Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/16303/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 14th March 2017
On 15th March 2017

Before

UPPER TRIBUNAL JUDGE MARTIN

Between

MR INDIKA ARUNAPRIYA PATHIRAJA WADUGEDARA PATHIRAJALAGE
(ANONYMITY DIRECTION NOT MADE)
Appellants
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms A Benfield (instructed by Jein Solicitors)
For the Respondent: Mr C Avery (Senior Home Office Presenting Officer)

DECISION AND REASONS
1. This is an appeal to the Upper Tribunal by the Appellant in relation to a decision of the First-tier Tribunal (Judge Aujla) promulgated on 26th September 2016 in which he dismissed his appeal against the Secretary of State’s decision, taken on 15th April 2015, to refuse his application for leave to remain on the basis of his private and family life in the UK. He is a citizen of Sri Lanka.
2. Permission was granted by a Judge of the First-tier Tribunal on 20th January 2017 on the basis that it is arguable that the Judge erred in his approach as to whether there were insurmountable obstacles to the Appellant’s family life with his partner continuing outside the UK. The Judge felt it arguable that by excluding the couple’s financial circumstances from consideration when he considered the possibility of managing the partner’s chronic liver disease in Sri Lanka he may have been in error.
3. The grounds were drafted by Counsel who represented the Appellant before the First-tier Tribunal. They refer to the fact that the Appellant entered the UK in October 2004 as a student, his leave thereafter extended until 30th November 2008. Then he overstayed. He met his partner in February 2010 and the couple started living together in October of that year. On 21st November 2014 the Appellant submitted an application for leave to remain on the basis of his relationship with her.
4. The Appellant’s partner, Miss Weightman is a British citizen born and bred in the UK. She works for the Maidstone and Tunbridge Wells NHS Trust where she has been employed for the past 23 years holding the senior post of Matron for the Speciality Medicine for Maidstone Hospital at a salary of £46,625 per annum. She is a member of the NHS pension scheme.
5. Miss Weightman has two adult sons from a previous marriage, the youngest of whom stays with Miss Weightman and the Appellant every weekend. She is responsible for paying her son’s tuition fees and both are said to be financially and emotionally dependent upon her.
6. In 2011 Miss Weightman was diagnosed with chronic autoimmune hepatitis with primary biliary cirrhosis of the liver, a rare and long-term liver condition which will deteriorate over time. Her condition is chronic and the prognosis uncertain. She has been informed that she will need a liver transplant at some stage although it is not possible to say when.
7. Miss Weightman receives constant medical supervision in the UK. She is under the care of the clinical lead for Hepatology (Dr Heneghan) at Kings College, a Consultant Physician and Gastroenterologist at Maidstone Hospital (Dr Bird) and her GP. She has to undergo ultrasound scans every six months and a number of intrusive investigatory procedures annually. At present she is on six different medications including immunosuppressants. Her blood is tested every six weeks so as to monitor the stability of her liver condition. Her illness means that she is more prone to infections and she requires a longer recovery period from any infection. She also suffers from extreme fatigue.
8. The Appellant carries out all household chores such as shopping, cleaning, cooking and walking the dogs so as to enable Miss Weightman to continue to work. Miss Weightman further relies on the Appellant for emotional support stating that she would be absolutely devastated if he has to leave the UK and that she will be in a very vulnerable position with no support network. Miss Weightman’s parents provided a statement in support of the appeal confirming that the Appellant took care of their daughter and that they lived in Wales and it was becoming increasingly difficult for them to make regular trips to Kent to see her due to their advancing age. At the hearing Miss Weightman’s evidence was that she and the Appellant had not spent a day apart since they began to live together in October 2010.
9. The grounds quote two letters from Dr Bird, the first dated February 2015 which confirmed the prognosis for the liver condition as uncertain and that over the last few years it had been significantly progressive. That letter also indicated that whilst it is possible that she will need a liver transplant it was not possible to say when that would need to be and indeed it could be anything from 1 to 20 years. That letter concluded by saying that it was very important that she was able to maintain her link with Kings College Hospital which has one of the few internationally recognised centres for managing this condition in the form of Dr Heneghan and his department.
10. The more recent letter of June 2016 from Dr Bird indicated that there had been some adverse changes in Miss Weightman’s blood tests throughout the past year indicating a progression of the disease and that the condition may now be entering a more advanced stage where it is was possible that a transplant assessment may be necessary in the foreseeable future. He went on to strongly advise that she continue under the care of tertiary centres such as Kings College Hospital as her condition requires highly specialist care particularly with regards to the foreseeable future and that it is unlikely that she would be able to access care of this standard outside of the European Union or North America.
