Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: UI-2021-001371; HU/05840/2020
UI-2021-001372; HU/05843/2020
UI-2021-001374; HU/05845/2020

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On Tuesday 19 April 2022
On Monday 20 June 2022

Before

UPPER TRIBUNAL JUDGE SMITH

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

MRS BHAVJOT SIDHU
MR SATPAL SIDHU
MISS IBADOT SIDHU
Respondents

Representation:
For the Appellant: Ms A Ahmed, Senior Home Office Presenting Officer
For the Respondent: Ms G Capel, Counsel instructed by Wilsons solicitors

DECISION AND REASONS

BACKGROUND

1. This is an appeal by the Secretary of State. For ease of reference, I refer to the parties as they were before the First-tier Tribunal. The Respondent appeals against the decision of First-tier Tribunal Judge Norris promulgated on 3 November 2021 (“the Decision”). By the Decision, the Judge allowed the Appellants’ appeals against the Respondent’s decision dated 11 April 2019 and maintained on 25 February 2020, refusing their human rights claims (under Article 8 ECHR).

2. The Appellants are a wife, husband and their minor child. Their human rights claim in broad terms is based on their relationship with the First Appellant’s extended family in the UK and on the IVF treatment which the First and Second Appellants have been undergoing whilst in the UK (which led to the birth of the Third Appellant).

3. The First Appellant came to the UK as a student in 2007. Her leave was extended in that category to August 2009 and then from December 2009 to December 2013. Although she was then granted further leave from January 2014 to June 2015, her leave was curtailed to February 2015 and since then she has had no leave to remain. The Second Appellant entered and remained as the First Appellant’s spouse. His leave to remain also came to an end on 13 February 2015. The Third Appellant was born in the UK on 24 January 2019.

4. Since their leave came to an end, the Appellants have made several applications to remain all of which have been refused. The first in 2015 led to an unsuccessful appeal. The remainder were refused and rejected as amounting to fresh claims. The last decision was however revisited in relation to whether it amounted to a fresh claim and conceded as giving rise to a further right of appeal.

5. The Judge accepted that the Appellants have a very close relationship with the First Appellant’s uncle and aunt and their family. Although the Judge concluded that the Appellants could not meet the Immigration Rules (“the Rules”), she considered the claim outside the Rules and allowed the appeals based on that close family relationship coupled with the First and Second Appellant’s case that they would be unable to have more children via IVF as their last embryo is stored in the UK and could not be moved to India.

6. The Respondent appeals on three grounds. First, it is said that the Judge misdirected herself in law when dealing with the family relationship and impact on that of return to India. Second, it is said that the Judge wrongly considered the claim based on IVF which it is said constituted a new matter and/or that the Judge has ignored publicly available evidence about the possibility of the embryo being transferred to India. Third, it is said that the Judge has “committed or permitted a procedural or other irregularity capable of making a material difference to the outcome of the fairness of the proceedings”. It is said that the Judge failed to consider the previous appeal decision in 2015 and failed to take into account that the Appellants owe a previous litigation debt.

7. Permission to appeal was granted by First-tier Tribunal Judge Neville on 11 January 2022 in the following terms so far as relevant:

“..2. On 25 February 2020 the present human rights claim was rejected as a fresh claim under para 353 of the Immigration Rules. That decision would appear, implicitly at least, to have considered the IVF issues set out in the appellant’s solicitor’s letter of 3 February 2020. The rejection of the fresh claim was challenged by a pre-action protocol letter of 13 March 2020 which clearly raises the IVF issue. The pre-action protocol response letter of 24 March 2020 agrees to ‘reconsider the matter in light of the evidence and representations you have made’. In the subsequent refusal decision of 20 May 2020 however, no explicit reference is made to IVF. The only potential consideration is as follows:
Based on the information you have provided we have decided that there are no such exceptional circumstances in your case that would warrant a grant of leave to remain outside the Immigration Rules.
3. The information provided unquestionably included IVF, and the refusal decision is therefore based upon it. Nonetheless, given that the subsequent paragraphs make no reference to IVF I do consider the contrary position to be arguable. If the matter was indeed not considered, then as a matter of jurisdiction it is arguable that the Judge erred when incorporating it into her consideration of proportionality. As this relates to jurisdiction, permission must be granted. This is a deeply unattractive conclusion. If the respondent is right, then she failed to comply with the assurances made within her response to the pre-action protocol letter. Nor did she ever respond to, or engage with, the appeal skeleton argument and evidence sent to her some three months before the hearing. At the hearing she neither provided a representative nor made any application for an adjournment.
4. Given the foregoing argument that the Tribunal erred by considering a new matter, the first and third grounds of appeal then boldly assert that the Tribunal erred by not considering three other issues that the respondent had never troubled to raise: new evidence that plainly fails to meet the requirements of Ladd v Marshall [1954] EWCA Civ 1; a further s.85 new matter, being a litigation debt never considered in the refusal decision or anywhere else; and previous Tribunal decisions that entirely pre-date all the relevant facts relied upon by the appellants. Were these the only grounds I would have refused permission, but given the grant of permission on ground two, and applying the pragmatism suggested by the relevant Joint Presidential Guidance at para 48, they may also be argued.”

