Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/00465/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 25th April 2017
On 27th April 2017

Before

UPPER TRIBUNAL JUDGE LINDSLEY

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

MRS NABEELA BEGUM
(ANONYMITY ORDER NOT MADE)
Respondent

Representation:
For the Appellant: Mr P Nath, Senior Home Office Presenting Officer
For the Respondent: None

DECISION AND REASONS
Introduction
1. The claimant is a citizen of Pakistan born on 2nd January 1975. She came to the UK with entry clearance as a spouse of a person present and settled in the UK on 5th December 2011, and had leave in this capacity until 2nd February 2014. She then applied to extend her leave to remain in that capacity on 29th January 2014. This application was refused, and her appeal was dismissed on 9th March 2015 and she became appeal rights exhausted. She then made a further application to remain based on her family life relationship with her husband and her private life in the UK. This application was refused on 8th January 2016. Her appeal against this decision was allowed by First-tier Tribunal Judge John Hillis on human rights grounds in a determination promulgated on the 14th April 2016.
2. Permission to appeal was granted by First-tier Tribunal Judge Mark Davies on the 5th September 2016 and I concluded that the First-tier Tribunal had erred in law for the reasons set out in my decision appended at Annex A. The remaking hearing was adjourned on that date and again on 21st February 2017, but a further adjournment request, based on the fact that the claimant’s son was temporarily in Pakistan caring for his grandmother, was refused on 6th April 2017.
3. Mr Nath did not have a full set of papers so I provided him with copies from the Tribunal file. It was agreed with Mr Nath that there were two issues on which this appeal must be determined: firstly whether the claimant was entitled to succeed under paragraph 285 of the Immigration Rules by showing she could meet 284(ix) (a) (ii) or (iii) of the Immigration Rules on the basis she was entitled to an exception to the requirement to have the relevant English language certificate; and secondly (if she could not succeed on the first basis) whether she was entitled to succeed under EX1 of Appendix FM of the Immigration Rules on the basis that there are insurmountable obstacles to family life taking place in Pakistan or under paragraph 276ADE (1) (vi) because she would experience very significant obstacles to integration if she were returned to Pakistan.
Evidence and Submissions - Remaking
4. The claimant’s written evidence is that she is a citizen of Pakistan who married her husband, Mr Gulfraz Kayani on 26th December 1995 in Pakistan. He is a British citizen who has lived in the UK since August 2000. They have a son from their marriage, Mr Muhammad Saqib Gulfraz, born on 15th November 1996, who is now 20 years old. Her son has indefinite leave to remain in the UK.
5. The claimant also says that she entered the UK on 5th December 2011 with entry clearance as a spouse issued by the British High Commission in Islamabad which was valid until 2nd February 2014. On 28th October 2013 new English language requirements came into force, although she was unaware of this fact. She sent her B1 pass in English Language from EMD Qualifications Ltd with her application on 29th January 2014 prior to the expiry of her leave, but was refused for the certificate not being recognised as one which met the A1 standard even though she maintains it is in fact a higher test result. This application was then refused, and the appeal dismissed.
6. The claimant says that she then made a new application to extend her leave as a spouse on human rights grounds but this was refused on 8th January 2016 and this led to the current refusal. The claimant says she cannot take a further English language test because she suffers from agoraphobia and other anxiety problems.
7. The claimant and her husband attended the Tribunal to give oral evidence. Their son was not able to attend as he had gone temporarily to Pakistan to care for his maternal grandmother.
8. The claimant seemed relatively calm at the start of the proceedings, and was able to indicate she understood the interpreter and the proceedings. I made every effort to make the hearing as comfortable for her as possible. She was apprehensive about giving evidence without her husband there for support and Mr Nath agreed that he could stay in the room. She answered 11 questions from Mr Nath but then became too distressed, seemingly having a type of panic attack which meant that she needed first to stand up and walk about and then to leave the room. Her final answer did not match the question unlike the answers to the first ten questions. We made efforts to make the room more comfortable by asking the one member of the public to leave, and took a break from the proceedings for five minutes, but the claimant was unable to resume giving evidence. She walked about outside the Tribunal room and then lay down on the seats outside unable to return to give evidence.
9. The evidence that the claimant was able to give was as follows. That she continues to live with her husband. That she takes a lot of medication in the UK. She had only taken paracetamol when she lived in Pakistan. She did not think all her medication would be available in Pakistan. She is helped to take her medication in the UK by husband.
10. Mr Gulfraz Kayani’s written evidence confirmed the same matters as his wife’s written evidence as summarised above. He states that he has lived in the UK since August 2000. He emphasises that his wife suffers from stress and anxiety which cause her to suffer from agoraphobia, and as such she cannot take an English test or do other activities “involving public exposure”.
