The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/00557/2019


Heard at Birmingham Civil Justice Centre
Decision & Reasons Promulgated
On 6th November 2019
On 21st November 2019




ms simar kaur


For the Appellant: Mr H Rashid of Counsel, instructed by Murria Solicitors
For the Respondent: Mr D Mills, Home Office Presenting Officer

1. The appellant is a national of India born on 15th August 1952. She was 67 years of age at the date of her appeal hearing. She had come to the United Kingdom on 22nd July 2006 upon a visitor's visa but since 19th January 2007 has overstayed her leave. Her partner Mr Bariana is a British citizen originally from India aged 73 years at the date of decision. Seemingly he entered into a relationship with the appellant towards the end of 2015.
2. On 2nd May 2018 the appellant applied for permission to remain on the basis of her private and family life, such an application being refused by the respondent on 24th December 2018.
3. The appellant sought to appeal against that decision, which appeal came before First-tier Tribunal Judge Obhi on 24th May 2019. The Judge looked at the situation circumstances of both the appellant and her partner and concluded that the appeal was to be dismissed.
4. The appellant sought to appeal against that decision. Permission to do so was granted and thus the matter comes before the Upper Tribunal and before myself to determine the issue as to error of law. The position of the respondent is set out cogently in the decision of refusal. The appellant is a long term overstayer and therefore does not fall within the protection of the Immigration Rules. Consideration has, however, been given to the requirements of EX.1 and of 276ADE. Consideration had been given therefore as to whether there are very significant obstacles to integration into India, alternatively insurmountable obstacles or whether there are any exceptional circumstances as set out in GEN.3.2 of Appendix FM.
5. The focus of the appeal is the contention that, given the difficulties which both the appellant and her husband would face in India, the lack of family contact and the health of the sponsor partner through his Alzheimer's dementia, there were indeed insurmountable obstacles as envisaged under paragraph EX.1 to Appendix FM for both to return to India. It is contended that the Judge failed to make specific findings on the issue of insurmountable obstacles such as to constitute an error of law. It is contended that the Judge did not consider the ambit of Chikwamba [2008] UKHL 40.
6. The starting point of consideration is of course that the appellant is a long term overstayer and that the relationship was conducted since 2015 in the knowledge of her precarious status.
7. Although it is accepted that the relationship was a genuine and subsisting one with a British national the overall context in which it came to be conducted was of relevance, particularly having regard to the public interest.
8. A number of matters were raised at the hearing before the First-tier Tribunal on the issue of insurmountable obstacles. The first being the contention by the appellant herself that she has no family to return to in India. She says that her husband from her previous marriage was violent towards her and that her three children who live in India seemingly have disassociated themselves from her. The Judge noted the death certificate in respect of the appellant's husband and noted that there was a paucity of information or evidence concerning her relationship with her children other than what she had to say.
9. There was no particular finding by the Judge one way or the other on the presence or absence of the appellant's family support. It is very easy for someone who does not wish to leave the United Kingdom to make such claims. It is difficult for a Judge in the absence of any other evidence to make a satisfactory conclusion on that matter. The appellant however had lived in India for many years and her abusive husband is now dead.
10. However the Judge did consider the situation of the sponsor partner with particular care. It is common ground that he suffers from Alzheimer's and it was his ill-health and his claimed inability to live in India that was a focus of consideration. The Judge noted the medical evidence, in particular that at present the Alzheimer's was of a mild nature. It also noted significantly that the sponsor partner had been in India in 2014, 2015 and 2018 and that he had gone there regularly and on his own to see the niece of his first wife and her relatives who provided accommodation for him. He travelled alone and met people when he was in India.
11. Mr Rashid submits that, although that might have been the case in 2018, the Judge had to consider the matter as at the date of the hearing in May 2019 at which time the sponsor had indicated that he was now unable to travel to India. Because of his condition it was indicated at the original hearing that his statement would be adopted into evidence and that he would not be questioned. Mr Rashid submits that that was tantamount to an acceptance of his evidence. I do not find that in common sense to be the case, it was a pragmatic decision that was taken. Although Mr Rashid indicates that the statement of the sponsor husband suggests he was unable to now travel to India I find little evidence, having read that statement, to support that contention. His complaint was as set out in the statement that he would not get the free treatment that he is now receiving as a British citizen, also speaking of being on a disability allowance. He contends that he has deep rooted ties in the United Kingdom and that his relationship would not be accepted in India or by the wider community in India. He gives no basis for that contention.
12. Thus the Immigration Judge noted that his condition was moderate, recognising that in time of course it is a condition that will deteriorate. The Judge noted that he has extensive family in the United Kingdom but concludes that he also has relatives and support in India were he to return. This is based particularly on his frequent visits to India. He has support in India with connections.
13. It was noted in that context that the respondent considered that there were no insurmountable obstacles to the couple living in India as both had family there. The principles in Agyarko were set out in paragraph 30. The Judge concluded that the sponsor has support in India and in the United Kingdom. The appellant herself has formed connections with people attending the local temple and could do so in India and would be provided with support in the context to assist her. It was noted that the appellant was a woman in relatively good health,she had family in India as did he. Consideration was given also to the public interest.
14. Mr Rashid submits that although the Judge set out a number of issues to be explored she at no time seemingly made the overt finding that there were insurmountable obstacles. Rather she went on to look at exceptional circumstances rather than to focus upon the central issue of insurmountable obstacles. He submits that that in itself is a material error of law.
15. It seems to me, however, that is to ignore the reasoning of the Judge, which is clearly set out in the course of the determination. It is entirely apparent that the Judge did not consider there to be insurmountable obstacles to return, both because of the mild nature of the illness of the sponsor and of family connections that would be available. Although the Judge did not expressly set it out, it is clear that that is what the Judge had in mind from the remarks and consideration as set out in paragraphs 24 to 30 of the determination. There is nothing there to indicate that the sponsor would now be unable to travel in the United Kingdom or to establish a family life with the appellant there. Clearly there would be considerable disruption to the sponsor's private and family life in the United Kingdom but that was to be expected given the precarious nature of the relationship which he seemingly entered into in 2015.
16. In terms of the allegation that the principles of Chikwamba were not engaged with, it seems to me that this was not a case where it was inevitable that the appellant would be granted leave to remain were she to apply to do so. She has been a long time overstayer and there is nothing to indicate that she would be granted leave to enter automatically were she to apply to do so. That the sponsor is a British citizen is of course of importance but he chose to enter into the relationship knowing the lack of status of the appellant. Mr Rashid heavily relies upon the medical report from the Black Country Partnership of 14th February 2019 as indicating a deterioration in the condition of the sponsor. Reference is made that he has developed hip pain and he is now using a walking aid some days of the week. Mr Rashid submits that that shows that the sponsor is now in a worse condition. It seems to me that that is of very marginal relevance in the overall consideration of his ability to return. People of his age may well use a walking stick.
17. Overall therefore I find that the decision of the Judge was one properly open to be made.
18. The appeal to the Upper Tribunal is dismissed. The decision of the First-tier Tribunal shall stand, namely that the appellant's appeal is dismissed.
No anonymity direction is made.

Signed Date 14 November 2019

Deputy Upper Tribunal Judge King TD