8. The Appellants filed a lengthy and very helpful rule 24 reply which incorporated an application under rule 15(2A) of the Tribunal Procedure (Upper Tribunal) Rules 2008 to adduce further evidence in relation to the litigation debt which is referred to in the Respondent’s third ground.

9. I had before me a core bundle of documents relating to this appeal, the Respondent’s bundle and Appellants’ bundle before the First-tier Tribunal and the Appellants’ skeleton argument before the First-tier Tribunal. Given the nature of the challenge, it is necessary to refer to only a few of the documents in the Appellants’ bundle (referred to below as [AB/xx]).

10. The matter comes before me to determine whether there is an error of law in the Decision. If I so conclude, I must consider whether to set aside the Decision in consequence and, if I do so, go on to re-make the decision or remit the appeal to the First-tier Tribunal for that purpose. Having heard oral submissions from Ms Ahmed and Ms Capel I indicated that I would reserve my decision and issue that in writing which I now turn to do.

DISCUSSION

11. I take the grounds in reverse order.

Ground Three

12. Ms Ahmed made no reference to the previous appeal decision of 2015 in her submissions. The grounds do not particularise what it is said that the Judge failed to consider based on that earlier decision. The decision itself is not part of the Respondent’s bundle.

13. It is in any event necessary to consider the decision-making process leading to this appeal (which is also relevant to the second ground). The Appellants appealed the refusal of their first human rights claim leading to the 2015 appeal decision. They became appeal rights exhausted in that regard on 28 July 2016. They made a further application based on long residency which was refused with an out of country right of appeal.

14. Thereafter, the applications made were all considered in the context of paragraph 353 of the Rules. The Respondent is therefore required to consider whether the further submissions and any evidence with those submissions taken together with evidence previously considered (including within any appeal) amounts to a fresh claim. The Respondent’s bundle includes a decision made on 25 February 2020. That decision refuses the submissions (application) made on 15 January 2020. It also expressly cross-refers to and maintains an earlier decision refusing an application made on 4 January 2019. That was refused on 11 April 2019. The 11 April 2019 decision letter is at [AB/305-313]. Although the Respondent said when filing her bundle that the decision under appeal was one dated May 2020, it appears from the correspondence in the Appellant’s bundle following the February 2020 decision that this was merely a re-issue of the February 2020 decision but this time accepting that it was a fresh claim.

15. No mention is made of the earlier appeal decision in the April 2019 or 25 February 2020 decision letters. If the Respondent thought it relevant to the Judge’s consideration, she should have raised it (as would be usual in a “fresh claim” decision). It is not suggested that any of the claim made on this occasion, or the evidence relied upon had been considered by the previous Judge. The previous appeal decision was not contained in the Respondent’s bundle (or indeed the Appellants’ bundle). The Judge cannot therefore have erred by failing to consider an appeal decision which was not said by the Respondent to be relevant and was not included in the evidence before the Judge.

16. I can deal very shortly with the litigation debt. This is a further matter not raised by the Respondent in the decisions under appeal. In any event, the documents submitted by the Appellants show that they have paid the debt by instalments by agreement with the Respondent and repayment appears to be complete. Ms Ahmed rightly withdrew any reliance on this part of the ground.

17. For the foregoing reasons, the Respondent’s third ground does not disclose any legal error.

Ground Two

18. Ms Ahmed rightly withdrew reliance on the assertion in the ground that the IVF issue was a “new matter”. As was pointed out in the grant of permission, it was an issue which had been raised earlier. Whether or not it was dealt with in the decision under appeal is therefore nothing to the point. It had been raised and the Respondent had the opportunity to deal with it.