11. In answer to cross-examination Mr Kayani explained that he helps the claimant take her 17 different types of medication each day: some being taken in the morning and some the evening. Sometimes their son also helps the claimant comply with her mediation in the mornings before going to college.
12. Mr Kayani said it was obvious that her ill health meant that she could not sit an English language test. She had been unable to remain in the Tribunal room for more than a few minutes. The claimant’s ill health had started after she came to the UK. She had not been unwell in Pakistan or in the first two or three years after she came to the UK. His view is that she would be more unwell if she went to Pakistan as he and his son would not be there to look after her. Her condition had been made worse by anxieties about her immigration status. She had tried to take another English test (a Trinity College London examination report dated 30th June 2015 in the Secretary of State’s bundle shows she failed their GESE grade 2 examination) but she had only managed to stay in the room for a short while and then she left. He knew this as he had taken her to the test and remained outside waiting for her.
13. Mr Kayani also confirmed he is a British citizen who obtained his citizenship about 8 years previously. He had come to the UK as an asylum seeker and been granted leave to remain in the UK as a result of that application. He works for a take-away company and he, the claimant and their son live together in their rented home. His son is working in MacDonald’s Restaurant part-time and also doing a course three and a half days a week in security work at Langley College in Slough. His son is in the first year of a three year course.
14. Mr Kayani gave evidence that he would not return to Pakistan with the claimant if she were forced to go back there. He did not think he could return to Pakistan as he and his son were now used to living in the UK and the system here. He wanted his son to be educated in the UK. His entire family live in the UK. His wife has her mother, brother and sister in Pakistan. The families do not live close by but they are both from the same Kotli district of Pakistan in Kashmir. He did not think that her mother or family would want to care for her as she was married to him and their view was that she should be looked after by him and not them. It would not be just to require the claimant to go back to Pakistan. Further, travelling to the Tribunal today from Slough he had had to stop the car on three occasions so she could get out and breathe. It was his opinion that his wife was not fit or able to travel by plane to Pakistan.
15. Mr Nath relies upon the refusal letter. This letter says that the claimant does not qualify under the Immigration Rules at paragraph 284 (ix) because she has failed to provide a suitable English language certificate and the medical evidence from her GP does not qualify her for an exemption because it does not show she has a “physical or mental condition” that would prevent her from meeting the requirement. Anxiety symptoms, it is said, do not suffice to meet this test.
16. When considered under the 10 year family life route of Appendix FM the Secretary of State argues that the claimant cannot succeed (although she meets the suitability and eligibility requirements) because she cannot show that there would be insurmountable obstacles to her having family life with her husband in Pakistan. When considered under the private life Rules at paragraph 276ADE (1)(vi) the claimant cannot succeed as she would not have very significant obstacles to integration in Pakistan. There were no further compelling compassionate matters to be considered outside of the Rules.
17. In further submissions Mr Nath said the claimant had not been able to answer many of his questions so there was an absence of evidence before the Upper Tribunal. The medical evidence she had supplied did not answer the questions the Upper Tribunal needed to answer. Likewise it was not possible for the Upper Tribunal to properly conclude the claimant could not go to Pakistan by plane as the medical evidence was insufficient for this purpose, and thus it would not be a legally safe conclusion that the claimant would face very significant obstacles to integration or insurmountable obstacles to family life for this reason.
18. The claimant has provided medical evidence from the Thornhill Clinic dated 22nd November 2016 which confirms that the claimant is suffering from type 2 diabetes, dyspepsia, hypertension, hypothyroidism, and anxiety with panic attacks. She is on ten types of medication for these conditions. She is not taking anti-depressants because of the large number of other medications she is on which makes her reluctant to do so. Her GP, Dr Amin, says: “It appears that she suffers from agoraphobia. She finds it difficult to go outside the house or travel by car.” He also states that: “If she returns to Pakistan she is in danger of worsening emotional distress and thereby worsening her anxiety and this may result in depression. This may lead to neglect and failure to take her medication so she is at high risk of recurrence of her cardiac problems including heart attack and other serious complications. In my professional medical opinion she should remain in the UK. I would suggest she should remain in the UK. I would suggest she starts on antidepressants and receives counselling and CBT.”
19. This opinion is consistent with three identical letters (although signed by different GPs at different dates – 21st September 2015, 2nd February 2016 and 18th October 2016) from the Cippenham Surgery. These letters confirm the claimant is under their care; list her medications; and state that she was unable to undergo a CT scan due to anxiety, and that she appears to suffer from agoraphobia and thus to be unable to take her English test.
