Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/11713/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 29 June 2016
On 6 September 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE CHAPMAN

Between

WIJESINGHE [N]
(ANONYMITY ORDER NOT MADE)
Appellant
v

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Kannangara, counsel instructed by Jade Law solicitors
For the Respondent: Mr Kotas, Home Office Presenting Officer

______________________

DECISION & REASONS
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1. At a hearing which took place on 12 May 2016, I found that the First tier Tribunal Judge had erred materially in law in allowing the appeal on the basis that the Respondent's decision was not in accordance with the law and I adjourned the appeal for a resumed hearing to take place on 29 June 2016 [see error of law decision appended}.
Hearing
5. The Appellant gave evidence before me and confirmed her name and address and that that the contents of her statement of 30 July 2015 were true and accurate. She was then cross-examined by Mr Kotas when she confirmed that her husband, CT, dislikes strangers and has had difficulty interacting for about 6 years and that he has outbursts in public places and feels people are laughing at him. She confirmed that CT was mostly confined to the home. She stated that they did go out together to the shop and to Church, but if they go to crowded places he gets confused and they did not go out much. She further confirmed that he was receiving medication for stress and sickness and he was attending hospital every 6 months. She further confirmed that she has visited Sri Lanka twice with her husband and she thought the last time was in 2010. She confirmed that her mother lived in Sri Lanka in a village house which had 3 rooms and that her sister also lived there. She agreed that she was unable to work because she had to look after her husband and that she was supported by way of benefits and they rented their home. She stated that she would be unable to look after him in Sri Lanka because CT would find it difficult to adapt and the situation is very difficult to live there. They stayed for 2 weeks on their last visit. The nearest big town to the village is Kurunagala, which is 1 hour away. The Appellant confirmed that she is in good health.
6. In response to questions from me, the Appellant stated that her mother's house had two bedrooms and one sitting room and that her mother and one sister lived there. She and her husband had stayed there in 2010 and her husband had struggled because of the weather and mosquitos. She confirmed that because it is uncommon for Sri Lankan women to marry foreigners she and her husband were subject to great curiosity when they had visited the village and the constant staring had made her husband unsettled, aggressive and angry.
7. There was no re-examination by Mr Kannangara. The Appellant's husband, CT, then entered the hearing room when he was informed that he would not be questioned, Mr Kotas being content to accept the contents of his statement.
8. I then heard submissions from both parties. Mr Kotas accepted that the Appellant is a credible and truthful witness. He submitted that the issue of whether there are going to be insurmountable obstacles to family life in Sri Lanka was defined in EX2 as very serious hardship for the Appellant and her partner and that this was a high test cf. R (ota) Agyarko v Secretary of State [2015] EWCA Civ 440.
He submitted that the medical evidence falls slightly short of demonstrating that the Appellant's husband would suffer very serious hardship, in that he faces difficulties even here in the UK because he is largely confined to the home and his wife tends to his needs and care. There is a property in Sri Lanka that could accommodate him and they could do the same things and lead broadly the same lifestyle as in the UK. In respect of Article 8, he submitted that the Appellant speaks English but is not financially independent. The application was more than 28 days out of time so she does not have section 3c leave and whilst family life was established lawfully the Appellant has not had leave recently. He submitted that interference with the Appellant's family life would be proportionate.
9. In his submission, Mr Kannangara invited me to find that this case meets the insurmountable obstacles threshold. It was not disputed that the CT, the Appellant's husband is suffering from autism, learning disabilities, depression and anxiety disorder [51] and his main support is his wife. He submitted that CT has suicidal tendencies and had attempted suicide when waiting for his wife to be given entry clearance from Sri Lanka. He submitted that CT would be stigmatised in Sri Lanka: 140-143 of bundle, particularly 141. He drew my attention to the fact that Dr Catani met CT for the second time: [supplementary bundle at 19-20] where he explains because of autism symptoms he isolates himself and the Appellant is the person who is supporting him and settling him when he is restless. For these reasons there will be a huge impact on her husband's welfare if he has to relocate to Sri Lanka and this would affect his stability and well-being. He is getting medication for depression but there is no cure for autism and learning difficulties and the Appellant's husband has been stressed by her immigration situation since 2012. The Appellant came in 2008 as spouse as a settled person. She had leave for 2 years and was not advised to apply for settlement but obtained 2 years further leave. The payment for the extension of leave did not go through as a result of which the application was refused and there was no right of appeal. The Appellant did not voluntarily place herself in that situation. Her subsequent application was refused by the Secretary of State for the Home Department. She does not have section 3C leave and Mr Kotas acknowledged that the Appellant would not now be granted entry clearance because she could not meet the financial requirements of the Rules. It is very clear that the Appellant's husband is not in a position to work. In respect of Article 8, Mr Kannangara submitted that there would be no public interest benefit to asking this family to leave the United Kingdom and the Secretary of State's decision was disproportionate.
