Tribunal decisions

The decision

IAC-FH-CK-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/17699/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 1 March 2017
On 20 March 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE HUTCHINSON

Between

Mr Abdul Wahab Abdul Gafur Mansuri
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms P Heidar, Legal Representative, AA Immigration Lawyers
For the Respondent: Mr D Clarke, Senior Home Office Presenting Officer

DECISION AND REASONS
Background
1. The error of law hearing in this case was adjourned on 11 January 2017 and I refer to the attached Adjournment Directions issued on 24 January 2016. Regrettably those Directions have not been complied with. They required the respondent to provide written confirmation from the Home Office Presenting Officer, Mr Grennan, who appeared before the First-tier Tribunal, to address the issue of whether or not he agreed that the appellant had given evidence at his 14 July 2016 hearing in English or whether Mr Grennan could not comment. Mr Clarke submitted that he had not had sight of the directions (although Ms Heidar had, and I was satisfied they were properly served) but had communicated with Mr Grennan who could not remember.
2. The appellant is a citizen of India born on 16 December 1974. The appellant appealed the decision of the respondent, dated 5 May 2015, to refuse the appellant’s application for a derivative residence card as confirmation of his right to reside as the primary carer of a British citizen, with reference to Regulations 18A and 15A of the Immigration (European Economic Area) Regulations 2006 (the “2006 Regulations”).
3. In a decision promulgated on 3 August 2016 Judge of the First-tier Tribunal Chamberlain dismissed the appellant’s appeal under the Immigration Rules and on human rights grounds.
4. The appellant appealed on the following grounds:
Ground 1 - Factual Error in relation to the appellant using an interpreter at the hearing
Ground 2 - Failure to consider the Contents of the Medical Evidence correctly
Ground 3 - Lack of Clear Findings
Ground 4 - Incorrect Assessment of Article 8/Failure to consider the Arguments/Evidence
Ground 1
5. It is difficult for the respondent to rely on the comments of the previous presenting officer in the absence of compliance with directions. The appellant may well have given evidence in Urdu at the previous appeal a number of years ago. However, the respondent cannot possibly suggest that that means that he would have therefore given evidence in Urdu at any subsequent appeal, particularly in light of the fact that the appellant has remained in the UK in the intervening period. Equally, it is not determinative that that the grounds of appeal to the First-tier Tribunal indicated that the appellant and the other witnesses would require an interpreter, as witnesses can and do change their minds on this issue.
6. I attached weight to the witness statement and submissions of Ms Heidar that the appellant had given evidence in English, given her obligation to the Tribunal and the fact that she made her statement very shortly after the promulgation of the decision of the First-tier Tribunal. It would be a very serious breach if Ms Heidar had deliberately made a false witness statement on this matter. I do accept, therefore, that the appellant gave evidence in English at his hearing. The Record of Proceedings made only one reference at the beginning to an interpreter being present and I am satisfied that the First-tier Tribunal mistakenly recorded the appellant as using that interpreter when I accept that he did not.
7. I have taken into consideration that the judge did make reference in error therefore to the appellant giving evidence in Urdu: at [22] where she noted that the appellant used an interpreter at the hearing whereas he stated that he attended meetings with his father as his father could not speak English very well; at [36] where the appellant was recorded as using an interpreter and the judge stated that she had no evidence of his English language skill; at [43] where the judge found that the appellant gave evidence in Urdu at the hearing. However it cannot be properly said that an error in this regard infected her otherwise very careful findings.
8. In relation to [43] and [44], it was not contested by the appellant that he could not speak Urdu and indeed this would contradict his evidence of being an interpreter for his father if he could not also speak Urdu. There is no material error in the judge’s findings at [43] and [44] in relation to the appellant’s ability to reintegrate being assisted by his linguistic ability in Urdu.
9. I am not satisfied that any mistake in the judge’s findings at [22] is material. The mistake was made in the context of the judge considering “the evidence of the appellant and of his father” including that the appellant said in his witness statement that he helped his father with his day-to-day activities and all of his emotional needs. The judge recorded that the appellant said that his father was not physically able to move around easily and he helped to bathe and dress him and carried him to bed and that he attended all his meetings as his father could not speak English very well. The judge’s primary finding was that this was “inconsistent with the medical evidence” provided for the appeal which indicates that he “often” attends and which the judge had already noted at [14] of her Decision and Reasons.
