Tribunal decisions

The decision

IAC-AH-KEW-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/18131/2015

THE IMMIGRATION ACTS

Heard at Bradford UT
Decision & Reasons Promulgated
On 3rd February 2017
On 14th February 2017

Before

DEPUTY upper tribunal judge ROBERTS

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant

and

WaKas Zafar SYED
(ANONYMITY DIRECTION not made)

Respondent

Representation:

For the Appellant: Mrs Pettersen, Senior Home Office Presenting Officer
For the Respondent: Mr R H Rashid, Counsel

DECISION AND REASONS

1. The Secretary of State for the Home Department appeals with permission against the decision of a First-tier Tribunal (Judge NMK Lawrence) allowing the appeal of Waqas Zafar Syed against the Secretary of State's decision of 27th April 2015 refusing to vary his leave to remain in the UK.
2. For the sake of clarity throughout this decision I shall refer to the Secretary of State as "the Respondent" and to Mr Syed as "the Appellant" reflecting their respective positions before the First-tier Tribunal.
Background
3. The Appellant is a citizen of Pakistan born 24th April 1989. He entered the UK in 2010 as a student and was subsequently granted leave to remain up to 12th March 2014. On 10th March 2014 the Appellant applied for further leave to remain as the unmarried partner of Louise Huxtable, a British citizen.
4. The Respondent refused the application on 27th April 2015 on the grounds that the Appellant could not meet the requirements set out in Appendix FM to the Immigration Rules. In particular he could not meet the financial requirements contained therein.
5. The Respondent then looked at the requirements set out in EX1 and found no evidence of insurmountable obstacles to family life continuing with Miss Huxtable outside the UK - there are no children of the relationship. Finally, the Respondent looked at 276ADE in consideration of the Appellant's Article 8 ECHR private life. She set out in refusing under 276ADE that in order to meet the requirements of that paragraph the Appellant would have to show that he was over 18 years of age (accepted) and that there would be very significant obstacles to his reintegration into Pakistan. This had not been shown and therefore the application fell to be refused.
6. The Appellant appealed that decision and the matter came before FtT Judge Lawrence as an oral application. The judge heard evidence from the Appellant and from his partner. He then set out his findings at [6] to [10]. He found first of all that Appendix FM of the Rules was not met on the financial requirements issue. He then directed himself to 276ADE and noted that the Appellant's partner's evidence was that she suffers from a degenerative spinal column requiring regular steroid injections and physiotherapy. Based on that evidence the judge said the following;
"... in my view, she requires specialist medical care and the need for such care is only likely to increase in the future. There is no evidence that such medical care is available in Pakistan for Miss Huxtable. In the absence of such medical care the deterioration in Miss Huxtable's spinal column will not be checked. It would be left to take its normal course and her health is bound to suffer. This is likely to have an immeasurable negative impact in the Appellant's ability to integrate into life in Pakistan. Accordingly I find that there are very significant obstacles in the Appellant integrating into life in Pakistan."
7. He then allowed the appeal. The Respondent appealed the FtT's decision to the Upper Tribunal.
8. The grounds seeking permission succinctly set out the premise that the FtT Judge erred in allowing the appeal on account of a material error of fact which amounts to a material error of law. The grounds set out that the judge's error was in failing to articulate how the deterioration of the Appellant's partner's condition would prevent the Appellant's reintegration into Pakistan. It is said that the judge appeared to have made findings, without adequate medical evidence, as to Miss Huxtable's prognosis and the deterioration and difficulties that she would face if she were to accompany the Appellant to Pakistan.
9. It is further said in the grounds that the judge appears to have lost focus in that the appeal before him was an Article 8 ECHR appeal only and not one under the Immigration Rules.
10. Permission having been granted, the matter comes before me to decide whether the decision of the FtT discloses such error of law as to require it to be set aside and re-made.
Error of Law Hearing
11. I heard submissions from Mrs Pettersen for the Secretary of State and Mr Rashid for the Appellant. Mrs Pettersen's submissions kept to the grounds seeking permission. Mr Rashid's submission amounted to saying that he accepted that the FtT Judge had not set out in terms whether EX1 to the Immigration Rules applied. He also accepted that the judge had mistakenly said in [8] that there was no expert report regarding Miss Huxtable's medical problems. In fact there was a report from a clinical psychologist (Dr Owens) dated 22nd July 2016 but the judge seems to have omitted all reference to that. Nevertheless, Mr Rashid submitted, there were sufficient findings concerning Miss Huxtable's medical condition to show that there were very significant obstacles to the Appellant's reintegration into Pakistan. Whilst the judge may not have identified the route under EX1, nevertheless in substance he had made adequate findings on the medical evidence given by Miss Huxtable and the decision should stand.
12. I announced at the end of submissions that I was satisfied that the decision of the FtT contained such error that it required it to be set aside and remade. I now give my reasons.
13. I accept the submissions made by both representatives that the judge should have considered whether the Appellant's case fell within EX1 if applicable. I further find that the judge's findings in [10] concerning Miss Huxtable's medical condition are insufficiently reasoned. There was no evidence adduced by the Appellant about whether the medical facilities in Pakistan were so lacking as to produce very significant obstacles to the appellant's family/private life continuing with Miss Huxtable. It is correct that the report of Dr Owens opines that he is no doubt that the healthcare she would receive in Pakistan would be substantially poorer than her current healthcare provision in the UK, but he adduces no evidence to support that opinion. These issues are central to the Appellant's case. The judge's findings on the medical evidence or rather lack of it are unreasoned and therefore materially in error. I set aside the FtT's decision in its entirety.
14. Mrs Pettersen submitted it would be appropriate to remit this matter back to the First-tier Tribunal for a fresh hearing. Mr Rashid did not resist that application. I agree to that course. No findings of fact are preserved from the First-tier Tribunal.

Notice of Decision

The decision of the First-tier Tribunal is set aside for material error. The matter is remitted to that Tribunal (not Judge NMK Lawrence) for that Tribunal to re-make the decision.

No anonymity direction is made.

Signed C E Roberts Date 10 February 2017

Deputy Upper Tribunal Judge Roberts