Tribunal decisions

The decision

The Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/29040/2015

THE IMMIGRATION ACTS

Heard at North Shields
Decision & Reasons Promulgated
On 31st March 2017
24th April 2017

Before

DEPUTY JUDGE OF THE UPPER TRIBUNAL FARRELLY

Between

MrS TASREEN SHAFIQUE
(NO ANONYMITY DIRECTION MADE)
Appellant
And

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr. E. Fripp, Counsel, instructed by Sky Solicitors Ltd.
For the Respondent: Mrs. R. Pettersen, Home Office Presenting Officer.

DECISION AND REASONS

Introduction

1. The appellant is a Pakistani national, born on 24 December 1949. She entered the United Kingdom on 7 October 2001 with entry clearance until 17 March 2002. She made application for further leave to remain as a visitor which was refused. She then applied for indefinite leave to remain as the parent of a settled person. This also was refused on the 20 June 2002.She overstayed.

2. On 28 August 2012 she applied for leave to remain outside the rules. This was refused on 14 October 2013. There was a subsequent decision made on 10 August 2015, also refusing her. Her appeal against that decision was heard by First-tier judge Moran on 12 July 2016 and was dismissed. It is that decision which concerns the present proceedings.

The First tier Tribunal

3. The case being made on behalf of the appellant was that when she first came to the United Kingdom she intended to return to Pakistan but suffered a medical emergency. This caused her to remain here, dependent upon her family. It was accepted that the immigration rules did not cover her situation save possibly for paragraph 276 ADE (vi) in relation to private life. It was not argued they were medical reasons why a return would breach articles 3 or 8. Rather, the claim being made was that she had care needs which her family here could provide for and her removal would be a disproportionate. She had been living with her son Imran and his family. It was said she had no relatives in Pakistan in a position to care for her. Her life here was focused upon the family home and so her private life was limited. She had formed a bond with her minor grandchildren and their interests were a relevant consideration. It was also contended that she was unfit to travel.

4. First-tier Judge Moran referred to the sequential test in Razgar and the factors set out in section 117 B of the Nationality, Immigration and Asylum Act 2002. The judge then referred to the medical evidence presented and the evidence from her relatives about the care provided.

5. The judge referred to the medical evidence, including a letter from her GP stating she required 24-hour care and supervision and was not independently mobile. Her condition would not improve. There was also a letter from a consultant neurologist to the effect that she had refractory or uncontrolled epilepsy and left-sided weakness.

6. The evidence of the family was that they had all made their lives here. They were either British citizens or had leave to remain. Consequently, they could not return to Pakistan with the appellant to provide the necessary care there. Their evidence was that the house where the appellant had lived in Pakistan was still available and was used by the family for holidays. The family said that the tradition in Pakistan was for the family to care of the elderly rather than employ outsiders and the notion of care homes was not common. The appellant had not paid for the medical treatment she had received here and her son indicated he was not in a position to meet this cost.

7. First-tier Judge Moran accepted that the appellant's family provided necessary care. The judge found that when she came to the United Kingdom in 2001 she already had serious health issues. After her leave had expired she had an extant application when she was admitted to hospital as an emergency. She underwent a craniotomy due to the possibility of a subdural empyema, an accumulation of pus. She was discharged two weeks later. The judge found that she would have appreciated shortly after her application was refused in June 2002 that she was here unlawfully.

8. The judge found that all her immediate family are in the United Kingdom. They include her mother, four siblings, children and grandchildren. The judge found a very significant family life but no significant private life as she left the house. The judge found she had chronic health problems and required 24-hour care which was provided for by her family. If allowed to remain that situation would continue albeit the medical costs would have to be borne by the State. The judge found she had no family members in Pakistan and that it was not practical for her family members to relocate to care for her. If returned she would either have to be cared for in her own home with paid help or in a government home for the elderly. The judge believed it was unlikely that she would receive the quality of care she currently receives. The judge found if accompanied she would be able to travel.

9. Applying the law, the judge found she would not have very significant obstacles to reintegration. She was not assisted by paragraph 276 ADE (vi) of the immigration rules.

10. Regarding a freestanding article 8 assessment, the judge had no difficulty in finding the existence of family life and moving through the sequential steps to the final issue, proportionality. The judge set out the competing considerations.

