Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/24799/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 22nd November 2016
On 23rd November 2016

Before

UPPER TRIBUNAL JUDGE MARTIN

Between

MR VINODKUMAR KOTHARI SUBRAMANI
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms M Malhotra (Counsel)
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 who is a national of India born on 24th June 1977. He appeals against a Decision and Reasons of First-tier Tribunal Judge Abebrese promulgated on 26th February 2016.
2. The Appellant entered the UK in August 2009 with entry clearance as a Tier 4 (General) student migrant valid until February 2011. That was extended until 7th September 2014. The Appellant then submitted an EEA application which was refused in October 2014. Since then the Appellant has been an overstayer.
3. He then made an application for leave to remain based on his human rights, the refusal of which was the subject of the appeal before the First-tier Tribunal. By the time the case came before the First-tier Tribunal the sole issue and ground upon which the Appellant sought leave to remain was that he is the sole carer of a young man who is quadriplegic following a road traffic accident.
4. Judge Abebrese dismissed the appeal.
5. The grounds upon which permission to appeal was granted, although lengthy boil down to one issue namely that the Judge did not engage with the GPs evidence as to the effect of the Appellant's removal on Mr Whitehead, the person being cared for, and that it was not only the private life of the Appellant that was relevant to the appeal but also the private life of Mr Whitehead who is a British national.
6. It is accepted that the Appellant does not meet any of the requirements of the Immigration Rules. It is argued on his behalf that there are compelling reasons to consider Article 8 outside the Rules in this case; the compelling reason being the effect of the Appellant's removal upon Mr Whitehead.
7. Despite a request, I was not assisted by the Appellant's representative as to why it is that the private life of a British citizen, unrelated to this Appellant should fall for consideration in the appeal. Beoku-Betts [2008] UKHL 39 made clear that when considering the Article 8, family life of an Appellant, family life necessarily involves the family unit as a whole. There is one family life enjoyed by the family unit and therefore the decision impacts upon all members of the family and therefore the effect on the family life of other family members has to be considered. That however is a far cry from finding that another individual's private life, however impacted by the removal of an Appellant should form part of the assessment. The Appellant's appeal is on the basis and can only be on the basis, I find, that his private life; his right to a private life will be disproportionately interfered with if he is removed. It is quite clear from the First-tier Tribunal's decision that will not be the case. The Appellant has maintained his links with his family in India, he has been an overstayer and thus unlawfully in the UK since 2014. He has been working illegally and any private life that he has built up has been for five years when his status was precarious and since then unlawful.
8. The Appellant could not possibly succeed based on any interference with his private life.
9. Based on what I have said above it is my view that Mr Whitehead's private life is not a matter for consideration by this Tribunal. However, if I am wrong in that view I nevertheless find that his private life would not suffer an interference such as to be a breach of Article 8 if the Appellant were removed.
10. It is said that the First-tier Tribunal gave inadequate weight to the medical evidence. The medical evidence was a letter from Mr Whitehead's GP in which he praised the Appellant's care of him and indicated how Mr Whitehead's physical and mental health had lifted during his excellent care.
11. However, the Appellant is employed by a care agency which allocates carers to those requiring personal care. I do not know whether the agency is aware that they have been committing an offence by employing a foreign national without status. However, that is not material to the decision I have to make.
12. The situation is that the Appellant is an employee, employed by the agency to work caring for Mr Whitehead. There is no doubt that the care he has been provided has been excellent; so much is acknowledged by Mr Whitehead himself and the professional witnesses, including the GP. It is said that Mr Whitehead has had a number of carers, 15 in total over the last 15 years and that he has not felt comfortable or happy with any of them prior to the Appellant. The GP suggests in his letter that it would not be possible to find another person to provide the level of care provided by this appellant. That is speculation. The UK has an obligation to provide care for those in need, such as Mr Whitehead.
13. I have no doubt that Mr Whitehead has come to depend upon this Appellant. He has come to trust him and is comfortable with his provision of personal-care. However, that relationship is that of nurse and patient. Such relationships often become close but such relationships also come to an end for a variety of reasons. It is in reality a professional relationship. The Appellant does not, contrary to a suggestion in the GPs letter, live with Mr Whitehead but rather lives in relatively close proximity. He does not provide 24-hour care as he does not sleep at Mr Whitehead's home. Furthermore, there is reference to his twice being away on holiday to India when alternative provision had to be found; as it would be if the Appellant became ill for any reason. The provision of care is a matter for Mr Whitehead and the agency and it is a matter for the agency to ensure that a care giver is suitable to meet Mr Whitehead's needs. I simply do not accept that the Appellant is the only person who can do this.
14. The First-tier Tribunal Judge did not ignore the medical evidence. He specifically refers to it in the Decision and Reasons at paragraph 10. However, that evidence is not sufficient to support a finding that the Appellant must be allowed to remain in the UK. The Appellant is, at the end of the day undertaking paid employment which could cease at any time for any number of reasons.
15. For all of the above reasons I find the First-tier Tribunal did not make an error of law material to the outcome of the appeal. For the reasons I have given I can see no basis upon which this appeal could succeed and endorse the finding of First-tier Tribunal when he said at paragraph 15:-"The Appellant and Mr Whitehead claim that the standard of treatment cannot be obtained from any other carer. The tribunal does not believe this is the case as the carers with the agency are all working to the same professional standard and relationships can develop if one is being treated by a particular carer over a period of time."
Notice of Decision
The appeal is dismissed.
No anonymity direction is made.

Signed Date 22nd November 2016

Upper Tribunal Judge Martin