10. The judge also recorded that the appellant said that he ensured that his father took his daily medication and that although the appellant stated that he attended all appointments with his father as his father could not speak English very well, the judge recorded that the “appellant himself used an interpreter at the hearing”. However, the judge went on to consider the evidence more generally in relation to his father and his stepmother and found that “helping with medication and cooking cannot be described as heavy work” which was the reason the appellant gave for his stepmother not helping with medication and cooking meals. The judge also found that the appellant’s only evidence of the care that he provides was in his witness statement and that this evidence was not corroborated by any medical evidence or evidence from Social Services etc. The judge reached further detailed findings from [22] to [30] to support her conclusion that the appellant is not his father’s primary carer. It is not the case therefore that the judge rejected the medical or other evidence because of a mistake about the appellant’s ability to speak English.
11. Given that the First tier Tribunal provided cogent reasons for that conclusion, they are not displaced by the judge’s error in recording that the appellant used an interpreter at the hearing as the judge would have reached the conclusion she did notwithstanding that issue including given that the judge did not accept that the medical evidence supported a finding that the appellant was his father’s primary carer. The issue of the interpretation was a minor rather than an integral element of this finding.
12. In relation to the judge’s recording of the appellant’s lack of English [36] where she stated that the appellant had used an interpreter in her consideration of Section 117B, in light of the judge’s comprehensive and closely reasoned findings any error she made in relation to the appellant’s English language skills, which at best could be a neutral factor, could not be said to be material given the weight of the evidence against the appellant as set out by the judge from [36] to [40] in carrying out the proportionality balance. The fact that that proportionality balance does not include as a neutral factor that the appellant speaks English language could not be said to make a material difference.
Grounds 2 and 3
13. I am satisfied that the remaining grounds argued by Ms Heidar disclose no more than a disagreement with the judge’s findings and reasons. The appellant failed to meet the relevant test under Regulation 15A which provides that the British Citizen:
‘would be unable to reside in the UK or in another EEA State if P were required to leave’.
As set out by the First-tier Tribunal (at (7) the level of evidence required to demonstrate that an individual is a primary carer is significantly higher than in cases involving children.
14. In relation to the medical evidence the judge gave cogent reasons for the findings she reached and the fact that some conditions may be active and some in the past could not make a material difference. The judge noted the inconsistencies including that on one occasion the medical evidence stated that the appellant’s father always was accompanied by the appellant whereas the evidence dated July 2016 stated that he was often accompanied by the appellant. The judge also took into consideration medical evidence from August 2009 where it was stated that the appellant’s father’s wife would be in a position to offer extra support with daily duties and that the letter of 9 March 2012 did not indicate that the appellant’s father required the appellant’s presence. Indeed, there was no mention of the appellant.
15. The judge took into account both the present and past difficulties of the appellant’s father and found that the medical evidence did not say what care was required and does not go anywhere close to the high bar required under the 2006 Regulations.
16. The judge gave more than adequate reasons for the findings she reached in concluding that the medical evidence failed to show that the appellant’s father was unable to care for his own daily needs or that the appellant is his primary carer. It was open to her to conclude as she did that the evidence indicated that the appellant sometimes attends appointments with his father and that his father is reliant on him although there were no reasons given for such reliance. It is incorrect to say that the judge did not adequately reason this finding as the judge had found at [14] that there was no reference to any diagnosis in the medical evidence that would cause the appellant’s father to be so reliant on his son and there was no indication of the appellant’s father’s needs.
17. The judge also went on, in some detail, to consider the evidence before her including of the appellant and his father and the claim that his stepmother could not care for him. The judge considered that the appellant’s father gave evidence of returning to India in 2014 and 2015 and staying with his wife’s relatives and that his wife had gone with him and that he went to India almost every year and returned for about four weeks. The judge made findings, which were not substantively challenged, that the appellant’s father visited India in 2015 and the appellant did not accompany him and that his wife accompanied him. The judge found, at [25], that the application was made in April 2015 on the basis that the appellant was his father’s primary carer but shortly before this application or since the application was made that the appellant’s father had managed to travel to India and stay there for a period of four weeks without the appellant, his claimed primary carer.
