Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/24861/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 1 November 2016
On 15 November 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE SHERIDAN

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
And

FARIDA BANU GULAM HUSAIN
(ANONYMITY DIRECTION NOT made)
Respondent

Representation
For the Appellant: Mr K Norton, Home Office Presenting Officer
For the Respondent: Mr M Brooks, Counsel instructed by Raffles Haig Solicitors

DECISION AND REASONS
1. The respondent (hereinafter "the claimant") is a citizen of India born on 22 July 1944. Her eldest son, daughter in law and their children, with whom she lives, are British citizens. She is in poor health, suffering from dementia.
2. The claimant entered the UK as a visitor in August 2009. She then applied for leave to remain as the dependent relative of a settled person. That application, and the appeal which followed, were not successful. Thereafter, she remained in the UK even though she did not have a lawful basis to do so.
3. On 28 February 2012 she applied for leave to remain under Article 8 ECHR. Eventually, on 23 June 2015, following further representations which were made on 17 April 2015, the appellant (hereinafter "the Secretary of State") refused the application. The claimant appealed and her appeal was heard by First-tier Tribunal Judge Burnett. In a decision promulgated on 20 May 2016, the judge allowed the appeal under Article 8 ECHR outside the Immigration Rules. The Secretary of State now appeals that decision.

Factual Background.
4. The background to this appeal, in summary, is that the claimant's children have all moved away from India. Her eldest son lives in the UK and her other children are in Canada and America. She has siblings and wider family living in India.
5. The claimant entered the UK as a visitor in 2009 and has remained ever since, notwithstanding the expiry of her lawful basis to do so.
6. Throughout her time in the UK she has lived with her son, daughter in law and their two children, who are aged 16 and 9. She has received free medical treatment on the NHS.
7. She is in poor health and has been since arriving in the UK. She has dementia, the early signs of which were present when she first entered the UK, and she is now dependent on others to accomplish even basis tasks, such as personal hygiene, cooking and cleaning. She is incontinent and easily agitated.
8. In the last few years, she has become entirely dependent on her son and daughter in law for her basic needs (including physical care) and her life revolves around them and their children.

Decision of the First-tier Tribunal
9. The judge first addressed whether the claimant could succeed under the Immigration Rules. He considered paragraph 276ADE(vi) which provides a route to leave to remain for the claimant if she would face "very significant obstacles" to integration into India.
10. The judge found that the claimant did not meet this threshold because she has friends, family and connections in India who could visit and provide some support to her. Moreover, the judge found that she would be able to access support services in India, comparable to those in the UK, and that her family in the UK could pay for such services.
11. The judge then considered the appeal outside the Rules. He found, at paragraph 54, that because of her mental health condition the claimant's bond with her son and his family goes beyond that of normal emotional ties such that family life within the meaning of Article 8 ECHR is engaged.
12. The judge proceeded to assess the proportionality of the claimant's removal. At paragraph 67 he stated that taking "a holistic approach to the totality of the case" removal would be disproportionate.
13. The judge's reasons for reaching this conclusion are not clearly articulated. Indeed, before reaching the conclusion that removal would be disproportionate the judge listed a range of factors that would lead to the opposite conclusion. These include that the claimant would be able to access medical and social support in India where she has friends and family, that she does not speak English and is not financially independent, that any private life in the UK was formed when her immigration status was either precarious or unlawful, and that she has been accessing the NHS freely despite not being entitled to do so.
14. The only finding to support the judge's conclusion that removal would be disproportionate was at paragraph 59 where the judge stated:
"In my judgment the separation now from the close emotional and supportive role of her family would greatly affect her ability to cope with her dementia and have an adverse effect on her"

Grounds of Appeal and Submissions
15. The grounds argue that Article 8 has been used as a safety net in a difficult case and that as all the factors in Section 117B of the Nationality Immigration and Asylum Act 2002 ("the 2002 Act") weighed against the claimant the appeal should not have been allowed.
16. In granting permission to appeal, Judge Easterman stated that it was arguably unclear on what basis the judge had found there to be compelling circumstances that would justify allowing the appeal outside the Rules. He also questioned whether there had been a proper balancing exercise under Article 8.
17. In his submissions, Mr Norton argued that the judge had failed to give proper reasons for his conclusion. He also contended that the judge's findings cannot be construed as demonstrating compelling circumstances to allow the appeal outside the Rules. He highlighted the judge's findings that the claimant would be able to access support, both professional and from family, in India, that she could return to India to make a proper entry clearance application and that she has had access to the NHS despite not being entitled. He also emphasised that all of the considerations in Section 117 of the 2002 Act point against granting the claimant leave to remain.
18. Mr Brooks argued that the judge correctly directed himself to the requirement to consider compelling circumstances and that it is implicit in the decision that compelling circumstances were found.
19. He contended that it was clear the claimant has a family life with her son and daughter in law in the UK and that this would be destroyed if she were removed to India.
20. Mr Brooks developed an argument that the adult dependent relative provisions in the Immigration Rules do not consider family life as they focus only on medical and care needs. The claimant's circumstances are therefore not catered for under the Rules.
21. With regard to the factors set out in Section 117 of the 2002 Act, Mr Brooks contended that the judge had given these consideration but was entitled to give greater weight to other factors.

