Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/08320/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 4th April 2016
On 4th August 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE MANDALIA

Between

MRS GLADYMIR TUAZON BLANES
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondents

Representation:
For the Appellant: Ms. Charlton, Bhogal Partners Solicitors
For the Respondent: Mr. Whitwell, Home Office Presenting Officer

DECISION AND REASONS
1. This is an appeal against a decision by First-tier Tribunal Judge O'Brien promulgated on 23rd September 2015, in which he dismissed the appeal against the decision of the Secretary of State for the Home Department of 13th February 2015, to refuse the application made by Mrs Gladymir Blanes for leave to remain in the UK pursuant to Article 8 ECHR and on compassionate grounds.
2. Permission to appeal was granted by First-tier Tribunal Judge Hollingworth on 12th February 2016. The matter comes before me to consider whether or not the determination by First-tier Tribunal Judge O'Brien involved the making of a material error of law, and if so, to remake the decision.
3. The appellant is a Philippine national. She last entered the UK on 1st August 2014 with entry clearance as an Overseas Domestic Worker in a Private Household. Her entry clearance visa was valid for the 6 months between 5th June 2014 to 5th December 2014. She had previously been in the UK between 16th July and 27th August 2012.
4. On 4th December 2014, the appellant applied for Discretionary Leave to Remain in the UK on Article 8 grounds and on the basis of compassionate circumstances. The appellant wished to remain in the UK to continue with her care of Mrs Baliki Saggar, and Mr Kishori Lal Saggar. They are the parents of Mr Jesdev Saggar and the mother and father-in-law of Mrs Manpreet Saggar.
5. The background to the appeal is set out at paragraphs [5] to [8] of the decision of the First-tier Tribunal. At paragraphs [10] to [27], the Judge sets out evidence before him. It is uncontroversial, as the Judge records at paragraph [28] of the decision, that the appellant is unable to satisfy the requirements for leave to remain on the grounds of private and family life within the immigration rules. At paragraphs [30] to [33] of his decision, the Judge sets out the authorities relevant to an assessment of an Article 8 claim outside the immigration rules, and at paragraphs [34] to [43] he sets out his conclusions.
6. The grounds of appeal were settled by the appellant. The appellant contends that the decision of the First-tier Tribunal Judge did not address the weight of evidence and that the appellant did not have a fair hearing. The appellant contends that her departure from the UK will almost certainly lead to a deterioration in the health of Mrs Saggar Senior and that the Judge has not addressed the matters raised in the psychological report that was before him. It is said that the reference at paragraph [42] of the decision to alternative care options in the UK demonstrates bias, and a 'conflict of interest' to promote domestic commercially driven care, in circumstances where there is in fact no local care "high end" or otherwise, that will meet the demands of Mrs Saggar Senior.
7. At the hearing before me, Ms Charlton submits that the Judge failed to engage with the evidence that was before him. She submits that the Judge makes very limited reference in his decision to the extensive psychological report and that the Judge failed to consider how Mrs Saggar Senior would continue to receive the care and support that she currently receives, if the appellant is not permitted to remain in the UK. She submits that the Judge failed to appreciate that all of the appellant's family and private life revolves around the Saggar family and that the Judge has failed to have regard to the care provided by the appellant in Dubai, when the family made a number of extended visits. Ms Charlton did not at the hearing before me, rightly in my view, submit that the decision of the First-tier Tribunal shows bias or is capable of being challenged on the grounds that the appellant did not have a fair hearing.
8. The respondent has filed a Rule 24 response in which she confirms that the appeal is opposed. The respondent submits that the Judge clearly had regard to the psychological report that was before the First-tier Tribunal in reaching his conclusion as to the impact upon Mrs Saggar Senior, should the appellant be required to leave the UK. The respondent contends that it was open to the Judge to find that with psychological therapy, Mrs Saggar Senior's mental health would be adequately managed.
9. At the hearing before me, Mr Whitwell submits that the appellant does not appear to challenge the findings by the Judge at paragraphs [36] and [38] of the decision, that the appellant is not part of the Saggar family and that her removal from the UK would not represent an interference with her family and private life. Similarly, the appellant does not appear to challenge the finding by the Judge at paragraph [38], that the interference will not have consequences of such gravity as potentially to engage the operation of Article 8. The appellant seeks to challenge the Judge's assessment of whether any interference is proportionate to the legitimate public end sought to be achieved. Mr Whitwell submits that in his assessment as to proportionality, the Judge refers to the report of the Chartered Psychologist at paragraphs [26] and [41] of his decision, and it was open to the Judge to note that the Psychologist had not considered what would happen if the appellant left the UK, but Mrs Saggar Senior received treatment.
