Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/09956/2015

THE IMMIGRATION ACTS

Heard at : Field House
Decision & Reasons Promulgated
On : 7 February 2017
On : 8 February 2017

Before

UPPER TRIBUNAL JUDGE KEBEDE

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

EZILDA KAWAKUBO

Respondent

Representation:

For the Appellant: Mr I Jarvis, Senior Home Office Presenting Officer
For the Respondent: Mr P Haywood, Counsel

DECISION AND REASONS

1. This is an appeal by the Secretary of State for the Home Department against the decision of the First-tier Tribunal allowing Ms Kawakubo's appeal against the decision to deport her from the United Kingdom and to refuse her human rights claim.

2. For the purposes of this decision, I shall refer to the Secretary of State as the respondent and Ms Kawakubo as the appellant, reflecting their positions as they were in the appeal before the First-tier Tribunal.

3. The appellant is a citizen Brazil born on 6 August 1958. She arrived in the United Kingdom on 8 August 1986 and was given leave to enter. She was subsequently granted further periods of leave to remain and on 28 September 1988 she was granted indefinite leave to remain on the basis of her marriage to a British citizen. She had a daughter, Lana, born on 7 June 1991, a British citizen. Her marriage was dissolved on 10 November 2003.

4. On 3 March 2011 the appellant was convicted of eight counts of benefit fraud and was sentenced on 27 April 2011 to 21 months' imprisonment. On 18 May 2011 she was served with a liability to automatic deportation and responded by completing a questionnaire and making several representations. On 20 July 2015 a Deportation Order was signed against the appellant and on 20 October 2015 the respondent made a decision to deport her and to refuse her human rights claim. The appellant appealed against that decision. Her appeal was allowed by the First-tier Tribunal on 18 August 2016. The Secretary of State has been granted permission to appeal that decision.

5. The appellant's human rights claim was presented on the basis of her relationship with her daughter Lana, her strong ties to the UK and her numerous and significant medical problems and inability to access the necessary treatment in Brazil. The respondent, in refusing the appellant's claim, accepted that she had the medical problems listed in the decision letter and that she was taking the medication listed, but considered that there were adequate medical facilities available in Brazil and that her deportation would not breach Article 3 of the ECHR. With regard to Article 8, the respondent considered that the appellant could not meet the criteria in paragraph 399(a) or (b) and that, whilst she could meet the criteria in paragraph 399A(a) and (b) on the basis of her private life established in the UK, she could not meet the requirements in paragraph 399A(c) as it was not accepted that there would be very significant obstacles to her integration into Brazil. The respondent did not accept that there were very compelling circumstances outweighing the public interest in deportation.

6. The appeal came before First-tier Tribunal Judge Lingam on 27 July 2016. The appeal was not pursued on Article 3 grounds, but on the basis that there were very significant obstacles to integration in Brazil. Judge Lingam heard from the appellant and her daughter Lana. She considered three expert reports, one relating to the appellant's mental health problems, one relating to her medical problems and one relating to the availability of medical treatment in Brazil. She accepted that, whilst basic government funded medical treatment may be available to the appellant in Brazil, the more complex treatment she required for her many medical conditions would not be available without private health insurance. The judge accepted that the appellant would have difficulty finding employment in Brazil because of her medical conditions and therefore would not have access to private medical insurance through employment. She accepted the evidence of the appellant's daughter Lana that she would not be able to finance her mother's medical bills and other related costs and she accepted that the appellant's other relatives in Brazil would not be able to provide financial assistance. She found that the medical evidence showed that the appellant's deportation would seriously impact on her medical conditions which would in turn impact on her mental well-being and there was a likelihood of increase in suicidal ideation. The judge concluded that the appellant would face very significant obstacles to integration in Brazil and allowed the appeal on private life grounds.

7. The respondent sought permission to appeal Judge Lingam's decision on the ground that she had failed to give adequate reasons for accepting the appellant's daughter's evidence that she would be unable to support her mother.

8. Permission was granted on 14 December 2016.

9. Both parties made submissions before me and I advised them that I found no error of law in the judge's decision.

10. The only challenge to the judge's decision, in the respondent's grounds, was to her acceptance of the appellant's daughter's evidence that she would be unable to support her mother if she returned to Brazil. The grounds assert that there was a lack of reasoning by the judge. However, as Mr Haywood submitted, there was no challenge to the evidence given by the appellant's daughter, either at the hearing or in the grounds seeking permission, and neither was there any conflict between her evidence and the other evidence. It is clear from the judge's decision what her evidence was, as that was set out in detail by the judge at [13]. At [80] the judge found that she was an impressive witness who gave her evidence in a direct and candid matter. It is thus clear why the judge accepted that the appellant's daughter was not able to finance her mother's medical bills and support her in Brazil and there was no requirement for the judge to give detailed reasons.

11. In any event, as Mr Jarvis candidly accepted, the appellant's daughter's evidence was only one of the reasons given by the judge for reaching the conclusions that she did in regard to paragraph 399A. The judge also considered the appellant's complex medical needs and need for medical intervention and the lack of assistance that could be provided by the health care system in Brazil and from other sources. There has been no challenge to the medical evidence or to the judge's findings on the expert evidence or in any other respect. The judge considered the relevant test for "integration" and considered all of the appellant's circumstances including her ties to Brazil and to the UK, her employment and health record and took full account of the relevant public interest considerations. She undertook a detailed assessment of all relevant matters and reached a conclusion that was fully and properly open to her on the evidence before her. Accordingly, any error in relation to the adequacy of her reasoning with respect to the appellant's daughter's evidence was plainly immaterial.

12. For all of these reasons I find that the respondent has not made out her grounds of appeal and that the judge did not err in law as asserted.

DECISION

13. The making of the decision of the First-tier Tribunal did not involve an error on a point of law. I do not set aside the decision. The Secretary of State's appeal is dismissed and the decision of the First-tier Tribunal to allow the appellant's appeal stands.

Signed
Upper Tribunal Judge Kebede