Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/03053/2015

THE IMMIGRATION ACTS

Heard at Newport (Columbus House)
Decision & Reasons Promulgated
On 22 February 2017
On 02 March 2017

Before

UPPER TRIBUNAL JUDGE GRUBB
UPPER TRIBUNAL JUDGE CHALKLEY

Between

galina tsetkova
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr G Hodgetts, Counsel instructed by Direct Access
For the Respondent: Mr A McVeety, Senior Home Office Presenting Officer

DECISION AND REASONS
Introduction
1. The appellant is a citizen of Russia. She was born on 23 May 1930 and is 86 years old. She entered the United Kingdom on 16 November 2014 as a visitor with leave valid until 26 May 2015. On 2 May 2015, she applied for leave to remain on the basis of her private and family life under Art 8 of the ECHR. On 14 July 2015, the Secretary of State refused her application.
2. The appellant appealed to the First-tier Tribunal. That appeal was dismissed by Judge Lebasci in a decision sent on 21 July 2016. The appellant was granted permission to appeal to the Upper Tribunal by the First-tier Tribunal (Judge Adio) on 1 November 2016.
The Appellant’s Claim
3. The appellant, as we have already noted, is a citizen of Russia. She lived there until coming to the UK in November 2014. The appellant was married but her husband died on 11 February 2002. The appellant and her husband had two children. Their daughter, Mrs Waddington lives in the UK. Her son, Mr Tsetkov lived in Russia and, as we understand it, close to the appellant. The appellant also has a grand-daughter, Ms Robinson who lives in Leeds.
4. The appellant suffers from a number of health problems. She received financial support of approximately £456 per month from her daughter in the UK who also made regular visits to see her in Russia. Direct support and care was, however, provided by her son who lived nearby. Unfortunately, in December 2013 he died following a heart attack. His wife (the appellant’s daughter-in-law) and her son continue to live in Russia but have made it clear that they do not wish to play any part in caring for the appellant.
5. The appellant was allocated a social worker in Russia but that was only for the purposes of delivering food and paying bills at the bank. No assistance was provided with domestic chores and personal care was not part of the social worker’s duties.
6. The appellant is elderly and, shortly before her son’s death, underwent surgery in Russia. Before the judge were two letters from a Consultant Spinal Surgeon, Mr Stuart James dated 14 April 2015 and 24 May 2016. That evidence, briefly summarised, is that she is, in effect, wheelchair bound as a result of her back injury and back pain which have increased between the two examinations undertaken by the consultant. She is able to take a few steps and her mobility around her house is limited. Her toileting requires the use of a commode. We were told by Mr Hodgetts, and we have no reason to doubt this, that her toileting requirements involve a frequency of five or six visits nightly. The consultant’s opinion is that she is unable to independently care for herself. All her domestic activities have to be done by others and she is reliant upon help for her personal hygiene. Her daughter is required to help her with washing, showering and also dressing. The consultant also notes that her medical history includes a number of other features: gastric ulceration, increased blood pressure, hypercholesterolemia and that she has been recently diagnosed with carotid artery stenosis and suffers from dizziness due to vascular insufficiency. In addition, there was before the judge evidence that, following her operation and the death of her son, the appellant developed suicidal thoughts.
7. Following her brother’s death, Mrs Waddington attended his funeral in Russia. It became clear to her that her brother’s widow resented her mother and would not provide assistance. Further, the social worker provided by the local council carried out limited tasks such as delivering food and paying bills and would, for example, not clean her mother’s flat. Her mother was not eligible for a higher level of assistance because she had a daughter, albeit one living in the UK. Mrs Waddington considered a live-in carer but her mother did not have accommodation for such a person and she was concerned about her mother’s vulnerability with a stranger. Mrs Waddington considered placing her mother in a nursing home in Russia. However, even though a state nursing home could be afforded, they were over-subscribed and there were waiting lists running into years and so it was not practicable given her mother’s condition. As regards private nursing homes, there were very few and they were extremely expensive. Mrs Waddington did not consider them suitable as she had read many reports of abuse and, given her mother’s vulnerability, she could not contemplate leaving her mother in a private nursing home in Russia.
The Judge’s Decision
8. Having set out some of the evidence relating to the appellant’s circumstances at paras 13-17 of her determination, Judge Lebasci accepted that family life existed between Mrs Waddington and the appellant. However, she did not accept that there was family life between the appellant and her granddaughter, Mrs Robinson who lives in Leeds. The judge accepted, as regards Mrs Robinson, she visited on average once every two months and assisted Mrs Waddington with the care of her grandmother but that:
