Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/08239/2017

THE IMMIGRATION ACTS

Heard at Newport
Decision & Reasons Promulgated
On 23 November 2018
On 03 April 2019

Before

DEPUTY UPPER TRIBUNAL JUDGE I A LEWIS

Between

KARNAIL KAUR
(anonymity direction NOT made)
Appellant
and

ENTRY CLEARANCE OFFICE,
SHEFFIELD
Respondent

Representation:
For the Appellant: Ms M Bayoumi of Counsel instructed by Qualified Legal Solicitors
For the Respondent: Mr C Howells, Home Office Presenting Officer

DECISION AND REASONS
1. This is an appeal against the decision of First-tier Tribunal Judge Mathews promulgated on 10 May 2018 allowing the appeal against a decision of the Respondent dated 4 July 2017 refusing entry clearance as an adult dependant relative.
2. Although before me the Entry Clearance Officer is the appellant and Ms Kaur is the respondent, for the sake of consistency with the proceedings before the First-tier Tribunal I shall hereafter refer to Ms Kaur as the Appellant and the ECO as the Respondent.
3. The Appellant is a citizen of India born on 8 July 1934. In March 2017 she applied for entry clearance to the UK as the adult dependent relative of her son Mr Balbir Singh Brar, a British citizen.
4. The application was refused for reasons set out in a Notice of Immigration Decision ('NoID') dated 4 July 2017, with particular reference to paragraph E-ECDR.2.5 of Appendix FM of the Immigration Rules. It was accepted that the Appellant met the suitability requirements for entry clearance, and also the financial requirements. The basis of the refusal under the Immigration Rules was expressed in these terms in the NoID:
"Although you have provided medical letters regarding your medical condition. I am not satisfied that you are unable to obtain the required level of care in India. As you are currently attending hospital and receiving the relevant care required." (unnecessary punctuation as per the original).
5. The NoID also purported to record that the decision-maker had given consideration to Article 8 of the ECHR outside the requirements of the Rules, but set out no reasons in respect of the adverse conclusion in this regard.
6. The Appellant appealed to the IAC on human rights grounds.
7. The First-tier Tribunal allowed the appeal for reasons set out in the decision of Judge Mathews promulgated on 10 May 2018.
8. The Respondent applied for permission to appeal to the Upper Tribunal, which was granted on 3 August 2018 by First-tier Tribunal Judge O'Garro.
9. The Appellant has filed a Rule 24 response under cover of letter dated 7 September 2018 resisting the challenge to the decision of the First-tier Tribunal.
10. In the premises it is to be noted that paragraphs E-ECDR.2.4 and E-ECDR.2.5 of Appendix FM are, so far as is relevant to the instant case, in the following terms:
"E-ECDR.2.4. The applicant? must as a result of age, illness or disability require long-term personal care to perform everyday tasks.
E-ECDR.2.5. The applicant? 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."
11. Further to this, Appendix FM-SE sets out 'specified evidence' requirements - see paragraphs 33-37. Paragraph 34 and 35 in these terms:
"34. Evidence that, as a result of age, illness or disability, the applicant requires long-term personal care should take the form of:
(a) Independent medical evidence that the applicant's physical or mental condition means that they cannot perform everyday tasks; and
(b) this must be from a doctor or other health professional.
35. Independent evidence that the applicant is unable, even with the practical and financial help of the sponsor in the UK, to obtain the required level of care in the country where they are living should be from:
(a) a central or local health authority;
(b) a local authority; or
(c) a doctor or other health professional."
12. It is to be acknowledged that the available grounds of appeal were human rights grounds, and not grounds based directly on breach of the Immigration Rules. Nonetheless the Rules are a relevant part of the overall consideration of the Article 8 issues in the appeal: this was recognised and acknowledged by the First-tier Tribunal Judge (see paragraph 22). Indeed it is be noted that the Judge concluded first that the Respondent satisfied the requirements of the Rules before going on to consider human rights grounds: see paragraph 21.
13. In my judgement it is manifestly the case that the Judge's conclusion in respect of the Immigration Rules was also considered by the Judge to be essentially determinative of the issues under Article 8. The Judge restated that the Appellant met the Rules at paragraphs 23 and 26. Uncontroversially, the Judge stated that this indicated that the Appellant could be maintained and accommodated by her son in the UK (paragraphs 26 and 29). In the context of the public interest consideration in maintaining effective immigration control the Judge - again it seems to me uncontroversially - observed that effective control requires the proper and fair application of the Immigration Rules which are generally Article 8 compliant (paragraph 28). The Judge considered that it followed that effective control did not require the refusal of an application if someone met the Rules - "indeed effective control suggests the contrary" (paragraph 28).
14. The Judge then stated:
"In assessing the balance of interests in this case I note that there is no public interest in the refusal of the application for the reasons set out above, and that the appellant has an accepted family life in the UK with her son upon whom she is financially dependent. She meets the rules that set a proportionate threshold for the admission of such a dependant relative." (paragraph 30)
15. It seems to me that the Judge's reasoning in this regard encounters the following difficulties:
(i) In respect of the Immigration Rules the Judge had no regard to the requirements of Appendix FM-SE. She does not direct herself to the requirements of such Rules, and does not identify in the body of the decision any evidence of the sort required pursuant to paragraph 34 and 35 of Appendix FM-SE (quoted above).
(ii) The Judge has not explained on what premise it is suggested that the Appellant "has an accepted family life in the UK with her son". The evidence recorded by the Judge at paragraph 10 of the decision is to the effect that whilst the Appellant entered the UK in May 2004 with her husband and lived with her son, she and her husband returned to India in November 2005, and she had then remained in India with her husband until he died in 2016. Thereafter she had continued to live in India as a widow. On its face, there was no evidential foundation for concluding that the Appellant enjoyed a family life with her son within the contemplation of Article 8 at all, and far less so in the UK.
