Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/19190/2014

THE IMMIGRATION ACTS

Heard at Field House
Given extempore on
Decision & Reasons Promulgated
19th September, 2016
22nd September 2016

Before

Upper Tribunal Judge Chalkley

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

Rosalinda Verte Price
(ANONYMITY DIRECTION NOT MADE)
Respondent

Representation:
For the Appellant/Claimant: Mr E Tufan, a Senior Home Office Presenting Officer
For the Respondent: Unrepresented

DECISION AND REASONS
1. The appellant in this appeal is the Secretary of State and to avoid confusion I shall refer to her as being "the claimant".
2. The respondent is a citizen of the Philippines. She entered the United Kingdom on 8th October, 2005 as a category C visitor on a visa valid from 13th September, 2005 expiring on 13th March, 2006. The respondent sought a Certificate of Approval (marriage) on 22nd April, 2010, which was issued on 21st June, 2010. She was served with form IS.151A administrative removal papers on 28th April, 2010. She sought application for leave to remain as the spouse of a settled person on 16th November, 2010, which was refused on 20th December, 2015 with no right of appeal. There was of course no right of appeal, because the respondent had become an overstayer when her leave expired in March, 2006.
3. On 16th December, 2013, the respondent sought a derivative residence card. On 14th April, 2014, the claimant refused to issue a derivative residence card, because she said, the respondent failed to demonstrate that she met the relevant conditions of Regulation 15A of the Immigration (European Economic Area) Regulations 2016 ("regulations").
4. The respondent appealed that decision and her appeal was heard by First-tier Tribunal Judge Munonyedi at Taylor House on 13th December, 2015. She noted that the respondent had married a British citizen, Mr David Price ("sponsor"), on 27th July, 2010. Unfortunately, an earlier application for leave to remain as a spouse made on behalf of the respondent was refused because the claimant did not believe that the marriage was genuine or subsisting.
5. In the judge's determination she made some findings which the Secretary of State may wish to consider in the event of undertaking a review of what is to happen to the respondent.
6. The judge found that the sponsor's condition required him to take a large dose of medication on a daily basis. The judge had before her a report by a senior physiotherapist at Queen Mary Hospital, Elizabeth Forsythe, dated 5th April, 2013 where she explained that the respondent's husband had a two year history of symptoms with recurrent right side lumba spine and right leg pain. Those symptoms were aggravated when he sat for twenty minutes, sat in a low chair, stood for five minutes, walked 200 yards, when he put on his shoes and socks, when he turned in bed, when he coughed or sneezed, when he carried shopping and when he lifted objects and getting into and out of bath. The report spoke of the respondent being a great help both with regards to his sedentary and personal activities of daily living.
7. The judge also had before her a report from a consultant anaesthetist in pain management, Dr Elizabeth Roberts, dated 19th July, 2013. The judge found that the doctor reported a clinical impression that the sponsor has a disc bulge, probably at lower 4/5 with nerve root irritation. She noted that he had suffered several falls and complained of being dizzy which caused him to fall.
8. Dr Pia Sweet, a consultant in pain management, examined the sponsor on 7th November, 2013 and expressed concern that he may suffer from vertigo because of his frequent falls and possibly glaucoma and referred him for an ophthalmology opinion.
9. The sponsor applied for Employment and Support Allowance which initially was refused but, it was allowed on appeal on 1st August, 2013 by First-tier Judge Fagg. Tribunal Judge Fagg found that the respondent's husband was entitled to an Employment and Support Allowance with support component. In applying the work capability assessment, 15 points were scored from the activities and descriptions in Schedule 2 of the ESA Regulations 2008 made up of the following, mobilising (a) 15 points. The following activity and descriptor from Schedule 3 of the ESA Regulations applied: mobilising. As a result, Mr Price was awarded a Disability Living Allowance and for mobility; he was awarded the higher rate on the basis that he was unable or virtually unable to walk. In respect of his care, he was awarded the middle rate as he needed help with his personal care from someone several times through the day.
10. The judge noted that the Department for Work and Pensions found that Mr Price needed help getting around outdoors and had physical difficulties walking and needed help with personal care. During the day, he required attention to get in and out of bed, using a shower or bath, to dress, to undress, to get in and out of a chair and needed help several times during the night although the attention he required at night was probably not more than once a night and not more than for twenty minutes.
