Tribunal decisions

The decision

IAC-FH-NL-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/00367/2016
IA/00028/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 23rd February 2017
On 1st March 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE D E TAYLOR

Between

ninderjit kaur
jasvir chand
(ANONYMITY DIRECTION not made)
Appellants
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellants: Mr J Plowright Counsel instructed by Charles Simmons
Immigration Solicitors
For the Respondent: Mr S Kotas, Home Office Presenting Officer

DECISION AND REASONS
1. These are appeals brought by the first and second appellants against the decision of Judge Carlin made following a hearing at Birmingham on 9th September 2016.

Background
2. The appellants are citizens of India, and married to each other, born on 10th January and 15th September 1976 respectively. Both originally came to the UK on 3rd March 2011 on a six month visitor visa. They applied for further leave to remain as visitors but were refused on 12th September 2011 and refused again on 30th March 2012 following an application to remain on human rights grounds. A second application to remain in the UK under family and private life provisions of the Immigration Rules was refused on 7th August 2015.
3. The basis of the appellants’ claim is that the second appellant’s mother, Shindo Sindo has complex and significant health problems and requires the presence of the appellants to look after her here.
4. The judge assessed the evidence in relation to Mrs Shindo’s health in some detail and recorded that she had four daughters and three granddaughters who live in India with whom she was in very regular touch. The judge concluded that Mrs Shindo could either receive appropriate care from Social Services in the UK or alternatively, if she chose, could return with the appellants to India and receive help from them there, in addition to the assistance which her daughters could give her.
5. On that basis he found that family life could reasonably be expected to be enjoyed elsewhere and there would be no breach of the UK’s obligations with respect to Article 8 by their removal.
The Grounds of Application
6. The appellants sought permission to appeal on the grounds that the judge had ignored the fact that Mrs Shindo receives emotional support from the appellants in the UK as well as physical care and has not properly taken into account the second appellant’s own health problems which create practical difficulties to their returning to India to look after Mrs Shindo there.
7. Permission to appeal was granted by Judge Scott-Baker on 20th December 2016. She said that the judge had not cited any cases dealing with health issues on return and the determination was incomplete as to the effect of removal on the second appellant and his health issues.
8. The respondent served a reply on 17th January defending the determination. The respondent’s position is that it was not clear what information was before the judge in relation to the second appellant’s health issues but in any event the case law, specifically GS and EO (Article 3 – health cases) India [2012] UKUT 0397 could not assist the appellants.
Submissions
9. Mr Plowright referred to the evidence before the judge which consisted of a report that the second appellant had had a coronary bypass grafting in 2014 and continues to suffer from breathlessness for which he received ongoing treatment.

Findings and Conclusions
10. The case as put to the original judge was plainly on the basis of Mrs Shindo’s health problems. The judge did make some reference to the second appellant’s health issues and recorded that he was unable to work, but the brief reference to his health is unsurprising in the light of the fact that there was very little in the bundle before her to establish that he was suffering from any particular difficulty other than shortness of breath. In any event it is hard to see how this could have realistically impacted on the decision, not only because it falls far short of establishing any basis of leave but also because the evidence was that the principal care was undertaken by the first appellant, Mrs Shindo’s daughter-in-law. The second appellant does not generally carry out caring duties but keeps his mother company.
11. This is a well-reasoned and thoughtful determination. All of the evidence was properly considered. It was manifestly open to the judge to conclude that the appellants, having arrived in the UK as visitors, could not meet the requirements of the Immigration Rules and that there were no compelling circumstances outside the Rules which would require a grant of leave to remain here. The finding that Mrs Shindo could either be cared for in the UK by social services, if she so chose, or by her daughters and son in India, are unassailable.

Notice of Decision
12. The original judge did not err in law. The appellants’ appeals are dismissed.
13. No anonymity direction is made.

Signed Date 28 February 2017

Deputy Upper Tribunal Judge Taylor