Decision
10. I informed the parties that I was allowing the appeal under the Immigration Rules. I now give my reasons.
11. The Appellant was granted entry clearance on 5 February 2008 for 2 years in order to join her spouse in the United Kingdom. She was subsequently granted an extension of stay for a further 2 years. The Appellant then made a further extension application herself on 24 April 2012 but regrettably the application was rejected as a result of the payment not being processed and consequently the re-submitted application was made out of time and was refused without the right of appeal.
12. The application which is the subject of the current appeal was made prior to the changes in the Immigration Rules but, after judicial review proceedings, was reconsidered after 9 July 2012 and refused on the basis that, due to the period of overstaying the Appellant did not meet the requirements of E-LTRP2.2(b) and therefore in order to qualify under the Rules EX.1(b) would have to apply. The period of overstay came about due to rejection of the in-time application for an extension of leave made on 24 April 2012 due to the fact that the payment was not processed. This application was returned to the Appellant on 16 May 2012 and was re-submitted on 6 June 2012. Mr Kotas did not seek to disagree with the contentions put forward by the Appellant's representative that (i) she became an inadvertent overstayer and (ii) the Appellant had previously been granted 4 years leave as the spouse of her British husband. He further expressly accepted that the Appellant was a credible and truthful witness.
13. The only issue before me was whether or not there were insurmountable obstacles to family life continuing between the Appellant and her British husband in Sri Lanka, within the meaning of EX1(b) of Appendix FM of the Rules. EX2 defines "insurmountable obstacles" as very significant difficulties or very serious hardship.
14. I have taken account of the submissions of both parties and the evidence submitted in the Appellant's bundle and supplementary bundle. Mr Kotas did not seek to dispute the medical and other evidence that the Appellant's husband had been diagnosed with autism, learning difficulties and depression. The Appellant's evidence, which he accepted, was that her husband felt unsettled, aggressive and angry when staying with the Appellant in her mother's village house. This was due to the interest displayed in them as a mixed couple and due to the fact that he is prone to outbursts in public.
15. A letter from Dr Catani, a consultant psychiatrist, dated 9 June 2016, confirms that CT has been diagnosed with severe Autistic Disorder according to the ICD-10 Classification (Code F84.0) and in additional suffers from learning disability, chronic depression, claustrophobia and generalized anxiety disorder. He states [20 of the supplementary bundle]:
"I am also of the opinion that it would be extremely negative for [CT] to relocate in Sri Lanka. This would affect C's psychological stability, emotional and physical welfare and general well-being. The difficulties C has experienced in the past on a trip to Sri Lanka for a month about six years ago are indicative of the deleterious effects of his relocation. He became very distressed and suspicious of the local people to whom he was not able to communicate in English. As a consequence, he refused to step out of the house because he felt people were staring at him. He was also subjected to intense ridicule and denigration by the local community in rural regions of Sri Lanka in which stigma attached to mental illness is still very prominent. I have also concerns about the lack of services for adults with autistic behaviour in the local community. Finally it is evident that C is unfit to travel. In a previous travel he showed clear difficulties with travelling. He threw his passport to the security officer and nearly got arrested. Once in the airplane he refused to sit down and fasten his belt and stood up for nearly all the flight from London to Sri Lanka."
16. The Appellant's husband, who is now aged 50, was born and brought up in the United Kingdom. Prior to his marriage he lived with his parents and was looked after by his mother, who sadly died in 2013. He has in place a support network which includes his father and his sister, with whom he has close and regular contact and his GP and mental health services. He does not speak Sinhala or Tamil, which are the only languages spoken in his wife's village and there are no locally accessible mental health services to whom he could look for support. In these circumstances I find there is substance to the concerns set out at [15] of his statement that: "Moving to Sri Lanka, which is very different from England, would not only worsen my depression but increase my anxiety, cause me to feel more and more isolated, making me completely house bound. Relocation would challenge my very existence in a manner that is detrimental to my health and well-being." His concerns are also supported by Dr Catani.
17. I have also had regard to the background evidence at pages 140-143 of the Appellant's main bundle, which makes clear that there is a stigma attached to mental illness in Sri Lanka and I find that this is consistent with the experience of the Appellant and her husband during their visit to the village in 2010.
18. For the reasons set out above, I find that there are insurmountable obstacles to family life continuing between the Appellant and her husband in Sri Lanka and that to require him to relocate there would result in very serious hardship and/or very significant difficulties for him because of his mental health, the lack of support he would receive and how he may be perceived by the community there. I find that the requirements of EX1(b) of Appendix FM of the Rules are met and thus I allow the appeal on this basis.

Deputy Upper Tribunal Judge Chapman

2 September 2016