Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/09717/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 22 November 2016
On 14 December 2016

Before

UPPER TRIBUNAL JUDGE WARR

Between

THE Secretary of State FOR THE Home Department
Appellant
and

MERCY [O]
(ANONYMITY DIRECTION NOT MADE)
Respondent

Representation:
For the Appellant: Mr S Whitwell (Home Office Presenting Officer)
For the Respondent: Mr M Al-Rashid (of Counsel)

DECISION AND REASONS

1. This is the appeal of the Secretary of State but I will refer to the original appellant, a citizen of Ghana born on 14 May 1954, as the appellant herein. She arrived in this country on 10 October 1998 on a spouse visa valid until 10 October 1999. She and her husband had four children, Eugene born in 1977 who has indefinite leave to remain, Allan born in 1980, Hannah born in 1983, and Sylvia in 1984. These three children are British citizens.

2. The appellant's husband was dominating and violent and very harsh with the children especially Allan who was punished and beaten on regular occasions.

3. The appellant's husband spent much time away from home and left in 2003 and the last the appellant saw of him was in 2005. She remained at the matrimonial home with her children although her daughters are married and live elsewhere. A key issue in the case is the care provided by the appellant for her son Allan who has been diagnosed with paranoid schizophrenia. The appellant acts as his carer.

4. The appellant applied for indefinite leave to remain in February 2005. The application was refused with a right of appeal on 11 April 2007. The appellant's appeal was unsuccessful and her appeal rights were exhausted on 28 July 2007. The appellant made three further unsuccessful applications before applying on 23 February 2015 on human rights grounds. The respondent refused the application on 24 February 2015. The appellant did not meet the requirements of the Immigration Rules in the light of the age of her children and even if it was accepted that she had entered the UK in 1998, she would only have completed a total of seventeen years of residence. The respondent was not satisfied on the evidence that the appellant was a carer for Allan and there were question marks over the validity of the appellant's whole story about the collapse in the relationship with her former husband. It would be reasonable for the appellant to return to Ghana and there were no exceptional circumstances.

5. On 2 February 2016 the respondent gave further consideration to the appellant's circumstances following new evidence presented at appeal proceedings on 8 January 2016.

6. The respondent no longer disputed that the appellant's son suffered from schizophrenia in the light of a detailed psychiatric report. The report also confirmed that Allan relied on the appellant's care and support. However, he had other family members to care for him in the United Kingdom. He was a British citizen and would be able to receive help and care from his local social services and the NHS.

7. The Secretary of State added that while the report confirmed that Allan was lucky to have the appellant "doing such a good job caring for him and supporting him" and although it was accepted that the appellant was clearly a great help to Allan -

"This does not mean that he cannot survive without you there, as stated above he has other family members living in the United Kingdom who he would be able to turn to for help and he would also be able to receive help from the NHS and social services as he is a British citizen".

Supportive statements from the appellant and his sisters were given little weight. There were no exceptional circumstances in the case.

8. The appellant lodged an appeal against the Secretary of State's decision and following an adjournment mentioned by the Secretary of State in her letter the appeal came before a First-tier Judge on 22 June 2016. The judge directed himself in uncontroversial terms in relation to Article 8 in paragraphs 9 to 12 of his decision referring to Huang [2007] UKHL 11 and in paragraph 13 he stated:

"Consideration also has to be given to the relevant parts of 5A of the Nationality, Immigration and Asylum Act 2002 and which contains sections 117A, 117B, 117C and 117D. Part 5A only applies where the Tribunal considers Article 8(2) of the ECHR directly".

9. The judge then summarised the Secretary of State's reasons for refusing the appellant's application. He then turned to consider the appellant's case and summarises Allan's position and the appellant's care for him as follows:

"20. Allan has been diagnosed with paranoid schizophrenia. This is an unequivocal diagnosis. He has persecutory delusions and frequent hallucinations. He is acutely psychotic and clinically depressed. He has had a history of aggression towards family members and medical staff. He has expressed ideas of killing himself through medication of by hanging. He is at high risk of committing suicide in the long term.

21. Allan is having regular treatment and this is with Merton Adult Mental Health Services. He is being treated by Dr Michael Yates a consultant psychiatrist and who has prepared a psychiatric report dated 8 December 2015.

22. The Appellant is being treated with Clozapine. This is a restricted medication with severe side effects and is only prescribed by consultant psychiatrists under special monitoring. This drug causes high incidence of bone marrow suppression and fall of white blood cells. It is associated with serious cardiac complications. If it is temporarily discontinued and recommenced after 48-hours, then there is a significant risk of cardio respiratory collapse and death.

23. Allan has to have blood tests on a regular basis sometimes twice a week sometimes once a month. He is forgetful and neglectful. His mental state is exceedingly likely to deteriorate into acute psychosis if Clozapine is discontinued or reduced. A relapse would lead to considerable risk to himself and others.

24. Allan is very much supported and cared for by the Appellant. She spends most of her time with him. Whilst he has his own accommodation at 16 Octavia Close, Mitcham he spends an average of five nights a week at the family home. Whenever Allan does stay at his one-bedroomed accommodation at 16 Octavia Close his mother the Appellant stays with him.

