Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/13739/2015

THE IMMIGRATION ACTS

Heard at Manchester Piccadilly
Decision and Reasons Promulgated
On 18 January 2018
On 22nd January 2018

Before

UPPER TRIBUNAL JUDGE PLIMMER

Between

KN
ANONYMITY DIRECTION MADE
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the appellant: Mr Greer, Counsel
For the respondent: Ms Aboni, Senior Home Office Presenting Officer

DECISION AND DIRECTIONS

Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI2008/269) an Anonymity Order is made. Unless the Upper Tribunal or Court orders otherwise, no report of any proceedings or any form of publication thereof shall directly or indirectly identify the original Appellant. This prohibition applies to, amongst others, all parties.

1. I have anonymised the appellant's name because this decision refers to her medical condition and the medical evidence adduced in relation to it.

2. The appellant has appealed against a decision of the First-tier Tribunal dated 27 January 2017 dismissing her appeal on human rights grounds.

Summary of claim

3. The appellant is a citizen of Pakistan who entered the UK as a visitor in 2012. Her application for indefinite leave to remain as a dependent relative was refused by the respondent and her appeal against this was dismissed by the First-tier Tribunal in 2013. A further fresh application to remain on the basis of Article 8 was made and ultimately refused by the respondent in 2015.

4. The appellant is 65 years old and suffers from dementia having always had learning difficulties. The appellant claims that her medical condition is such that she depends heavily upon her brother in the UK ('the sponsor') and his wife, and that if returned to Pakistan she would not be able to access the care that is necessary to meet her needs.

First-tier Tribunal decision

5. The First-tier Tribunal heard from the sponsor and his wife but considered their evidence to be unreliable and inconsistent with the documentary evidence available.

6. The First-tier Tribunal made the following relevant findings:

(i) There are close family members in Pakistan, namely the appellant's sisters who should share responsibility in caring for her - see [33] and [34].

(ii) The sponsor's claim as to the level of care that is needed and provided to the appellant has been substantially exaggerated and is inconsistent with the medical evidence - see [35], [36] and [38].

(iii) The appellant has significant care and possibly nursing needs but these can be met in Pakistan by relatives, alternatively a nursing home, or alternatively by the family paying for carers - see [37] and [40].

(iv) When the appellant entered the UK as a visitor, there was an attempt to circumvent immigration control by the sponsor - see [42] and [45] and the findings at [26] to [30] rejecting the sponsor's evidence that the decision to make arrangements for the appellant to remain in the UK with him were only made after her arrival.

(v) The economic well-being of the UK would be adversely impacted as the appellant cannot speak English - see [43].

(vi) Family life between the appellants and the relatives in the UK can be exercised by regular visits to Pakistan - see [45].

(vii) When all the circumstances are considered including the relevant public interest considerations it would not be a breach of Article 8 to remove the appellant from the UK.

Grounds of appeal

7. The grounds of appeal prepared by solicitors do no more than disagree with the First-tier Tribunal factual findings and repeat the contention that the appellant's care needs and absence of family members in Pakistan is such that the appeal should have been allowed on Article 8 grounds.

8. In a decision dated 9 October 2017 Upper Tribunal Judge Finch identified the following arguable legal errors: the First-tier Tribunal failed to take into account (i) the country background evidence relating to the lack of treatment for those with dementia in Pakistan; (ii) the appellant's history of learning difficulties or that her dementia had developed to a stage that she was now angry, incontinent and did not want to eat or communicate; (iii) whether the appellant's private life in Pakistan would be so limited as amount to a breach of Article 8.

9. The respondent relied upon a rule 24 notice dated 1 November 2017 in which it was submitted that the First-tier Tribunal's findings were open to it. The respondent highlighted the substantial concerns the First-tier Tribunal had with the credibility of the evidence adduced on behalf of the appellant.

Hearing

10. At the beginning of the hearing Mr Greer acknowledged that grounds of appeal have been consolidated and recast by Judge Finch and he only relied upon the three grounds summarised by Judge Finch when granting permission. He made it clear that he did not rely upon the grounds prepared by the appellant's solicitors. I indicated that he was correct to adopt this approach as the pleaded grounds vaguely disagreed with the findings of fact and did not come close to even alleging an error of law. I address each of the three grounds relied upon below.