19. In any event, as I understood Ms Capel to accept, the Respondent had dealt with it. She had dealt with it in broad terms in the 25 February 2020 letter by saying that as an Indian citizen the First Appellant could get medical treatment she needed in India. More importantly, she dealt with it expressly in the decision of 11 April 2019. Her consideration of the claim at that stage is expressly incorporated into the decision of 25 February 2020 by the acknowledgement that the decision-maker had “considered the additional information provided, along with the material that was previously considered in your earlier claim”.

20. The issue then becomes one of whether the Judge has erred by failing to consider what the Respondent said about this aspect of the claim. I was initially concerned that this might indeed amount to an error. However, I am persuaded by Ms Capel’s submission that, although the Judge did not deal with what the Respondent said about this, any error in that regard can make no difference for the reasons which follow.

21. The Respondent in the decision of 11 April 2019 said this ([AB/309]):

“Your claim to not be able to remove your embryo from the UK is not substantiated by proffered evidence. The onus is on the applicant to provide the decision maker with sufficient evidential material in order to corroborate any claim the applicant themselves or by a representative. Below you note a web address for the Human Fertilisation and Embryology Authority, who state that:
‘If you have eggs, sperm or embryos in storage, it’s possible to move them both into and out of the UK, providing you use a licensed clinic.’
[web link given]
It is noted that there is medical provision in India for IVF.”

22. The above is the same as or similar information to that set out in the Respondent’s grounds. As Ms Capel pointed out, the Respondent has not actually provided a copy of the information published on the internet. I have had access to the link relied on. As Ms Capel submitted, that is information published by the authorities in the UK about the option of transferring embryos out of the UK. It says nothing about importation arrangements with India. It says nothing about clinics who would agree to receive any transfer and offer the First Appellant the service she has in the UK. As Ms Capel also submitted and I accept, the fact that there is IVF treatment in India is of no assistance to the First Appellant; given her age, she would be unlikely to be accepted or be able to start IVF treatment again from scratch.

23. Turning then to the evidence which the Judge did have, Ms Ahmed submitted that the Judge had erred by relying simply on the say-so of the First Appellant that there were no clinics which could deal with her embryo from the UK. That is incorrect as a matter of fact. As Ms Capel pointed out, the First Appellant had made some limited enquiries of clinics in India. She had received only one response which was negative ([AB/166-169]). In any event, absent relevant evidence controverting the First Appellant’s assertion, the Judge was entitled to accept as she did at [6.17] that the First Appellant would not be able to transfer the remaining embryo to India.

24. Although the Judge noted that this is an obstacle to return which will remain only until 2024, she indicated at [6.17] that is was a “[m]ost significant] factor. Had I found that the Judge had erred in a material way in her consideration of this aspect of the claim, I would have accepted that the error could make a difference to the outcome. As it is, though, any failure by the Judge to consider what was said by the Respondent about this aspect is not material because the evidence which the Respondent put forward was not relevant to the issue whether any clinic in India would accept the transfer.

25. For the foregoing reasons, there is no error of law established by the Respondent’s second ground.

Ground One

26. I turn finally to the Respondent’s first ground concerning the Judge’s findings about the family relationship. As Ms Capel submitted, the way in which this ground is drafted makes it difficult to discern what is said to be the error. It is pleaded as a material misdirection of law. Reference is then made to the Judge’s finding that there are no very significant obstacles to integration (and therefore that the Appellants cannot meet paragraph 276ADE(1)(vi) of the Rules).

27. The closest one comes to anything resembling an asserted misdirection (as opposed to a disagreement with the Judge’s findings) is at [4] of the grounds where it is said that the Judge’s finding at [6.13] of the Decision that the impact on the First Appellant’s mental health which might have a “knock-on” effect on the Third Appellant and therefore on both their emotional well-being is “not the correct test”.

28. This suggests that the drafter thought that the Judge was there dealing with the issue whether there would be very significant obstacles to return. However, the Judge was considering the claim outside the Rules. The Judge was not precluded from taking into account aspects of the claim which she had considered within the Rules but did not meet the threshold. As the Judge there said “[t]he considerations outside the Rules are based on the same findings of fact which I accordingly do not repeat.”

29. Ms Ahmed adopted a somewhat different tack on this ground. She suggested that the Judge had erred in relation to the legal test applying to the relationship between the Appellants on the one hand and the First Appellant’s extended family on the other. She referred at several points to the test in Kugathas v Secretary of State for the Home Department [2003] EWCA Civ 31 (“Kugathas”). Although Kugathas is not mentioned in the pleaded ground, I allowed her to develop her submissions in this way with no objection from Ms Capel.

