Tribunal decisions

The decision

UPPER Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/14350/2015

THE IMMIGRATION ACTS

Heard at: Field House
Decision and Reasons Promulgated on
On: 14 December 2016
On: 18 January 2017

Before
Deputy Upper Tribunal Judge Mailer

Between
Mr Maturkumar Purshottambhai Patel
no anonymity direction made
Appellant
and

secretary of state for the home department
Respondent

Representation
For the Appellant: Ms D Revill, counsel (instructed by Paul John and Company)
For the Respondent: Mr S Staunton, Senior Home Office Presenting Officer

DECISION AND REASONS
1. The appellant is a national of India, born on 3 November 1980. He appeals with permission against the determination of First-tier Tribunal Judge Hamilton promulgated on 20 March 2015 dismissing his application made on 22 January 2015 for leave to remain in the UK on human rights grounds.
2. The appellant came to the UK in October 2009 on a Tier 4 student visa valid until 17 April 2011. That leave was extended until 3 August 2015. In September 2014, his college had its licence revoked and his leave was curtailed to expire on 9 February 2015.
3. In November 2014, he was admitted to hospital and diagnosed with disseminated TB in his lungs and abdomen.
4. He applied on 22 January 2015 for leave to remain on human rights grounds. In a covering letter from his representatives dated 28 January 2015, it was stated that he had been diagnosed with TB and was subject to a one year treatment plan and could not travel abroad because his infection is contagious.
5. During the five years he has lived in the UK, he has established a family and private life. His family and friends have been supporting and accommodating him. He would not have to rely on public funds. It would be disproportionate to require him to return to India.
6. Taking into account the compassionate circumstances, he should be granted leave.
The First-tier Tribunal decision
7. Judge Hamilton referred in detail to the evidence submitted including documents relating to his medical treatment. His GP letter dated 9 March 2016 stated that the appellant's treatment for TB had been completed in August 2015 and that he continued to suffer from severe knee pain and he found it difficult to mobilise. He still needed crutches to move around. He has been referred for an arthroscopic procedure to relieve the symptoms, after which he would need many months of rehabilitation to improve his strength in his knee.
8. In his evidence before the Tribunal the appellant stated that he continues to attend outpatient appointments each month. He did not have a date for his knee operation. He was unable to walk for long. His doctor told him that he was not fit to travel and without an operation his knee would lose mobility.
9. He stated moreover that he is unable to return to India as his mother was too old to care for him and he would not be able to afford medicine or surgery. He may need a full knee replacement in the future. He made inquiries about treatment in India. The doctor he consulted told him that it would cost 5-6 lakh for a knee replacement.
10. As a disabled person in India he would not get any assistance from the government.
11. Since coming to the UK, he has been living with his brother and brother's family. His mother has her own house in India. He would be able to live there and his brother would also be able to pay for his day to day expenses. However, his brother would be unable to afford to pay for his medical treatment.
12. Judge Hamilton set out the relevant law, including the Immigration Rules applicable in the case. He also directed himself in accordance with Article 8 of the Human Rights Convention.
13. He had regard to the factors set out in s.117B of the 2002 Act in considering the public interest in the context of proportionality.
14. In his findings, the Judge noted that there was no detail given about the nature of the rehabilitation required. It was likely that it would entail following an exercise regime and possible visits to a physiotherapist.
15. There was no evidence to support his claim that he had been told that he required or may require a total knee replacement. The arthroscopy was a minimally invasive procedure. Nor was there evidence to support that he had been told that he was unfit to travel. Nor was there any evidence supporting what he claimed was said to him concerning the cost of medical treatment in India. It is reasonable to expect the appellant to have produced medical evidence to support such an assertion.
16. As to his brother being able to maintain and accommodate him in the UK, his brother did not make a statement or give evidence and no documentary evidence about his financial circumstances or the nature of the accommodation available was provided. Nor was there independent evidence to support his claim that his family could not pay for his medical treatment in India.
17. It had not been argued on his behalf that he met the requirements of the family life provisions contained in Appendix FM of the Rules. It was argued that he met the requirements in paragraph 276ADE(1) of the Rules. That is because he was disabled and unable to integrate into India.