“These facts do not support the conclusion there is something more than the normal loving relationship one would hope would exist between a grandmother and her granddaughter.”
9. Having, it would seem, accepted that Art 8.1 was engaged at least in respect of the appellant’s relationship with Mrs Waddington, Judge Lebasci went on to consider the relevant issues under Art 8.2, in particular that of proportionality and the factors set out in s.117B of the Nationality, Immigration and Asylum Act 2002 noting in respect of the latter that the appellant did not speak English and that there was a real possibility that the appellant would require “potentially significant levels of healthcare and thus become a burden on UK taxpayers”.
10. Then, at para 24 the judge came to the substance of her decision leading her to conclude that the respondent’s decision was proportionate:
“24. The Appellant is elderly and not in good health. However, it is not her case she would be unable to travel. It is understandable her preference is to live with her daughter and be cared for by her, and it is clearly Mrs Waddington’s genuine wish to provide this care. I am sympathetic to the Appellant’s circumstances but this does not enhance her rights under Article 8. Many elderly people are cared for by people who are not related to them. There may be issues with some care homes in Russia, as there are in many parts of the world, but this does not mean reasonable/appropriate levels of care could not be arranged for the Appellant in the event of her return to Russia. It is Mrs Waddington’s evidence she is in the fortunate position of being in a position to pay privately for some care. When her mother was living in Russia Mrs Waddington was providing her with financial support. I find that Mrs Waddington would be able to travel to Russia in order to make the necessary arrangements for her mother. The fact it would be more difficult for Mrs Waddington to monitor the care being provided in Russia is not a reason for dealing with this case outside the rules. The evidence shows she has made frequent visits to Russia and I find, if the Appellant returns to Russia, she would continue to do so in order to see her mother and this would afford her the opportunity to review and monitor the arrangements made for the Appellant’s care.”
11. As a consequence, the judge dismissed the appellant’s appeal under Art 8.
The Submissions
12. Mr Hodgetts, who represented the appellant made a number of detailed submissions. Principally, however, his submissions boiled down to three.
13. First, it was the appellant’s case before the judge that although she could not satisfy the “adult dependent relative” rule in Section EC-DR of Appendix FM because she was in the UK, she met the substance of those Rules, in particular E-ECDR.2.4. and E-ECDR.2.5. Mr Hodgetts submitted that although the judge recorded that submission at para 4 of her determination, she failed thereafter to consider whether the appellant met the substance of the requirements of the Rules and, if she did, whether it would be proportionate to require her to leave the UK simply to obtain entry clearance applying the decision of the House of Lords in Chikwamba v SSHD [2008] UKHL 40. Mr Hodgetts submitted that the judge’s failure to consider Art 8 through the “lens” or “prism” of the Rules was a material error of law (citing Haleemudeen v SSHD [2014] EWCA Civ 558 at [55]). As regard the relevant rule, Mr Hodgetts relied upon the unreported decision of the approach set out by the Upper Tribunal in Osman v ECO [2013] UKAITUR (OA/18244/2002) (15 November 2013) (UTJ Grubb) at [32], [33] and [40] and that the judge had failed to consider whether the appellant’s requirement for “long-term personal care to perform everyday tasks” (E-ECDR.2.4.) was available or could reasonably be provided to the “required level of care” (E-ECDR.2.5.) in Russia given, for example, her need for intimate assistance for her toileting some 5-6 times per night and having regard to her physical and mental health needs in Russia as her need for long-term personal care could only be met by a family member. Mr Hodgetts submitted that the judge had failed to address any of these issues in her determination, in particular in her reasoning at para 24.
14. Secondly, Mr Hodgetts submitted that the judge’s reasoning in para 24 failed, in any event, to take into account the totality of the evidence. Mr Hodgetts relied upon the Consultant’s reports that the appellant now requires 24/7 care because of her condition which is unlikely to improve. He submitted that the judge failed to consider properly, on the basis of all the evidence, what was the “required level of care” the appellant needed in order to determine whether it was, in fact, available in Russia. Further, Mr Hodgetts submitted that the judge’s assessment of what care was available in Russia was inadequate. It was not sufficient simply to note that there “may be issues with some care homes in Russia”. The judge failed to take into account the evidence of Mrs Waddington in her witness statement, in particular at paras 15 and 16, that they were expensive, there were issues of abuse and that care homes in Russia were not regulated.
15. Thirdly, Mr Hodgetts submitted that the judge’s finding that there was no “family life” between the appellant and her granddaughter failed to take into account the evidence that not only did her granddaughter visit the appellant and Mrs Waddington in Newport, in addition in order to provide respite to Mrs Waddington the granddaughter took on the role of the primary carer from time-to-time.
