Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/14784/2015
IA/14788/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 30 September 2016

On 10 October 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE SHERIDAN

Between

Secretary of State FOR THE Home Department
Appellant
and

RAKESHKUMAR [P]
HETAL [P]
(ANONYMITY DIRECTION not made)
Respondents

Representation
For the Appellant: Mr K Norton, Home Office Presenting Officer
For the Respondents: Ms F Allen, Counsel instructed by Bespoke Solicitors

DECISION AND REASONS
1. This appeal arises from the decision of the Secretary of State, dated 27 March 2015, to refuse the respondents' application for leave to remain in the UK on the basis of their private and family life. The respondents (hereinafter referred to as "the claimants") appealed to the First-tier Tribunal ("FtT"). In a decision promulgated on 30 March 2016, FtT Judge Veloso allowed the appeal on the basis that the claimants were able to satisfy the requirements of 276ADE(1)(vi) of the Immigration Rules. The Secretary of State now appeals that decision.

2. The claimants are citizens of India, born on 19 August 1969 and 6 December 1971. The first claimant is the husband of the second claimant. They have a son born on 2 May 1995.

3. The claimants and their son entered the UK in 2002 on a visitor visa that was valid until 4 June 2003. They remained in the UK thereafter without lawful leave. Over the years they made several unsuccessful applications for leave to remain under Article 8 ECHR.

4. On 23 March 2015 the claimants' son was granted leave to remain under paragraph 276ADE.

5. The Secretary of State refused the claimants' application on the basis that they were unable to satisfy the requirements of either Appendix FM or Paragraph 276ADE of the Immigration Rules and there were no exceptional circumstances to justify allowing their appeal outside the Immigration Rules.

6. The claimants' appealed and the appeal was heard by Judge Veloso. The case before Judge Veloso was argued solely under paragraph 276ADE(1)(vi). This states:
276ADE(1). The requirements to be met by an applicant for leave to remain on the grounds of private life in the UK are that at the date of the application, the applicant
?
(vi) is aged 18 years or above, has lived continuously in the UK for less than 20 years (discounting any period of imprisonment) but there would be very significant obstacles to the applicant's integration into the country to which he would have to go if required to leave the UK."
7. The judge recognised that the question to be determined was whether there were very significant obstacles to the claimant's integration into India and made a number of findings relevant to this issue, including the following:
(a) The claimants have spent most of their life in India and are familiar with its language, culture and way of life. This familiarity has been maintained through spending much of their time, whilst in the UK, with the second claimant's parents, who live close to them, and attending Temple.
(b) The claimants have not worked since arriving in the UK and have not acquired any skills or experience that will assist them in India.
(c) The first claimant, whilst in India, assisted his father in a diamond business but did not earn any money and was supported by his father, who died in 2004.
(d) The claimants have lost all familial ties with India.
(e) The claimants both have medical conditions. The second claimant has, inter alia, type II diabetes and hypertension. The first claimant has, inter alia, HIV and previous cerebellar toxoplasmosis. Medical records describe him as having "residual hand weakness and mild cognitive impairment". The hand weakness is said to make him unable to lift effectively or hold a pen to write with his right hand.
(f) The claimants are supported in the UK by the second claimant's brother in law but he would not be able to support them if they returned to India.
(g) Any job search and performance would be "both limiting and difficult" given the claimants lack of work experience and medical problems.
8. Having considered the above described factors, the judge concluded that "on a balance of probabilities the first and second appellants have shown very significant obstacles to their reintegration into India".

9. The Secretary of State's grounds of appeal argue that the judge failed to give adequate reasons. They contend that none of the medical evidence referred to by the judge expressly states that the claimants are unfit to work. They also argue that there was a failure to take account of the first claimant's evidence that he would be willing to work in the UK and that the reason he has not worked in the UK is because he is not entitled to, rather than an inability to work. The grounds submit that if the claimants are able to work and receive financial assistance from their son they will be able to reintegrate into India.

10. Before me, Mr Norton argued that the judge had failed to deal with the "very significant obstacles" test correctly. The evidence did not support a finding that the claimants could not work in India - the first claimant himself stated he would wish to work in the UK if that was permitted by his immigration status. Mr Norton questioned the judge's reasoning which lead to the conclusion that the claimants would not receive support from the second claimant's brother in law, submitting that if he was able to support them in the UK he could do so in India.

11. Ms Allen argued that the judge had posed the correct question and in addressing that question had taken into account all, and not failed to consider any, relevant matters. It was for the judge to weigh the evidence and decide if the circumstances amounted to very significant obstacles.

Consideration

12. The judge correctly identified that the issue for her to resolve was whether there would be very significant obstacles to the claimants' integration into India.

13. Having reviewed the evidence that was before the FtT, it is clear that, in assessing the "very significant obstacles" issue, the judge took into consideration all of the material evidence that was before her did not take into account any immaterial evidence.

14. The judge's findings relevant to this issue concerned, inter alia, the claimants' ability to find and undertake work in India, the financial support they would receive, their family connections in India, and their medical conditions. The judge's findings on these points were grounded in, and consistent with, the evidence.

15. Moreover, the judge's findings were supported by clear reasons. In the grounds, the Secretary of State questions some aspects of the reasoning but the contentions are without merit. The Secretary of State submits, for example, that the medical evidence does not expressly state that the claimants are unfit for work. That is correct - the medical records do not expressly record this and indeed in oral evidence the first claimant stated that if his immigration status permitted him to do so he would work. However, the judge did not make a pronouncement on the claimants' medical fitness to work. Rather, she considered their lack of work experience (both in the UK and India) along with their medical difficulties and made a finding, on the balance of probabilities, about their ability to make a sufficient living in India to reintegrate into the country. Although another judge, reviewing the same evidence, could in my view have reasonably come to a different conclusion, that does not mean there was an error of law. The judge has reached a conclusion about the claimants' prospects of working in India that was open to her on the basis of the evidence.

16. Having directed herself to the correct legal framework and assessed all of the relevant evidence, it was for the judge to determine whether her findings about the challenges the claimants would face upon return to India amounted to "very significant obstacles." Other judges may well have reached a different conclusion, placing greater weight on factors (such as the claimants' familiarity with Indian culture and language) that would indicate any obstacles would not meet the threshold of being "very significant". However, the weight to give to the evidence is a matter for the judge hearing the appeal. I am satisfied that, based on the evidence that was before her, it was open to the judge, for the reasons she gave, to conclude that the claimants met the "very significant obstacles" test in paragraph 276ADE(1)(vi).
Decision
17. The decision of the First-tier Tribunal did not involve the making of a material error of law and shall stand.
18. The appeal is dismissed.

Signed

Deputy Upper Tribunal Judge Sheridan
Dated: 8 October 2016