IA/11133/2015

• Status of case: Unreported
• Hearing date: 21 Jul 2016
• Promulgation date: 2 Aug 2016
• Publication date: 30 Nov 2017
• Last updated on: 30 Nov 2017

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/11133/2015



THE IMMIGRATION ACTS



Heard at : Field House
Decision & Reasons Promulgated
On : 21 July 2016
On: 2 August 2016




Before

UPPER TRIBUNAL JUDGE KEBEDE


Between


SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

mehmuda iqbal
Respondent

Representation:

For the Appellant: Mr T Melvin, Senior Home Office Presenting Officer
For the Respondent: Mr J Butterworth, instructed by Finsbury Law Solicitors


DECISION AND REASONS

1. This is an appeal by the Secretary of State for the Home Department against the decision of the First-tier Tribunal allowing Mrs Iqbal's appeal against the respondent's decision to refuse to vary her leave to remain and to remove her from the United Kingdom.

2. For the purposes of this decision, I shall refer to the Secretary of State as the respondent and Mrs Iqbal as the appellant, reflecting their positions as they were in the appeal before the First-tier Tribunal.

3. The appellant is a citizen of Pakistan, born on 28 November 1929. She arrived in the United Kingdom on 7 June 2014 in possession of a visit visa and applied, on 28 November 2014, for leave to remain on the basis of her family and private life. Her application was refused. She appealed against that decision. Her appeal was heard by the First-tier Tribunal on 17 November 2015 and was allowed. The Secretary of State has been granted permission to appeal that decision.

4. In her application of 28 November 2014 the appellant relied upon the fact that she was an 85 year old woman who had lived in Pakistan all her life and who had significant medical problems. It was submitted that she had been living with her son Khalid in Pakistan and had been visiting the UK as a visitor for over ten years and had always returned to Pakistan before the expiry of her visa. Before coming to the UK in June 2014 her intention had been to return to Pakistan, but her circumstances had changed as her health had deteriorated to the extent that she could not travel back to Pakistan. Further, her son's situation had changed in Pakistan as he was facing threats as an Ahmadi and he may have to flee his family home. It was submitted that her UK sponsor would be able to accommodate and maintain her. She had become dependent upon her children in the UK. Her removal from the UK would interfere with her private and family life and would be in breach of Article 8 of the ECHR.

5. In refusing her application, the respondent concluded that the appellant could not meet the requirements of Appendix FM or paragraph 276ADE(1). With regard to the latter it was considered that there were no very significant obstacles to integration into Pakistan. The respondent considered further that there were no exceptional circumstances justifying a grant of leave outside the immigration rules as the appellant had not made an application as an adult dependent relative and in any event she could not succeed on that basis. It was not accepted that she had established a family life in the UK with her adult children.

6. The appellant's appeal against that decision was heard by First-tier Tribunal Judge Harris on 17 November 2015. Judge Harris accepted, on the basis of the medical evidence produced and the appellant's age, that she required long-term personal care to perform everyday tasks. He accepted that she had intended to return to Pakistan after her visit, but that her family's awareness of her deteriorating health resulted in the decision that she should apply to remain in the UK. He also accepted that the appellant's son and his family, who had previously cared for the appellant and with whom she had resided in Pakistan, could no longer care for her properly as they were experiencing problems due to their Ahmadi faith as a result of which they had had, at times, to move out of their home. Judge Harris accepted that the appellant had four children in the UK who helped look after her care needs. The judge concluded that the appellant could be cared for in Pakistan by a carer paid for by her family in the UK and that, as such, she could not meet the immigration rules as an adult dependent relative and neither could she demonstrate very significant obstacles to integration in Pakistan for the purposes of paragraph 276ADE(1)(vi). Nevertheless, on the basis that the appellant had established a family life in the UK and that Article 8 was engaged outside the immigration rules, he concluded that the respondent's decision was disproportionate and in breach of Article 8. He allowed the appeal on that basis.

7. The respondent sought permission to appeal Judge Harris's decision on the grounds that he had failed to provide adequate reasons for accepting the appellant's claim in regard to her son's problems in Pakistan, particularly when that had been challenged by the presenting officer at the hearing, and for accepting that the appellant came to the UK as a genuine visitor, and that he had failed to consider reasons why the appellant and her son could not move to another part of Pakistan. The grounds also asserted that the judge had embarked on a free-standing Article 8 assessment without considering the appellant's failure to meet the immigration rules and without identifying any compelling circumstances warranting consideration outside the rules. It was asserted further that the judge's consideration of family life was flawed as there was a failure to consider the precarious circumstances in which it was formed.

8. Permission was granted on 26 May 2016 by the First-tier Tribunal on the grounds raised.

9. The appeal came before me. I heard submissions from both parties and have formed the view that the judge's decision does not contain any material errors of law requiring it to be set aside. My reasons for so concluding are as follows.