11. The First-tier Tribunal Judge also had before her a report from Dr Holly Hudson from the Barnard Medical Group, who is the sponsor's general medical practitioner. In her letter of 15th October, 2015, she indicated that she was writing to support Mr Price, who had been married to the respondent for five years. His wife was his carer. The respondent's husband has type 2 diabetes with chronic back pain and mobility problems due to his back pain. He requires assistance in activities of daily living including washing, showering, bathing and dressing. He also suffers BPPV and is at risk of falls. Currently Mr Price's wife, the respondent, performs these duties as his carer and were she to be removed from the United Kingdom then he would require assessment for a care package.
12. The judge also found that Mr Price suffers from depression and, not surprisingly, is finding the stress of the Tribunal significantly affecting his emotional state. He is reviewed regularly in the surgery for his depression and is on ongoing regular medication. The judge said at paragraph 27:
"Having carefully considered all the evidence before me namely the oral evidence of the [respondent], Mr Price, Margaret Price, Anne Underwood, the medical evidence in particular the letter from Dr Hutson, I am satisfied on the balance of probabilities that David Price is a man with multiple and complex medical needs. His disability, poor physical and emotional and mental state means that he requires constant and full-time care every hour of the day. Such care if provided by the [respondent]. I am satisfied that on the balance of probabilities that without the care given by the [respondent] David Price would not be able to function. The [respondent] in my view provides him with loving physical and emotional care. He suffers from depression and he told me that the [respondent] is able to help him overcome his depressive moods."
13. At paragraph 28 of her determination she found herself satisfied that the respondent is the primary carer for her husband and she noted that the respondent had told her that she loves her husband very dearly and takes her marriage vows to look after her husband in sickness and in health, very seriously. The judge found that the respondent is a practising Christian who takes all her marriage vows seriously.
14. At paragraph 29 the judge said this:
"I found the [respondent] to be an impressive woman who has put the needs of her husband first. Her excellent care of her husband has meant that the full-time, 24 hour care that he requires has been provided. It is my finding that without the unquestioning care given to Mr Price by the [respondent], Mr Price would not be able to continue living here. Mr Price has not been able to claim for a carer's allowance or a carer's credit because of the [respondent's] precarious immigration status. Mr Price has not been assessed for a care package because his care is given by the [respondent]."
15. At paragraph 8 of her determination she had recorded the evidence of the respondent including the fact that the respondent was of the opinion that her husband could not go to the Philippines to live. She also recorded the evidence of the sponsor's cousin, Margaret Price, who said that were the respondent to go back to the Philippines it would kill him, meaning it would kill the sponsor. The judge noted that Mrs Price also said that his poor health means that he could not possibly go to the Philippines to live.
16. The judge allowed the appeal, finding that the respondent satisfied Regulation 15 and in particular Regulation 15A(4A)(c). Regulation 15A(4A) says that the applicant satisfies the criteria in this paragraph if the [respondent] (a) is the primary carer of a British citizen, and clearly here the judge found that the respondent was the primary carer of a British citizen, Mr Price, her husband, (b) the relevant British citizen is residing in the United Kingdom, and here of course Mr Price is living with his wife in their home, and (c) the relevant British citizen would be unable to reside in the UK or in another EEA state if the applicant were required to leave. The judge found that that requirement was satisfied. Unfortunately, on the evidence before her I believe that she erred in law in finding that requirement satisfied.
17. In granting permission to appeal to the respondent Upper Tribunal Judge Kebede said that arguably this is a case which raises the same considerations as in the case of Ayinde and Thinjom (Carers - Reg.15A - Zambrano) [2015] UKUT 00560 and as found in that case involves a claim which would more readily be conceived in terms of Article 8, rather than as fulfilling the criterion in Regulation 15A(4A)(c) of the Immigration (European Economic Area) Regulations 2016.
18 I have concluded that the judge's determination cannot stand, being as it is materially flawed. I replace her decision with mine. I regret to say that the respondent fails to satisfy the requirements of Regulation 15A(4A)(c) of the EEA Regulations and her appeal must be dismissed.
19. I add this. I hope that in any further application that may be made by or on behalf of the respondent the Secretary of State will bear in mind the findings made by First-tier Tribunal Judge Munonyedi and the fact that the respondent was unrepresented.

Notice of Decision
This appeal is dismissed on under the immigration rules.

Richard Chalkley
Upper Tribunal Judge Chalkley