DISCUSSION
10. The immigration rules are said to reflect the respondent's view of where a fair balance should be struck between the right to respect for private and family life and public interest considerations relating to the maintenance of an effective system of immigration control. The rules should therefore be read in a way that reflects a proper interpretation of Article 8 of the European Convention. However, it is recognised that there may be some cases where the rules do not address relevant Article 8 issues. In such cases, as here, it may be necessary to consider whether there are compelling circumstances to justify granting leave to remain outside the immigration rules: SSHD v SS (Congo) [2015] EWCA Civ 387. This should be assessed by reference to the five stage test outlined by the House of Lords in R v SSHD ex parte Razgar [2004] 3 WLR 58.
11. There is no doubt that the Judge approached the issue of Article 8 as a two-stage process. First, considering the applicant's claim under the Rules; and secondly outside the Rules under Article 8. It is clear that the appellant could not succeed under the Rules and given the basis of the claim for leave to remain on compassionate grounds, the Judge carried out an assessment the Article 8 claim under the five stage test set out in the decision of the House of Lord in Razgar.
12. As Mr. Whitwell submits, the appellant does not appear to challenge the finding by the Judge at paragraphs [36] and [38] of the decision, that the appellant is not part of the Saggar family and that her removal from the UK would not represent an interference with her family and private life. Similarly, the appellant does not appear to challenge the finding by the Judge at paragraph [38], that the interference will not have consequences of such gravity as potentially to engage the operation of Article 8. The Article 8 claim was therefore bound to fail and the Judge was not required to go on to consider whether any interference is proportionate to the legitimate public end sought to be achieved. The grounds of appeal were settled by the appellant and for the avoidance of any doubt, I have considered whether notwithstanding the finding that the appellant is not part of the Saggar family, the appeal was capable of succeeding on private life grounds. Ms Charlton submits that that the Judge failed to appreciate that all of the appellant's family and private life revolves around the Saggar family.
13. The issue for me to decide is whether or not the Judge was entitled to conclude that the appellant's proposed removal does not constitute an interference with her right to respect for her family and private life and that, it would not be a sufficiently grave interference such as to engage Article 8.
14. The Judge sets out at paragraphs [34] to [37] of his decision his reasons for his conclusion. In R & ors (Iran) v SSHD [2005] EWCA Civ 982, the Court of Appeal held that a finding might only be set aside for error of law on the grounds of perversity if it was irrational or unreasonable in the Wednesbury sense, or one that was wholly unsupported by the evidence. A finding that is "perverse" embraces findings that are irrational or unreasonable in the Wednesbury sense, and findings of fact that are wholly unsupported by the evidence. On appeal, the Upper Tribunal should not overturn a judgment at first instance, unless it really could not understand the original judge's thought process when he was making material findings.
15. Applying that guidance, in my judgement it was open to the Judge to find that the appellant's proposed removal does not constitute an interference with her right to respect for her family and private life and that the interference will not have consequences of such gravity as potentially to engage the operation of Article 8. The Judge refers to the evidence before him that the Saggar family are all very fond of the appellant and the appellant feels an affinity towards the family. It remains uncontroversial that however much the family might consider her to be part of the family, the appellant is paid for the domestic assistance that she provides and is not a member of the Saggar family. The Judge noted that there is an element of private life but properly recognised that the greatest proportion of the appellant's private life with the family was established whilst the appellant provided domestic help to Mr & Mrs Saggar Junior in Dubai. The fact that the appellant may also have provided care in Dubai, when the family made a number of extended visits, adds nothing. The Judge plainly had regard to the assistance that was provided by the appellant to the family overall in Dubai.
