Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: ia/09141/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 5 September 2016
On 4 October 2016

Before

UPPER TRIBUNAL JUDGE STOREY

Between

s N b
(ANONYMITY DIRECTION made)

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Ms N Bustani, Counsel instructed by Paul John & Co Solicitors
For the Respondent: Mr E Tufan, Home Office Presenting Officer

DECISION AND REASONS

1. In a determination sent on 14 June 2016 I found that the First-tier Tribunal Judge Wyman erred in law in dismissing the appeal of the appellant against a decision made by the respondent refusing to grant her leave to remain on Article 8 grounds. I identified two errors: failure to consider the appellant's claim as one based on family as well as private life; and failure anywhere to address the best interests of the child. I further decided, however, that the case was to be adjourned as I considered it important for the appellant's representatives to have the opportunity to produce a psychiatric report that did not emanate from a doctor in the same practice as the appellant's son.

2. Amongst the further evidence submitted in response to my directions were [in addition to the witness statement of the appellant's son-in-law and a letter from Dr Kana dated 1 June 2016 which had been produced at the error of law hearing] a letter from Dr K Nandy, a consultant at Holly Hospital, dated 15 August 2016, who stated that the appellant had a long history of back pain and left sided sciatica, her knee pains affect her mobility, she suffers from hypertension and has had two mini strokes, she suffers from chronic abdominal and pelvic pain due to evasive gastritis and adhesions. She is on regular analgesics and has seen a pain management specialist and osteopath. The doctor noted that Dr Kana had recorded that she had been suffering from depression and had chronic medical problems that affect the quality of her life; she had seen a consultant psychiatrist in 2007 when she suffered from abnormal grief reaction following her husband's death and developed major depression. She suffered from claustrophobia and generalised anxiety as well and "[o]ne contributing factor was the uncertainty regarding her immigration status in the UK". The appellant has been tried on various antidepressant medication which have either been ineffective or not tolerated. The appellant reported that she has become withdrawn and has not been able to participate in social and recreational activities and has generalised anxiety and panic symptoms. She continues to suffer from panic attacks and can relapse into current depressive disorder.

3. At the resumed hearing I heard submissions from the parties. Ms Bustani submitted that there was no real dispute as to the material facts affecting the Article 8 grounds of appeal. The appellant had very close ties with her grandchildren. In response to my directions there was now a medical report from a doctor not in the same practice as the appellant's son and it confirmed what had been said by the doctor who was in the same practice (Dr Kana). The appellant is 63, she has been in the UK over ten years, her immigration history is adverse, she having entered as a visitor and remained since, but she had not evaded the authorities, having made one application after another to stay. She has private life ties with her younger son who is a pharmacist. She enjoys family life with her older son, daughter-in-law and she has three grandsons. She had been a second mother to these three boys. She had mental health difficulties. She had no real ties in Pakistan. The grandchildren could not be expected to return with her to Pakistan, yet her departure from their lives would have a devastating effect. Although the Tribunal was required by s.117B of the NIAA 2002 as amended to have regard to enumerated factors, including her precarious immigration status, those factors were not determinative. Although she had previously received NHS-funded medical care, she now had private health insurance. Her case was similar on its facts to Dasgupta [2016] UKUT 00028 (IAC) where the 85 year old appellant had an NHS doctor daughter.

4. Mr Tufan submitted that the appellant could not meet the requirements of the Rules and that was significant when it came to assessment outside the Rules, on SS (Congo) [2015] EWCA Civ 387 principles. He maintained that the appellant's circumstances could not be said to be compelling; she was not elderly, her medical problems were long-standing; she had had no serious illness although she suffered from depression; her relationships with her grandchildren did not go beyond normal emotional ties between family members who live in the same house; even if it could be said she had family life ties with her UK family members, her circumstances were not compelling. There was no evidence of her English language abilities; she was plainly financially dependent, although she appeared to have been able to live in the UAE for a number of years; she had deceived the Entry Clearance Officer about her visit intentions.

5. In response Ms Bustani submitted that the Rules were not exhaustive of potential Article 8 claims and it was necessary to consider the appellant's circumstances cumulatively. The appellant had had physical mobility difficulties. Her relationship with her grandchildren was in the nature of a family life one and it was unusually strong. Her immigration history was poor but she had arrived lawfully. The purpose of s.117A was to treat adversely persons who were a burden on taxpayers; the appellant was not as she now had full private health insurance. The provisions of s.117B(5) were confined to private life. Her entire life was with her family in the UK.

6. I am grateful to the representatives for their careful and well-directed submissions. With all due respect to Mr Tufan, I do not consider the appellant's medical and family circumstances can be minimised as much as he submitted, and I agree with Ms Bustani that the Article 8 assessment had to approach matters cumulatively, so that both her medical and family circumstances are weighed along with all other relevant factors.

7. However I am unable to accept that her grounds of appeal are made out.

8. I accept that the appellant enjoys a family life with her eldest son and his family and that she also enjoys private life ties with her youngest son. I concur with Ms Bustani that the appellant appears to have been living with her eldest son and his family in a situation where over the last ten years she has developed a close relationship with them and that the importance of these relationships to her has been magnified by her social isolation from the outside community.

