Tribunal decisions

The decision

IAC-FH-NL-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/10139/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 22 December 2016
On 19 January 2017

Before

UPPER TRIBUNAL JUDGE RIMINGTON

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

SA
(aNONYMITY DIRECTION made)

Respondent

Representation:

For the Appellant: Mr E Tufan, Home Office Presenting Officer
For the Respondent: Mr R Ahmed Counsel, instructed by Rahman & Company Solicitors

DECISION AND REASONS

1. The application for permission to appeal was made by the Secretary of State but nonetheless I shall refer to the parties as they were described before the First-tier Tribunal that is SA as the appellant and the Secretary of State as the respondent.
2. The Secretary of State appeals with permission against the decision of First-tier Tribunal Judge Ghaffar who allowed the appeal on human rights grounds against the decision of the Secretary of State of 8 July 2015 which refused her asylum, humanitarian protection and human rights protection claim.
3. The appellant is an Armenian national, born on 28 September 1944 and her husband passed away in 1983. She has a son who is married and lives with children in the UK and a daughter who also lives in the UK. Her stepson from her husband's previous marriage is in Armenia whom she claimed mistreated her. The appellant moved to stay with her sister until her sister's death in 2012 and has since been visiting her son in the UK.
4. The appeal by the Secretary of State against the decision of First-tier Tribunal Judge Ghaffar to allow the appeal on human rights grounds asserted that:
(i) The judge failed to consider whether the appellant met the Immigration Rules and the availability of her home and financial support form her son on return. The judge's assessment was not a Razgar compliant balancing exercise but merely a list of factors in the appellant's favour.
(ii) Further the judge wrongly applied Section 117B and failed to apply Rajendran (Section 117B - family life) [2016] UKUT 00138 (IAC) which held that precariousness was also relevant to family life:
"That 'precariousness' is a criterion of relevance to family life as well as private life cases is an established part of Article 8 jurisprudence: see e.g. R (Nagre) v SSHD [2013] EWHC 720 (Admin) and Jeunesse v Netherlands, app.no.12738/10 (GC).
The 'little weight' provisions of s.117B(4)(a) and (5) of the Nationality, Immigration and Asylum Act 2002 are confined to 'private life' established by a person at a time when their immigration status is unlawful or precarious. However, this does not mean that when answering the 'public interest question' posed by s117A(2)-(3) a court or tribunal should disregard 'precarious family life' criteria set out in established Article 8 jurisprudence. Given that ss.117A-D considerations are not exhaustive, in certain cases it may be an error of law for a court or tribunal to disregard relevant public interest considerations."
5. The factors that the appellant could not speak English and that she was not financially independent were in fact held in the recent Court of Appeal case of Rhuppiah v Secretary of State for the Home Department [2016] EWCA Civ 803 to be either neutral or negative factors and the judge erred in his approach.
6. The judge made the finding that the appellant would simply prefer to live in the UK with her son and his family and that the appellant has her home available to her to live in having found there were no significant obstacles to the appellant's integration in Armenia and her son would send her money there (paragraph 34).
7. Despite Mr Ahmed's valiant efforts to help me uphold the decision at the very least there is a stark contradiction between the judge's finding at paragraph 34 that there were no significant obstacles to the appellant's integration into Armenia and his findings in relation to a proportionality exercise outside the Rules. The judge at paragraph 34 set out as follows:
"34. The Appellant raised issues of difficulties she would have in securing accommodation in Armenia and her inability to carry out every day tasks. However, her daughter-in-law suggested that what would stop the family from getting someone to look after the Appellant in Armenia would be a cultural norm. The Appellant has lived all her life in Armenia bar her visits to the UK. I find that she has raised children there and worked there. Her son confirmed that he would send her money if she were returned to Armenia. I do not find that there are significant obstacles to the Appellant's integration into Armenia. Accordingly, I dismiss her Immigration appeal."
8. The judge erred in the application of paragraph 276ADE which cites that there should be very significant obstacles to the appellant's integration into the country to which she would have to do if required to leave the UK. In fact the judge as can be seen from above applied the test of "significant obstacles". Further it does not appear that the judge approached his Article 8 assessment correctly because although he referred to paragraph 276ADE, he did not follow the guidance in SS Congo v SSHD [2015] EWCA Civ 317 and use the Immigration Rules as a starting point or a factor when considering the proportionality assessment.