16. At paragraph [39] of his decision, the Judge states:
"39. Even if I were wrong in that conclusion, the Appellant's removal would be a lawful and proportionate means of maintaining effective immigration controls"
The Judge's reasons are set out at paragraphs [40] to [43] of his decision.
17. I have carefully read the report of the Chartered Psychologist, Anopama Kapoor dated 20th August 2015. Mrs Saggar Senior was clearly in pain and distressed during her assessment. Mrs Saggar Senior reported that she believes the appellant is like family and does over and above what she needs to. Mrs Saggar Senior seems to have become dependent on the appellant and does not believe she could cope without her. The appellant assists both Mr and Mrs Saggar Senior and they both trust her in a way that they would not be able to trust anyone else, due to their age.
18. In her conclusions and recommendations, the Chartered Psychologist diagnoses Mrs. Saggar Senior as suffering from severe depression and mild anxiety. She states:
"3.1 ?..This seems to be due to her physical health issues and the adjustments she has had to make due to this.
She currently seems to meet the DSM V criteria for Adjustment Disorder with mixed anxiety and depression. The stressor being the diagnosis of cancer, mental health symptoms seem to have arose, within 3 months of this, there seems to be significant impairment in functioning and there is marked distress as a result of her diagnosis. Mrs. Saggar reports a depressed mood, loss of interest, difficulty sleeping and eating, feeling guilty/worthless, lack of motivation, and a decreased focus and concentration. She also reports some anxiety and worry related to her physical health,
19. The prognosis is as follows:
3.2 Mrs. Saggar mental health difficulties seem to be dependent on her physical health, and the outcome of her carer's immigration hearing. If she was to receive psychological therapy for her mental health and learn coping strategies, the severity of her symptoms may decrease in 3 to 6 months.
However, if she did not receive treatment and her carer was forced to return to Dubai, it is likely that the severity of her symptoms would increase due to the loss of an important and long term source of support, and she may experience further suicidal thoughts.
20. I have considered whether or not the Judge properly took account of that evidence in reaching his decision that in any event, the appellant's removal would be a lawful and proportionate means of maintaining effective immigration controls. I reject the submission that the decision of the First-tier Tribunal Judge did not address the weight of evidence and that the Judge did not have proper regard to the matters set out in the psychological report.
21. At paragraph [26] of his decision, the Judge refers to the diagnosis made by the Chartered Psychologist and the prognosis. The Judge was plainly aware of the diagnosis made and the prognosis, and had that in mind in reaching his decision. The Judge stated at paragraph [41] of his decision that he had no doubt that Mr. and Mrs. Saggar Senior were glad to have a familiar face, who was familiar with the customs and culture of a Hindu household, looking after them. He was also persuaded that the appellant's return would cause a degree of upset at first. In my judgement, he plainly considered the prognosis set out in the report of the Chartered Psychologist and it was open to the Judge to note that:
"?the psychologist does not say whether Mrs. Saggar Senior's symptoms would worsen if the Appellant was returned but she did receive psychological treatment."
22. In my judgement, the finding by the Judge that the appellant's removal would be a lawful and proportionate means of maintaining effective immigration controls has proper regard to the matters set out in the psychological report and was open to the Judge for the reasons set out at paragraphs [41] and [42] of the decision. The report is lengthy but much of what is set out, relates to the background of Mrs. Saggar Senior's health history, her background, and an analysis of the tests completed. There is no requirement for the Judge to set out the content of that report in detail in the decision, provided it is clear that the Judge has considered the report. Much of what is recorded in the evidence about the reliance that is placed upon the appellant by the family, is mirrored in the report. The essential conclusions and recommendations were clearly in the mind of the Judge when he reached his decision. The finding reached by the Judge is in my judgment neither irrational nor unreasonable in the Wednesbury sense, or one that was wholly unsupported by the evidence.
23. It follows that in my judgement, the decision of the First-tier Tribunal discloses no material error of law and the appeal is dismissed. The decision of the First-tier Tribunal shall stand.
Notice of Decision
24. The appeal is dismissed.
25. No anonymity direction is applied for and none is made.

Signed Date 4 August 2016

Deputy Upper Tribunal Judge Mandalia

FEE AWARD

The appeal has been dismissed and there can be no fee award.

Signed Date

Deputy Upper Tribunal Judge Mandalia