Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers IA/15147/2015
IA/15148/2015
IA/15149/2015
IA/15150/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 21 September 2016
On 03 October 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE HUTCHINSON

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

Mrs Elizabeth Robert DSilva
Mr Robert Kote Bagilu DSilva
Miss Elvira Roshni DSilva
Miss Elvita DSilva
(ANONYMITY DIRECTION NOT MADE)
Respondents

Representation:
For the Appellant Mr L Tarlow, Home Office Presenting Officer
For the Respondents Mr E Waheed of Counsel, instructed by Norton Folgate Solicitors LLP

DECISION AND REASONS

Background
1. The appellant in this case is the Secretary of State. However, I refer to the parties as they were before the First-tier Tribunal where the DSilva family were the appellants.
2. The appellants are citizens of India. The first and second appellants were born on 1 April 1969 and 14 May 1964 respectively and the third and fourth appellants were born on 20 June 1999 and on 24 October 2000. They appealed to the First-tier Tribunal against the decision of the respondent dated 25 March 2015 to refuse to vary their leave to enter or remain and to give directions for their removal under Section 47 of the Immigration, Asylum and Nationality Act 2006.
3. The first appellant arrived in the United Kingdom on 11 February 2010 and was given leave to enter as a student until 18 June 2012. The second, third and fourth appellants arrived in the UK on 29 May 2011, being the husband and children of the first appellant and were granted leave as her dependants.
4. The appellants were granted leave to remain outside of the Immigration Rules until 19 December 2014. On 18 December 2014 the appellants submitted applications for further leave to remain on family and private life grounds providing medical evidence relating to the second appellant who had undergone a pancreas and kidney transplant on 9 August 2013.
5. Judge of the First-tier Tribunal Flynn, in a decision promulgated on 19 February 2016, dismissed the appellant's appeal under Article 3 of the European Convention on Human Rights but allowed the appeal under Article 8.
6. The Secretary of State appeals with permission.
Error of Law
7. The Secretary of State set out the findings of fact made by Judge Flynn and submitted in light of those findings that the judge had erred and made a material misdirection in law. The Secretary of State referred to the fact that at [67] of the Decision and Reasons the judge found that the appellants have no home in India and that they no savings and as a result of this, coupled with the health problems of the second appellant, the children's interests would have to be subordinated to those of the second appellant and this would negatively impact on them. The Secretary of State submitted that this contradicted the judge's earlier findings that the first and second appellants would be able to secure work [49] and her finding that the second appellant could procure medical treatment in India [47].
8. The judge also found that the appellants do have contact with their family in India. Although the judge found at [67] that the children's education would be disrupted at a critical stage no reference was made by the judge to the ability of the children to study in India, bearing in mind her finding at [64] that they had spent eleven and ten years respectively in their native country and retain familiarity with it. It was argued that the judge also erred in finding that less weight should be given to the public interest.
9. The Secretary of State relied on AM Malawi [2015] UKUT 0260 in relation to claims about difficulties with disruption of education and argued that the judge failed to assess the ability of the children to study in their native country, which represented a material error of law.
Grounds 1 and 2
10. It was argued, that given the judge's findings of fact, that she erred in law in allowing the appellants' appeal outside of the Immigration Rules. I am satisfied that no material inconsistency has been established and that the judge gave clear reasons for the findings she reached.
11. In particular it was argued that the judge's finding, that the appellants would have no home in India and no money, contradicts the judge's findings that the first and second appellant would have the ability to work to generate two salaries and have contact with their family in India.
12. The judge made findings, at [67] that were open to her, that the need of the parents to provide and financially pay for the father's treatment in India would negatively impact upon their children. The judge had properly acknowledged the ability of the first and second appellants to work in India but accepted that they had sold their family home to pay for the first appellant's studies and that:
"More significantly, I have no doubt that the second appellant's health, including the need to obtain medical advice and treatment, will be a major concern for the adults, in addition to the need to find accommodation and employment."
13. It was open to the judge to make those findings as to the impact of the return, particularly in relation to the best interests' assessment, notwithstanding her findings that the parents could obtain work and that they have contact with family in India. The judge took this into consideration and found that there was "only limited family support available to them" [67]. This followed on from her earlier finding at [64] where she accepted the first appellant's evidence that she has no family in India and that they have limited contact with her husband's family, who live at a considerable distance from their former home.
14. The fact that the judge found that they would most likely have two salaries was not inconsistent with her subsequent findings as to the difficulties the family would face on return to India and in particular the negative impact on their children.
15. Looking at the First tier Tribunal's decision as a whole, I am not satisfied that it can be said that the conclusion of the judge is irrational. I am not satisfied that there is any material error of law.
Ground 3