11. On the one hand there was a wide range of family members with whom she had a close bond. All of those ties were worthy of respect under article 8. She was in need of 24-hour care and this had intensified the ties with her family, including her minor grandchildren. She has no close family in Pakistan and it was not reasonable to expect family members here to relocate. The judge recognised genuine cultural reasons why her family would prefer for her to be cared for within the family.

12. Against this, the judge referred to the fact she had been in the United Kingdom unlawfully since 2002.She had taken ill here but she had serious health problems before coming. All the strong family ties have developed over time, when her status was precarious at best. The cost of her medical treatment would have to be borne by the State. The judge recorded that she did not speak English though did not consider this a significant weighty factor in the circumstance. A basic level of care would be available in Pakistan and she retains a home there and could be visited by family members. In the alternative, there were government financed care homes in Pakistan where she would receive a basic level of care.

13. Balancing these competing interests the judge found the circumstances were not exceptional or compelling. Consequently, the interference with the article 8 rights and those of her family was proportionate.

The Upper Tribunal

14. Permission to appeal was granted on the basis there was arguably an error of law in the judge, having set out the factors for and against the appeal, not having given fuller reasons for dismissing it. This was in light of the finding the appellant needed continuous care and had established more than the normal emotional ties with her family in the United Kingdom. It was arguably insufficient for the judge to set out the factors weighed without explaining the conclusion.

15. One of the grounds advanced was that the judge had failed to consider the severance of the relationship between the appellant and her elderly mother.

16. Permission was also granted on the basis the judge arguably erred in referring to the appellant having a home in Pakistan at paragraph 30 of the decision when it was contended the home in fact was owned by her mother. The grant of permission afforded the appellant an opportunity to provide details of ownership of the accommodation in Pakistan.

17. At hearing I was provided with a skeleton argument on behalf of the appellant as well as an article on healthcare provision in Pakistan. These were not used in the First-tier Tribunal but Mrs. Pettersen raised no objection. In the circumstance I was agreeable to consider this information as it would enable me to make better-informed decision. Within the skeleton argument is an extract from the respondent's IDI in relation to a claim by a non EEA national on the basis of adult dependency. This provides that the route in the rules is only available to an applicant outside the United Kingdom, with no provision for switching. Furthermore, the long-term care provided must be without help from public funds.

18. The bulk of the skeleton argument covers general principles. The skeleton argument accepts that the appellant does not have a significant private life as the focus has been upon her family but suggest that those ties form part of her private life also.

19. The first article provided on care of the elderly in Pakistan is dated 2010 and so is not up to date. It refers to the former revered status of the elderly changing due to a decline in the extended family system and that the elderly are now marginalised. There is reference to 6-7% of the elderly living alone and with little assistance. There are healthcare costs. The article refers to a few nursing homes existing in large cities, primarily run by private or religious organisations. No day-care centres are recorded. There is reference to a stigma attached to depression and so the information is limited.

20. The second article is dated 2012 and states that a person is defined as elderly in Pakistan when they reach 60. Life expectancy has increased from 45 years in 1950 to 66 in 2008 and there is the probability of an increasing elderly population. There was a national policy for health care for the elderly in 1999 but implementation was still awaited, with only a few nursing homes existing in the large cities.

21. It is known that before the appellant came to the United Kingdom in 2001 she had significant health issues. The claim was that she intended returning but for becoming ill whilst here. Mrs. Pettersen advised me that the original visit visa application was not on file. This means of investigating her motivation in travelling was not available.

22. The appellant's representative submitted that having set out the factors in the balancing exercise the judge had not provided reasons for dismissing the appeal. He submitted that the decision did not show an evaluation of the various factors had taken place. He pointed out that the appellant came to the United Kingdom lawfully and that she became ill whilst here. He sought to rely upon paragraph 276 ADE (vi) and referred me to the limited care provision for the elderly in Pakistan.

23. In response, Mrs. Pettersen submitted that the judge at paragraph 27 of the decision had properly considered paragraph 276 ADE (vi) and referred to her familiarity with life in Pakistan, notwithstanding her physical infirmity and the time spent in the United Kingdom. Regarding the proportionality assessment, she submitted that the judge had gone through the relevant factors. The appellant has health problems and the financial cost could not be met. She has a home in Pakistan which would be available to her regardless of who owns the property.