20. Other documentation in the bundle shows that the claimant’s son, Muhammad Saqib Gulfraz entered the UK in December 2011 and was been granted indefinite leave to remain on 11th August 2014; that the claimant’s son was born on 15th November 1996 and is the son of her marriage with Mr Gulfraz Kayani; that the claimant’s husband was issued with a British citizen passport in December 2012; and that the claimant and her husband were married in December 1995 in Kotli Pakistan.
Conclusions – Remaking
21. My starting point has to be the findings of First-tier Tribunal Judge Ross in his decision promulgated on 11th July 2014. In relation to paragraph 284 (ix) of the Immigration Rules Judge Ross only found that the claimant did not have the relevant A1 English language certificate. He made no findings with respect to whether she could meet the exceptions provided for in this provision at 284 (ix) (a) (ii) and (iii) . In relation to Appendix FM he found that there was no evidence before him, in an appeal where the claimant and her family did not attend the hearing, that there were insurmountable obstacles to family life taking place in Pakistan, particularly as the claimant and her child had lived in that country prior to coming to the UK. He also found that the claimant could not meet the requirements of paragraph 276ADE (1)(vi) of the Immigration Rules as she had not shown she had no social, cultural, linguistic or family ties with Pakistan. The decision of Judge Ross was upheld by Deputy Upper Tribunal Judge McWilliam in a decision promulgated on 11th November 2014.
22. The first question for me to answer is whether the claimant can meet one of the exceptions to having the appropriate English language qualification which are set out at paragraphs 284(ix)(a) (ii) or (iii) of the Immigration Rules: either that “the applicant has a physical or mental condition that would prevent him from meeting the requirement” or “there are exceptional compassionate circumstances that would prevent the applicant from meeting the requirement”. As noted above there is no “starting point” of findings in the decision of Judge Ross on this matter.
23. The case of R (on the application of Ali and Bib) v SSHD [2015] UKSC 68 looked at the legality of pre-entry English language tests and found them to proportionate to the legitimate aim under Article 8 ECHR, although questioned the legality of the Secretary of State’s guidance on exceptions. The aims of the English language tests were articulated at paragraph 33 of the decision of the Supreme Court as being: “(i) to assist the partners' integration into British society at an early stage; (ii) to improve their employment chances, given that they have access to the labour market as soon as they arrive; (iii) to raise awareness of the importance of language and to prepare for the tests they will need to pass for settlement. Following the consultation, three further aims emerged: (iv) to save translation costs; (v) to benefit any children the couple might have; and (vi) to reduce the vulnerability of newly arrived spouses, especially women.”
24. The respondent’s view of what is “exceptional” in relation to family cases is set out in her guidance Immigration Directorate Instruction Family Migration Appendix FM Family and Private Life 10 Year Routes August 2015 at paragraph 9.2 and reads as follows: ““Exceptional” does not mean unusual” or “unique”. Whilst all cases are to some extent unique, those unique factors do not generally render them exceptional. For example, a case is not exceptional just because the criteria set out in EX.1 of Appendix FM have been missed by a small margin. Instead, “exceptional” means circumstances in which refusal would result in unjustifiably harsh consequences for the individual or their family such that refusal of the application would not be proportionate under Article 8. “ Factors of relevance are the best interests of children; the genuine nature of any relationships; the immigration status and nationalities of family members; the length of residence in the UK of family and the applicant; the likely circumstances for the applicant and others in the applicant’s country of return; factors increasing the public interest in the applicant’s return including an inability to speak English.
25. The Secretary of State’s guidance about English language tests is now at Appendix FM 1.21 English Language Requirement –Family Members under Part 8 dated April 2017. At paragraph 6.3 that guidance requires satisfactory medical evidence about a relevant physical or mental condition from which it can be concluded an exemption is justified. The guidance about an exceptional circumstances exemption is at paragraph 7.1 of this same document and indicates the person must have shown efforts to take the relevant test but that there were severe logistical or other matters (such as caring for a disabled child or hospitalisation) which meant that this was not possible.
26. The medical evidence before me is that the claimant is a physically unwell woman. She suffers from diabetes, high blood pressure and hypothyroidism for which she takes numerous medications. The evidence from Thornhill Clinic (which is the most up to date evidence) is also that she also suffers from mental health problems namely anxiety with panic attacks. She does not take medications for her mental health problems although they recommend that she should take antidepressants and receive counselling. Attempts to investigate medical issues through a CT scan resulted in her having anxiety symptoms such as it was not possible to perform this test, according to the written evidence of her GPs at the Cippenham Surgery. All four medical general practitioners who have written letters in support of the claimant have indicated that the claimant might suffer from agoraphobia but none have been able to make a definite diagnosis on this point.