18. The judge also took into consideration, which was open to her, that the appellant’s wife went with him when it was claimed that she was not able to care for him and the judge noted that there was no evidence of any problem that had occurred when they were in India and that there was no evidence that the appellant’s father had had any problems which his wife was unable to deal with.
19. The judge found as a significant factor that the fact that the appellant’s father was able to travel to India without the appellant and stay there for a period of some four weeks cast doubt on the appellant’s claim that he was the primary carer. That conclusion, at [29], was not substantively challenged. Neither was the finding at [26] that the appellant’s father had been asked what his medical conditions were and provided a list which was longer than the list of medical conditions provided in the medical evidence.
20. The judge also considered the evidence of the appellant’s stepmother, including of her medical conditions. The judge considered that she had medical evidence in relation to the appellant’s stepmother’s medical conditions and concluded that the evidence did not indicate that she was unable to care for herself. The judge noted that the letter concluded that the author understood that the appellant’s stepmother “relies heavily on her son for her care” but again there was no reason given for this statement and no explanation as to why her medical conditions would cause her to rely on the appellant.
21. Given all those reasons the judge was entitled to reach the findings she did at [29] that the appellant had exaggerated the role that he takes in his father’s care and that there was no adequate medical evidence to support his account of the amount of care his father needs and to conclude that if the appellant were his father’s primary carer and if his father could not manage without that care, his father would not have been able to travel all the way to India in 2015 and remain there for 4 weeks without the appellant. The judge, in her carefully reasoned decision, considered that the appellant had stated that the care that he provided could not be provided by the NHS or his stepmother but, again, no adequate evidence had been provided to support this or to support the claimed level of deterioration in the appellant’s stepmother’s health. The judge took into consideration that the appellant’s father’s wife had accompanied him to India and the judge found, which was open to her, that his wife was his primary carer.
22. The appellant’s representative was also factually incorrect in her submission that the First-tier Tribunal made no findings in relation to the evidence of the appellant’s father, his stepmother and the appellant when the judge considered this evidence and rejected it for the reasons she gave at paragraphs [22] to [32].
Article 8
23. It is difficult to see how the appellant considers that he could succeed in relation to his argument that the judge erred in stating that there was no submission that the appellant can meet the requirements of paragraph 276ADE(1) when this was in the skeleton argument. It may well be that the judge was referring to the lack of any oral submissions. In any event that is not material as the judge went on to consider paragraph 276ADE(1). It was also not the case that the judge did not consider the emotional dependency when this was an integral consideration of the judge’s findings including in relation to the 2006 Regulations.
24. I have considered the decision in its entirety. The rejection of the appellant’s claims in relation to Article 8 properly read incorporate the earlier findings including that the appellant is not his father’s primary carer and that on the balance of probabilities his wife is. The judge’s findings that the appellant’s wife would be able to care for him and that the appellant’s father will not suffer if the appellant leaves the United Kingdom and that they will be able to maintain their relationship using modern methods of communication does not disclose any material error encompassing as it does the judge’s consideration that the evidence was not supported and that the appellant’s evidence of the extent of the care was not credible.
25. The judge in finding at [42] that the appellant had exaggerated the amount of care his father need and the reliance his father places on him was necessarily considering emotional and other dependency. At [45] the judge indicated that she had taken into consideration both the appellant’s rights and those of his father and stepmother in relation to family and private life, “or indeed any other rights protected by the Human Rights Act 1998”.
26. In relation to proportionality it cannot rightly be said that the judge only took into consideration Section 117B. The judge took into account all the factors. Precariousness must be taken into consideration when considering family life and it is difficult to see what weight could be attached given the appellant’s behaviour which the judge had taken into account in her findings under 117B.

