Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/07750/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 24th February 2016
On 17th March 2016

Before

UPPER TRIBUNAL JUDGE MARTIN

Between

ms baljeet kaur
(ANONYMITY DIRECTION NOT MADE)
Appellant

And

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr A Chohan, Counsel instructed by S.Z. Solicitors
For the Respondent: Ms S Sreeraman, Home Office Presenting Officer

DECISION AND REASONS

1. This is an appeal to the Upper Tribunal by the Appellant who is a widow aged 55 and a citizen of India. She challenges the Decision and Reasons of Judge O'Rourke of the First-tier Tribunal which was promulgated on 24th August 2015.
2. The background to this case is that the Appellant has over the years, with the benefit of multi visit visas, spent a lot of time with her son and daughter-in-law in the United Kingdom. Latterly she arrived in June 2014 and within the currency of that six month leave period she applied for leave to remain. I think initially she applied for leave to remain as a parent but in fact this is more properly to be dealt with under Article 8. The case came before the judge when the Appellant was represented by Counsel. The judge dismissed the appeal and permission to appeal was sought on the basis that the judge had taken no account of Section 55 of the 2007 Act and had not considered the best interests of the child concerned which is the Appellant's 6 year old granddaughter.
3. Permission was duly granted on that basis. The Home Office Presenting Officer, on behalf of the Secretary of State, has accepted that Section 55 was not specifically referred to but her view is that any error in failing to specifically refer to it was not material because the judge dealt with the substance of Section 55. The Home Office Presenting Officer referred to paragraph 13 of the judgment where the judge set out the Appellant's representative's submissions.
4. The first is that the Appellant is a woman widowed at a relatively young age with no emotional support in India and who could not cope on her own anymore. She required care it was said on a daily basis which her only remaining relative, a daughter, was unable to provide. She is taking prescription medication for a condition which I believe is depression which, it is said, will be aggravated if she were obliged to return. It was submitted that she would be no burden on the public purse as the Sponsor could provide for her care living with him. It was submitted she had no other close family members, as I have indicated, apart from the daughter who could only visit her every four to six months and that if the Appellant met the requirements of the Rules then there was no point in sending her back to India simply to apply for entry clearance relying upon the case of Chikwamba v SSHD [2008] UKHL 40.
5. At 13(vii) in particular the judge noted the submission that all the evidence indicated a strong family life in the United Kingdom particularly with her granddaughter and she has now been residing with the Sponsor for over a year and it was argued that there were insurmountable obstacles to her returning to India, namely the bonds with family in the United Kingdom; her deteriorating health and lack of support in India and in an assessment of proportionality there is no pressing social need to deprive her of leave to remain.
6. The judge then commenced the findings at paragraph 14, finding that there was nothing in the submissions as to the lack of emotional care in India and that any financial sponsorship could continue from the United Kingdom. The judge noted the medical evidence was scant or missing but that there was no indication that she could not continue to receive appropriate treatment in India.
7. At paragraph 14(iii) the Judge said that there was scant evidence as to her requirement for daily care. Indeed, I note that that claim seems to fly in the face of the other claim that she provides day-to-day care for her, no doubt lively, granddaughter.
8. The judge then at paragraph 20 summarised his conclusions in relation to family life starting by saying that he found the interference to be proportionate for the following reasons which he gave in three numbered paragraphs. In the first paragraph he noted that the Secretary of State is entitled to expect that when somebody is granted a visit visa that they will return home at the end of that period and not seek to remain and that allowing persons who make such an application to succeed circumvented the process.
9. Secondly, he noted that the Appellant had maintained an active relationship with her family in the United Kingdom by lengthy visits over several years and found that there was no reason why that arrangement should not continue in the future and that she could with suitable arrangements have a family life with her daughter and her family in India. He referred to Chikwamba not being a trump card.
10. It is true to say that the judge has not given detailed consideration of the best interests of the grandchild and whether those best interests required the Appellant to remain in the United Kingdom. However, the evidence that was before the judge in relation to that was restricted to brief statements in the three written statements of the Appellant, her son and her daughter-in-law.
11. The Appellant's statement says at paragraph 16, "we have established a happy family life and my granddaughter is particularly attached to me. Any break-up of this close-knit relationship would impact adversely on our family life."
12. Then her son in his statement says, at paragraphs 13 and 14:
"My daughter is greatly attached to my mother. My mother gives her good company. My mother is also very attached to her. This enabled me and my wife to work full-time. That was good for family income. We started living a happy family life. My mother remains happy with wife, my daughter and me. My wife is fond of my mother, my daughter loves her grandmother. My daughter is so used to living with my mother she cannot even live without my mother a single day."
13. There is then a statement from the Appellant's daughter-in-law who says at paragraph 9 of her statement, "we have established a happy family life and the Appellant is particularly attached to my daughter. Any break-up of this close-knit relationship would impact adversely on our established family life."
14. I find that the evidence before the judge that the best interests of this child requires the Appellant to remain in the United Kingdom simply does not stack up. The evidence is scant indeed. As pointed out by the Presenting Officer before me there is no independent evidence from anybody that this child requires her grandmother in her life and that she would suffer if she were not a daily presence. I have no doubt that grandmother's presence is of enormous benefit to her son and daughter-in-law because it saves them the cost of childcare allowing them both to work. However, grandmother is grandmother, not parent, she is not the primary care giver and if she was not present on a daily basis the child could continue to keep in contact with her grandmother by the various possible methods of communication and by visits continuing as they have in the past. There is absolutely no evidence that given the support of her parents she will suffer at all other than perhaps missing her grandmother in the short-term, certainly nothing that would warrant this appeal being allowed on the basis of the best interests of the grandchild. That being the case the fact that the judge has not specifically referred to Section 55 in the judgment does not in my view amount to an error of law to justify setting the Decision aside. For that reason the appeal to the Upper Tribunal is dismissed.
Notice of Decision

The appeal is dismissed.

No anonymity direction is made.

Signed Date 4th March 2016

Upper Tribunal Judge Martin