25. As Allan is not able to recognise he is unwell if his mental health deteriorates and the Appellants help in monitoring him is all important. Her support is a significant factor in the stability of his mental health. She ensures he is taking his Clozapine and the importance of this cannot be overstated. She is observant of early warning signs of relapse and is able to check for specific psycho-social stresses. She prompts his attendance at college and sports as well as providing cooked food for him and encouraging healthy eating. She plays an important role in prompting medication, his attendance at appointments, blood tests etc. She also prompts him to wear appropriate clothing and maintain personal hygiene.

26. Allan values the support that is available from his mother. He is very much dependent on her and with the support of other members of the family. Without this he would quickly get into social difficulty. The Appellant's vigilance and dedication to Allan mitigates against the very serious risks he can and has exposed himself and others to in the past".

10. The judge heard oral evidence from the appellant which he found to be credible and consistent and not overstated. He also had before him written statements from her two daughters. The judge notes that it was accepted that the appellant could not satisfy the requirements of Appendix FM with regard to family life or paragraph 276ADE with regard to private life and the issue was whether the appellant was entitled to a freestanding Article 8 assessment outside the Rules. The judge found there were numerous reasons to consider she was so entitled. The determination concludes as follows:

"34. I find that family life does exist between the Appellant and her son Allan even though he is now aged 35. He suffers serious mental ill health and this is detailed in the report of Dr Michael Yates consultant psychiatrist. This confirms he has an unequivocal diagnosis of paranoid schizophrenia. There is a relationship between them that does go far beyond normal emotional ties of that expected between relatives. The Appellant has been caring long term for Allan and who has been known to the mental health services since July 2004. He has a history of aggressiveness towards family members and others. This has extended to incidents of physical assault on a sister as well as the Appellant. Dr Yate's report refers to Allan having threatened to kill his mother on more than one occasion. Also, he has been highly threatening to mental health staff and has required treatment in the psychiatric intensive care unit on more than one occasion. He has destroyed property both at home and in hospital. Also, at times he has had a suicidal mind set. Despite this the Appellant is his full-time carer.

35. In deciding that family life does exist I have taken into account the decisions in Kugathas [2003] INLR170, Mansoor [2011] EWHC 832, RG [2010] UKUT 273, AP (India) [2015] EWCA civ 89 and Singh [2015] EWCA civ 639.

36. The dependency of Allan on the Appellant is extensive and also profound. Without it he would be vulnerable and at risk and in the light of his past behaviour others would be at risk as well.

37. In dealing with the Appellant's freestanding Article 8 assessment I have to have regard to the judgement of Lord Bingham in R (Razgar) v SSHD [2004] UKHL 27 and the series of questions which it was suggested an Immigration Judge should consider in deciding a convention reason.

38. I have already come to the clear conclusion that family life does exist. I find that the Appellant's removal to Ghana would result in interference with that family life that would be of such gravity as to engage Article 8.

39. The object of the Respondent's decision is the maintenance of effective immigration control by the state. This is not a criminal deportation and the only criticism that can be made of the Appellant is that she has overstayed in the past.

40. The last step is whether the extent of the interference is necessary in the interest of a democratic society in order to fulfil this legitimate aim of maintaining effective immigration control and further that it is proportionate.

41. The Respondent's case and as set out in the supplementary refusal letter of 2 February 2016 is that in the Appellant's absence her son should be able to turn to those other members of family for help and support and also he could receive help and care from his local social services and NHS. This is an argument I do not accept. The Appellant is on the spot at all times monitoring and looking after her son. His siblings are not in a position to provide the same level of care because of work, family or other commitments. I have no doubt they would want to play their parts but they would not be able to do what the Appellant is now doing.

42. If Allan was to get the similar help and care from his local social services and NHS, then this would require almost full-time monitoring. This would be a severe drain on much needed resources. This is care that the Appellant is providing without charge and given her experiences with Allan in the past she is no doubt the best one qualified to do this. It has not been suggested exactly by the Respondent as to how local social services and NHS would provide this care. There has been no care plan or anything like that prepared.

43. I find that the advantages of the Appellant continuing to look after Allan far outweigh the need to maintain effective immigration control by removing the Appellant to Ghana. This is a unique situation with unique and exceptional circumstances and one where the right to respect for family life for the Appellant and her son Allan outweighs this legitimate objective".

11. The judge accordingly allowed the appeal.

12. The Secretary of State applied for permission to appeal pointing out that the judge had failed to take into account Section 117B and the fact that the maintenance of effective immigration control was in the public interest and no finding had been made as to whether the appellant was financially independent. Permission to appeal was granted on 21 October 2016.