18. The Judge found that the appellant had lived in India for most of his life. He had been in the UK for about six years. His mother lives in India. It is likely that he still has social and family connections there. He would be able to live with his mother in India and his brother in the UK would continue to support him and pay for his day to day needs.
19. He found that the appellant did not provide sufficient evidence showing that he is unable to afford the arthroscopic procedure and rehabilitation referred to in his GP letter. Nor was there evidence provided to support his claim that such treatment was beyond the means of his family.
20. Even if he were unable to pay for the surgery, the fact that his mobility would be limited does not prevent him integrating into life in India, given that he has accommodation and financial support available to him were he to return. There was no evidence that people with limited mobility were unable to live in India. He would also have the advantage of living in a country where he speaks the language fluently and which reflects his cultural background.
21. At [32] the Judge concluded that looking at the evidence as a whole, it would not be impractical or unrealistic for the appellant to integrate into life in India. Even if unable to work, his basic needs will be met and he will have access to adequate support. He accordingly found that the appellant did not meet the requirements under paragraph 276ADE (1)(vi) of the Rules.
22. The Judge considered his rights under Article 8 of the Human Rights Convention. He referred to GS (India) [2015] EWCA Civ 40. Even if the appellant were suffering from a significant life threatening medical condition, there is little prospect that he would be able to show that returning him to India would breach his rights under Article 3 of the Convention.
23. He stated at [36] that while the appellant has been unwell, it is likely that he has been dependent on his brother for financial support and accommodation and care. Although he has recovered from TB, he still has significant problems with his knee and his mobility is restricted. He is still living with and is being supported by his brother and his brother's family. The Judge found that he had established a family life in the UK with his brother and the family because of this level of dependency.
24. At [37] he "accepted" that the appellant's brother and family can continue to support him in India. Nevertheless, he considered whether requiring the appellant to return to India would amount to an interference with his family life.
25. He found that he has also established a private life in the UK within the meaning of Article 8 while he has been unwell and receiving treatment here. His private life is, to some extent, bound up with his family relationships. He is however not receiving medical treatment because of his familial relationship with his brother.
26. The Judge considered the public interest factors in assessing the proportionality of the decision. He took into account that the appellant can speak English and has complied with the UK laws. He has however only been in the UK on a temporary basis and there was no expectation that he would be allowed to remain. Any private life established in these circumstances can be given little weight.
27. He requires an operation and he says that he is likely to require increased medical treatment in the future. His brother is not paying for his treatment in the UK. This is provided free by the NHS. He had no inherent right to have the benefit of treatment on the NHS once his leave to remain had expired. The reality is that if he remains in the UK, he will increase waiting times and diminish resources available for those who already have a right to NHS treatment [42].
28. He accepted that if the appellant were to return to India, life would be significantly more difficult for him. However, on his own case, accommodation is available to him and his brother would continue to pay for his day to day needs. He is still likely to have social and family ties there.
29. The Judge was not satisfied that his brother's family are unable to pay for his medical treatment in India. In any event, he has not produced any cogent evidence to show that notwithstanding his limited mobility and medical problems, he would be unable to live in India and re-establish a private life there.
30. He will still be able to maintain his relationship with his brother and extended family through visits and modern means of communication.
31. Taking all those factors into account, the Judge held that there are no compelling circumstances applicable. The respondent's decision was a proportionate interference with his or his family's private or family life rights.
The appeal to the Upper Tribunal
32. On 15 November 2016, Upper Tribunal Judge Kamara granted the appellant permission to appeal on the basis that it is arguable that the Judge materially misdirected himself as to the correct test under paragraph 276ADE(1)(vi) of the Rules. Permission was granted on all grounds.
