Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/17765/2018

THE IMMIGRATION ACTS

Heard at Bradford
Decision & Reasons Promulgated
On the 24 July 2019
On 08 August 2019

Before

UPPER TRIBUNAL JUDGE REEDS

Between

mrs salma abdulrab omar saleh
Appellant

And

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Ms Pickering, instructed on behalf of the Appellant
For the Respondent: Ms Petterson, Senior Presenting Officer

DECISION AND REASONS

1. The appellant appeals with permission against the decision of First-tier Tribunal (Judge T. Jones) (hereinafter referred to as the "FtTJ") who in a decision, promulgated on the 28th March 2019 dismissed her appeal against the decision to refuse her human rights claim. Permission to appeal was granted on the 30th April 2019.

2. The background to the appeal is set out in the decision of the FtTJ and the decision letter issued by the Secretary of State. The appellant is a citizen of Yemen however she moved to live in Saudi Arabia along with her son, his wife and family in or about 2007. She has lived with them for an extensive period in Saudi Arabia. In July 2016, the appellant's son applied for and was granted a Tier 1 (entrepreneur) Visa and he entered the United Kingdom in 2016. His wife and children were later granted visas to enter as his dependents and entered in September 2016. They returned to Saudi Arabia after a short period on the basis that the appellant had become unwell. Therefore it was decided that an application should be made for the appellant to come to the United Kingdom for a medical assessment (BUPA) and any treatment and she therefore arrived in the United Kingdom accompanied by the sponsor's wife and children on 4 July 2017 on the basis of a medical visit visa.

3. On 10 August 2017 she made a human rights claim for leave to remain in the United Kingdom.

4. The application was refused in a decision letter issued on 13 August 2018. The respondent set out the appellant's immigration history and considered her claim in the context of her factual circumstances. She could not meet the eligibility relationship requirements as her sponsor and son was not a British citizen and was not settled in the UK; she could also not meet the eligibility immigration status requirement as she was currently in the UK with leave as a visitor. As to her private life, this was considered under paragraph 276 ADE, and that in the light of a short period of residence she could not meet paragraph 276 ADE (1) (iii) nor (vi) on the basis that there were no very significant obstacles to her integration to the country to which she would have to go if required to leave the UK. The respondent considered whether there were circumstances which lead to unjustifiably harsh consequences for the appellant in order to demonstrate that a grant of leave was appropriate. However, the respondent concluded that there were no such circumstances taking into account her immigration history having entered as a visitor in the knowledge that her status in the UK was on a temporary basis and that there was no legitimate expectation that she could remain indefinitely and that family life might not be able to continue in the UK. It was noted that she had entered the UK due to a medical condition for which she had obtained the necessary treatment for, such condition was not immediately life-threatening and there was no evidence to suggest that she was incapacitated. Reference was made to return to Yemen and also answered the point made in the appellant's application that the situation in Saudi Arabia for foreigners had become difficult and that thousands of families had to leave Saudi Arabia due to the deteriorating situation of foreigners living there (see letter dated 10th of August 2017 page 43 of the respondent's bundle). In this context the respondent considered that point in the light of the COI request where it was reported that 603,000 Yemeni nationals resided in Saudi Arabia and that six-month visas with extension options by rulers' decree were available to Yemeni nationals. It was therefore considered that there were a number of options available should she decide to return and take up residency again in Saudi Arabia and that there was no convincing evidence to suggest that she would be refused such residency. The application was therefore refused.

5. The appellant sought to appeal that decision and the appeal came before the FtTJ on 11 March 2019. In a decision promulgated on 28 March 2019, and after hearing the evidence of the appellant and her sponsor, he dismissed the appeal.

6. The appellant sought permission to appeal that decision on the basis that in finding that the appellant could be returned to Saudi Arabia, the judge failed to properly assess the evidence presented and that it was arguable that he applied to highest standard of proof at paragraph 51. Permission to appeal was granted on 30 April 2019.

7. Thus, the appeal came before the Upper Tribunal. I heard submissions from each of the advocates which I shall incorporate and refer to in my analysis and conclusions is set out below.

Decision on the error of law:

8. Miss Pickering submitted that the grounds advanced on behalf of the appellant are on a narrow point and relate solely to the issue of the ability of the appellant to re-enter Saudi Arabia. It had been conceded before the FtTJ that in light of the appellant's age and the circumstances that the respondent did not contend that she should be required to return to the Yemen.