16. I am not satisfied that the judge made any material error. The appellants' case can be distinguished from AM Malawi. In this case there has been the intervening factor of the poor health of a parent. The judge at [65] carefully considers the position of the children in this case and their best interests including that in evidence their mother indicated that they did not plan to stay in the UK but that "everything changed" when her husband's health deteriorated. The judge gave reasons for accepting that this was a significant change in the family's circumstances.
17. The judge went on to find that although the family's removal would not breach Article 3, nevertheless she was satisfied that the second appellant's health, and the need for the family to cater for his health needs on return to India, was an additional factor which was relevant to the assessment to the family's circumstances and the children's best interests.
18. The judge also found and gave reasons for that finding that the children's ties were strengthened and developed as their stay in the UK had been extended.
19. The judge gave careful consideration to the children's education including that they had lived in India and she accepted that they would retain some familiarity with their native country. However, it was open to her to find as she did that the education system is different and that the children will experience in adapting and that their knowledge of their native country and education system will "after such a long time", now be vague.
20. It was also open to the judge to make the findings that she did considering the children's education and the impact on it if they return to India in the light of their father's illness. I am not satisfied therefore that the judge's concern about the disruption to the education of the third and fourth appellants is inconsistent with her findings that they had lived previously in India and would retain some familiarity with it.
21. It is not correct to say, as the permission judge did, that the Judge of the First-tier Tribunal found that the children could study in India; rather the judge found that they would retain some familiarity with India. I am not satisfied that any material error has been shown.
Ground 4
22. It was argued that the judge erred in finding that less weight should be given to the public interest in removing the appellants due to a previous grant of exceptional leave to remain when that leave was only granted for a matter of months and the delay in the respondent deciding the case was not for the purpose of enabling the second appellant to receive medical treatment in the UK. Mr Tarlow was unable to say how the judge might have erred in this regard and made no substantive submissions on this ground.
23. The judge at [69] found that the respondent had allowed a significant delay of more than two years before considering the appellants' 2012 applications. The judge fully took into consideration that the Secretary of State only allowed further leave to remain for a short period and that the delay was not to permit the second appellant to have medical treatment. However the judge was very clear, at [53] that she did not accept that the grant of further leave to remain should be decisive as it was clear that this grant was for a short period.
24. There was no error in the judge finding, as she then did, at [69] that the circumstances were unusual given the respondent's delay and subsequent grant of leave to the appellants. It was open to the judge therefore to attach less weight to the public interest; the judge had correctly directed herself in relation to the requirement to attach little weight to private life formed when an applicant's status was precarious, as it is not disputed it is in this case. The judge had also found at [61] that it was clear that the children had no responsibility for their situation. Read in its entirety there was no error in the judge reducing the weight to be given to the public interest in this appeal. The judge gave adequate reasons for doing so and it cannot be said that such a decision was irrational.
Ground 5
25. The final point raised by the respondent was in relation to the alleged inconsistency in the judge's findings at [68] that the rejection of the transplanted organs would result in a significant waste of the resources provided to treat the second appellant, given that it was the Secretary of State's case that there was no suggestion that the organs are being rejected.
26. The Secretary of State also relied on the fact that the judge made findings that the appellants had failed to show that the second appellant would not be able to access treatment in India or that such treatment would not be affordable (paragraphs [47] and [51]). However, I have taken into consideration that at [52] the judge accepted the opinion of Mr Crane, Consultant Transplant and Vascular Surgeon.
27. The judge found at [68] that if the second appellant's transplants were to be rejected this would result in a significant waste of the resources provided to treat the second appellant and took this into consideration in attaching less weight to the public interest in removing the appellants. Although the Secretary of State argued that there was no suggestion that the organs are being rejected that is not what the Judge of the First-tier Tribunal found.
28. The Judge of the First-tier Tribunal was taking into consideration all of the evidence including of the appellant's consultant, Mr Crane, who had provided an opinion where he "refers to the possibility that the transplants would be rejected" if the appellants were returned to India. The judge saw no reason for doubting his opinions (at [52]). The fact that the judge found that this fell short of the very high threshold required to allow the second appellant's appeal under Article 3 does not prevent the judge taking this possibility into consideration in the Article 8 balance.
29. I am not satisfied therefore that any material error of law is disclosed.
Notice of Decision

The decision of First-tier Tribunal Judge Flynn shall stand and the appeal of the Secretary of State is dismissed.

No anonymity direction is made. Although the third and fourth appellants are minor children, there was no identifying information other than their names and I am not satisfied that an anonymity direction is required.

Signed Date: 3 October 2016

Deputy Upper Tribunal Judge Hutchinson

TO THE RESPONDENT
FEE AWARD

No fee award application was made and I make no fee award.

Signed Date: 3 October 2016

Deputy Upper Tribunal Judge Hutchinson