30. Ms Ahmed referred to [14] of the judgment in Kugathas. The test as there shortly stated has been developed in cases since. However, it is largely encapsulated in what is said at [14] to [19] of the judgment as set out below so far as relevant:

“14. Mr Tam relies in particular on the Commission's decision in S v United Kingdom (1984) 40 DR 196. At page 198 of the report, the Commission said:
‘Generally, the protection of family life under Article 8 involves cohabiting dependents, such as parents and their dependent, minor children. Whether it extends to other relationships depends on the circumstances of the particular case. Relationships between adults, a mother and her 33 year old son in the present case, would not necessarily acquire the protection of Article 8 of the Convention without evidence of further elements of dependency, involving more than the normal emotional ties.’
This, while it is not black-letter law, sets out what I would accept is a proper approach.
15. ….
16. …, there are repeated dicta which point to the continuing relevance of the passage which I have quoted from S v United Kingdom. In Marckx v Belgium [1979] 2 EHRR 330, a decision of the full Court, at paragraph 31 the adjectives ‘real’ and ‘normal’ were used to characterise family life if it was to come within Article 8. In Abdulaziz, Cabales and Balkandali v United Kingdom [1985] 7 EHRR 471 paragraph 63, again a decision of the Court, the phrase ‘committed relationship’ was used. In Beldjoudi v France [1992] 14 EHRR 801, a decision of the Commission which went on to be upheld by the Court, at paragraph 55 the phrase ‘real and effective family ties’ was used.
17. Mr Gill says that none of this amounts to an absolute requirement of dependency. That is clearly right in the economic sense. But if dependency is read down as meaning ‘support’, in the personal sense, and if one adds, echoing the Strasbourg jurisprudence, ‘real’ or ‘committed’ or ‘effective’ to the word ‘support’, then it represents in my view the irreducible minimum of what family life implies. It may be that, for a time in Germany, that minimum was reached, as between the appellant and his family there; but that time has gone.
18….
19. …, neither blood ties nor the concern and affection that ordinarily go with them are, by themselves or together, in my judgment enough to constitute family life. Most of us have close relations of whom we are extremely fond and whom we visit, or who visit us, from time to time; but none of us would say on those grounds alone that we share a family life with them in any sense capable of coming within the meaning and purpose of Article 8.”

14. Returning to the Decision and the way in which the Judge here expressed her findings on this aspect, she deals with it at [6.13] to [6.16] of the Decision as follows:

“6.13 The considerations outside the Rules are based on the same findings of fact which I accordingly do not repeat, but here I have regard not only to the best interests of the Third Appellant but also, according to Beoku Betts, the circumstances pertaining in the wider family unit. I take into consideration the closeness between the Third Appellant and her young cousins [S], [R] and [R], who have grown up close together in age and with the close family ties described in their parents’ evidence. While I am mindful that at such a very young age (not yet three years old) the Third Appellant’s emotional dependency is largely on her parents and that she has not yet entered formal education, I take into account that if the Appellants do return to India, it is very likely to have an adverse effect on the First Appellant’s mental health and consequently a ‘knock-on’ effect (as Ms Austen describes it) on the Third Appellant’s upbringing generally, particularly in light of her reported happiness in the company of her extended family with whom she is now so familiar and the emotional impact that removal to India would have.
6.14 There are numerous members of the First Appellant’s extended family who have supported the Appellants financially, emotionally and, where necessary, physically. Although her report was largely if not wholly based on what the Appellants and their family told her (and indeed included more than one quite significant misunderstanding of the correct factual position as I have noted above), Ms Austen was struck by their closeness, which she considers unusual; and I find as a fact that those who gave evidence before me were clearly genuine and earnest in their love and support for the Appellants.
6.15 I have found that some of the evidence (in relation to the degree of helplessness to be experienced by Mr and Mrs Sidhu in particular) was greatly exaggerated. It would be absurd to suggest that they would need to replicate 24/7 live in care for instance, when Mr Sidhu is still working a 40-hour week running his own company and both their adult children still live with them. There is literally nothing before me to suggest that Mr and Mrs Sidhu would be unable to take such medication as they may require without the presence of the First Appellant in their lives. That however does not alter the fact of the family ties which do appear to go beyond those which would normally exist between an uncle/aunt, their children and their niece/her family.
6.16 Notwithstanding the fact that much of that closeness has arisen while the Appellants have been here without leave and indeed after their previous applications have been repeatedly rejected so that they can have had no reasonable expectation that they would be allowed to remain, the fact is that the pandemic will inevitably have meant they have spent more time in the company of those with whom they live – Mr and Mrs Sidhu and their children – and that will have, as they attest, created a bond of more than usual closeness.”

