Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/09710/2015

THE IMMIGRATION ACTS

Heard at Glasgow
Determination issued
on 2nd August 2016
On 17th August 2016

Before

UPPER TRIBUNAL JUDGE MACLEMAN

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

M Z ABBAS
Respondent

Representation:
For the Appellant: Mrs M O'Brien, Senior Presenting Officer
For the Respondent: Mr M Shoaib, of Shoaib Associates

DETERMINATION AND REASONS
1. The parties are as described above, but the rest of this determination refers to them as they were in the First-tier Tribunal.
2. The appellant is Muhammad Zahir Abbas, born on 5th May 1977, a citizen of Pakistan. He has not sought an anonymity order. On 18th February 2015 the SSHD refused his application for a derivative residence card as the primary carer of his father, a UK citizen and resident, under the Immigration (EEA) Regulations 2006.
3. The SSHD was not satisfied that the appellant is his father's primary carer, and further found insufficient evidence that the appellant's father would be unable to reside in the UK or another EEA state if the appellant were required to leave the UK.
4. First-tier Tribunal Judge Debra Clapham allowed the appellant's appeal by a decision promulgated on 17th December 2015. She found at paragraph 25 that the appellant was "without a doubt the main or primary carer of his father". At paragraph 29 she said that the appellant "also meets the father's religious needs in terms of his dietary requirements, something which Social Services I think would find difficult to do".
5. The SSHD's grounds of appeal to the Upper Tribunal are based on the absence of a finding in terms of regulation 15A(2)(b)(iii) that the appellant's father would be unable to remain in the UK if the appellant were required to leave.
6. The grounds fortify this proposition by reference to Ayinde and Thinjom [2015] UKUT 00560, which states at headnote (ii) that the regulation "requires the carer to establish as a fact that the British citizen will be forced to leave the territory of the Union". The full terms of that case will be relevant in the remaking of the decision.
7. Mr Shoaib strove valiantly to argue that the judge made all necessary findings, at least implicitly, that Ayinde could be distinguished, that the father's care could be provided only by his son and by no one else, and that there was no error of law. He sought to found on evidence from a charitable organisation by way of a letter dated 28th May 2015 which describes the services provided by the appellant to his father and also states, "He [the appellant] needs to go to Dundee or to Glasgow to buy Halal meat and other groceries, some Asian foods are not available in Perth".
8. That rather weak item of evidence is not rationally capable of the interpretation that without the appellant's presence, his father would have to leave the UK.
9. Mrs O'Brien submitted that local authorities, the NHS, and other public services in the UK are required by law to respect the religious dietary needs of clients and patients. She also pointed out that the charitable organisation did not say that there was no other way that the dietary needs of the sponsor could be met.
10. There is no scope for the argument that but for provision through his son such requirements would drive the sponsor to leave the country.
11. While Mr Shoaib did not in course of debate concede any error of law, it was common ground if there were error, the UK should not substitute a decision, but remit the case to the First-tier Tribunal for a further decision.
12. The grounds of appeal do not challenge the finding that the appellant is his father's primary carer. That part of the decision stands.
13. I raised the question whether the case should go back to the same judge or to a different judge. Neither party thought there was any reason to exclude Judge Clapham from further decision making.
14. The decision of the First-tier Tribunal is set aside. Its findings in respect of the appellant being a primary carer are to stand. The case is remitted to the First-tier Tribunal for a decision to be reached in terms of regulation 15A(2)(b)(iii) on whether the appellant's father would be unable to remain in the UK if the appellant were required to leave.
15. In remaking the decision, Judge Debra Clapham is not excluded. The case need not be listed before another judge, unless for any reason it proves impractical to have it remade by Judge Clapham within a reasonable period.

15 August 2016
Upper Tribunal Judge Macleman