Tribunal decisions

The decision

IAC-AH-sc-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: HU/01366/2015
HU/01361/2015
HU/01359/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 3rd November 2016
On 16th November 2016

Before

UPPER TRIBUNAL JUDGE KING TD

Between

SANG [B] (first appellant)
SOO [J] (second appellant)
JUN [B] (third appellant)
Appellants
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellants: Ms B Asanovic of Counsel, Gillman-Smith Lee Solicitors
For the Respondent: Mr T Melvin, Office Presenting Officer

DECISION AND REASONS
1. The appellants are mother, father and son all citizens of South Korea. It is right to note that the third appellant is a young man just over 18 years of age who has very complex mental and physical needs. It was essentially on that basis that an application was made to the respondent for leave to remain on the basis of human rights. That application was refused in a decision of 16th June 2015.
2. The appellants sought to appeal against that decision which appeal came before First-tier Tribunal Judge Borsada on 11th April 2016. The appeal was dismissed.
3. The appellants now seek to challenge the correctness of that decision, permission to do so having been granted by First-tier Tribunal Judge Grant-Hutchison on 12th September 2016. The matter comes before me to determine the issues as between the parties as to error of law and/or misunderstanding of fact.
4. The first appellant came to the United Kingdom in 2006 as a student and latterly as a dependent partner. The second appellant entered the United Kingdom in 2007 as a dependant and subsequently became herself a student. The third appellant first came to the United Kingdom as a student. He re-entered the United Kingdom on 17th January 2013 as a general dependent child with leave valid until 31st May 2015. It was noted that the appellants returned to South Korea at the end of 2012/early 2013 and spent a period of time in that country, renewing their leave applications before once again returning to the UK.
5. The determination is a detailed consideration of the circumstances of all three appellants. Little purpose would be served in setting out in detail all that was recounted in the determination. The third appellant had spent nine years in South Korea before entering the United Kingdom. He has family in South Korea who could assist and provide support on return and that there was a functioning special needs education system in South Korea that could be accessed.
6. It was noted that the second appellant had problems due to rheumatoid arthritis. In particular it was also noted specifically that the third appellant was in need of effectively 24 hour care, the fundamental burden of which would fall upon his parents. He had to be fed through a "peg" which was expensive and required specialist food. The judge noted that a very complex package for the third appellant was currently in place and recognised that such a care package would probably not be available in South Korea. The Judge did not find, except however, that there was inadequate or no medical care available in South Korea for someone of the appellant's particular conditions. The interests of the third appellant were considered in particular in paragraphs 10 and 11 of the determination.
7. In essence Ms Asanovic, who represents the appellants before me, seeks to make two challenges to the decision of the First-tier Tribunal.
8. The first challenge is that the Judge failed to engage with a significant aspect of the return namely the social isolation of the third appellant. It was submitted that it has taken many years to establish means of communication with the third appellant with specialist input. Such communication had been predicated on the understanding of English, the third appellant cannot communicate himself by speech but it is said is able to understand something of what is said through language. If he were to be returned to South Korea it is said that that particular specialist assistance would not be available and that would take a very long time for him to come to understand Korean without language for wider communication, his life and enjoyment would be significantly impaired. It said that that matter alone is a very significant obstacle to reintegration and settlement which the Judge did not consider.
9. Linked with those concerns was also the lack of specialist care, which would mean that the burden would fall disproportionately upon the first and second appellants as carers without the element of respite that they now enjoy from such care.
10. The grounds do not identify with any particularity the nature of the communication and interaction which the third appellant now enjoys. My attention was not drawn to any evidence in particular. A flavour of the matter can be seen from the Acorns letter of 26th March 2015 (B97) prepared when the third appellant was 17. Such said that he was totally dependent upon others and his care needs are met by his parents who provide him with 24 hour care and support. He is immobile and uses a wheelchair. There is difficulty handling him or repositioning him. The Acorns Children's Hospice provides the opportunity of some respite breaks together with other more general support. Advice is provided as to manual handling issues and his mother receives therapy sessions to aid relaxation. Mention is made at the support of a transition worker. It noted that as the third appellant has grown so the physical and emotional demands on the parents have grown exponentially. The report makes clear, however, that once the third appellant reaches 18, his parents will no longer be able to access Acorns Services. They would need to find other support. There is a report from Victoria School of 19th March 2015 but that involvement has now ended with the third appellant being 18.
11. As I have indicated there are a number of reports in the appellants' bundle but the aspect of communication and how that is achieved and managed between persons other than the third appellant's parents is not clearly stated.
12. I do not note in the bundle which I have any skeleton argument which details those matters.