9. There also appeared to be a sharp contradiction between the judge's finding that there were no significant obstacles to the appellant's integration in Armenia as found at paragraph [34] and her inability to return under Article 8. As Mr Tufan submitted, if there are no significant obstacles to her return to Armenia it is difficult to see how there are compelling circumstances for the judge to consider the case outside the Immigration Rules as he stated at paragraph 36. The appellant was identified as being elderly and vulnerable but, bearing in mind his findings at paragraph 34, compelling circumstances do not appear to have been made out or adequately reasoned. Certainly the findings in relation to the Immigration Rules were not factored into the proportionality exercise in relation to Article 8 outside the Rules and I therefore do find that there is an error of law, set aside the decision and proceed to re-make the decision.
10. I note that there was no challenge to the findings of the judge in relation to the appellant's circumstances in relation to Article 8 and I preserve those findings as follows.
11. As identified the appellant is an elderly widow and her medical condition was set out by the judge at paragraphs 23, 24, 25, 26, 27, 29 and 30:
"23. I had the opportunity to hear and see the Appellant giving evidence. There is medical evidence before me which confirms that the Appellant and her family in the UK have reported memory loss particularly associated to times when she suffers from high blood pressure. There is a letter dated 19 May 2016 from a Consultant Psychiatrist which sets out the issues raised by the family and recommends a care plan for the Appellant. The diagnosis is stated to be 'Observation for suspected mental and behavioural disorders'. A letter from her GP stated that the Appellant has a 'longstanding history of post traumatic stress disorder resulting in persistent depression with high levels of anxiety and stress. A letter from a Clinical Psychologist dated 12 April 2016 confirms that she has undergone some therapy and her depression and anxiety scales have reduced as a result. This does not appear to have been seen or taken into account by the Consultant Psychiatrist in the May 2016 letter.
24. I note that the first mention of any issue with her step-son was at her screening interview on 28 March 2015 when she stated that her step-son beats her up as he does not want her to live in the house. She stated in that interview that her high blood pressure affects her hearing and eyesight. At her substantive asylum interview, the Appellant stated that she was feeling better with her blood pressure. The Appellant did make errors in relation to how old her step-son was and how old he was when she got married. She attributes these errors to her memory loss.
25. The other witnesses, her son and daughter-in-law maintain that she does have memory loss but also state that they were not aware of any issues with the step-son until February 2015 when the Appellant became distressed with the possibility of being refused entry to the United Kingdom.
26. I find that the Appellant has been living in Armenia with her step-son and his wife more recently. I find that this is as a result of her sister passing away and her returning to her matrimonial home. However, I reject her account that she has been ill-treated by the couple. Her initial reaction when faced with the possibility of being refused entry was to maintain that all her family are in the UK and that she did not want to die alone in Armenia. There was no mention of the step-son and ill-treatment. Further, the Appellant stated that she did not report the matter to the police as her step-son stated that everyone knew him (Substantive interview questions 141 and 143). She could not say why she did not sell her house which would essentially remove the problem of the step-son.
27. The Appellant maintained in her interview that her step-son was a lieutenant in the police force and worked there for 6-7 years (Substantive interview question 215). In her statement, she maintained that he is a police officer. However, in oral evidence, she said that she was unaware as to what her step-son did for a living now but he worked on a building site previously. I do not find that the step-son works as a police officer. I find that if he did, there would be consensus from all witnesses and from the Appellant as to this issue. The Appellant had simply failed to explore the alternatives available to her if she is having problems with her step-son such as selling the house or simply moving away to another part of the city. Her daughter-in-law stated that the reason why the Appellant cannot be looked after in a nursing home in Armenia was that it was not the cultural norm.
28. I find that the Appellant would simply prefer to live in the UK with her son and his family. She has her only grandchildren in the UK and it is natural for her to want to live with them instead of away from them in Armenia. Since her sister's passing, she is likely very lonely and isolated in Armenia.
29. I find that the Appellant is anxious and depressed on account of the prospect of being removed to Armenia and possibly not being allowed to come to visit thereafter on account of her Immigration history.
30. I reject the Appellant's account that she is being mistreated by her step-son for the house for the reasons provided above. However, I accept that the relationship between her and her step-son may be strained and she may find it difficult to live in and share the same house. Having considered the evidence, I find that the Appellant does have her home available to her to live in. Accordingly, I have not considered whether the reason for her claimed ill-treatment is a Refugee Convention reason as this is now rendered academic."
