Tribunal decisions

The decision

Upper Tribunal Appeal Number:
(Immigration and Asylum Chamber) UI-2021-001620 & UI-2021-001621
(HU/00956/2021 & HU00926/2021)

THE IMMIGRATION ACTS

Heard at Field House, London
Decision & Reasons Promulgated
On the 28 April 2022
On the 27 June 2022

Before

UT JUDGE MACLEMAN

Between

AHMAD REZA RAJAEI & ZOHREH SHAHSAVARI NAJAFABADI
Appellants
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

For the Appellant: Ms D Revill, instructed by Makka, Solicitors
For the Respondent: Mr E Tufan, Senior Home Office Presenting Officer

DETERMINATION AND REASONS
1. This determination is to be read with:
(i) The respondent’s decisions dated 5 & 18 January 2021.
(ii) The appellant’s grounds of appeal to the First-tier Tribunal.
(iii) The decision of FtT Judge C A S O’Garro, promulgated on 13 August 2021.
(iv) The appellant’s grounds of appeal to the UT, stated in the application for permission to appeal dated 25 August 2021.
(v) The grant of permission by FtT Judge Andrew, dated 22 October 2021.
(vi) The respondent’s response under rule 24, dated 3 December 2021.
2. Ground 1 goes to the findings on “very significant obstacles to integration” and on article 8 “outside the rules”, in which respects the appellants relied upon the second appellant’s “poor health and need for personal care and assistance with everyday tasks”. The finding at [48] that care support was not required, based on absence of express medical evidence, is said to be an error, because the care needs were not disputed by the respondent, and were not challenged in course of the oral evidence of the first appellant and of the appellants’ son and daughter-in-law. Counsel tenders her witness statement and record of proceedings in support. It is said that in the circumstances, it was not open to the Judge to find against the appellants on this issue.
3. Ms Revill argued that there was no rule requiring “official” evidence, and that even without an express concession by the respondent, in absence of cross-examination, the tribunal was not entitled to reject the evidence of the witnesses.
4. The rule 24 response says that the matter remained in issue, because it was raised in the refusal letter, the appellant had not countered with medical evidence, and there was no concession. Mr Tufan submitted that as the presenting officer in the FtT began by relying on the refusal letter, then even in absence of cross-examination, the issue remained a live one for the tribunal to resolve.
5. Ground 2 is that the Judge erred at [71] in finding that family life came about mainly because of a decision to remain in the UK unlawfully, when the appellants had tried to apply in terms of the rules, but had been let down by their solicitors, who had admitted their error.
6. Mr Tufan did not dispute that the Judge overlooked the evidence on this point.
7. Ground 3 challenges [71], where the Judge attaches little weight to family life because it developed while immigration status was precarious. It is argued that the point appears to be based on section 117B of the 2002 Act, but that does not prescribe the weight to be attached to family life among adult relatives, and so the matter has been wrongly discounted.
8. Mr Tufan referred to Rajendran [2016] UKUT 00138 for the propositions that precariousness is relevant to family as well as to private life cases, and that while the “little weight” provisions of section 117B are confined to private life, that does not mean the “precarious family life” criteria in the jurisprudence are to be disregarded. He also referred to Lal [2019] EWCA Civ 1925 at [68], approving those observations, and saying that the weight to be given to relationships depends on the circumstances, including immigration status when the relationships were formed.
9. Mr Tufan’s overall position was not that the Judge made no errors, but that they were immaterial, because at its highest, this was a case of a wealthy family, well able to afford care if needed, and there was no realistic basis for contending that such care is not available in Iran.
10. I indicated that the decision fell to be set aside.
11. Ground 2 discloses a slip. The appellants were overstayers, but the Judge overlooked undisputed evidence that they attempted to make in-time applications for further leave, and were let down by previous solicitors. This was not an instance of vaguely blaming other advisers, but of an admitted mistake. There was no proper foundation for the finding of a deliberate decision to overstay.
12. On ground 3, the Judge’s formulation, “I can attach little weight to family life developed when the appellants’ immigration status were precarious”, (emphasis added) tends to give the impression of an assessment based on a legal misapprehension, rather than on the specific circumstances.
13. I do not find ground 1 clear cut. This was not a case of fair dealing with witnesses when there has been no suggestion that anything might be considered on the other side. The matter of care needs was one of degree, of which the appellants were on notice, and of medical diagnosis, or absence of supporting diagnosis, rather than of primary fact or stark credibility. Ideally, however, the Judge might have put the appellants on notice that even in absence of cross-examination, assertions of the extent of the second appellant’s dependency were not simply to be taken as established matters of primary fact.
14. I was unable to agree that the decision should stand, notwithstanding the errors identified. As Ms Revill observed, if the respondent was of the view that the case was bound to fail, even taken at highest, then it should have been certified as clearly unfounded. I was not persuaded that the outcome must inevitably have been the same.
15. It was agreed that on that view, the outcome should be as follows.
16. Under section 12 of the 2007 Act, and under Practice Statement 7.2, the decision of the FtT is set aside. As requested by Ms Revill, the finding at [65] of family life is preserved as a starting point. Beyond that, the decision stands only as a record of what was said. The case is remitted to the FtT for a fresh hearing, not before Judge O’Garro.
17. (In reaching a fresh decision, while the appellants cannot meet the rules for entry of adult dependent relatives, it might be useful for those to be a point of reference.)
18. I thank both representatives for their concise and helpful submissions.
19. No anonymity direction has been requested or made.

H Macleman

28 April 2022
UT Judge Macleman

NOTIFICATION OF APPEAL RIGHTS
1. A person seeking permission to appeal against this decision must make a written application to the Upper Tribunal. Any such application must be received by the Upper Tribunal within the appropriate period after this decision was sent to the person making the application. The appropriate period varies, as follows, according to the location of the individual and the way in which the Upper Tribunal’s decision was sent.
2. Where the person who appealed to the First-tier Tribunal is in the United Kingdom at the time that the application for permission to appeal is made, and is not in detention under the Immigration Acts, the appropriate period is 12 working days (10 working days, if the notice of decision is sent electronically).
3. Where the person making the application is in detention under the Immigration Acts, the appropriate period is 7 working days (5 working days, if the notice of decision is sent electronically).
4. Where the person who appealed to the First-tier Tribunal is outside the United Kingdom at the time that the application for permission to appeal is made, the appropriate period is 38 days (10 working days, if the notice of decision is sent electronically).
5. A “working day” means any day except a Saturday or a Sunday, Christmas Day, Good Friday or a bank holiday.
6. The date when the decision is “sent’ is that appearing on the covering letter or covering email.