27. The claimant has not argued that her physical health conditions prevent her taking the English language test. She has however argued that her mental health problems do prevent her from taking the test. In support of this is the GP medical evidence that she has anxiety and panic attacks; and the testimony of the claimant’s husband that she cannot take an English test due to her mental health problems supported by her failed attempt in June 2015 (of which there is documentary evidence which appears at D1 of the Secretary of State’s bundle) and his observation that she was unable to stay in the test environment for more than a short period. I note at this point I find Mr Gulfraz to be a credible and honest witness who did his best to assist the Tribunal, answering all questions put to him directly and making no attempt to exaggerate the claimant’s case. I note also that this claimant would not seem to have any other reason for not having taken the necessary test: she had taken the necessary original English language test to obtain entry clearance as a spouse to enter the UK in 2011 and had passed a previous EMD Qualification in ESOL International (Entry 3) B1 standard in January 2014, but this was not a qualification accepted by the Secretary of State for these purposes.
28. I also have had the benefit of seeing the claimant before me in the Upper Tribunal on three occasions: the error of law hearing; at the adjourned hearing in February 2017 and at this hearing. I am not a medical practitioner and make no attempt to assess or diagnose her medical condition but my observations of her behaviour are, I believe, relevant. She was unable to stay in the Tribunal hearing room for more than a short period of time on any occasion. On each occasion she started in a cooperative manner and tried her best but became quiet, then silent and overwhelmed, and unable to communicate and unable to sit or stand still, and felt it necessary to leave the Tribunal room. I found the way in which she behaved a credible reflection of mental distress on each occasion and do not believe she was dissembling. I note that her inability to remain engaged and be still has inhibited medical investigations when her doctors wished to carry out a CT scan and that this was said to be due to her anxiety symptoms and palpitations by her medical practitioners (see letters from Cippenham Surgery).
29. I find that on the totality of this evidence that the claimant has shown through the production of satisfactory medical evidence supported by other relevant evidence that she has a mental health condition which prevents her from meeting the English language requirements of the Immigration Rules to take and obtain a specified test certificate, and thus that she meets the exception at paragraph 284 (ix) (a) (ii) of the Immigration Rules.
30. In the circumstances I do not need to continue and make further findings but for completeness I also observe that I also find that there are exceptional compassionate circumstances that would prevent the applicant from meeting the requirement, and thus that she also meets the requirements of paragraph 284(ix)(a)(iii) of the Immigration Rules. I find that in the context of the above medical evidence and witness evidence and my own observations it would be unjustifiable harsh to refuse this claimant for failure to meet this requirement. This is particularly the case given her past successful efforts in obtaining and providing an English language qualification on entry to the UK; her demonstrated efforts to obtain a further English certificate to support this application in 2015; her husband’s British citizenship and long residence and work in this country which provides her with financial support; her son’s lawful presence, on-going studies and indefinite leave to remain in this country; the fact that her son still remains a young adult within the family and I find has continuing family life relationships with both his parents; the accepted genuine relationships between the claimant and her husband; the likely medical difficulties the claimant would have in reaching Pakistan given her anxiety and panic attack diagnosis and the evidence of her husband about her difficulties even travelling less than a 100 miles by car; and the likely lack of sympathy on the part of her birth family that they should resume responsibility for her care and support given her subsisting marriage to her husband which her UK based GP anticipates might lead her to neglect her physical health problems in potentially fatal ways.
31. As I accept that the claimant can meet these two exceptions at paragraph 284 (ix) (a) of the Immigration Rules, and thus that the claimant is entitled to succeed under the Part 8 Transitional Rules, I find that she is entitled to remain as a spouse in the UK under these provisions and need not go on to look at the appeal under Appendix FM. It is not for me to dictate the terms of her leave to remain but I do observe that the scheme at paragraph 287 of the Immigration Rules was that after a period of two years someone who had completed two years leave to remain under paragraphs 281 to 286 of the Immigration Rules was entitled to indefinite leave to remain. I ask that at least consideration be given by the Secretary of State as to whether this claimant should be granted indefinite leave to remain rather than a further extension of a period of two years particularly given the compassionate features of this case.