Consideration and findings.

10. The decision in the appellant's case is one, in my view, that could have been made differently by another judge and is one which perhaps benefitted from rather generous findings by Judge Harris. However the relevant question is whether or not Judge Harris' decision is a rational and lawful one. I find that it is. It is clear that all relevant matters were considered by the judge and that adequate reasons were given for the findings made.

11. The respondent's first ground of appeal is that the judge failed to give adequate reasons for accepting the appellant's claim as regards the difficulties faced by her son in Pakistan and her intentions in coming to the UK as a visitor. However it seems to me that the respondent's quarrel is not so much with the adequacy of the reasoning but with the outcome of that reasoning and the weight that the judge attached to the evidence. With regard to the appellant's claim about her son Khalid's problems in Pakistan, the judge clearly had regard to the challenges made by the Home Office presenting officer to the documentary evidence submitted in relation to his problems as an Ahmadi and noted the submission that the claim was a fabrication. The grounds refer to typographical errors in the documentary evidence undermining its credibility, but do not elaborate on those errors. The judge, however, had the benefit of hearing from the appellant and her son and daughter and was entitled to give the weight that he did to their evidence and to the documentary evidence, applying the principles in Tanveer Ahmed [2002] UKIAT 439, and to accept that the account was true. He noted that the account was consistent with the country guidance in MN and others (Ahmadis - country conditions - risk) Pakistan CG [2012] UKUT 389 and with the background information about Ahmadis. Accordingly he was entitled to accept that the appellant could not look to her son for her long-term care needs in Pakistan. That was a conclusion properly open to him on the evidence. Likewise the judge was entitled to accept the evidence of the witnesses as to the appellant's intentions when she came to the UK and he gave adequate reasons at [22] for so doing. I therefore do not find that the first ground is made out and consider that it amounts to no more than a disagreement with the judge's conclusions.

12. The second ground asserts that the judge embarked on a free-standing Article 8 assessment without considering the appellant's inability to meet the requirements of the immigration rules. However that is clearly not the case. The judge made it clear at [35] that the appellant could not meet the requirements of the rules for adult dependent relatives and at [32] to [37] he gave detailed consideration to the criteria in paragraph 276ADE(1), in particular paragraph 276ADE(1)(vi), concluding that the requirements could not be met. At [38] he made it clear that he was then going on to consider Article 8 outside the immigration rules.

13. With regard to the question of family life being established, I asked Mr Melvin if he had any submissions to make in that regard, but he said that he simply relied on the grounds. Mr Butterworth relied on the case of Dasgupta (error of law - proportionality - correct approach) [2016] UKUT 28 and submitted that it was open to the judge to find that family life had been established. It seems to me that the judge's findings at [44] are consistent with the guidance in Kugathas v Secretary of State for the Home Department [2003] EWCA Civ 31 and that it was open to him, on the basis of the medical and other evidence before him, to conclude that family life had been established, considering in particular that, whilst the appellant had entered the UK only as a visitor, she had been living with her family in the UK for almost a year and a half by the time the appeal was heard.

14. When considering proportionality at [48] to [56], the judge had regard to the statutory provisions in section 117B of the 2002 Act and gave weight to the public interest factors therein, including the precariousness of the appellant's immigration status and noting in particular that her inability to meet the requirements of the immigration rules weighed against her. The grounds of appeal assert that the judge failed to have regard to the need for there to be compelling circumstances justifying a grant of leave outside the rules. However it is clear from his findings at [56] that he was fully aware that that was a requirement and at [55] he gave details of those compelling circumstances.

15. The question of whether the deprivation of family life can amount to compelling circumstances, when the relevant immigration rules which the appellant cannot meet, namely the adult dependent relative rules, are themselves concerned with family life, is one which has troubled me. However that was not a matter raised in the grounds and Mr Melvin did not seek to make any submissions other than to rely on the written grounds. In any event I am persuaded by Mr Butterworth's reliance upon Dasgupta which addressed circumstances very similar to those of the appellant before me, albeit in an entry clearance case, and which Mr Melvin did not seek to challenge or distinguish in any particularised way. Having regard to [23] in Dasgupta, it seems to me that Judge Harris's findings at [55] based upon the whole "evidential picture" including the appellant's needs and vulnerability, lack of family support in Pakistan and dependence upon her family in the UK, are sufficient to conclude that his decision as to the existence of compelling circumstances was a sustainable one.

16. Accordingly, I find that the judge did not err in law as the grounds assert. He reached a conclusion that was open to him on the basis of the evidence before him.

DECISION

17. The making of the decision of the First-tier Tribunal did not involve an error on a point of law. I do not set aside the decision. The Secretary of State's appeal is dismissed and the decision of the First-tier Tribunal to allow the appellant's appeal stands.










Signed
Upper Tribunal Judge Kebede