9. She submitted that the judge had erred in law in the assessment of the issue relating to readmission to Saudi Arabia. Ms Pickering referred the Tribunal to paragraph 6 of the grounds that it was the appellant's case that she could not be admitted to Saudi Arabia without a residence permit. The judge had dealt with this issue at paragraph 48 of the decision where he stated as follows:

"48. I do not accept against the appropriate standard the mere assertions that have been made before me, in light of the concerns I have about credibility in this case, as to the appellant not being able to secure entry to Saudi Arabia in line with the submissions made by the respondent in the refusal letter, which I find have not been adequately answered - bearing in mind the burden of proof is with the appellant. There were no country experts report and no background material cited to counter that which the respondent had said in this regard."

10. She therefore submitted that the judge had misdirected himself in law and that the burden was on the respondent because it was the Secretary of State's case that the appellant could be admitted to Saudi Arabia and it was for the respondent to demonstrate this.

11. She referred the Tribunal to paragraph 9 of the grounds and that the appellant's case was that she would have to have been residing in Saudi Arabia in order to benefit from any extension and that an extension could not be sought from abroad and as the residence permit had expired then her case was that she could not be readmitted. Therefore, it was not something that required any expert evidence and the burden was on the respondent to establish that she could not be readmitted.

12. Ms Pickering submitted that her claim was based on paragraph 276ADE (1) (vi) and that there were very significant obstacles to her reintegration and that the significant obstacle identified was her inability to be re-admitted to Saudi Arabia. It was the appellant's evidence that that was not possible, and it was the evidence of the sponsor that it was not possible.

13. In terms of the evidence before the judge, the respondents decision letter at page 86 of the bundle made reference to the COI request dated 29 June 2018 where the US Department of State reported that in April 2018 that 603,000 Yemeni nationals resided in Saudi Arabia and that six-month visas, with extension options by Royal decree, are available to Yemeni nationals. She submitted that the difficulty with that evidence was that the appellant did not have a visa any longer as stated in the sponsor's account set out at paragraph 23 of the decision where it was stated the sponsor understood that his mother would not be able to maintain her ability to return to Saudi Arabia and because the passport been with the Home Office the opportunity to re-enter Saudi Arabia had passed.

14. It is further submitted that the judge imported a higher standard when he suggested a paragraph 51 that there was a need for "convincing evidence" to suggest that she would be refused residency.

15. Miss Petterson on behalf of the respondent submitted that there was no error of law in the decision of the FtTJ and that contrary to the grounds and the oral submissions, it was for the appellant to demonstrate whether there were very significant obstacles to her integration or to show that she would not be readmitted to Saudi Arabia.

16. Ms Petterson also refer to paragraph 48 of the decision. She submitted that the FTT J did not accept the assertions made by the appellant sponsor in his evidence in the light of the credibility concerns that the judge had found concerning the evidence given by the appellant and also by the appellant's sponsor. In particular, the judge had highlighted at [44] that he had found there had been an endeavour to mislead the Tribunal. The appellant said that she was alone in Saudi Arabia and that she only had one son who was in the UK and that both their witness statements omitted references to other family members however, it emerged in evidence that in fact there was another brother and sister living in Saudi Arabia. Ms Petterson made reference to the judge's adverse findings at paragraph 43, 44, 45, 46, 47.

17. When set against his background, she submitted that the judge was not inclined to accept what he referred to as "bare assertions" made when there was no background evidence or any expert evidence that had been produced. Therefore there was nothing to say that she could not be readmitted. Whilst the evidence of the respondent set out the decision letter had been the subject of criticism by Counsel, there was nothing in the evidence to say that she could not be admitted.

18. By way of reply Miss Pickering submitted that the passport was with the Home Office and that the respondent should have provided the passport to the appellant.

19. I am grateful for the helpful submissions from each of the advocates which I have set out above. I confirm that I have carefully considered those submissions in the context of the decision of the FtTJ and the evidence that was put before him.

