a couple of years ago she removed the right to appeal against the refusal to grant a visit visa. The right of appeal being limited to, inter alia, human rights but not that the Rule had been misapplied.

Where then does this leave a husband or wife who wants to travel to the UK to visit their spouse? Obviously they will need to make an application under paragraph 41 of the Immigration Rules HC395 (as amended). If its refused, can it be appealed and if so what are the prospects of success. This was the very issue that the Upper Tribunal grappled with recently in the case of Mostafa (Article 8 in entry clearance) [2015] UKUT 00112 (IAC).

This was another excellent decision of the President of the Upper Tribunal McCloskey J and the equally excellent Upper Tribunal Judge Perkins, who in my view was badly treated by the press a few years back for allowing appeals under article 8.  In this case the application had been refused and it was appealed. The appeal was allowed by the Immigration Judge under the Immigration Rules but with no mention of article 8. This was strange as there was no right of appeal under the Immigration Rules and the Secretary of State predictably appealed. Permission was granted and the matter came before the Upper Tribunal. The Upper Tribunal found there to be an error of law but then went on to allow the appeal under article 8. The headnote of the decision provides:

“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.”

This seems a very sensible decision.

It also seems to me to be of assistance where for example an individual cannot meet the requirements of the Immigration Rules HC395 (as amended) as at the date of decision but who meets it as at the date of the appeal. Its a case that I will certainly be relying upon.

The case also makes it clear that article 8 remains a highly valuable and arguable right notwithstanding the UKVI and Secretary of State’s attempts to do away /curtail it.

If you, a member of your family or friend has an outstanding appeal or has received a refusal, please do not hesitate to contact me. I would also urge anyone who is considering making an application to make sure that article 8 is raised, obviously only if it can be properly raised, at the earliest possible stage in order to give the application the best prospect of success. I would also urge anyone who makes such an application to ensure that it is accompanied by detailed representations that sets out not only what the application is, but also what documents are submitted and why the application is being made. I have found through my  numerous years experience that an application that is properly prepared at the outset will enjoy better prospects of success overall. On Wednesday in the Upper Tribunal this was never clearer. Previous representatives had failed to properly detail the factual basis with the consequence that the Judge, who was enormously sympathetic, could not allow the application as the Secretary of State could not, rightly, be criticised for failing to have regard to something that was not drawn to her attention. If in doubt better put it in.

Paul Turner is a highly regarded direct access immigration barrister practising from Mansfield Chambers, the Chambers of Michael Mansfield QC, 5 Chancery Lane, London, WC2A 1LG and a door tenant at 39 Park Square Leeds LS1 2NU and is licensed by the Bar Council to provide advice and representation directly to the public.