Tribunal decisions

The decision

IAC-AH-sc-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/03718/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 26 January 2017
On 22 February 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE SHAERF

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Appellant

and

asia begum
(anonymity direction not made)

Respondent

Representation:

For the Appellant: Mr S Stanton of the Specialist Appeals Team
For the Respondent: Mr A Malik of Counsel instructed by Malik Law Chambers

DECISION AND REASONS

The Respondent
1. The Respondent to whom I shall refer as "the Applicant" is a citizen of Pakistan whose date of birth is given as 1 January 1950.
2. On 8 January 2005 she arrived with entry clearance as a visitor, expiring on 1 May 2005. The Applicant did not leave and since then has been an overstayer.
3. She has four sons and three daughters all of whom are said to be married with children and settled in the United Kingdom. Her husband died on 2 December 2000 and the Applicant states that since then she has been dependent upon her children and that on expiry of her visitor's visa she did not return because her health had deteriorated and she was not in a position to return to Pakistan.
4. The Applicant sought further leave which was refused. She states she instructed solicitors to lodge an appeal to the Tribunal but that none was submitted. She adds her then solicitor was at that time being prosecuted for "illegal or unauthorised business activities". She made a further application through other representatives which was refused and they advised her not to appeal but to make yet another application. She did and this was also refused. She states she then instructed her current solicitors to make a further application which led to the decision under appeal.
The Home Office Decision
5. On 21 July 2015 the Appellant to whom I shall refer as "the SSHD" refused the Applicant's application based on her private and family life in the United Kingdom. She noted the Applicant was an overstayer and did not meet any of the time specific conditions contained in paragraph 276ADE(1) of the Immigration Rules. She accepted the Applicant met the suitability requirements of Appendix FM of the Immigration Rules and that the application based on her private and family life was valid. She did not consider there were very significant obstacles to her integration on return to Pakistan and so she did not meet the requirements of paragraph 276ADE(1)(vi).
6. The SSHD went on to consider whether her application should be considered under Article 8 of the European Convention outside the Immigration Rules and found there were no exceptional circumstances justifying a grant of discretionary leave outside the Rules. Her relationships with her immediate family in the United Kingdom were "not strong enough to engage Article 8" and could "continue through other communication methods from abroad". The SSHD noted that treatment in Pakistan was available for the Applicant's various medical conditions and even if the Applicant could not afford to pay for such treatment, her circumstances would not be such as to entitle her to remain in the United Kingdom. Her children could pay for her to receive personal care and support in Pakistan.
7. On 4 August 2015 the Applicant lodged notice of appeal under Section 82 of the Nationality, Immigration and Asylum Act 2002 as amended (the 2002 Act). The grounds are generic. They assert the SSHD's decision was based on assumptions and contradictions and that the Applicant is well-integrated into "the very fabric of life" in the United Kingdom and that the SSHD mis-directed herself in the assessment and consideration of the Applicant's application. Additionally, a Statement of Additional Grounds was lodged with the appeal. This again is formulaic asserting "there is no pressing social need to deny the (Applicant's) right to remain ... (and) ... (she)) is not a threat to the wider community".
The First-tier Tribunal Proceedings
8. By a decision promulgated on 26 August 2016 Judge of the First-tier Tribunal J Bartlett allowed the Applicant's appeal by reference to Article 8 of the European Convention outside the Immigration Rules. She dismissed the appeal under paragraph 276ADE(1)(vi) of the Rules because she considered the Applicant's children would be able to arrange and pay for suitable care and accommodation for the Applicant in Pakistan and that they would in fact do so.
The First Ground for Appeal
9. The Secretary of State sought permission to appeal on the grounds that the Judge had failed to take into account the Immigration Rules for the grant of leave to remain to adult dependent relatives and having found that the Applicant could access appropriate care in Pakistan had the Judge had erred in law by failing to identify compelling circumstances not covered by the Immigration Rules which warranted consideration of the appeal outside the Rules.
The Second Ground
10. The second ground for appeal is based on the claimed failure by the Judge to consider exceptionality or whether there were very compelling reasons for her having dismissed the appeal under the Immigration Rules to go on to consider the appeal under Article 8 outside the Rules. To support this reference was made to the judgment in SS (Congo) v SSHD [2015] EWCA Civ. 387. Finally, the SSHD relied on the Strasbourg jurisprudence in Jeunesse v Netherlands ECHR/2014/1036 at paragraph 103 that "... confronting the authorities of the host country with family life as a fait accompli does not entail that those authorities are, as a result, under an obligation pursuant to Article 8 of the Convention to allow the Applicant to settle in the country."
11. On 19 December 2016 Judge of the First-tier Tribunal Saffer granted the SSHD permission to appeal on both grounds and noting that the Judge had not taken account of the judgment in GS (India) v SSHD [2015] EWCA Civ.40 and Part VA of the 2002 Act.