11. The grounds went on to indicate that the First-tier Tribunal accepted that the Appellant and Miss Weightman are in a genuine and subsisting relationship and that the Appellant would be likely to succeed in an application to join the Appellant in the UK if he were to return to Sri Lanka and make such an application. The Judge did not accept that there were insurmountable obstacles to family life being carried out abroad or that there were exceptional circumstances rendering removal disproportionate.
12. The grounds suggest the Judge’s consideration of “insurmountable obstacles” at paragraph 30 and 31 of the Decision and Reasons are flawed as they did not take into account Dr Bird’s evidence of the likelihood of Miss Weightman requiring a liver transplant in the foreseeable future nor his view that the treatment she requires is highly specialised and the standard of care required likely to be unavailable outside the EU or North America. Similarly, it is said that the Judge failed to take into account the recommendation that she should continue with the care she is currently receiving under Dr Heneghan.
13. It is said that the Judge dismissed the potential cost of such treatment abroad saying that it was not a factor that could be taken into account and the grounds submit that those factors are relevant to deciding the question of “insurmountable obstacles”.
14. It is further asserted that the Judge erred in limiting his assessment of “insurmountable obstacles” to Ms Weightman’s medical condition and that there was no consideration of other relevant factors such as the impact on her UK employment, her pension rights, her mortgage or her sons.
15. Before me Ms Benfield had helpfully provided a “Speaking note on behalf the Appellant.” Her first submission was that the Judge had erred in his consideration of “insurmountable obstacles” in the way he assessed the medical evidence. He had confined his assessment to the availability of medication without taking into account the other aspects of her care, detailed as essential in the medical evidence. He had erred in suggesting that Miss Weightman could return to the UK at intervals to undergo the necessary tests when the medical evidence clearly advised against travel, particularly long haul travel. Furthermore, the Judge ignored in his assessment in that regard, the cost involved of travelling.
16. Further, Ms Benfield pointed to the other factors which the Judge had failed to take into account such as Ms Weightman having been employed for over 23 years in a very senior position in the NHS; that her employment, provided she continues with it, will provide her with a full pension; that she owns property in the UK subject to a mortgage and that she has two children who although over the age of 18 are still only 18 and 21 and are dependent upon their mother for financial and emotional support and also the fact that the youngest child, Tariq, is permanently disabled following an accident.
17. Ms Benfield relied on Agyarko & Ikuga [2017] UKSC 11.
18. Mr Avery, on behalf the Secretary of State, argued that the Judge had not made an error of law and that he did take into account the medical evidence which he specifically referred to in the decision. He said the burden of proof was on the Appellant and “insurmountable obstacles” carries a high test. To say that the equivalent medical care was unavailable in Sri Lanka was relying on one sentence in Dr Bird’s letter of 2016. The judge attached significant weight to the oral evidence which he was entitled to.
19. There is no issue about the nature of the relationship between the Appellant and Miss Weightman. It is accepted to be genuine and subsisting. The Secretary of State’s initial decision asserted that Sri Lanka has a functioning health system which Miss Weightman would be able to access and asserted an absence of insurmountable obstacles.
20. The Judge set out the oral evidence and noted that the Appellant referred to his partner’s medical condition and that it was likely that she would need a liver transplant but it was not clear when that would be. He explained that Miss Weightman’s work pattern had changed and rather than working five days a week she now worked full-time but across four days only which involves longer hours but over fewer days. He confirmed that there had been no adjustments necessary at their home and he confirmed that he took care of the house while Ms Weightman worked. He indicated that he did not provide any personal care as this was not necessary and he confirmed that the two adult sons visited, the younger every weekend and the older only every three months because he was working. They did not otherwise assist Ms Weightman. The Appellant indicated that his father was living in Sri Lanka and he had a sister there with whom he was in contact.
21. Miss Weightman also gave evidence and said that her youngest son lived with his father but visited her weekly and that he had a problem with his foot following an accident. She confirmed that she may need a liver transplant some time but could not say when as it was dependent upon how the medication stabilised her liver. She confirmed that she worked long hours over four days a week. She said that if the Appellant had to return to Sri Lanka it would have a massive impact on her because he did everything for her and she would find it extremely difficult if he was not there. She confirmed she was taking six tablets each morning and that the Appellant did all the household chores and also provided her with emotional support. She acknowledged she could hire help with household chores but that would impose a financial strain.
