Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: HU/02571/2015
HU/03480/2015
HU/03481/2015
HU/03482/2015

THE IMMIGRATION ACTS

Heard at Bradford
Decision & Reasons Promulgated
On 19 October 2016
On 25 January 2017

Before

UPPER TRIBUNAL JUDGE CLIVE LANE

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant

and

MS, RS, SM and AM
(ANONYMITY DIRECTIONs made)
Respondents

Representation:

For the Appellants: Mr Diwnycz, a Senior Home Office Presenting Officer
For the Respondent: Mr Hussain, instructed by UK Immigration Advisors

DECISION AND REASONS

1. I shall refer to the appellant as the respondent and to the respondents as the appellants (as they appeared respectively before the First-tier Tribunal). The first and second appellants are husband and wife and are citizens of Pakistan. The third and fourth appellants are their children (born in 2007 and 2009 respectively) who are also citizens of Pakistan. They appealed against the decision of the respondent dated 17 July 2015 refusing them leave to remain on human rights grounds (Article 3 and 8, ECHR). The First-tier Tribunal (Judge Bashir) in a decision promulgated on 21 April 2016, allowed the appeals on human rights grounds. The Secretary of State now appeals, with permission, to the Upper Tribunal.
2. The parties agree that none of the appellants can succeed under HC 395 (as amended). The appeal turned upon the medical conditions of the third and fourth appellants. These children suffer from Duchenne Muscular Dystrophy (DMD). The appellants entered the United Kingdom together on 25 September 2013 (the first appellant was a student in this country) and the children were diagnosed with DMD in 2014. Both children are in full-time education in the United Kingdom and receive care from Leeds Teaching Hospital.
3. The judge set out a number of detailed findings regarding the circumstances of the children in particular. As regards Article 3 ECHR he found that the high threshold established by D [1997] 24 EHRR 43 and N [2005] UKHL 31 had not been crossed in the case of these children who "do not face imminent death, neither do they face ...inhumane or degrading conditions." The children are seriously ill but are currently coping well with a disabling condition. The judge's findings as regard Article 3 have not been challenged.
4. The judge found that the children are receiving a good level of education and also medical treatment in the United Kingdom. He found that accessing a decent education in Pakistan might prove problematic especially on account of their DND condition and that the "level of treatment" which they are receiving at the Leeds hospitals would not be available in Pakistan [25].
5. Allowing the appeal on Article 8 grounds, the judge found that, notwithstanding the fact that they had only been living in the United Kingdom for some 30 months, the children had established a private life within the meaning of Article 8 "the loss of which would impact strongly upon their physical and psychological integrity." [34]. The judge found "the third and fourth appellants have established private life with the caregivers at school and others." He also found that the medical conditions of the children would lead to a social stigma falling upon their parents on return to Pakistan which, in turn, would lead to the social isolation of the family there. Ultimately, the judge found that "it would not be in the best interests of the children to return them to Pakistan as they have established a private life in the UK." He found that there were "exceptional compassionate" circumstances which would lead the Tribunal to allow the appeal.
6. The Secretary of State, in the grounds of appeal, asserts that none of the appellants have come close to satisfying the requirements of the Immigration Rules. Having found that the children would not face degrading treatment or imminent death in Pakistan, the judge should not have found that there would be an unjustifiably harsh outcome should they be returned to that country. The judge had failed to explain how
the appellants' departure from the UK and the resulting loss of links with [health] professionals resulted in a strong impact on their physical and psychological integrity. These links were formed with those individuals on a professional basis rather than a personal or private basis therefore there is no reason why similar relationships could not be established with healthcare professionals in Pakistan.
7. I find that there is considerable force in the last of those submissions. I am not persuaded that private life relationships (as understood in the context of Article 8 ECHR) can normally be established between an individual and those who provide (out of a professional obligation) that individual with medical treatment. I agree also that one's relationship with one's doctor can be replicated by similar professionals in a different jurisdiction. Further, whilst the children may be emotionally engaged with those providing treatment to them at the present time, there is no reason to believe that such emotions are reciprocated by the health professionals. In conclusion, I am not satisfied that, on the basis of the evidence before the Tribunal or for the reasons given by the judge, the third and fourth appellants have established in the United Kingdom private lives such as merit protection under Article 8 ECHR. In the short period (30 months) during which they have been living in this country, there appears to be no evidence that the children have established strong private life links with other individuals or groups within their community.
8. The judge clearly had sympathy with this family and with the children in particular. However, an appeal on Article 8 grounds can only succeed if Article 8 is in the first instance engaged by the existence of a family and/or private life. I am not satisfied that the judge was entitled to find on the basis of the evidence before him that any of these appellants have established sufficiently strong private life links in the United Kingdom during the short period during which they have been living here.
9. In the circumstances, I set aside the First-tier Tribunal's decision. I have remade the decision on the basis of the evidence which was before the First-tier Tribunal. The appellants' appeals against the decision of the respondent are dismissed.

Notice of Decision

The decision of the First-tier Tribunal which was promulgated on 21 April 2016 is set aside. I have remade the decisions. The appeal of the appellants against the decision of the respondent dated 17 July 2015 are dismissed under the Immigration Rules and on human rights grounds (Articles 3 and 8).

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 him or any member of their 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.

Signed Date 2 January 2017

Upper Tribunal Judge Clive Lane

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

Signed Date 2 January 2017

Upper Tribunal Judge Clive Lane