12. The above are the factors accepted by the judge in the First-tier Tribunal and specifically noted that the appellant would simply prefer to live in the United Kingdom with her son and his family. It was not accepted that there would be very significant obstacles to her integration in Armenia in accordance with paragraph 276ADE of the Immigration Rules which set out the Secretary of State's position in relation to Article 8. The First-tier Tribunal Judge found that to be the case and I preserve that finding. It is accepted that she was lonely and isolated in Armenia but the judge specifically did not accept that she was mistreated by her stepson and indeed was living with him.
13. I noted and confirmed at the hearing before me that the appellant had travelled to and from the UK between October 2013 and February 2015 and that her key medical conditions appear to be that she suffers from high blood pressure and some mental health difficulties. The letter from the clinical psychologist dated 12 April 2016 as identified by the First-tier Tribunal Judge confirmed that she had undergone some therapy and her depression and anxiety had reduced as a result. She also has a significant history of osteoarthritis and some mental health difficulties. An updated mental health report was produced before me but the report from Dr Akpan dated 7 December 2016 and that of 19 April 2016 both relied on and proceeded on the basis that the appellant had suffered abuse from her stepson and that was specifically rejected by the First-tier Tribunal Judge. I therefore place limited weight on those reports particularly as to her circumstances in Armenia.
14. I note that she is on some medication but there is no indication that these could not be administered in Armenia and no evidence produced that she could not obtain support with respect to her memory loss whilst in Armenia.
15. As the reasons for refusal letter decision from the Secretary of State set out the primary healthcare in Armenia is traditionally provided through a network of health facilities and these facilities include urban polyclinics, rural ambulatories, families' doctor offices and there are specialised services delivered through secondary and tertiary healthcare institutions.
16. As pointed out in the reasons for refusal letter the appellant had previously received medical treatment in Armenia and her high blood pressure was initially diagnosed there and she obtained medicines in Armenia to treat her condition including blood pressure and painkillers. It was not accepted that her removal from the United Kingdom reached the high threshold of severity to breach Article 3 of the European Convention on Human Rights and at no point did the appellant produce evidence to that effect. As set out in MM Zimbabwe v SSHD [2012] EWCA Civ 279
"17. The essential principle is that the ECHR does not impose any obligation on the contracting states to provide those liable to deportation with medical treatment lacking in their 'home countries'. This principle applies even where the consequence will be that the deportee's life will be significantly shortened (see Lord Nicholls in N v Home Secretary [2005] 2 AC 296, 304 [15] and N v UK [2008] 47 EHRR 885 (paragraph 44)).
18. Although that principle was expressed in those cases in relation to Article 3, it is a principle which must apply to Article 8. It makes no sense to refuse to recognise a 'medical care' obligation in relation to Article 3, but to acknowledge it in relation to Article 8."
17. She has lived in the UK for a very short period and bearing in mind her travels as recently as 2015 and bearing in mind she appeared to have family in Armenia and accommodation as indicated by the First-tier Tribunal I am not persuaded that the matter should be considered outside the Immigration Rules or that there were any compelling circumstances. Even if all the relevant information had not been taken into account by the application of the Immigration Rules, in accordance with Singh v SSHD [2015] EWCA Civ 74, (and for the avoidance of doubt I find that it would have been), and I proceed to analyse the matter outside the Immigration Rules in line with the five stage test under Razgar v SSHD [2004] UKHL 27, I would not be persuaded that her removal would be disproportionate further to Huang v SSHD [2007] UKHL 11.
18. This appeal was dismissed with respect to the asylum and humanitarian protection claims and no challenge was made therein. There is no significant obstacle to her return in that respect.
19. In relation to the best interests of the children, they are in fact the appellant's grandchildren and they have their own parents to care for them. Although I can accept that she has developed ties with her family in the UK in the recent period that she has been here, I do not accept that they cannot continue to have contact through modern methods whilst she is abroad and with the assistance of her stepson or that her family cannot visit her in Armenia.
20. There was no indication that her family who have supported her family in the UK would not continue to do so.
21. Section 117 of the Nationality Immigration and Asylum Act 2002 sets out various factors to be applied when considering proportionality and the public interest under Article 8, as follows