16. The Respondent's grounds of challenge are pleaded on the basis that the Judge appears to accept that necessary care is available to the Appellant but she declines to avail herself of it in so far as some of her needs are in respect of "intimate care" (paragraph 15), and the Appellant "is a traditional lady and will not accept intimate care from outside of the family? her culture and beliefs stand in the way of such care".
17. I note the following:
(i) The Judge does not expressly articulate what is the nature of any required "intimate care", or relate it to any specific underlying diagnosis.
(ii) It is not identified what is specific about the Appellant's culture and beliefs that would prevent her from accepting care from a suitably qualified and experienced caregiver. Whilst it is to be accepted that some societies, and/or some individuals in societies, may have a more conservative approach to issues of intimacy, it rarely follows that there is any form of genuinely principled objection on such grounds to receiving medical attention and/or care from a non-family member when a genuine need arises.
18. I accept the submission of the Respondent to the effect that the Judge has done no more than identify a preference on the part of the Appellant. Moreover, in my judgement that preference cannot be dressed up as a matter of conscience or belief, or otherwise asserted as an element of self-identity protected by Article 8, such that it would be disproportionate to expect the Appellant to permit others to help in the event of genuine need.
19. Further in this context I note the observations of the Court in Britcits v SSHD [2017] EWCA Civ 368 at paragraph 59. The focus of the Rules is on whether care required by an adult dependent relative can be reasonably provided and to the required level in their home country. In so far as there may be some emotional or psychological element that would mean that care could not reasonably be provided, this would require to be verified by expert medical opinion. No such expert medical opinion has been provided herein.
20. I also note the passages from the decision in Ribeli v ECO, Pretoria [2018] EWCA Civ 611 at paragraphs 69-71, referenced by Judge O'Garro in the grant of permission to appeal, together with paragraph 67 which commences "However, it is important to recall that the test under Article 8 is an objective one, whatever the subjective feelings of a person may be". Although the facts and context in Ribelli are different from the instant case, there is an exploration of matters of choice, and the role of such choice when considering proportionality.
21. In my judgement the First-tier Tribunal Judge failed to recognise that what was in play in this case was in significant part a choice or preference on the part of the Appellant as to the nature of the care she would wish to receive. There was no medical evidence to indicate that the Appellant had an emotional or mental health issue that inhibited her from receiving care from anybody other than a family member, and there was no evidence as to the nature of any 'culture and belief' that would provide an obstacle to the receipt of care from a person other than a family member.
22. In all such circumstances I accept the substance of the Respondent's grounds of challenge.
23. For the avoidance of any doubt, in reaching my conclusion I have noted the substance of the Rule 24 response, and the reliance therein upon an unreported case (ref OA/18244/2012) in which it was commented that the "required level of care" (E-ECDR.2.5) may need to be determined taking into account cultural factors. I do not completely foreclose such a possibility: however, just as when emotional and or mental health factors may impact upon the required level of care it is to be supported by evidence, so it must be in respect of cultural factors. Evidence was lacking herein.
24. My acceptance of the substance of the Respondent's challenge is sufficient to warrant the setting aside of the decision of the First-tier Tribunal. In such circumstances it is not necessary for me to consider in the context of the 'error of law' stage how to approach the Judge's unreasoned finding in respect of the existence of family life in the UK - a matter that was not expressly pleaded in the Respondent's grounds of appeal.
25. I turn to a consideration of how the decision in the appeal is to be remade.
26. On balance, I am just persuaded that the matter is most appropriately remade by way of a further hearing before the First-tier Tribunal with all issues at large. I have some reservations in this regard: it remains unclear as to what basis Article 8 is engaged at all. Moreover, it is clear that the application for entry clearance was made without any due regard to the requirements of Appendix FM-SE, and to that extent the matter has not been greatly remedied by way of the materials filed in support of the appeal. In terms of identifying any evidence from a doctor or other health professional as to the Appellant's long-term personal care, Ms Bayoumi acknowledged during the course of submissions that the 'high point' of the evidence was the letter at page 54 of the Appellant's bundle before the First-tier Tribunal which referred to the Appellant suffering from hypertension and ischaemic heart disease, and that she "needs care by somebody regularly". Plainly this is inadequate in terms of the requirements of the Rules. It is unclear to me on what basis the matter may be improved by remittal to the First-tier Tribunal. However, it is to be hoped in light of the discussion at the hearing, reflected in the matters set out above, the Appellant and her sponsor may now seek to avail themselves of a further opportunity of putting the case in order before the Tribunal. Whether or not they wish to do so, or upon reflection might prefer to withdraw the appeal and make a further application for entry clearance, or not to pursue entry clearance at all, is now a matter from them.
27. No particular Direction are required. Standard Directions will be issued in due course.
Notice of Decision
28. The decision of the First-tier Tribunal contained errors of law and is set aside.
29. The decision in the appeal is to be remade before the First-tier Tribunal by any Judge other than First-tier Tribunal Judge Mathews with all issues at large.
30. No anonymity direction is sought or made.

Signed: Date: 1 April 2019

Deputy Upper Tribunal Judge I A Lewis