Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/18992/2018

THE IMMIGRATION ACTS

Heard at Birmingham
Decision and Reasons Promulgated
On 30 July 2019
On 08 August 2019

Before

DEPUTY UPPER TRIBUNAL JUDGE DOYLE

Between

MAQBOOL BEGUM
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr A Zeb, of Invictus Lawyers
For the Respondent: Mr D Mills, Senior Home Office Presenting Officer
DECISION AND REASONS

1. I have considered whether any parties require the protection of an anonymity direction. No anonymity direction was made previously in respect of this Appellant. Having considered all the circumstances and evidence I do not consider it necessary to make an anonymity direction.

2. This is an appeal by the Appellant against the decision of First-tier Tribunal Judge Law promulgated on 22 January 2019, which dismissed the Appellant's appeal.

Background

3. The Appellant was born on 1 January 1938 and is a national of Pakistan. The appellant last entered the UK on 30 November 2017 using a multi-entry visa valid until 3 December 2017. On 2 September 2018 the respondent refused the appellant's application for further leave to remain on article 8 ECHR grounds.

The Judge's Decision

4. The Appellant appealed to the First-tier Tribunal. First-tier Tribunal Judge Law ("the Judge") dismissed the appeal against the Respondent's decision. Grounds of appeal were lodged and on 15 February 2019 Judge J Grant- Hutchison granted permission to appeal stating inter alia

It is arguable that the Judge has erred in law by failing to take into account that the appellant's daughter with Down's Syndrome in the United Kingdom is not a British Citizen and that she was looked after by the appellant in Pakistan for most of her life. In actual fact the reference is an error on the part of the respondent in the reasons for refusal letter who describes her said daughter as a British citizen. Nevertheless, this arguably could be a material error which could be capable of making a material difference to the outcome or to the fairness of the proceedings

The Hearing

5. (a) For the appellant, Mr Zeb moved the grounds of appeal. He told me that the Judge did not carry out an adequate article 8 assessment. He reminded me that at [29] of the decision the Judge finds that article 8 family life exists. He told me that the Judge's error was to focus on medical care and treatment rather than carrying out a balancing exercise weighing the nature of the family relationships in the UK against the respondent's decision.

(b) Mr Zeb emphasised that the appellant did not overstay the limit of the visa. He told me that the Judge's error in finding that the appellant's daughter (who had accompanied her to the UK) is a British citizen is merely one example of the Judge's flawed fact-finding. He told me that the appellant's daughter, who suffers from Down's syndrome, submitted a separate application for leave to remain; although the respondent refused that application, the appellant's daughter has successfully appealed the respondent's decision on article 8 grounds and now awaits a grant of leave to remain.

(c) Mr Zeb urged me to set the decision aside and to substitute my own decision allowing the appeal.

6. (a) For the respondent, Mr Mills told me that the decision does not contain a material error of law. He told me that the Judge's belief that the appellant's daughter is a British citizen is an error of fact which has no impact on the decision. Mr Mills told me that, now the appellant's daughter's position is known, it is clear that the appellant will return to Pakistan alone so that consideration of her daughter's nationality and needs is no longer relevant.

(b) Mr Mills reminded me that is not in dispute that the appellant cannot meet the requirements of the immigration rules. He told me that the Judge took account of section 117B of the 2002 Act. Mr Mills told me that the Judge made findings well within the range of reasonable findings available to the Judge. He urged me to dismiss the appeal.

Analysis

7. The grant of permission to appeal focuses on the Judge's mistake about the nationality of the appellant's daughter. Since the grant of permission to appeal, the appellant's daughter has successfully appealed a separate decision on article 8 ECHR grounds. The appellant's solicitor candidly accepts that the nationality and needs of the appellant's daughter are irrelevant.

8. It is accepted that what was thought to be arguably a material error of law when permission to appeal was granted on 15 February 2019 is not a material error of law.

9. There is no challenge to the Judge's findings that the appellant cannot succeed under the immigration rules. At [29] the Judge finds that the appellant establishes article 8 family life. At [33] the Judge finds that article 8 private life is established. At [31] the Judge, correctly, finds that proportionality is the determinative question, and between [31] and [36] carries out a proportionality assessment.

10. The Judge's proportionality assessment is brief, but the essential elements are there. The Judge finds that the appellant cannot meet the immigration rules, but still finds that the appellant's article 8 rights require to be considered out-with the rules. Having found that family life and private life within the meaning of article 8 exists, the Judge takes guidance from section 117B of the 2002 Act. The Judge then considers the impact of the respondent's decision.

11. At [36] the judge makes it clear finding that it is the appellant's personal care needs and emotional well-being which merits consideration outside the immigration rules. The judge makes it clear finding that she balances those factors against the public interest in immigration control. The Judge finds that the appellant can be cared for by her other daughter in Pakistan or, in the alternative, can pay for personal care. The Judge makes a clear finding that it is still open to the appellant to make an application under paragraph 317 of the rules from Pakistan if her condition deteriorates.

12. In Shizad (sufficiency of reasons: set aside) [2013] UKUT 85 (IAC) the Tribunal held that (i) Although there is a legal duty to give a brief explanation of the conclusions on the central issue on which an appeal is determined, those reasons need not be extensive if the decision as a whole makes sense, having regard to the material accepted by the judge; (ii) Although a decision may contain an error of law where the requirements to give adequate reasons are not met, the Upper Tribunal would not normally set aside a decision of the First-tier Tribunal where there has been no misdirection of law, the fact-finding process cannot be criticised and the relevant Country Guidance has been taken into account, unless the conclusions the judge draws from the primary data were not reasonably open to him or her.

13. A fair reading of the decision demonstrates that the Judge applied the correct test in law. The Judge carried out a holistic assessment of all of the evidence. There is nothing unfair in the procedure adopted nor in the manner in which the evidence was considered. There is nothing wrong with the Judge's fact-finding exercise. The appellant might not like the conclusion that the Judge arrived at, but that conclusion is the result of the correctly applied legal equation. The correct test in law has been applied. The decision does not contain a material error of law.
14. The decision does not contain a material error of law. The Judge's decision stands.
DECISION
15. The appeal is dismissed. The decision of the First-tier Tribunal, promulgated on 22 January 2019, stands.
Signed Date 2 August 2019

Deputy Upper Tribunal Judge Doyle