20. In this context, I should deal with the evidence that has been filed before the Upper Tribunal which was not before the FtTJ which consists of a letter from the sponsor's brother to confirm that she cannot be readmitted and a letter from the sponsors brothers employer referring to having terminated his services from 1 March 2019. None of that evidence was before the FtTJ. Ms Pickering on behalf of the appellant did not seek to rely on that evidence to demonstrate any error of law; she submitted that it would not meet the criteria for such evidence to be admitted at this stage bearing in mind that the contents of those statements would have been available at the time of the hearing. Thus she did not invite the Tribunal to consider that evidence unless it had been established that there was an error of law. That seems to be a correct approach for a number of reasons. Whilst the application was made in Rule 15(2A) notice, it stated that it was not available at the hearing "due to difficulties and it was only after strenuous efforts were made by the sponsor that the evidence was obtained after it became clear that evidence was crucial in addressing the issue raised in the negative determination from the appellant's perspective. " That statement does not demonstrate that the material could not have been provided at the FtT hearing but simply confirms that it was only after the hearing and the "negative determination "was made that it was thought necessary to provide further information. Furthermore as Ms Petterson stated, the evidence did not resolve the factual issue. The statement from the appellant's brother simply records that as the appellant did not return within the specified period of her exit and re-entry permit, she is no longer permitted to return, and it breaches new Saudi law. There was no evidence as to the period of her entry permit in the bundles (only a partial copy of her passport at page 8) and there was also no country evidence as to what any new Saudi law was. Therefore the evidence does not confirm any assertions and did not resolve the issues by itself. The other document which purported to be evidence relating to the appellant's other son who is resident in Saudi Arabia to the effect that his employment was terminated from 1st March 2019 to leave Saudi Arabia is not consistent with the evidence given that they were possibly leaving because the increased tax burden was such that they had been thinking of leaving for some time (see paragraph 46-47). This evidence was wholly different. It is therefore not the case that the new material resolved the factual issue or presented similar factual questions. Neither could it be said to provide evidence of a clear misapprehension of established and relevant fact (see decision of E and R v SSHD [2004] EWCA Civ 49 and Ladd v Marshall [1954] 1 WLR 1489). In any event, it was accepted that the evidence was only relevant if an error of law was found.

21. I therefore turn to the grounds. As set out in the submissions above, the grounds are advanced on a narrow point which relates to the appellant's readmission to Saudi Arabia. The submission is made that the FTT J misdirected himself in law at paragraph 48 requiring the appellant to demonstrate that she could be readmitted to Saudi Arabia. I do not accept that submission. It is important to set out the context of the appellant's claim. She had previously been residing in Saudi Arabia where she had lived with her son (her sponsor). The sponsor had entered the United Kingdom as a Tier 1 entrepreneur in 2016 and his wife and children joined him in United Kingdom not long after. As a result of her medical needs, the appellant's wife and children return to Saudi Arabia to stay with the appellant. It was said that she

22. required a medical assessment and a visa was sought for such an assessment to be undertaken in the United Kingdom which was granted in July 2017. She therefore entered the United Kingdom on 4 July 2017. On 10 August 2017 she made a human rights claim for leave to remain in the United Kingdom on the basis of a human rights, relationship with her son and her medical condition.

23. The judge set out in his decision the way in which the case was advanced before the FTT and that she could meet the requirements of paragraph 276 ADE (1) (vi) that there were very significant obstacles to her reintegration or that there would be unjustifiably harsh consequences to justify a grant of leave outside the rules (see paragraphs 36 and 42). In the alternative, it was suggested that the appellant should be granted a period of leave to reflect the same leave that are been granted to her son who was resident in the UK and a temporary basis whose leave would end on 21 November 2019.

24. Whilst this was a human rights appeal, the ability to satisfy the rules would be a heavy factor if not determinative of the proportionality balance therefore the judge considered whether the appellant had demonstrated that she could meet paragraph 276 ADE (1) (vi) ( see TZ (Pakistan) v SSHD [2018] EWCA Civ 1109). It was common ground that she could not satisfy any other requirement of the Immigration Rules.

25. The FtTJ reached the conclusion on the evidence before him that she could not meet paragraph 276 ADE (1) (vi) to demonstrate that they were very significant obstacles to her reintegration. The burden is on the appellant to establish whether there were such very significant obstacles to her reintegration and the judge properly identified this in his decision paragraphs 40 and 48. To this end, there is no misdirection made by the judge in his decision as submitted on behalf of the appellant.