Consideration
22. The judge found, at paragraph 54, that the claimant has a family life in the UK with her son and his family. This finding was, in my view, undoubtedly open to him.
23. In Singh [2015] EWCA Civ 630 the Court of Appeal stated that, for family life to be found between an adult child and parent, there must be "something more" than the normal love and affection a parent and adult child feel for each other. In this case, the claimant is entirely dependent on her son and daughter in law who attend to all of her day to day needs, both emotionally and physically, and with whom she lives and spends all of her time. This level of interaction and support clearly amounts to "something more" such that there can be no error of law in finding there to be family life for the purpose of Article 8.
24. Once it was accepted that the claimant has a family life with her son (and his family) that engaged Article 8, the task for the judge was to determine whether the removal of the claimant was a proportionate interference with that family life. In undertaking this analysis the judge was required both to take into consideration the factors set out in Section 117B of the 2002 Act and that to support a claim for leave to remain outside the Immigration Rules compelling circumstances need to be identified which are not sufficiently recognised under the Rules. See SS (Congo) & Ors [2015] EWCA Civ 387.
25. Although the judge, at paragraph 31, cited SS Congo and the requirement to show "compelling circumstances," it is not clear how, or if, he has actually considered whether there are compelling circumstances to justify a grant of leave outside the Rules. At paragraphs 56- 68 the judge set out a range of factors relevant to the question of proportionality but at no stage indicated whether any such factor, either individually or cumulatively, is "compelling".
26. However, although I accept, as argued by Mr Norton, that there is a deficiency in the judge's reasoning, I am satisfied that it was open to the judge, based on the evidence before him, to find that there were compelling reasons to allow the appeal outwith the Rules and accordingly I find that the judge's error was not material.
27. In the Article 8 balancing exercise, there are a number of significant factors weighing in favour of removing the claimant. These include:
a. There is a strong public interest in the maintenance of Immigration Control (see Section 117B(1)) which is undermined by allowing someone to enter the UK as a visitor, overstay their visa and then use human rights law to regularise their position.
b. The claimant has been using the NHS even though she is not entitled to do so. She is likely to require significant health resources in the future. Although she is presently cared for by her son and daughter in law, there can be no guarantee this will continue indefinitely and she may become a substantial burden on the state for social care in addition to medical care.
c. At the time she entered the UK she did not have a family life within the meaning of Article 8 with her son. At that time, her relations with her son were no more than the normal bonds that might be expected. It is only after she came to the UK and her health deteriorated, and her son began providing for her day to day care needs, that her Article 8 family life was established. Accordingly, her family life was established at a time her status in the UK was unlawful (or precarious). In these circumstances, it is deserving of only little weight.
d. The claimant has not established a meaningful private life in the UK, as she has few interactions outside her immediate family.
e. She is not financially independent and does not speak English (section 117B(2) and (3)).
f. She would be able to access support for her day to day and medical needs in India that her son could pay for and she would have some interaction with and emotional support from her family who live in India
28. Weighing against the claimant's removal is that her son and daughter in law could not realistically be expected to move to India with her. They have two British children and their lives are established in the UK. The obstacles to their moving to India would likely be very significant indeed.
29. Accordingly, the claimant is likely to move to India without her son and his family. That, of itself, even with her medical problems, is not a compelling reason to grant her leave to remain. Although in India she will no longer receive the physical and emotional care from her son (and his family) that she currently enjoys, she will be able to access professional services to support her day to day and medical needs and her siblings live in India. She will not be destitute or without some family or friends with whom to interact.
30. However, because of her dementia, upon return to India it is likely she will be unable to maintain any meaningful connection with her family in the UK. She is unlikely to be capable of communicating by telephone, let alone modern communication methods such as skype. Nor will she be in a fit state to visit the UK. The only way relations of any sort could be maintained, given the claimant's dementia, is by the UK family visiting her. Even if they visit several times a year, the meaningful ongoing relationship that the family have enjoyed will effectively be ended by the claimant's removal.
31. The claimant's advanced stage of dementia which renders her unable to maintain contact with her UK family once removed (which contrasts to the circumstances of the vast majority of families who live in different countries who are able to maintain contact through the telephone and internet) is, in my view, a reason to treat this case as exceptional or, to use the language of SS Congo, it is a compelling reason not sufficiently recognised under the Rules. Although the judge did not articulate his findings as I have outlined, the substance of his assessment leads to the same conclusion and therefore I find that even though the deficiency in the reasoning of the First-tier Tribunal decision amounts to an error of law, the error is not material.

Decision
32. The decision of the First-tier Tribunal did not involve the making of a material error of law and shall stand.
33. The appeal is dismissed.

Signed

Deputy Upper Tribunal Judge Sheridan

Dated: 14 November 2016