16. On behalf of the respondent, Mr McVeety relied on the fact that the appellant accepted that she did not meet the requirements of the “adult dependent relative” rule. He acknowledged that the judge had not explicitly considered the application on that rule but, he submitted, in substance the judge had done so in para 24 of her determination. In particular, he drew our attention to material in the appellant’s bundle which, he submitted, demonstrated that not all care homes in Russia were inadequate (see document at page 176, especially at page 180). However, he did acknowledge, in his submissions, that, in the light of the medical evidence, the first sentence of para 24 of the judge’s determination - namely the statement that the appellant was “not in good health” - was problematic. As we understood Mr McVeety he was acknowledging that the judge may well not have fully taken into account the medical evidence in reaching her finding in para 24.
Discussion
17. In substance, we accept the submissions of Mr Hodgetts.
18. First, in assessing the appellant’s claim under Art 8 outside the Rules, it was relevant to consider whether she met, or did not meet, the requirement of Section EC-DR as an “adult dependent relative”. Of course, it was conceded that she could not succeed under that rule as she was not “outside the UK” as required by EC-DR.1.1. However, it remained relevant, particularly in considering whether the public interest justified removing the appellant in order to seek entry clearance, whether she met the substantive requirements of the Rule, in particular E-ECDR.2.4. and E-ECDR.2.5. Given her circumstances, her age and physical and mental condition, there was an issue whether the appellant’s removal, if she met the substantive requirements of the Rules, was proportionate simply in order to comply with the procedural requirement of being “outside the UK” following Chikwamba.
19. Secondly, we do not accept Mr McVeety’s submission that para 24, in effect, deals with the relevant matters under the Rules. E-ECDR.2.4. and E-ECDR.2.5. are in the following terms:
“E-ECDR.2.4. The applicant or, if the applicant and their partner are the sponsor’s parents or grandparents, the applicant’s partner, must as a result of age, illness or disability require long-term personal care to perform everyday tasks.
E-ECDR.2.5. The applicant or, if the applicant and their partner are the sponsor’s parents or grandparents, the applicant’s partner, must be unable, even with the practical and financial help of the sponsor, to obtain the required level of care in the country where they are living, because –
(a) it is not available and there is no person in that country who can reasonably provide it; or
(b) it is not affordable.”
20. We accept Mr Hodgetts submission that, in para 24, the judge has failed to make a finding as to the “required level of care” to meet the appellant’s needs. Although the judge accepted, indeed it was not challenged, the consultant’s evidence (at para 14) and set out the background circumstances of the appellant (at para 15), the judge’s finding as to the appellant “required level of care” is restricted to a statement that she is “elderly and not in good health”. That is somewhat of an understatement on the basis of the evidence and falls far short of a clear, unequivocal finding as to the appellant’s needs and, therefore, fails to provide a sound foundation to inform the judge’s finding that the appellant’s needs could be met in Russia.
21. Further, as regards the provision of care available in Russia, we accept Mr Hodgetts submission that the judge’s reasoning fails to take into account the evidence, both documentary and from Mrs Waddington, as to the availability and desirability of placing the appellant in a state or private nursing home in Russia. In particular, the judge has failed to grapple with the evidence, to which we were referred, concerning the availability of nursing home care and, if available, its nature and the issues concerning its desirability. Whilst Mr McVeety pointed us to a document at page 180 of the bundle to suggest that not all care homes in Russia provided inadequate care, the point remains that the judge failed to grapple with this evidence and make findings relating, of course, to the “required level of care” needed by the appellant to meet her needs for “long-term personal care to perform everyday tasks” and whether it was reasonably available in Russia.
22. Finally, as regards the judge’s finding in para 21 that family life had not been established between the appellant and her granddaughter, we agree that that finding cannot stand on the basis that the judge’s reasoning is inadequate in describing the relationship as a “normal loving relationship” to be expected between a grandmother and granddaughter, given the evidence that the appellant’s granddaughter took on the role of the appellant’s primary carer at times in order to provide Mrs Waddington with respite.
Decision
23. For these reasons, the judge erred in law in dismissing the appellant’s appeal under Art 8 and we set aside her decision. The appellant’s appeal must be reheard de novo.
24. Given the nature and extent of the fact-finding required, and having regard to para 7.2 of the Senior President’s Practice Statement the appeal is remitted to the First-tier Tribunal to remake the decision de novo by a judge other than Judge Lebasci.

Signed

A Grubb
Judge of the Upper Tribunal

Date