Decision:
1. The making of the decision of the First-tier Tribunal involved the making of an error on a point of law.
2. I set aside the decision
3. I re-make the decision in the appeal by allowing it under the Immigration Rules as set out above.

Signed: Fiona Lindsley Date: 26th April 2017
Upper Tribunal Judge Lindsley

Annex A – Error of Law Decision

DECISION AND REASONS
Introduction
1. The claimant is a citizen of Pakistan born on 2nd January 1975. She came to the UK with entry clearance as a spouse of a person present and settled in the UK on 5th December 2011, and have leave in this capacity until 2nd February 2014. She then applied to extend her leave to remain in this capacity on 29th January 2014. This application was refused, and her appeal was dismissed on 9th March 2015 she became appeal rights exhausted. She then made an application to remain based on her human rights, which included her family life relationship with her husband and her private life in the UK. This application was refused on 8th January 2016. Her appeal against this decision was allowed by First-tier Tribunal Judge John Hillis on human rights grounds in a determination promulgated on the 14th April 2016.
2. Permission to appeal was granted by First-tier Tribunal Judge Mark Davies on the 5th September 2016 on the basis that it was arguable that the First-tier judge had erred in law in not identifying the compelling circumstances which made it correct to find it was a disproportionate breach of Article 8 ECHR to require the claimant to leave the UK, and on the basis it was arguable that proper consideration had not been given to s.117B of the Nationality, Immigration and Asylum Act 2002.
3. The matter came before me to determine whether the First-tier Tribunal had erred in law. The claimant did not attend and no one attended on her behalf. She sent a bundle of evidence to be used for any remaking hearing but indicated she would not attend as she was unable to arrange a legal representative in time and needed an interpreter. It was clear that she had been notified of the error of law hearing well in advance and so I was satisfied that it was appropriate to proceed with the error of law hearing in her absence.
Submissions – Error of Law
4. Ms Ahmad argues on behalf of the Secretary of State that the First-tier Tribunal errs firstly by considering the appeal outside of the Immigration Rules without explaining what compelling circumstances lead the Tribunal to find this appropriate. Secondly the First-tier Tribunal failed to give weight/ consideration to s.117B (2) (the claimant’s lack of ability in English), to s.117B(3) (whether the claimant is financially independent) and to s.117B(5) (that little weight should be given to her private life ties). Consideration also needed to be given to the fact that the claimant’s family life had been developed whilst her status was precarious in the UK, see Rajendran (s.117B – family life) [2016] UKUT 138. Fourthly the First-tier Tribunal ought to have engaged with whether it was appropriate to require the claimant to return to obtain entry clearance.
5. After submissions I informed Ms Ahmad that I was satisfied that the First-tier Tribunal had erred in law and would set aside the decision in its entirety. I set out my reasons below. I said that I found that the claimant is a vulnerable witness however and Ms Ahmad agreed that it would be appropriate to adjourn the remaking hearing to give her a further opportunity to attend and obtain legal representation. I was also concerned that there had been a previous decision of the First-tier Tribunal which ought to be taken as a starting point but which did not appear in the papers and had not be referred to in the decision I had set aside.
Conclusions – Error of Law
