Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/17779/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 13th October 2016
On 31st October 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE D E TAYLOR

Between

EUN [J]
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr U Khan, Amazon Solicitors
For the Respondent: Mr P Duffy, Home Office Presenting Officer

DECISION AND REASONS
1. This is the appeal of Eun [J] against the decision of Judge Moxon made following a hearing at Hatton Cross on 12th April 2016.
2. The appellant was born on [~] 1938 and is a citizen of North Korea. She came with her son to the UK on 15th May 2008 and with him claimed asylum. Her son's application was allowed. Whilst hers was refused, she was granted discretionary leave until 28 October 2011, which was then extended until 1st November 2014.
3. She submitted an application for indefinite leave to remain on 16th October 2014 which was refused on 25th April 2015 and this was the decision which came before the Immigration Judge.
4. The judge recorded that he had had sight of the respondent's decision allowing discretionary leave dated 2nd November 2011. It states that the appellant was unable to care for her self, requiring a high level of personal assistance in basic self-care tasks. Since being granted leave in 2008 the appellant has had a heart bypass and also had a pacemaker fitted, in 2009. She has also been diagnosed with hepatitis C. She suffered from slurred speech, memory problems, minimal mobility and lack of urinary control.
5. On that basis the respondent considered that the appellant's situation remained the same as that in 2008. Indeed her dependence on her son had increased as her self-care capabilities and health had deteriorated. It was decided to make a discretionary grant of limited leave to remain for three years.
6. In relation to the present application, it is said by the respondent that she sent out a letter in March 2015 to the appellant asking her to provide medical evidence about her present condition. There was no reply to that letter; it is probable that the lack of reply in itself led to the present refusal.
7. When the matter came before the Immigration Judge there was some medical evidence from her GP, dated 2 June 2015, setting out briefly the appellant's complex medical history.
8. The judge stated that the medical evidence was minimal. There was no specific evidence from the appellant as to her care needs and no evidence whatsoever from her son or daughter-in-law. The assertion in the grounds of appeal that she had Alzheimer's disease was not supported by the medical evidence. Since he did not have any cogent evidence of continuing care needs and no cogent evidence that any such needs could not be catered for in North or South Korea, she could reasonably return there. She had lived in Korea for over 60 years and could maintain contact with family members in the UK by modern technology or through visits. On that basis he dismissed the appeal.
9. The appellant sought permission to appeal on a number of grounds relating to the judge's consideration of the medical evidence. Permission to appeal was granted by Judge Colyer on 9th September 2016.
10. At the hearing Mr Duffy helpfully acknowledged that the conditions from which the appellant suffered, which were accepted by the respondent, would not improve with time. He said that it appeared that the judge had not properly grasped the underlying facts of this case.
11. The decision is set aside on the basis that the judge did not have proper regard to all of the relevant evidence, in particular the evidence accepted by the respondent in 2011 when the grant of discretionary leave was made.
12. It is the appellant's case that she never received the letter asking for further information and if it had been received she would have responded.
13. Mr Duffy accepted that there was no record on the file of the letter having been sent and he also accepted that it was normal to grant indefinite leave to remain after a six year period of discretionary leave. It was seem that the appellant would be eligible for a grant of indefinite leave under the policy and he had nothing to say against the appellant although of course it would be a matter for the Secretary of State to decide whether indefinite leave should be granted.
14. Mr Khan argued that the appeal ought to be allowed. He referred me to the transitional arrangements in relation to those appellants granted discretionary leave before 9th July 2012. At 10.1 of the relevant IDI, it is said that those granted leave under the DL policy in force before 9th July 2012 will normally continue to be dealt with under that policy through to settlement, if they continue to qualify for further leave on the same basis as their original discretionary leave was granted. Normally they will be eligible to apply for settlement after accruing six years' continuous discretionary leave.
15. In this case the appellant has had two sets of three years of discretionary leave. The circumstances remain the same. The medication list shows that she is receiving the same medication as she did in 2010 with some additions. Mr Khan confirmed that she was still being cared for by her son and daughter-in-law.
16. It is quite clear that the appellant's medical circumstances are very similar to those from which she suffered in 2008 and 2011 and if anything have got worse by passage of time. It would also seem to me that she would be likely to succeed on the basis of fulfilling the requirements of paragraph 276ADE(6) in view of her manifest difficulties in establishing herself in South Korea, a country where she has never in fact lived.
Notice of Decision
17. The appeal is therefore allowed.

No anonymity direction is made.

Signed Date 31 October 2016
Deputy Upper Tribunal Judge Taylor