Conclusion
27. The decision of the First-tier Tribunal does not disclose a material error of law and shall stand.

Notice of Decision

The appeal is dismissed.

No anonymity direction was sought or made.

Signed Date

Deputy Upper Tribunal Judge Hutchinson

TO THE RESPONDENT
FEE AWARD

As the appeal is dismissed there can be no fee award.

Signed Date 17 March 2017

Deputy Upper Tribunal Judge Hutchinson
APPENDIX

IAC-FH-NL-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/17699/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 11 January 2017

…………………………………

Before

DEPUTY UPPER TRIBUNAL JUDGE HUTCHINSON

Between

abdul wahab abdul gafur mansuri
(ANONYMITY DIRECTION not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mrs P Heidar instructed by AA Immigration Lawyers
For the Respondent: Mr P Armstrong, Home Office Presenting Officer

ADJOURNMENT DIRECTIONS
1. The appellant in this case is a male citizen of India born on 16 December 1974. The appellant appeals to the First-tier Tribunal against the respondent’s decision to refuse to issue a derivative residence card as confirmation of his right to reside as the primary carer of a British citizen, with reference to regulations 18A and 15A of the Immigration (European Economic Area) Regulations 2006 (the EEA Regulations). The respondent’s decision was dated 5 May 2015. The appellant also appealed a decision to remove him from the United Kingdom. A copy of the removal directions was provided and the judge of the First-tier Tribunal noted that the Presenting Officer confirmed that removal directions had been served and the respondent accepted that the appellant had a right of appeal on the basis of Article 8.
2. In a decision promulgated on 3 August 2016 Judge of the First-tier Tribunal Chamberlain dismissed the appellant’s appeal. The appellant appeals to the Upper Tribunal with permission, including on the basis that the Immigration Judge made a significant factual error. It is recorded that an Urdu interpreter was booked and was present and assisted both the appellant’s father and stepmother in giving evidence. Such is not disputed.
3. However it is also recorded in the judge’s decision including at paragraph [4] of the decision and reasons that the appellant gave evidence with the assistance of the Urdu interpreter. Both the appellant and the appellant’s representative at the First-tier Tribunal Mrs P Heidar, solicitor, who was also the representative before the Upper Tribunal, have provided brief statements confirming that the appellant in fact gave evidence in English.
4. It was contended that:
(1) The judge’s decision could not be considered safe if she could not remember what language the appellant gave his evidence in;
(2) The fact that the judge stated that the appellant did not give his evidence in English has influenced her findings and reasons. It was asserted that at paragraph [22] the judge found that the report provided for the appellant’s father which confirmed the appellant attended his GP appointment and acted as his interpreter, was not credible as “the appellant himself used an interpreter at the hearing”;
(3) In assessing Article 8, the appellant’s ability to speak English is relevant by virtue of Section 117B and the judge found at paragraph [43] that the appellant “gave evidence in Urdu” and it was submitted that the judge found against the appellant when assessing private life;
(4) It was submitted that the issue of the appellant’s ability to speak English has influenced her findings and the fact that the judge has recorded the appellant does not speak English amounts to an error of law.
5. At the hearing before me Mr Armstrong on behalf of the respondent indicated that he had attempted, the day before the Upper Tribunal error of law hearing, to contact the Presenting Officer before the First-tier Tribunal, Mr Grennan. However he had as yet not received a response. Mr Armstrong indicated that the notes on file did not make it clear whether or not the appellant gave evidence in English.
6. In preliminary discussions Ms Heidar confirmed again that she had no doubt that the appellant gave evidence in English and she was of the view that Mr Grennan was likely to recall this as cross-examination had gone on for at least an hour or an hour and a half and she recalled that Mr Grennan had commented that it was helpful that the appellant was giving evidence in English as the majority of his questions were for the appellant.
7. I indicated at the hearing, without prejudice to my decision on the error of law, that I would adjourn the error of law hearing to give Mr Grennan an opportunity to comment on the interpretation question.
Directions
1. The error of law hearing is adjourned and is to be re-listed on 1 March before any Judge of the Upper Tribunal.
2. The respondent to file and serve a written response from the Presenting Officer before the First-tier Tribunal at Hatton Cross, on 14 July 2016, Mr M Grennan.
3. That response is to comment specifically on the witness statements of the appellant, Mr Abdul Wahab Abdul Gafur Mansuri and of the appellant’s representative Ms P Heidar, both dated 15 August 2016, which confirmed that the appellant Mr Abdul Wahab Abdul Gafur Mansuri gave evidence in English at the hearing on 14 July 2016.
4. Mr Grennan is to confirm in writing whether he agrees or disagrees with these statements and why, or alternatively to confirm that he cannot comment either way.
5. Such reply to be provided no later than fourteen days before the resumed error of law hearing.
6. If the appellant wishes to provide any reply to Mr Grennan’s statement such is to be filed and served no later than seven days before the resumed hearing.

Any failure to comply with these directions may lead the Tribunal to exercise its powers to decide the appeal without a further oral hearing, or to conclude that the defaulting party has no relevant information, evidence or submissions to provide.
No anonymity direction was sought or is made.

Signed Date

Deputy Upper Tribunal Judge Hutchinson