6. The First-tier Tribunal did identify what it considered to be a compelling circumstance which made it appropriate to consider the matter outside of the Immigration Rules under the general law relating to Article 8 ECHR. At paragraph 20 of the decision it is set out that the fact that the Immigration Rules had been changed from those in existence at the date of her entry, under which it is said she would have been entitled to remain as a spouse under the Immigration Rules, made it appropriate. I do not find it can be an error of law to undertake this additional analysis in any case: if an outside of the Rules analysis is done correctly it will not lead to any appeal being allowed which is not necessitated by the UK’s obligations under Article 8 ECHR.
7. However I am satisfied that insufficient reasons are given for the finding that it is a disproportionate interference with her family life for the claimant to have to leave the UK at paragraphs 21 and 22 of the decision. No consideration is given as to whether family life could take place with the claimant’s husband and 19 year old son in Pakistan. Further the issues which the Tribunal is required to have regard to under s.117B of the Nationality, Immigration and Asylum Act 2002 are not given any specific consideration.
8. It would also appear that the First-tier Tribunal did not take the findings of the previous decision of the First-tier Tribunal made in 2014/2015 as a starting point in determining this appeal, and it is noted that this document is not in the Tribunal file.
Decision:
9. The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law.
10. I set aside the decision of the First-tier Tribunal in its entirety.
11. I adjourn the remaking hearing.

Directions:
1. The appellant should within 14 days of this decision being sent to her produce a further detailed report from her GP or other medical expert on her agoraphobia and any other health conditions which she says she suffers from explaining whether or not these mean she cannot reasonably come to the Upper Tribunal at Field House in London to give evidence. This medical report might also explain (with full reasoning) whether this condition/ conditions mean it would cause the appellant very significant difficulties if she had to return to live in Pakistan with her family or whether they mean she has a mental or physical health condition which prevents her from providing an English language test certificate from an approved Home Office provider meeting A1 standard of the Common European Framework of Reference.
2. If the appellant would like to give evidence to the Tribunal in support of her appeal by telephone or internet link she should write to the Tribunal within 14 days of the date this decision is sent to her and explain what arrangements she would like to make her involvement with a hearing possible.
3. The appellant should be aware that the Tribunal is entitled to give less weight to evidence in circumstances where the witnesses do not give oral evidence at the hearing. She, her husband and son should therefore give serious consideration to attending the next hearing or making arrangements with the Tribunal for her oral evidence to be given in another way if this is medically advised. An Urdu, or other relevant language interpreter, will be arranged if the appellant and her family wish to give evidence through such an interpreter and inform the Tribunal of this.
4. The appellant should give careful consideration to whether she wishes to instruct expert specialist immigration solicitors to assist her with this appeal as this might assist the Tribunal understand the case she wishes to present which is hard to follow from the documentation produced to date.
5. 10 days prior to the next hearing date (which will be sent by separate post) the appellant should lodge any further bundle of documents she wishes to have considered at her remaking hearing.

Signed: Fiona Lindsley Date: 11th October 2016
Upper Tribunal Judge Lindsley