22. It became clear that the Appellant had not told Miss Weightman that he was an overstayer until 2014 when he made his application and she had been devastated to discover that.
23. The Judge’s consideration of the evidence and findings commence at paragraph 27 where he noted that it was submitted on the Appellant’s behalf that there would be insurmountable obstacles to family life between him and his partner continuing in Sri Lanka. The Judge then noted the appropriate test for “insurmountable obstacles” and at paragraph 30 noted that Miss Weightman had clearly stated that her medical condition was contained by medication. He stated that the issue was whether or not she could access the same or similar medication in Sri Lanka and what the doctor had said but noted that there was no evidence before him to find the requisite medication would not be available in Sri Lanka. He noted that the burden of proof was on the Appellant to establish “insurmountable obstacles” and in order to do so he had to provide credible country evidence which clearly showed the medication Miss Weightman required would not be available in Sri Lanka and he had provided no such evidence.
24. In that regard it is correct to say that the Judge referred only to medication rather than the treatment regime as a whole which encompassed regular testing and medical supervision. However the Judge was also correct when he said that Miss Weightman’s own evidence was that the necessity for a transplant in the future would depend upon whether the medication was controlling her liver and keeping it stable. Such is ascertained by regular tests. The Judge was clearly right therefore in his view that medication was at the heart of the treatment, although he was wrong to fail to take into account the necessity of the tests. That notwithstanding, the Judge was correct to point out that the burden of proof rested with the Appellant and that no evidence had been provided as to the availability of medical treatment or medication in Sri Lanka. Miss Benfield acknowledged that and said she relied solely on the letter from Dr Bird, which she argued, coming from a consultant and expert in his field could be relied upon. I am afraid I cannot accept that assertion. In the wealth of medical evidence provided in relation to Miss Weightman’s medical condition the availability of treatment in Sri Lanka is dealt with in one single sentence at the end of the letter from Dr Bird dated 8th June 2016 which states:-
“I strongly advise that she continues under the care of a tertiary centre such as Kings College Hospital as her condition requires highly specialist care, particularly with regards to the foreseeable future it is unlikely that she would be able to access care of this standard outside of the European Union or North America.”
25. Dr Bird is a consultant physician with the gastroenterology department. Whilst Dr Bird is no doubt an expert in his field there is no indication of how he has reached the conclusion as to the unavailability of highly specialist care outside the European Union or North America. That is a very sweeping statement, indicating, for example, that such specialist care would be unavailable in Australia or New Zealand. There has been no investigation or expert report as to the availability of medical treatment in Sri Lanka. In order to succeed on the basis that such care is not available there, evidence needed to be produced and it was not.
26. I accept the criticism of the Judge in terms of what he says at paragraph 31 concerning the ability of Miss Weightman to travel backwards and forwards between Sri Lanka and the UK to undergo tests given the medical evidence that she should not undertake long flights on a frequent basis. However that would only be material if appropriate medical treatment was unavailable in Sri Lanka and there is no evidence that that is the case.
27. The other factors relied upon, such as the Miss Weightman’s employment, her adult sons, her house and her pension are not factors which are in any way out of the ordinary and cannot lead to a finding of insurmountable obstacles.
28. In essence the issue in this case is a simple one; namely could the medical treatment that Miss Weightman needs be available in Sri Lanka and there was simply no evidence before the First-tier Tribunal, or indeed before me, that it is not.
29. I therefore find that the Judge did not err in finding no insurmountable obstacles to family life continuing in Sri Lanka. That is the test for a consideration of whether the appellant meets the requirements of the EX.1. of Appendix FM. With regard to proportionality otherwise, there are no other compelling factors that fall for consideration which could lead to a conclusion in the Appellant’s favour. He has been unlawfully in the United Kingdom since 2008 and made no effort to regularise his stay until 2014. He established his family life with his partner whilst unlawfully in the UK
30. While the First-tier Tribunal Judge did make minor errors in his Decision and Reasons on the evidence before him there is simply no basis upon which a different conclusion could properly be reached. A Judge decides appeal on evidence. The burden of proof rested with the Appellant. The Appellant had not adduced appropriate evidence which could have led to the appeal being allowed.
31. The appeal to the Upper Tribunal is therefore dismissed.

Notice of Decision

The appeal is dismissed.

There has been no application for an anonymity order and I do not make one.

Signed Date 14th March 2017

Upper Tribunal Judge Martin