33. There were three grounds in support of the application for permission to appeal.
34. The first ground contended that the Judge misdirected himself as to the correct test under paragraph 276ADE(1)(vi) of the Rules, which provides that there must be very significant obstacles to his integration into the country. The Judge asked himself at [31] whether the appellant would be "unable" to live in India rather than asking himself whether there were obstacles to his integration which were very significant [32], which it is contended is a less demanding test.
35. He misdirected himself in asking whether it would be "impractical" or "unrealistic" for the appellant to integrate into life in India.
36. Of further concern is the fact that when considering Article 8 outside the Rules, the Judge stated that he accepted that if the appellant were to return to India, his life is likely to be significantly more difficult. That should have been part of the assessment under Rule 276ADE(1)(vi).
37. The Judge ought to have had considered the respondent's policy guidance entitled "Appendix FM 1.0 Family Life (as a partner or parent) and Private Life: Ten Year Routes" dated August 2015.
38. When assessing whether there are very significant obstacles to integration, the starting point is to assume that the applicant will be able to integrate into the country of return unless they can demonstrate why this is not the case.
39. A very significant obstacle is something which would prevent or seriously inhibit the applicant from integrating into the country of return. The decision maker is looking for more than obstacles. They are looking to see whether there are "very significant" obstacles, which is a high threshold. Very significant obstacles will exist where the applicant demonstrates that they would be unable to establish a private life in the country of return, or where establishing a private life in the country of return would entail very serious hardship for the applicant.
40. There is also reference to the cultural background, the length of time spent in the country of return and his family, friends and social network.
41. It was submitted that had the Judge properly directed himself, he would have concluded that the test in paragraph 276ADE(1)(vi) of the Rules was in fact met.
42. Ground 2 refers to a lack of anxious scrutiny. The Judge misrecorded the name of counsel who represented the appellant. He gave the wrong date of refusal, as being 29 July 2014 when it was in fact 20 March 2015.
43. The Judge failed to take into account the evidence in respect of tuberculosis and how contagious it is.
44. The Judge should have considered that the evidence submitted was sufficiently compelling, meaning that his removal at the present time while still receiving treatment was not proportionate or reasonable under Article 8.
45. It was also submitted that in the appellant's case, it was not purely a health claim under Article 8, but there was a genuine family life with the appellant's brother within Article 8. He should accordingly have treated this as a family life claim in accordance with paragraph 23 of MM (Zimbabwe) [2012] EWCA Civ 279 and [87] of GS (India) v SSHD [2015] EWCA Civ 40.
46. The third ground contended that the Judge erred in imposing a requirement for corroboration and that he failed to have regard to relevant evidence. There was in fact evidence that the appellant had been told that he required a total knee replacement.
47. In her submissions, Ms Revill contended that the Judge erred in asking himself whether the appellant would be able to integrate into India rather than whether there would be very significant obstacles to his integration there. That imposes a higher threshold than is warranted by the Rules.
48. She referred to the decision in SSHD v Kamara [2016] EWCA Civ 813 at [14]. This was a deportation appeal. Lord Justice Sales stated that the concept of a foreign criminal's "integration" into the country to which it is proposed he be deported, as set out in s.117C(4)(c) is a broad one. It is not confined to the mere ability to find a job or live the same life while living in the other country. It is not appropriate to treat the statutory language as subject to some gloss and it will usually be sufficient for a court or tribunal simply to direct itself in the terms that Parliament has chosen to use.
49. The idea of "integration" calls for a broad evaluative judgment to be made as to whether the individual would be enough of an insider in terms of understanding how life in that other country is carried on and a capacity to participate in it, so as to have a reasonable opportunity to be accepted there, to be able to operate on a day-to-day basis in that society and to build up within a reasonable time a variety of human relationships to give substance to the individual's private or family life.
