Tribunal decisions

The decision

The Upper Tribunal
(Immigration and Asylum Chamber) Appeal number: HU/01106/2015

THE IMMIGRATION ACTS

Heard at Manchester
Decision & Reasons Promulgated
On December 5, 2016
On December 9, 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE ALIS

Between

MRS MUKHTARAN BEGUM
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Bloomer, Counsel, instructed by Prestige Solicitors
For the Respondent: Ms Peterson (Senior Home Office Presenting Officer)

DECISION AND REASONS

1. The appellant is a citizen of Pakistan and she was born on January 1, 1944. On January 31, 2010 the appellant entered the United Kingdom as a family visitor. That visa expired on May 9, 2010 and on May 4, 2010 she made an application for indefinite leave to remain. This was refused by the respondent on July 15, 2010. She appealed that decision and in a decision promulgated on September 7, 2010 Judge of the First-tier Tribunal Crawford refused her appeal. An unsuccessful appeal was made to the Upper Tribunal. On April 20, 2015 she made an application for humanitarian protection but the respondent refused this on June 15, 2015. The appellant appealed under section 82(1) of the Nationality, Immigration and Asylum Act 2002 on June 25, 2015.

2. The appeal came before Judge of the First-tier Tribunal Simpson (hereinafter referred to as the Judge) on December 14, 2015 and in a decision promulgated on February 26, 2016 she dismissed the appellant's appeal under article 8 ECHR and the Immigration Rules.

3. The appellant lodged grounds of appeal on March 11, 2016 against that decision.

4. Permission to appeal was granted by Judge of the First-tier Tribunal Pedro on August 2, 2016 and the matter came before me on the above date.

5. The appellant and her family were in attendance.

6. No order for anonymity is made.

SUBMISSIONS

7. Mr Bloomer relied on the grounds of appeal that had been drafted by different counsel. In short, he submitted paragraph [29] of the Judge's decision was both inadequate and inconsistent. The Judge found the appellant had protected family life with her daughter and grandchild within article 8(1) ECHR but then went onto find this dependency did not go beyond the normal emotional ties. There also seemed to be an acknowledgement that the appellant needed care but the Judge failed to identify what sources of care were available.

8. Miss Peterson adopted her colleague's Rule 24 statement dated August 9, 2016. However, she accepted that the Judge's finding at paragraph [29] were not adequate but submitted that it would not amount to a material error in light of the evidence, or lack of it, filed.

DISCUSSION AND FINDINGS

9. This was only ever an article 8 claim before the Judge and the Judge's assessment of that claim is dealt with in a brief paragraph (paragraph [29]).

10. Miss Peterson acknowledged there were inconsistencies within that paragraph and an overall balancing act had not been properly undertaken. Whilst she sought to suggest that such deficiencies may not amount to a material error I am satisfied that there is an error.

11. I therefore set aside the decision under article 8 ECHR and have proceeded, with the agreement of both representatives to remake it.

12. This appeal is not the appellant's first appeal to come before the Tribunal. Unless there is evidence to depart from earlier findings those findings must stand.

13. Two particular findings are relevant in this appeal:

a. Judge Crawford rejected her claim that the appellant's sons had disowned her and he found that she had contrived a situation where it appeared she had no support in Pakistan.

b. The medical evidence did not demonstrate the appellant had any treatable illness or that she needed medication.

14. The appellant's bundle contained little medical evidence that assisted either myself of the original Judge. Medical record referred to her suffering with a chest infection and the letter from the doctor's surgery indicated that she had been referred for an e-ray with a follow up appointment on May 22 2015. The letter was dated April 15, 2015. No further medical had been placed before the original Judge when she heard the appeal in December last year and twelve months later no further evidence had been adduced to the Upper Tribunal. The information in the current documents did not shift the finding by Judge Crawford.

15. The Judge had statements and oral evidence from both the appellant and her daughter. Judge Crawford found that her sons abroad had nor disowned her and consequently there was ongoing support still available.

16. The appellant placed reliance on her relationship to her daughter and grandchild but the fact the appellant could not meet the Immigration Rules for dependants provides some insight into how the appellant's needs could be met in Pakistan.

17. The appellant relies on relationships with adults but for such relationships to engage article 8 ECHR they must demonstrate a dependency over and above normal emotional ties. The appellant had clearly survived for many years in Pakistan and had only come here for a visit in 2010. That changed with her original application for indefinite leave to remain but that claim was rejected both by the First-tier Tribunal and the Upper Tribunal.

18. The Judge in this current appeal heard oral evidence and concluded that family members could continue to provide any support she felt was necessary. Her health was not such that she required additional assistance over and above what any lady of her age may need.

19. The appellant's original counsel (Mr Holt) accepted there was no claim under the Immigration Rules and for article 8 ECHR to be engaged there must be compelling or exceptional circumstances.

20. I have considered her circumstances and whilst family members are happy to support her the fact remains these circumstances do not demonstrate ties and support beyond the normal emotional ties that would exist in adults.

21. Whilst I therefore accept the appellant enjoys living with her family, in the absence of additional evidence, this is insufficient to engage article 8 ECHR. An assessment of proportionality under article 8 ECHR is only required if article 8 is engaged but as I am satisfied that article 8 is not engaged, on the current evidence, I dismiss her appeal under article 8 ECHR.

DECISION

22. The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law. I set aside the decision in so far as article 8 ECHR is concerned.

23. I have remade that decision and I dismiss the appeal under article 8 ECHR.

Signed: Dated:

Deputy Upper Tribunal Judge Alis

TO THE RESPONDENT
FEE AWARD

I make no fee award because I have dismissed the appeal.

Signed: Dated:

Deputy Upper Tribunal Judge Alis