Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/15445/2015

THE IMMIGRATION ACTS

Heard at Bennett House Stoke
Decision & Reasons Promulgated
On 3rd April 2017
On 7th April 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE M A HALL

Between

GS
(ANONYMITY DIRECTION MADE)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Miss E Rutherford of Counsel instructed by French & Company Solicitors
For the Respondent: Mr C Bates, Senior Home Office Presenting Officer

DECISION AND REASONS

Introduction and Background
1. The Appellant appeals against a decision of Judge A W Khan of the First-tier Tribunal (the FTT) promulgated on 18th August 2016.
2. The Appellant is a male Indian citizen born 9th April 1971. He arrived in the United Kingdom on 6th August 2014, having been granted a visa as a visitor, valid until 23rd January 2015.
3. On 22nd January 2015 the Appellant applied for leave to remain in the United Kingdom, based upon his relationship with his partner BK to whom I shall refer as the Sponsor, and who is a British citizen. In brief summary, it was contended that BK had serious health problems, and relied upon the Appellant to provide her with care and support.
4. The application was refused on 1st April 2015.
5. The Respondent decided that the Appellant could not satisfy the requirements of Appendix FM of the Immigration rules in relation to family life. It was noted that he had only been living with the Sponsor since 6th August 2014 and therefore did not fulfil the definition of a partner within the rules. It was not accepted that his relationship with the Sponsor is genuine and subsisting. He did not satisfy the eligibility requirements within Appendix FM, as he was in the United Kingdom as a visitor. Therefore the Appellant could not benefit from EX.1. Even if EX.1 was considered, the Respondent did not accept that there were insurmountable obstacles to the Appellant and Sponsor continuing their relationship in India.
6. The Appellant’s private life was considered with reference to paragraph 276ADE(1), the Respondent not accepting he could satisfy any of the provisions therein.
7. The Respondent did not accept that there were any exceptional circumstances that would justify allowing the application with reference to Article 8 of the 1950 European Convention on Human Rights, outside the Immigration rules.
8. The Appellant appealed pursuant to section 82 of the Nationality, Immigration and Asylum Act 2002 (the 2002 Act) and his appeal was heard by the FTT on 3rd August 2016.
9. It was conceded before the FTT that the Appellant could not succeed by reliance upon Appendix FM or paragraph 276ADE(1). His appeal relied upon Article 8 outside the Immigration rules. It was argued that he was in a genuine and subsisting relationship, and that it was not necessary for him to return to India to make an entry clearance application, and reliance was placed upon Chikwamba [2008] UKHL 40.
10. It was contended before the FTT that the Appellant and Sponsor had been in a relationship since October 2009 and the Appellant had intended to return to India following his visit, but decided to apply for leave to remain in the United Kingdom to enable him to look after the Sponsor, whose condition had worsened.
11. The FTT heard evidence from the Appellant and Sponsor and accepted (paragraph 23) that the Sponsor “is suffering from some serious health issues and has suffered various medical problems for some considerable time”.
12. The FTT however found that the Sponsor and Appellant had exaggerated the Sponsor’s difficulties in order to show that compelling circumstances existed so that the Appellant could be granted leave to remain. The FTT found that compelling circumstances did not exist, and found that the weight that must be attached to the public interest in maintaining effective immigration control, outweighed the weight to be attached to the wishes of the Appellant and Sponsor that the Appellant be allowed to remain in the United Kingdom. The appeal was dismissed.
13. This prompted the Appellant to apply for permission to appeal to the Upper Tribunal. In brief summary it was contended that the FTT had erred by not making primary findings of fact on the medical evidence relating to the Sponsor and her actual care needs. The FTT had erred by not providing adequate reasons for concluding that the Appellant and Sponsor had exaggerated the care needs, and had confused the issue of compelling circumstances with the second stage proportionality assessment. In addition the FTT had erred by failing to take account of relevant evidence of disability, in concluding that the Sponsor was “not an invalid”.
14. Permission to appeal was granted by Judge of the First-tier Tribunal Gibb on 1st December 2017.
15. The Respondent lodged a response pursuant to rule 24 of the Tribunal Procedure (Upper Tribunal) rules 2008 contending, in summary, that the FTT had not erred in law, and had provided adequate reasons for the findings made, and the FTT decision should stand.
16. Directions were subsequently issued making provision for there to be a hearing before the Upper Tribunal to decide whether the FTT decision contained a material error of law such that it should be set aside.
The Appellant’s Submissions