50. The appellant asserted that his mother was too old to care for him and that he would not be able to afford medicine or surgery. The Judge found at [43] that if he were to return to India, life was likely to be significantly more difficult for him. That, she submitted, does go some way to a finding of discharging the requirements under paragraph 276ADE(1)(vi).
51. It was not suggested that treatment was not available in India. Had the lower test been applied, it cannot be said that paragraph 276ADE would not have been satisfied.
52. As regards ground 2, anxious scrutiny, Ms Revil referred to R (on the application of YH) v Secretary of State [2010] EWCA Civ 116 where the Court emphasised the need to apply anxious scrutiny in any asylum or human rights claim in view of the very special human context in which the cases are brought. In ML (Nigeria) v SSHD [2013] EWCA Civ 844, the Court of Appeal made it clear that anxious scrutiny is required even where the appellant's case is perceived to be weak and that its absence means that the appellant has been deprived of a fair hearing.
53. Ms Revill submitted that the Judge incorrectly recorded the name of the appellant's counsel, mis-stated the date of the respondent's decision and failed to have regard to the totality of the medical evidence relied on, and in particular that contained at page 24 of the appellant's bundle.
54. He also wrongly treated the appellant's Article 8 claim based on medical treatment as entirely separate from his claim to family life with his brother, contrary to the approach in MM (Zimbabwe) v SSHD [2012] EWCA Civ 297 at [23].
55. The third ground contended that the Judge erred in refusing to accept his evidence on matters in the absence of corroboration. It was an error to have rejected his evidence solely because it was uncorroborated.
56. On behalf of the respondent, Mr Staunton adopted the Rule 24 response.
57. The Judge set out at [6] of the determination the "very significant obstacles" aproach. The finding that it would not be impractical or unrealistic for the appellant to integrate into life in India was open to him.
58. The test in fact applied by the Judge is a lower test than the "very significant obstacles" test required by the Rules.
59. In any event, any error was not material as no Tribunal properly directing itself could reach the conclusion that the difficulties regarding the appellant's knee could possibly meet the very significant obstacles test laid down by the Rules. The error "is in semantics only." The Judge had directed himself appropriately.
60. Mr Staunton referred to the decision at [32]. The test applied was lower than the very significant obstacles test imposed by paragraph 276ADE. The Judge found that would not be "impractical or unrealistic" for the appellant to integrate into life in India. The test was in fact in the appellant's favour. Accordingly, if he applied the very significant obstacles test, the outcome would be the same.
61. As regards ground 2, he accepted that it was "sloppy" that the Judge did not properly record counsel's name and other typographical errors. However, he was at all times aware of the "factual matrix" applicable in this case.
62. Nor would the fact that the family and medical components were separately treated affect the outcome. If both were considered the outcome would have been the same.
63. The Judge found that he would have medical assistance in India and would be assisted by his family.
64. In reply Ms Revill submitted that the Rule is solely concerned with whether or not there would be very significant obstacles to the appellant's integration into India. It is not clear that the Judge was imposing a lower threshold. She submitted that "putting it all together" there has been a material misdirection.
Assessment
65. I have set out the Judge's detailed decision. He has concluded at [32] that the appellant did not meet the requirements of paragraph 276ADE(1)(vi) of the Rules. The Judge had earlier [at 28] referred to the argument that the appellant met the requirements under that Rule as he was disabled and unable to integrate into India.
66. The Judge had regard earlier to the appellant's assertions that his mother was too old to care for him and that he would not be able to afford medicine or surgery.
67. However, the Judge concluded that he had lived in India for most of his life. He had only been in the UK for about six years. His mother lives in India. He still has social and family connections there. The appellant accepted that he would be able to live with his mother and that his brother would continue to support him and pay for his day to day needs.
68. In the evidence presented from the Orthopaedic Registrar, Mr Jayaweera, stated that the appellant may benefit from arthroscopic procedure for symptomatic relief as he is too young for a total knee replacement at this time.
69. At [40] the Judge noted that the appellant continued to attend outpatient appointments but there was no date for his knee operation. The Judge noted his claim that he was unable to walk for long. He claimed to have been told that he was not fit to travel and that without an operation on his knee, he would lose mobility.