11. Ms Aboni relied upon the rule 24 notice and submitted that the First-tier Tribunal made findings of fact open to it, which are such that the appeal could not succeed under the Immigration Rules or Article 8 of the ECHR

12. At the end of the hearing I reserved my decision, which I now provide with reasons.

Error of law discussion

(1) Country background evidence

13. The country background evidence relevant to the treatment of those with dementia in Pakistan before the First-tier Tribunal was very limited. Mr Greer directed my attention to one aspect of this evidence only. The sponsor gave evidence that he made enquiries regarding the availability of care for the appellant in Pakistan and obtained a letter dated 5 December 2016 from a hospital in the appellant's home area of Kallar Syedan in Rawalpindi. This letter includes a single sentence: "It is certified that the facility of Psychiatry Department is not available in Tehsil Headquarter Hospital, Kallar Syedan." This does not support the submission that there was an absence of facilities to care for those with dementia and learning difficulties in Pakistan. The letter is very vague and limited to a particular geographical area in Pakistan. Although the First-tier Tribunal did not make specific reference to this letter, it would have made no material difference to its findings of fact.

14. I note that the appellant's solicitors also submitted an article with the following heading 'Dementia: Challenges of practice in Pakistan' and dated November 2014. This sets out the very limited provision for dementia sufferers in Pakistan and includes the following:

"There is no long term care unit or nursing home for patients with dementia and almost all of these people are cared for at home by their families. These caregivers provide full assistance from the advanced stages of the disease until death without benefit of dementia counsellors, social workers, case managers or support groups."

15. The First-tier Tribunal finding at [40] that the appellant's needs could be fulfilled through a nursing home is inconsistent with this evidence. This is not a material error because the First-tier Tribunal was entitled to find that in any event, the appellant could be cared for by members of the family and / or paid carers.

16. Mr Greer emphasised that there was evidence from various family members that pointed in the same direction: the relatives in Pakistan would not be able to assist the appellant. The First-tier Tribunal took this evidence into account but rejected it. Although the First-tier Tribunal's findings may have been clearer, when the decision is read as a whole, I am satisfied that the First-tier Tribunal rejected the evidence that the relatives in Pakistan would not be able to assist the appellant and in effect found that they would step in and if necessary with the assistance of paid carers, provide the care necessary. Although there are no formal care facilities or support from social services for those with dementia in Pakistan, it is important to note that the appellant has been provided with care and support by her own family, within the home and without any meaningful assistance from social services, in the UK. The First-tier Tribunal was entitled to find that this could be replicated to a sufficient degree, in Pakistan. Albeit by different family members.

(2) Impact of the appellant's learning disability and dementia

17. Mr Greer submitted that the First-tier Tribunal failed to make clear findings of fact as to the impact of the appellant's learning disability and dementia upon her day to day functioning and needs and therefore failed to assess what she will face in Pakistan if returned. Mr Greer took me to the reports prepared by Dr Waghray and invited me to find that no clear findings were made regarding this evidence.

18. The First-tier Tribunal clearly took into account Dr Waghray's evidence and found that the reports suffered from an inherent weakness at [9]: the appellant's language difficulties and learning difficulties were such that the psychiatrist gathered most of the information from the sponsor. The First-tier Tribunal regarded the sponsor's evidence to be unreliable and specifically rejected his history of the onset of the appellant's dementia at [31] and found that he and his wife substantially exaggerated the impact of the appellant's condition at [36] and [38]. The First-tier Tribunal expressly found the medical reports to lack independence, based as they were on sources considered to be unreliable. The more recent report from Dr Waghray dated 2 December 2016 suffers from similar deficiencies. The significant deterioration in the appellant described at 2.1 is based upon what he was told by the sponsor's wife.

19. I do not accept Mr Greer's submission that the First-tier Tribunal made contradictory findings at [36] and [40]. The First-tier Tribunal clearly accepted that the appellant suffers from dementia that is moderately severe and will deteriorate but rejected the evidence that her condition is of such severity that her needs can only be met by remaining in the UK with the sponsor and his wife.

(3) Private life / 276ADE

20. I accept that the First-tier Tribunal erred in law in failing to consider and apply 276ADE of the Immigration Rules and the private life aspect of Article 8 of the ECHR. This is not a material error of law. The First-tier Tribunal's findings of fact are such that submissions based upon these provisions would be bound to fail. In any event, it does not appear that submissions were made on these aspects before the First-tier Tribunal. The grounds of appeal against the respondent's decision and the grounds of appeal seeking permission against the First-tier Tribunal's decision make no mention of 276ADE or the appellant's private life.

Decision

21. The decision of the First-tier Tribunal did not involve the making of a material error of law and is not set aside.

Signed:

Ms M. Plimmer
Judge of the Upper Tribunal

Date:
18 January 2018