9. I am not able to accept, however, that the respondent's decision to refuse her leave to remain is disproportionate. In this regard I must give effect to the principles set out in SS (Congo) and similar cases, in particular that the requirements of the Immigration Rules reflect the importance to be attached to the public interest in the maintenance of immigration control.

10. I should record that during the course of submissions I saw fit, with the help of Ms Bustani, to question the appellant about her ability in English.

11. In weighing up the competing considerations I count in the appellant's favour:
(i) the fact that she is a widow and that the loss of her husband caused her to suffer depression, that she remains susceptible to depression and continues to be prescribed various drugs to help her cope with depression;
(ii) the fact that since her marriage she spent most of her life in the UAE, which means her ties with siblings and other family members in Pakistan are not strong and some of them have health problems;
(iii) that the appellant has family life ties with her youngest son and has family in the UK and that in relation to her three grandchildren she lives in daily interaction with them and there are strong bonds of affection between them. The statements from the grandchildren are heartfelt;
(iv) that whilst her English language ability lacks fluency, she understands and can communicate in basic English and has indeed qualifications in her past in English language (an ESOL) certificate and had worked as a teacher using English in Abu Dhabi;
(v) whilst she has had recourse to NHS treatment in the past, she has done her best, since learning from the First-tier Judge that this went against her case, to obtain private health insurance with the result that at least in the immediate future she will not fall a burden on the NHS again;
(vi) when the appellant came to the UK in 2006, she entered lawfully;
(vii) that whilst she has been an overstayer since 2006/7, she has not sought to conceal her presence from the immigration authorities and has indeed maintained contact with them in the process of pursuing various applications and representations in an effort to gain permission to stay.
12. Regrettably, however, I consider the above factors, even when taken cumulatively, to be significantly outweighed by factors counting against the appellant. Although her health is poor it is not described by the doctors as extremely poor and all indications are that she is able to manage daily life with a combination of treatments and medications. Her mental health, although characterised by a history of depression, has not been such as to require her or her family on her behalf to require treatment from psychiatric or mental health services since 2006/2007. It is clear that if she is returned to Pakistan her sons will ensure she receives quality medical treatment and care as and when necessary.

13. As regards her relationships with her eldest son, her daughter-in-law and her grandchildren, I have already noted that I consider these to be close but there are two particular features about them that I consider of particular relevance.

14. First, although the children consider the appellant a "second mother", there is no suggestion that she is the "first mother" or that their parents do not provide a strong, loving, caring environment for their own children. As regards the best interests of the children this is important because although the appellant's departure would obviously be a loss to them, there is nothing to suggest that their primary family life ties with their parents would suffer any disruption.

15. Second, the fact that the appellant now comes before a court or Tribunal seeking to rely on these ties is a direct consequence and function of her own choice to breach immigration law by becoming an overstayer. So far as concerns her private life ties, I am obliged by s.117B(5) to treat such ties as of little weight by virtue of her precarious immigration status. So far as concerns her family life ties, it is clear from established case law (as summarised in Rajendran (s117B - family life) [2016] UKUT 138 (IAC)), that the plainly precarious nature of her immigration status reduces the weight to be attached to the solidity of the family life ties. I consider that subsequent Court of Appeal judgments e.g. Rhuppiah v SSHD [2016] EWCA Civ 803 to fortify me in that view. The cases of Dasgupta [2016] UKUT 00028 and JO & Others [2014] UKUT 00517 turn on factually different scenarios and do not assist the appellant.

16. I have already observed that I accept that the appellant has English language abilities but I consider that, at best, a neutral factor, particularly because the evidence of her, the doctors and family members was that she was not integrated in the wider community. I do not consider the fact that the appellant has not sought to evade immigration control assists her case much if at all, since the clear message of the repeated refusals of her various representations and applications has been that she has no valid basis to remain in the UK; yet she has not left.

17. I have already found that the appellant does not have strong family ties in Pakistan and I have studied the various statements made regarding the current situation of her various siblings and extended family members. Whilst they satisfy me that she may have on return to live in a domestic situation which is outside the norm of a mother living with her sons as she becomes old, the evidence does not suggest that some solution would be found, with the help of her sons in the UK, to ensure she has some local network of family and/or friends to look out for her, if not live with her. Despite living in the UAE for a number of years she clearly retains strong cultural ties with Pakistan. It is clear that her family in the UK would take especial care to ensure she was well provided for both financially and as regards any domestic or medical care she may need. It is also relevant that her return to Pakistan would not result in any permanent disruption of the relationship with UK family members as there would be viable options for visits to see her and, of course an ability on her part to keep in contact through Skype etc.

18. It is never a happy task for a judicial decision-maker to reach a decision that has the effect of requiring a person of good character, who suffers from medical problems and has become used to living with her eldest son in an extended family situation, to leave the UK. But the appellant does not meet the requirements of the Rules (as is conceded) and I do not consider that her circumstances, viewed cumulatively, are compelling.

19. For the above reasons the appellant's appeal is dismissed.

Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008

Unless and until a Tribunal or court directs otherwise, the appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of their family. This direction applies both to the appellant and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Signed Date 4 October 2016

Dr H H Storey
Judge of the Upper Tribunal