70. The Judge took into account at [36] that the appellant still has significant problems with his knee and that his mobility is restricted. He is still supported by his brother and his family. He found that there was no evidence to show that he was unable to afford the arthroscopic procedure and rehabilitation referred to in the letter from his GP. Nor was there evidence that such treatment was beyond the means of his family.
71. The Judge found that even if unable to pay for that surgery, the fact that his mobility would be limited would not prevent his integrating into life in India, given the fact that he has accommodation and financial support available. There was no evidence that people with limited mobility were unable to live in India. He would also have the advantage of living in a country which reflects his cultural background.
72. He thus found that looking at the evidence as a whole, it would not be impractical or unrealistic for him to integrate into life in India. His basic needs would be met. He could not meet the requirements of paragraph 276ADE(1)(vi) [32]. There was no evidence that people with limited mobility were unable to live in India.
73. The Judge set out the provisions of paragraph 276ADE(1)(vi) at [6] and made repeated reference in his decision to that paragraph - at [28] and again at [32]. It was noted that it was not accepted by the respondent that there would be very significant obstacles to his integration into India.
74. He also had regard to the appellant's evidence as to his ability to return to India. At [17] the Judge records that the appellant stated that he would be able to live in India and his brother would be able to pay for his day to day needs, albeit that he would be unable to afford to pay for his medical treatment.
75. The Judge found that it would not be impractical or unrealistic for him to integrate into life in India. He also noted in the same paragraph [32] that his basic needs would be met and that he would have access to adequate support. He did not therefore find, looking at the evidence as a whole, that the appellant could meet the requirements under paragraph 276ADE(1)(vi) of the Rules.
76. I accordingly do not find that the Judge was unaware of the very significant obstacles requirement under the Rules. Although he might have expressed himself more clearly in this respect, I do not find that the Judge failed to give proper effect to it.
77. In any event, the finding that it would not be impractical or unrealistic for him to integrate into life in India encompasses the finding that there would not be very significant obstacles to his integration there.
78. I am thus satisfied that the Judge was fully aware of the issues involved and that his finding that paragraph 276ADE(1)(vi) had not been met was based on the consideration of the relevant evidence and is sustainable.
79. With regard to ground 2, even though the Judge might have been "sloppy" as submitted by Mr Staunton, I do not find that this amounts to evidence of a failure to give "anxious scrutiny" to the appellant's case. As noted, the Judge has set out in great detail the full nature and extent of the appellant's claim. I do not accept that this constitutes a basis for the assertion that he has been denied a fair hearing.
80. The Judge found at [30] that the appellant had not produced sufficient evidence showing he was unable to afford the arthroscopic procedure and rehabilitation referred to in the letter from his GP. There was no independent evidence from his family to support his claim that such treatment was beyond their means. The Judge found that it was reasonable to expect him to have produced such evidence or explained why it was unavailable [27]. It was the duty of the appellant to present such evidence in order to discharge the burden of proof that was resting on him.
81. Moreover, the Judge has considered and properly applied the principles of GS (India) v SSHD. He found that there was family life in the UK with his brother and his family because of the level of dependency. He found however that they could continue to support him in India. He took into account that the degree of support that they can offer him is so different that requiring him to return to India would amount to an interference with his family life [37]. His return to India would significantly disrupt his life as established in the UK. It would end free medical treatment. It would also therefore interfere with his private life. If returned to India, he would have the opportunity to maintain his relationship with his brother and extended family through visits and modern means of communication.
82. Having regard to his decision as a whole, I find that the decision of the First-tier Tribunal Judge did not involve the making of any material error on a point of law.
Notice of Decision
The decision of the First-tier Tribunal did not involve the making of any material errors of law. The decision shall accordingly stand.
No anonymity direction is made.

Signed Date 16 January 2017
Deputy Upper Tribunal Judge C R Mailer