13. Mr Whitwell relied on the grounds and while it was acknowledged that reference to Section 117B had been made in paragraph 13 of the determination, between paragraphs 40 and 43 of the determination there had been no reference to the issue of financial independence as required by Section 117B(3). Section 117B(1) made it clear that the maintenance of effective immigration controls was in the public interest. It was accepted that Section 117B(5) referred to private life cases and that little weight should be given to private life established by a person at a time when the person's immigration status was precarious. However, the question would be of relevance under Article 8 jurisprudence as made clear in Rajendran (s117B - family life) [2016] UKUT 00138 (IAC) at paragraph 39. The Tribunal had said in paragraph 40 precariousness was a criterion of relevance to family as well as private life cases. The Tribunal had referred to an extract from Nagre [2013] EWHC 720 (Admin) at paragraph 41:

"The approach explained in the Strasbourg case law indicates that where family life is established when the immigration status of the claimant is precarious, removal will be disproportionate only in exceptional cases ...".

Accordingly it was submitted that the judge had erred in failing to take into account Section 117B and the issue of precarious family life. The decision should be set aside.

14. Mr Al-Rashid submitted that the case had initially been listed before the First-tier Tribunal in January 2016 when the Home Office applied for an adjournment to reconsider the case in the light of the evidence. The refusal had been maintained, however.

15. This was an error of law hearing and it was submitted that the judge was not required to recite "chapter and verse" and he had set out the relevant parts of Section 117. This was adequate in a specialised jurisdiction. The appellant was undoubtedly a vulnerable person and the judge had set out the evidence concerning the diagnosis. The judge was clearly aware of the provisions of Section 117. He had clearly referred to the importance of effective immigration control in paragraph 39 of his decision. It was noteworthy that the appellant spoke English and had given evidence before the First-tier Tribunal in English. English was spoken in Ghana. The appellant was being supported by her three children out of their earnings, and she lived in the family home.

16. The judge had found the appellant's evidence to be credible and consistent and she relieved the burden on the taxpayer by caring for her son. The rationale of the Rules was satisfied. The judge had directed himself by reference to relevant authority including Razgar and Huang. There was no error of law.

17. In response Mr Whitwell replied on the issue of financial independence, referring to Rhuppiah v Secretary of State [2016] EWCA Civ 803 where at paragraph 63 Lord Justice Sales considered the meaning of the phrase "financially independent" in Section 117B (3) and stated:

"This is an ordinary English phrase, and the FTT gave it its natural meaning, as indicating someone who is financially independent of others. This is the correct interpretation. The FTT was also entitled on the evidence to find that the appellant was not financially independent in this sense, and that this was a factor which counted against her in the Article 8 balancing exercise".

18. It was submitted further that the judge had downplayed the importance of the public interest. He submitted that if a material error of law was identified the medical evidence could be re-assessed and the appeal approached with proper regard to the relevant statutory provisions. There were others to care for Allan. He had had employment in the past.

19. At the conclusion of the submissions I reserved my decision. I remind myself that I can only interfere with the decision if it was flawed by a material error of law. As I have pointed out the judge correctly addressed himself in relation to Article 8 and in paragraph 10 in part of his self direction he notes in relation to the legitimate interests of the state "the courts have regularly found that the maintenance of effective immigration control by the state is a justifiable way of furthering those legitimate aims". There is no doubt that the judge made express reference to Section 117B, as is accepted by Mr Whitwell, in paragraph 13 of his decision.

20. Paragraph 39 of the decision, which I have set out above, refers to the maintenance of effective immigration control being the object of the Secretary of State's decision and he adds "this is not a criminal deportation and the only criticism that can be made of the appellant is that she has overstayed in the past". Read fairly and as a whole, paragraph 39 is strongly indicative of the fact that the judge was referring to Section 117B (1) as distinct from Section 117(C).

21. There is no challenge to the judge's finding that family life within the meaning of Article 8 was established. Further, his assessment that Article 8 was engaged is not the subject of challenge. He then turns to consider in paragraph 40 whether interference was necessary and proportionate.

22. It is quite clear that the judge had well in mind the respondent's case and rejected it. The judge concluded that the unique circumstances of the case outweighed the legitimate objective of the respondent.

23. I am unable to accept that the judge, having set out chapter and verse in paragraph 13 of his decision, misdirected himself in failing to give consideration to what is set out in the sections to which he made reference. It is unarguable that he failed to give regard to the issue of maintenance of effective immigration control for the reasons I have already given. Had the judge found that the appellant was financially independent, then it is clear in the light of Rhuppiah that he had misdirected himself. However, he made no such finding. He also made no express reference to the appellant being able to speak English which, like financial independence, was described by Lord Justice Sales as a neutral factor. The judge may have had in mind the cost burdens facing local social services and the NHS in paragraph 42 but I see no evidence of any misdirection in the judge's approach and I am not satisfied that he neglected to take into account the statutory provisions to which he made reference. He was entitled to conclude that the situation was a unique one as he did in paragraph 43 and to allow the appeal for the reasons he gave.

24. Despite having carefully considered the submissions of Mr Whitwell, I am not satisfied that the determination was materially flawed in law and accordingly I direct that it shall stand. The appeal of the Secretary of State is dismissed.

25. The First-tier Tribunal judge made no anonymity direction and I was not invited to make one. No anonymity order is made.

TO THE RESPONDENT
FEE AWARD

The First-tier Tribunal judge made no fee award and I make none.

Signed Date 13 December 2016

G Warr
Judge of the Upper Tribunal