Visitor Visa Appeal Case on the basis of Human Rights: Mostafa (Article 8 in Entry Clearance) [2015] UKUT 112 IAC

Since 25 June 2013, the UK Government abolished the full right of appeal for Visitor Visa applications, meaning now only appeals on human rights grounds can be made. The Upper Tribunal considered in the case of Mostafa (Article 8 in Entry Clearance) [2015] UKUT 112 IAC (“Mostafa”) the question of when human rights may be engaged in a Visitor Visa case. The case has since become a precedent for UK Visitor Visa Appeal cases. 

Visitor Visa Appeal Case: Background and Facts of Mostafa

Mr Mostafa (“the Claimant”) is an Egyptian national who applied for a Visitor Visa in order to visit his wife, a British national, in the UK. The Claimant had a stable and rewarding job in his home country, as well as his children there, and had been granted UK Visitor Visas previously. The Claimant’s recent Visitor Visa application was refused on 5 September 2013 as the Entry Clearance Officer (“the Appellant”) was not satisfied with the Claimant’s genuine intention to visit. Since the decision to abolish the full right of appeal for Visitor Visas was made after 25 June 2013, the only right of appeal that the Claimant was given was on the basis of human rights.

The Claimant appealed the decision, citing the Appellant’s it breached the Claimant’s private and family life under Article 8 European Convention of Human Rights (“ECHR”) by stopping him from being able to be with his wife in the UK. The First Tier Tribunal (“FtT”) allowed the appeal under the Immigration Rules, but curiously made no reference to Article 8 ECHR. The Appellant challenged the decision and was subsequently granted permission to appeal to the Upper Tribunal (“UT”).

Visitor Visa Appeal: Upper Tribunal Decision of Mostafa

The UT held that the FtT was wrong to allow the appeal in the way that it did as it had no power to entertain a ground of appeal asserting that the decision was not in accordance with the Immigration Rules. It did have the power to consider the ground challenging that the decision was incompatible with the Claimant’s Article 8 ECHR, however this was neglected by the FtT judge. The UT clarified that the ability to satisfy the rules illuminates the proportionality of the decision to refuse the Claimant his Visitor Visa. HThe UT therefore re-made the decision, and it was concluded that the FtT should have allowed the appeal not under the Immigration Rules but on Article 8 ECHR grounds. The Upper Tribunal therefore allowed the appeal of the Appellant against the decision of the Entry Clearance Officer under Article 8 ECHR.

Visitor Visa Appeal not on the basis of Human Rights

If an individual does not have the right to a Visitor Visa appeal on the basis of human rights, then there are two other options that they may have:

  1. Judicial Review – An Immigration Judicial Review claim should be filed as a last resort and is often used to challenge the lawfulness of a decision or action carried out by a public body when there all appeal rights have been exhausted or no appeal rights were granted. It is important that Applicants are fully aware of the Judicial Review process, which can come at a great financial and time cost; or
  2. Submit a fresh application – Although to have a UK visa refused will count as adverse immigration history, each application should be considered on its own merits and therefore a fresh Visitor Visa application may give the best chance of success, ensuring that all of the requirements under the Immigration Rules are met, accompanied by the relevant supporting documents.

It is important that Applicant’s seek legal advice from our Immigration lawyers before submitting any application, to ensure that all of the Home Office requirements are satisfied or to assess the next appropriate step in order to give the most successful outcome.

The full Upper Tribunal judgement can be found here: Mostafa (Article 8 in Entry Clearance) [2015] UKUT 112 IAC | LEXVISA Immigration Solicitors

Using Legal Representation for a Visitor Visa Appeal

Legal representatives, such as our specialist immigration and visa law firm, are qualified to advise you on immigration law and your immigration status. It is possible to instruct an immigration and visa legal representative to file a successful Visitor Visa Appeal.

Caseworkers at the Home Office are trained to reject applications which are improperly prepared, for example by failing to provide the correct supporting evidence. In order to ensure your application succeeds, all necessary documents must be provided.

This can be a significant administrative task and you will need to submit the correct documentary evidence. The UK Immigration Rules are complex and a legal representative can help ensure that your application meets the Immigration Rules.

Successful Visitor Visa Appeal

Our team of solicitors and barristers are specialist immigration lawyers who act in your best interest. We offer a client-tailored approach from the outset. From the very first meeting, we will be able to advise you in respect of your immigration status and the merit of your visa and immigration application before your matter even reaches the Home Office UK Visa & Immigration department. We can assist you with the preparation of your immigration and visa application and ensure that you meet all the requirements of the relevant rules.

We are based in the legal epicentre of London, just across the road from the Royal Courts of Justice in order to ensure we get the best results for our clients. LEXVISA is just minutes away from the Immigration and Asylum Tribunal, the Royal Courts of Justice and other central London courts.

Preparation is the key to successful immigration applications. Our UK immigration and visa solicitors are here to guide you through the complex immigration rules and requirements. If you wish to meet one of our lawyers, please call our Immigration Team so we can assess your case and arrange your legal consultation.

Contact our London immigration solicitors on 02071830570 or complete our contact form.

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