Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/07886/2015

THE IMMIGRATION ACTS

Heard at Bradford
Decision & Reasons Promulgated
On 5 April 2017
On 27 April 2017

Before

UPPER TRIBUNAL JUDGE CLIVE LANE

Between

Ghafoor Begum
(ANONYMITY DIRECTION not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

DECISION AND REASONS
1. The appellant, Ghafoor Begum, was born on 1 January 1957 and is a female citizen of Pakistan. The appellant applied for leave to remain in the United Kingdom on the basis of her private and family life essentially in order to care for her grandson (M) who is aged 2 years. The appellant’s application was refused by the respondent by a decision dated 30 September 2015. The appellant appealed to the First-tier Tribunal which, in a decision promulgated on 23 June 2016 dismissed the appeal. The appellant now appeals, with permission, to the Upper Tribunal.
2. The background to this case is distressing. The appellant had applied for entry clearance to come to the United Kingdom to visit her then pregnant daughter-in-law, Nasreen Akhtar and her newly-born son. Ms Akhtar died as a result of breast cancer on 15 August 2014, barely a month after her son M had been born. The appellant arrived in September 2014 and remained, her visa having been extended on compassionate grounds, until 3 June 2015. The parties accept that the appellant and M have developed a very close relationship which is perhaps understandable in the tragic circumstances. The First-tier Tribunal found that the family had made no effort to find any alternative carer other than the appellant for M. The First-tier Tribunal went on [19] to observe that “in addition M as a British citizen is entitled to such support from social services as a child in need. There has been no assessment from social services to see what assistance is required in the appellant’s absence whether that be short or long term”. Both representatives before me at the Upper Tribunal agreed that that statement indicates an incorrect understanding of the role which social services would undertake in a case such as this. Social services would not carry out a hypothetical assessment for a child for whom no care needs had actually been identified.
3. The judge had accepted [27] that the appellant and M have a family life together. He identified the important issue as regards Article 8 ECHR as that of proportionality. He stated that, “it is in M’s best interest to be with [his father] wherever that may be. The suggestion that he must have a mother in his life which is the role the appellant now fills entirely fails to understand that in today’s society there are many different successful family models some of which have 1 mother, some 2 mothers (sic) and some no mother. The family model is far less relevant than the ability love and care of a responsible adult or adults”. It is not at all clear to me what the judge intended to mean by this statement. It is unclear whether he is taking judicial notice of “family models” in contemporary society, is using his own experience or basing his comment on any evidence. In any event, the comment misses the point. Having found that there was a family life between M and the appellant, the judge should then have sought to consider that relationship, the role which it plays in the lives of both individuals and the effect which separation of the relationship would have on both individuals and, if relevant, other family members. It was necessary for him to look at the particular individuals involved in this appeal. It did not assist to make broad and sweeping statements about modern social conditions in the United Kingdom; whether some children have “1 mother or 2 mothers” is not relevant in any proper assessment of the particular relationship which this child has with the appellant. At [29], he judge went on to observe that “this is not a ‘Chikwamba’ case as it is not just a matter requiring the appellant to leave to reapply to come back which he can of course do”. I have no real idea what that sentence means. It is worth remembering that the Tribunal’s decision is written to explain to the losing party (in this case, an appellant whose understanding of English and immigration jurisprudence may be limited) the Tribunal’s reasons for finding against her. If I cannot understand what is meant by that sentence, it is unlikely that the appellant would be able to understand it.
4. I find that the judge has erred in law such that the decision falls to be set aside. In particular, the First-tier Tribunal has failed to analyse in sufficient detail the nature of the relationship between the appellant and M and also the likely impact on the lives of those two individuals if the appellant is returned to Pakistan.
5. The appellant’s representative urged me not to remit this appeal or, indeed, adjourn it for a resumed hearing. He submitted that the evidence was so clear that the appeal should be allowed under Article 8 ECHR in the light of the particular and unfortunate circumstances of the case. I was assisted by Mr Diwnycz, who appeared for the respondent, who did not disagree with that submission. I find that the strength of the relationship between the appellant and M in the aftermath of the death of M’s mother when the child was barely weeks old is such that the removal of the appellant from M’s life at this time would have a distressing and, in my opinion, disproportionate impact upon him. Given M’s youth and the difficulties which he has encountered so early in life, I consider that it would not be in his best interests or reasonable for him to return to live in Pakistan with the appellant. Mr Diwnycz, for the respondent, did not suggest otherwise. In all the circumstances, I allow this appeal on human rights grounds.
Notice of Decision
6. The decision of the First-tier Tribunal promulgated on 23 June 2016 is set aside. The Upper Tribunal has remade the decision. The appellant’s appeal against the decision of the respondent dated 30 September 2015 is allowed on human rights grounds (Article 8 ECHR).

No anonymity direction is made.

Signed Date 20 April 2017

Upper Tribunal Judge Clive Lane