13. It is apparent from the determination that the Judge has understood fundamentally the issues which present themselves, namely of a child almost entirely dependent upon his parents and upon specialised support. The Judge considers the communication between parents and the child. As indicated the Judge does not exclude the possibility of the care available in South Korea nor does he make light of the burden that would be placed upon the parents. Clearly were the appellants to return to South Korea then the burden upon the parents to maintain their care of their son is one which they have readily accepted in the United Kingdom. The issue of respite care does not seem to have been overtly raised in the arguments before the Judge, what is significant is that the Judge finds that there is family in South Korea who could assist and provide support on their return. No mention of these matters have been made to me in submissions but clearly that would be an obvious and practical means of support and respite care. Indeed within an extended family setting it may be argued that the third appellant would have a wider social network than at present. As I have indicated I can find no suggestion that these matters were specifically argued before the Judge such that he failed to take account of them.
14. It is not reasonable to be expected that the Judge should seize upon every fine detail or nuance of the claim. I find that it is entirely clear that he has fully understood the difficulties generally which the appellants face in terms of managing care and in organising their lives. I do not find that the point now relied upon is so obvious that the Judge ought to have noted it and relied upon it. In any event in the absence of any specific and detailed medical evidence on that matter of communication and support, it would seem highly unlikely even if the argument was raised that it would have made a material difference to the outcome of the appeal.
15. No doubt if it is a matter of considerable importance it can be further dealt with upon clear medical evidence.
16. The second challenge is to the approach taken by the Judge to the possibility of the third appellant flying back to South Korea in the light of the report of Dr Huq. There is no suggestion made before me that the Judge has misinterpreted what Dr Huq had to say as to the difficulties which the third appellant may face on a long-term flight. Considerable safeguards needed to be put in place.
17. In paragraph 12 of the determination the Judge sets out the evidence in relation to transportation and indicates that ideally there should have been further evidence on a number of matters. He reminds himself however that it is for the appellants to prove their case on appeal and on the available evidence the Judge was not satisfied that they had discharged this burden on the issue of flight. Ms Asanovic submits that that was entirely the wrong approach for the Judge to have taken in this matter. It was clearly important that the best interests of the child or young person were considered and if the Judge was in doubt as to the helpfulness of the evidence so far presented, he should have requested further evidence in order to satisfy himself on such matters.
18. I disagree with that contention. It is the function of the Judge to determine the issues upon the evidence presented and upon the arguments which are made. There was no indication that any adjournment was requested by either party in order to obtain or clarify the evidence as presented. It is of course always open to a Judge to adjourn the matter for further evidence. It is not an obligation upon a Judge generally to conduct an investigation or indeed to direct further evidence. What the Judge has done in this case, and I find most fairly, is to highlight concerns that fall to be addressed. The Judge most fairly expressed those concerns and made the comment that there may be important information which is missing from the evidence which had it been presented might have led to a different conclusion. In this case the Judge was asked to make a decision upon the evidence as presented and the arguments advanced and this he did. The Judge most helpfully posed a number of questions which might fall to be answered which might in turn create a different response from a decision maker. I find that such an approach to the evidence as presented was both proper and fair and not in error of law.
19. I indicated to Ms Asanovic that essentially the grounds of appeal as advanced were seeking to reargue the merits of the matter rather than highlight aspects or errors of law. She invited my attention to a number of further documents in the course of her submissions. There was a statement of the medical conditions of the third appellant as prepared by his father. It is said that his condition has deteriorated since 12th October and he now relies upon a ventilator for 24 hours. That is supported by a report from Queen Elizabeth Hospital, Birmingham of 2nd November 2016, indicating that he may require a tracheostomy in the future.
20. There is a further letter from the same trust of 9th June 2016 expressing the concern of the extremely high risk for him to undertake prolonged air travel. There is a risk of serious medical complications including death and that prolonged air travel is not recommended. It is said by Ms Asanovic that this supplements the report of Dr Huq and goes some way to meeting the concerns that were expressed by the Judge. In those circumstances, had the Judge had that evidence before him the conclusion might have been different.
21. Significantly the documents to which I make reference postdate the decision. It is not my task to review the merits of this case unless and until I find there to be an error of law in the decision that was made. I find none.
22. As I again indicated to Ms Asanovic it is open to the appellants' representative to make such submissions as to change in the circumstance since the hearing with supporting evidence, inviting the Secretary of State to treat that evidence as a fresh claim to conclude in the light of that evidence that removal is disproportionate as affecting all three appellants. It seems to me that that is the proper process, one which should be adopted in this case. However, so far as the purposes of the appeal against the decision of the First-tier Judge is concerned, that appeal is dismissed. I do not find there to be any material error of law nor any material omission of fact. It is a tragic case as was recognised by the Judge himself. However I find that the decision that had been arrived at was reasonable and lawful in all the circumstances.
23. In all the circumstances the original decision shall stand, namely that the appeals of the appellants are dismissed both under the Immigration Rules and under human rights.
No anonymity direction is made.

Upper Tribunal Judge King
16 November 2016