117B Article 8: public interest considerations applicable in all cases
(1) The maintenance of effective immigration controls is in the public interest.
(2) It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are able to speak English, because persons who can speak English-
(a) are less of a burden on taxpayers, and
(b) are better able to integrate into society.
(3) It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are financially independent, because such persons-
(a) are not a burden on taxpayers, and
(b) are better able to integrate into society.
(4) Little weight should be given to-
(a) a private life, or
(b) a relationship formed with a qualifying partner, that is established by a person at a time when the person is in the United Kingdom unlawfully.
(5) Little weight should be given to a private life established by a person at a time when the person's immigration status is precarious.
22. When applying Section 117 of the Nationality Immigration and Asylum Act 2002 as I am obliged to do, I note that the appellant speaks no English and is only integrated in life within her family. She has had the advantages of some considerable access to NHS services and these indicate that the appellant is neither financially nor linguistically independent and those factors, I take into account. The appellant has established her life, including her family life, in the UK in the full knowledge that her immigration status has always been precarious and I therefore place little weight on her family and private life here, and see Rajendran. Both she and her family have been aware of her immigration status from the outset. She has only ever been to the UK as a visitor. She has lived all of her life in Armenia save for the last year and a half and I find it difficult to accept that she lacks the ties that she claims.
23. It is open to the appellant to make an entry clearance application to return as an adult dependent relative and I see no reason why this could not be the appropriate course for the appellant. I have factored in the issue raised by the children that what would stop the family from getting someone to look after the appellant in Armenia would be a cultural norm but I also note that the family all departed Armenia, leaving the appellant there and I do not accept that she does not have family and/or friends in Armenia. She has medical conditions which appear to have been longstanding and I note that in the assessment of 7 December 2016 that she said she was "feeling drugged".
24. Return to Armenia is clearly something that the appellant is not happy to contemplate but hearing in mind that she is now being treated on an antidepressant regime and having psychological interventions there is no reason why she could not continue undertake this on her return where as explained by the Secretary of State there are medical facilities and she still has family.
25. The Judge erred materially for the reasons identified. I set aside the decision pursuant to Section 12(2)(a) of the Tribunals Courts and Enforcement Act 2007 (TCE 2007) and remake the decision under section 12(2) (b) (ii) of the TCE 2007 and I dismiss the appeal of Mrs SA.
Order
Appeal of SA dismissed under the Immigration Rules and on Human Rights grounds.

Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008

Unless and until a Tribunal or court directs otherwise, the appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify her or any member of her family. This direction applies both to the appellant and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Helen Rimington
Signed Date 17th January 2017

Upper Tribunal Judge Rimington

TO THE RESPONDENT
FEE AWARD

I have dismissed the appeal and therefore there can be no fee award.

Helen Rimington
Signed Date 17th January 2017

Upper Tribunal Judge Rimington