17. Miss Rutherford relied and expanded upon the grounds contained within the application for permission to appeal. The crux of the application was the failure of the FTT to engage with the medical evidence. There were no reasoned findings. The FTT conclusion that the Sponsor suffered serious medical problems conflicts with the subsequent finding that the Sponsor and Appellant had exaggerated the difficulties that she suffered.
The Respondent’s Submissions
18. Mr Bates relied upon the rule 24 response and submitted that the FTT had considered all relevant evidence and noted that the Sponsor had employment, and the medical evidence did not indicate that the Sponsor had daily personal care needs that could only be met by the Appellant. Mr Bates pointed out that a letter from an NHS consultant at pages 116A-116B, of the Appellant’s bundle suggested that the Sponsor’s condition may improve by taking regular aerobic exercise. The FTT was entitled at paragraph 25 to take into account that the Sponsor had not investigated obtaining an alternative carer, and any difficulties she had could be overcome by seeking outside assistance through Social Services.
The Appellant’s Response
19. Miss Rutherford observed that Mr Bates had made reference to medical evidence contained within the Appellant’s bundle, but the FTT had not considered that evidence. Miss Rutherford submitted that the FTT had not considered letters from the Sponsor’s general practitioner at pages 34-35, and 36-37. The FTT had not carried out an adequate balancing exercise, because no findings had been made as to the Sponsor’s medical condition and her needs.
20. At the conclusion of oral submissions I reserved my decision.
My Conclusions and Reasons
21. I do not find that the FTT materially erred in law for the following reasons.
22. In my view the FTT took into account all the evidence placed before it, and the fact that there was not a specific reference to a particular piece of evidence does not mean that the evidence was not considered. It is not possible for the FTT to refer to each individual piece of evidence.
23. The FTT states at paragraph 24 that all the evidence had been considered. My reading of the decision does not cast doubt upon that statement.
24. The FTT recorded at paragraph 21 the health problems suffered by the Sponsor noting that these are fully set out in the Appellant’s bundle of documents. The FTT specifically made reference to a report from the Sponsor’s general practitioner.
25. The FTT found that the couple are in a genuine and subsisting relationship, and also found at paragraph 22 that the Appellant offered the Sponsor “some considerable help in attending to all her needs in the family home, both physically and emotionally.”
26. The FTT found that family life “clearly exists between the parties” and that the Sponsor is “suffering from some serious health issues.”
27. However at paragraphs 25 and 26, the FTT noted, and was entitled to do so, that the Sponsor had employment, and intended to return to work. She was able to walk to work, and that she has two sons, one of whom lives with her. The Appellant joined the Sponsor in August 2014, and prior to that the Sponsor had managed her medical condition without the Appellant’s assistance.
28. The FTT noted the Sponsor could have assistance from her sister, who gave evidence to the FTT. She visited the Sponsor every week. The FTT also noted that the Sponsor had assistance from an occupational therapist, had not sought assistance from Social Services, and had not investigated the possibility of obtaining a carer.
29. I do not find that the FTT disregarded any material evidence. The FTT did not err in concluding that the Appellant did provide both physical and emotional help and assistance to the Sponsor, but that alternative care and assistance was available to the Sponsor.
30. The FTT noted the wishes of the Appellant and Sponsor that the Appellant be granted leave to remain, but also took into account the public interest in maintaining effective immigration control.
31. I do not find that the FTT erred in considering proportionality or in carrying out a balancing exercise. The FTT took into account all material factors, and concluded that the weight to be attached to the maintenance of immigration control, meant that it was proportionate for the Appellant’s application for leave to remain to be refused. That conclusion was open to the FTT to make on the evidence before it.
32. The grounds contained within the application for permission to appeal, taken together with the oral submissions made at the hearing, do not show that the FTT erred in law, and therefore the appeal is dismissed.
Notice of Decision

The making of the decision of the FTT did not involve the making of a material error on a point of law. I do not set aside the decision.

Anonymity

An anonymity direction was made by the FTT. I continue that direction pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) rules 2008 because this appeal considers medical issues relating to the Sponsor. Unless and until a Tribunal or court directs otherwise, the Appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of his family. This direction applies both to the Appellant and to the Respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Signed Date 3rd April 2017

Deputy Upper Tribunal Judge M A Hall

TO THE RESPONDENT
FEE AWARD

The appeal is dismissed. There is no fee award.

Signed Date 3rd April 2017

Deputy Upper Tribunal Judge M A Hall