15. As the passages I have emphasised above show, the Judge addressed her mind to the correct test when considering the relationship between the Appellants and their extended family. Although the Judge did not expressly find that family life exists, her findings implicitly accept that to be the case. In any event, whether as a matter of family or private life, the considerations there set out were clearly relevant to the strength of the Appellants’ lives in the UK with which removal would interfere, when conducting a balance sheet assessment.

16. The other paragraphs of the Respondent’s first ground appear at first sight to be no more than disagreements with the Judge’s findings. As developed by Ms Ahmed, however, they took on a suggestion that the Judge’s findings in the passage which I have set out above were inconsistent with the findings made earlier in the Decision. Although that submission strayed slightly beyond the ground as pleaded, I allowed her to develop that submission without objection from Ms Capel.

17. As a general point, as Ms Capel submitted, the Judge at [6.13] to [6.16] of the Decision was dealing with the interference with the Appellants’ lives in the UK as opposed to the obstacles they would face on return to India. Although, as the Judge said, the findings in relation to the latter are relevant to the former, they are not coterminous. They look at the interference from a slightly different perspective.

18. I have carefully read the section of the Decision from [6.1] onwards to which both representatives took me when considering this part of the Respondent’s case. I do not need to set out any part of that section. Leaving aside the general point made above, although the Judge did criticise parts of the evidence as “exaggerated” or unsupported by relevant evidence, those criticisms are also reiterated in the passage cited above.

19. In any event, the criticisms go to the weight which the Judge was willing to place on certain aspects of the claim, for example in relation to the impact on Mr and Mrs Sidhu and in relation to the First Appellant’s mental health. However, taking as an example that latter issue, although the Judge was unable to place much weight on Ms Austen’s evidence in this regard as she is a social worker and not a psychiatrist ([6.5]) and although she likewise noted the “lack of helpful clinical evidence about the First Appellant’s prior and present mental health” ([6.6]), the Judge did accept as “unsurprising” that the First Appellant would have mental health issues arising from the stress of IVF treatment and her immigration position ([6.7]). As such, the Judge was entitled to accept the evidence that a return to India would similarly be “very likely to have an adverse effect” on the First Appellant. Ms Austen as a social worker was well placed to give evidence about the impact of a mother’s emotional well-being on a child.

20. As Ms Capel submitted, the Judge has carried out a balanced assessment of the evidence. Many of her findings were, as Ms Ahmed submitted, unfavourable to the Appellants. Nonetheless, none are inconsistent with the reasons why the Judge found in the Appellants’ favour in relation to their claim outside the Rules.

21. Ms Ahmed also raised in submissions a failure by the Judge to have regard to section 117B Nationality, Immigration and Asylum Act 2002 (“Section 117B”). This is nowhere pleaded. In any event, the Judge referred herself to Section 117B at [2.5]. She made findings relevant to the factors in Section 117B at [6.2.6] (in relation to English language ability and ability to work and therefore be self-sufficient in the UK) and at [6.18] when balancing the interference with the Appellants’ private and family lives against the public interest. Although Ms Ahmed suggested that the Judge had failed to apply the correct test outside the Rules, at [6.18], the Judge recognised the importance of her finding that the Appellants could not meet the Rules and also correctly stated that the issue was whether removal would “result in unjustifiably harsh consequences.”

22. For the foregoing reasons, I am satisfied that the Respondent’s first ground whether as pleaded or more ably argued by Ms Ahmed does not disclose any error of law.

CONCLUSION

23. The Respondent has failed to establish that the Decision contains an error of law. Accordingly, I uphold the Decision with the consequence that the Appellants’ appeals are allowed.

DECISION
The Decision of First-tier Tribunal Judge H Norris promulgated on 3 November 2021 does not involve the making of an error on a point of law. I therefore uphold the Decision with the consequence that the Appellants’ appeals remain allowed.

Signed: L K Smith
Upper Tribunal Judge Smith
Dated: 20 April 2022