The Upper Tribunal Hearing
12. The Applicant with her eldest and two other sons attended. I explained the purpose of and the procedure to be adopted at the hearing and the elder son confirmed the Applicant's address. I doubt she understood.
Submissions for the SSHD
13. Mr Stanton submitted that the Applicant could have applied for entry clearance as a dependent relative but the Judge had failed to refer to the relevant Immigration Rule. At paragraph 15 of the decision the Judge had found that there were not very significant obstacles to her re-integration in Pakistan. The Judge had also failed in making her proportionality assessment at paragraph 19 to have taken account of the wider public interest. For these reasons the decision contained a material error of law and should be set aside.
Submissions for the Applicant
14. Mr Malik submitted the Applicant could not have succeeded under the Immigration Rules as a dependent relative because she would not have held entry clearance in the relevant capacity. The only option available to her under the Rules was by way of paragraph 276ADE(1).
15. The Judge at paragraph 14 had set out the extent of the Applicant's dependency upon her children, all of whom are in the United Kingdom and these amounted to compelling circumstances to engage the State's obligations under Article 8 outside the Rules which the Judge had dealt with adequately at paragraph 18 of her decision. Similarly, she had at paragraphs 18 and 19 dealt with the requirement to consider the factors identified by Section 117A-B of the 2002 Act which included an assessment of the public interest. The decision did not contain an error of law and should stand.
Consideration and Conclusion
16. The SSHD in her decision expressly referred to the provisions in the Immigration Rules relating to dependent relatives, including parents. Paragraphs 317 and 318 appear to be the relevant Rules. While there was no obligation on the Judge to consider other Immigration Rules she did have the discretion by reason of the learning on RM (Kwok On Tong: HC395 para 320) India [2006] UKAIT 00039. Although arguably it might have been a "Robinson" obvious point it appears that neither party addressed it before the Judge and the Judge did not consider it in her decision although the possibility was expressly referred to in the SSHD's decision letter.
17. This is an appeal to which the regime introduced by the Immigration Act 2014 applies. The extent of the Applicant's compliance with the Immigration Rules would need to be taken into account in assessing the proportionality of the decision to any legitimate public objective.
18. The Judge took account of her negative findings in relation to the factors identified in Section 117B of the 2002 Act at paragraphs 18 and 19 of her decision. She identified the legitimate objective against which the proportionality of a decision under appeal had to be assessed and went on to make the assessment. That assessment was vitiated by a failure to consider the extent to which the Applicant did or did not satisfy the dependent parent provisions of the Immigration Rules to which the SSHD's reasons letter had referred.
19. She addressed whether it was appropriate to move from a consideration of the Applicant's claim under Article 8 from within the Rules to outside the Rules, noting the Applicant's medical conditions and high dependency on her family. In considering the SS (Congo) "gap", it needs to be borne in mind that SS (Congo) was an out of country case requiring the Court to look at why the State should accept the burden of fostering family life rather than merely abstain from undue or disproportionate interference with existing family life. The learning in Jeunesse was not argued before the Judge at the hearing. Whether it might have been applicable is unclear because the Applicant's evidence was that her health had deteriorated subsequent to her arrival in the United Kingdom: see paragraph 5 of her amended witness statement. Again there is no indication that this issue was addressed by either party to the Judge at the hearing.
20. For these reasons I find that there was a material error of law in the First-tier Tribunal's decision and it should be set aside. I would have been willing to proceed but the Applicant's bundle does not include the relevant evidence to address the dependent relative requirements, particularly of paragraph E-ECDR3 of Appendix FM. Additionally, I anticipate the Applicant will wish to submit further medical evidence in relation to her health at the time she arrived in the United Kingdom and subsequently.
21. For these reasons and having regard to paragraph 7.2 of the Senior President's Practice Statement the appeal should be remitted for re-hearing with no preserved findings in the First-tier Tribunal before a Judge other than Judge J Bartlett.
Anonymity
22. There was no request for an anonymity direction or order and having considered the appeal I find none is warranted.

NOTICE OF DECISION
The decision of the First-tier Tribunal contained an error of law and is set aside. The appeal of the SSHD is allowed and the matter is remitted to the First-tier Tribunal for hearing afresh. No anonymity order made.

Signed/Official Crest Date 06. ii. 2017
Designated Judge Shaerf
A Deputy Judge of the Upper Tribunal