Tribunal decisions

The decision

Upper Tier Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/04115/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision Promulgated
On 18 November 2016
On 22 November 2016

Before

Deputy Upper Tribunal Judge Pickup

Between

Secretary of State for the Home Department
Appellant
and

Habiba Uunshe Alasow
[No anonymity direction made]
Claimant

Representation:
For the claimant: Ms M Thirumaney, instructed by Shervins Solicitors
For the appellant: Mr S Walker, Senior Home Office Presenting Officer

DECISION AND REASONS
1. This is the appeal of the Secretary of State against the decision of First-tier Tribunal Judge Cockrill promulgated 27.6.16, dismissing on asylum, humanitarian protection and human rights grounds, but allowing on immigration grounds the claimant's appeal against the decision of the Secretary of State to refuse her asylum, humanitarian and human rights claims. The Judge heard the appeal on 16.6.16.
2. First-tier Tribunal Judge Grant-Hutchison granted permission to appeal on 27.10.16.
3. Thus the matter came before me on 18.11.16 as an appeal in the Upper Tribunal.
Error of Law
4. For the reasons summarised below, I found such error of law in the making of the decision of the First-tier Tribunal as to require the decision of Judge Cockrill to be set aside and the decision remade by dismissing the appeal.
5. The decision of the Secretary of State appealed against was taken as long ago as 23.2.14. The claimant's appeal came before the First-tier Tribunal on 16.12.15 and was allowed on asylum grounds. The Secretary of State appealed that decision to the Upper Tribunal which set the decision aside and remitted it to the First-tier Tribunal, where it was heard by Judge Cockrill.
6. There has been no cross appeal by the claimant against the decision of Judge Cockrill to dismiss the appeal on asylum, humanitarian protection and human rights grounds and thus that part of the decision must stand. The only issue is in relation to the appeal being allowed on immigration grounds.
7. Judge Cockrill allowed the appeal under the Adult Dependent Relative provisions of Appendix FM E-ECDR 2.4 and 2.5. However, as should have been clear to the Tribunal those provisions only relate to an application for entry clearance from outside the UK, or an application for further leave to remain where leave to enter was granted under the same Adult Dependent Relative provisions. These provisions do not and cannot apply to the claimant, as she is in the UK, having entered illegally concealed in a vehicle in January 2014. She has and never had any lawful basis to be or remain in the UK.
8. Even if the Adult Dependent Relative provisions applied, which they do not, the First-tier Tribunal neglected to consider the specified evidence requirements of Appendix FM-SE, requiring independent medical evidence.
9. Further, in assessing the Adult Dependent Relative requirements the First-tier Tribunal failed to apply the correct test to the claimant's circumstances. Having found that the claimant's circumstances were 'not especially serious' and that her symptoms were 'uncomfortable rather than dangerous,' and that there had been a 'degree of exaggeration of her symptoms,' it is difficult to understand how the Tribunal could conclude that the claimant could meet the requirements of the Rules that, "as a result of age, illness or disability (the claimant) requires long-term personal care to perform everyday tasks," and that she was "unable even with the practical and financial help of the sponsor, to obtain the required level of care in the country where they are living, because (a) it is not available and there is no person in that country who can reasonably provide it; or (b) it is not affordable." However, this consideration is no more than academic, as the claimant is not entitled to claim leave to remain under this part of the Immigration Rules, for the reasons set out above.
10. It follows, given that there are no other provisions of the Rules under which is it asserted the claimant can qualify, the appeal should have also been dismissed on immigration grounds and her appeal should have been dismissed in the First-tier Tribunal. The claimant has no basis to remain in the UK.
Conclusions:
11. For the reasons set out above, I find that the making of the decision of the First-tier Tribunal did involve the making of an error on a point of law such that the decision should be set aside.
I set aside the decision.
I re-make the decision in the appeal by dismissing it on all grounds.

Signed

Deputy Upper Tribunal Judge Pickup
Dated

Anonymity
I have considered whether any parties require the protection of any anonymity direction. No submissions were made on the issue. Given the circumstances, I make no anonymity order.
Fee Award Note: this is not part of the determination.
I make no fee award.
Reasons: No fee is payable in this case and thus there can be no fee award.

Signed

Deputy Upper Tribunal Judge Pickup
Dated