26. Miss Pickering has referred the Tribunal to the decision at paragraph 48 on the basis that in the light of the evidence of the sponsor that she could not be readmitted, it was not necessary for any further expert evidence or any other background material. I cannot accept that submission. As Ms Petterson submitted, paragraph 48 should be read in the context of the decision as a whole and importantly the adverse findings of credibility made. It is plain that the judge formed an adverse view concerning the credibility of both the appellant and the sponsor and said so at paragraph 44. This was based on the witness statements from both the appellant and her sponsor which omitted all reference to the position of other family members in Saudi Arabia and also that the medical evidence provided made reference to her position on the basis that she would be returning to Saudi Arabia alone and that this had been maintained (see paragraph 44). The position was in fact different. The judge found that contrary to the evidence, there were other family members resident lawfully in Saudi Arabia as set out at paragraph 45. At paragraph 46, the judge rejected the evidence from the sponsor that the appellant son and daughter who were presently lawfully residing in Saudi Arabia had been finding it difficult with the increased tax burden and had been thinking about leaving for some time. The judge considered that that assertion had been wholly omitted from the application and statements prepared for the hearing and he put little weight on such a submission being made that they intended to leave Saudi Arabia. At paragraph 47, the FtTJ stated that even if that was the position, the sponsor at the hearing it made it plain that in the past he had thought of sending his wife and children back to Saudi Arabia, where they had a right of entry, to look after the appellant and that the care and continuity of the care and access to medical treatment would be at his expense and would be maintained in Saudi Arabia.

27. It is against that background that the FtTJ reach the conclusion that he could not accept the "mere assertions" made on behalf of the appellant that she could not be readmitted to Saudi Arabia in the absence of any background evidence or country material.

28. The judge expressly stated at paragraph 48 that he could not accept the evidence of the sponsor in the light of the concerns that he had about the credibility in the case and in the light of the material in the refusal letter.

29. It was submitted that the appellant could not extend her Visa from abroad and that her Visa at expired therefore she could not be readmitted. There was some discussion between the advocates about whose responsibility it was to obtain any passport. There was no evidence before the FtTJ that the appellant had either requested her original passport or asked for any certified copy to be provided. In the bundle prepared for the hearing there was only one page of the appellant's passport (see page 8) which did not provide a copy of her Visa. There therefore be no evidence about when the Visa expired if in fact it had.

30. The submissions made some criticism of the reference to the material in the decision letter (page 86). However when reading the decision letter, that paragraph was cited in answer to the application made on behalf of the appellant. A covering letter had been sent to the respondent on 10 August 2017 from the appellant's solicitors in which it was asserted that "the situation in Saudi Arabia for foreigners has become difficult and thousands of families have had to leave Saudi Arabia due to deteriorating situation of foreigners living there." It was in the context of that claim that the respondent considered the information in a COI request dated 29 June 2018 where it had been reported that 603,000 Yemeni nationals resided in Saudi Arabia and that six-month visas, with extension options by rule decree would be available to Yemeni nationals. No claim had been made to the respondent based on the position that she would not be readmitted to Saudi Arabia on any other basis other than that advanced in the letter of 10 August 2017 on the basis that the situation for foreigners in Saudi Arabia had deteriorated.

31. In my judgement, it was entirely to the judge to reach the conclusion that there was no evidence to support the assertions made in the oral evidence and in the light of the findings of adverse credibility, it was open to the judge not to place reliance on any such assertions to this effect. Against that background and in light of the material in the decision letter, it was open to the judge to find that it had not been established that the appellant met the immigration rules (see paragraph 49).

32. The judge proper had regard to the evidence of the sponsor that the reason why the appellant did not settle with his brother in Saudi Arabia was because the appellant prefers the continuity of care with the sponsor and his family. However, overall it was open to the judge to find that there were no unjustifiably harsh consequences for the appellant, notwithstanding her age and her medical condition, when there was a viable option of return to Saudi Arabia, either in the household of her son living there or with her son who was in the United Kingdom on a temporary basis.

33. There is no merit in the submission made that at paragraph 51 the judge imported a higher standard of the balance of probabilities by stating that there was a need for "convincing evidence". As Ms Petterson submitted, where those words were set out at paragraph 51, the judge was simply reciting what had been said in the decision letter. In the decision that he reached; the judge made it plain that having considered the proportionality balance he did not find that it fell in favour of the appellant.

34. The decision reached by the FtTJ demonstrates the judge properly had regard to the appellant's age and her medical circumstances and as he stated, he fully appreciated the references that had been made to the emotional care as well as the physical care that had been undertaken by her son both in the past and in the present. However, even giving weight to those matters, he reached the overall balance but there were no circumstances which could be described as unjustifiably harsh for a grant of leave to be made.

35. For those reasons, I am satisfied that there is no error of law identified in the decision of the FtTJ.

Notice of Decision

36. The decision of the First-tier Tribunal did not involve the making of an error on a point of law and the decision shall stand

Signed Upper Tribunal Judge Reeds

Date 25/7/2019

Upper Tribunal Judge Reeds