Error of law

24. The judge was faced with an emotionally challenging decision. The appellant is an elderly lady with significant health issues. Her family here have been providing her with care and she enjoys a good quality of life. She has a close relationship with her family which includes not only her elderly mother but her siblings, her children and the next generation. She came to the United Kingdom lawfully albeit with pre-existing health issues. It is true that she subsequently overstayed and her healthcare and any ongoing care will be a burden upon the State. There is no provision for her family to support her in Pakistan and the information indicates limited State facilities.

25. A judge cannot be swayed by emotion and must apply the applicable law and legal principals. The outcome could be considered hard but one open to the judge. It is not my function to substitute my view on this. At this stage the question is whether in arriving at this result there was an error of law in the process.(see Dasgupta (error of law – proportionality – correct approach) [2016] UKUT 00028 (IAC) ).

26. It is my conclusion there was. The judge has carefully made findings of relevant facts and has set out the relevant law. The decision indicates that the judge did display a clear awareness of the issues arising. The error however is that having carefully setting out the factors for and against the decision does not adequately explain why the appeal did not succeed. Paragraph 29 sets out in detail the factors in favour of the appellant. Paragraph 30 sets out the competing factors. The shortfall however is in paragraph 31, which falls on one side but does not explain why. Something more by way of explanation was required beyond setting out the competing factors. Consequently, in what is otherwise a careful consideration of the appeal there is a material error of law and it cannot stand.

Remaking the decision

27. Given my finding of a material error of law the parties were in agreement that I was in a position to remake the decision adopting the findings made. I also heard from the appellant son in relation to the property in Pakistan.

28. He said it was owned by his grandmother and located in a rural area in the Punjab. He said the area had a population of around 400 people. The nearest city was Islamabad which was about three hours drive. He said there was a smaller town, Jalib, which had a population of around 100,000 and was around 30 min drive away. He said there was a hospital there but the facilities were limited and there was no specialist treatment available for cardiac conditions for epilepsy. I found he gave this evidence honestly as he had not needed to disclose the local hospital.

29. In cross-examination he was asked about the property. He said it is currently unoccupied and that his grandmother goes there once a year. She is accompanied by the appellant's brothers or sisters. He confirmed he had limited income.

30. In submissions, Mrs. Pettersen relied upon the findings made by the judge particularly paragraph 27, in relation to paragraph 276 ADE. Regarding article 8 it was accepted that family life existed with the extended family. However the appellant came here as a visitor and it was submitted that contact could be maintained by them visiting her. The life she had made here with her family had developed overtime when she was here either a temporary basis or with no right. She submitted that the family could support her by way of finance and seek to arrange someone to help.

31. Mr.Fripp submitted that the judge’s findings were not challenged but the reasoning in relation to paragraph 276 ADE was flawed. He said the judge had treated private life as restricted to events occurring outside the family. Furthermore, he submitted that the judge did not adequately address the obstacles the appellant would face on return given her poor health and the lack of provision in Pakistan. He submitted that the circumstances were exceptional and the appeal being allowed on article 8 grounds. He had addressed the section 117B considerations in his skeleton argument. The appellant's inability to speak English was considered a neutral factor.

. Consideration.

32. I adopt the First-tier judge’s findings and the factors for and against the appellant set out at paragraphs 29 and 30. I acknowledge that private life is not something exclusive of family life. In Bensaid v United Kingdom - 44599/98 [2001] ECHR 82 it was said that:
“‘Private life’ is a broad term not susceptible to exhaustive definition. … Article 8 protects a right to identity and personal development, and the right to establish and develop relationships with other human beings and the outside world.”

33. However, the relevance of the appellant’s private life is in the context of paragraph 276 ADE(v) and the question of very significant obstacles to the persons integration. The respondent's IDI on this point at 8.2.3.4 is that the starting point is to assume the person can integrate into their country of return unless they can demonstrate why this is not the case. Very significant obstacles are a high threshold and there must be something which would prevent or seriously inhibit reintegration. The fact the situation on return may be challenging would not be sufficient. The focus is upon integration. Pakistan is the appellant’s home country. She has lived there all her life. I do not believe her extended stay in the United Kingdom would have removed her from the cultural mores so that she could not readapt. I can see no reason why she could not develop new friendships on return. The fact she has no immediate family there would not prevent her integrating. Consequently, I cannot see the case for very significant obstacles to integration being made. There are obstacles in terms of care facilities. However I do not view this as the same as integration.

34. Bossade (Sections 117A-D: Inter-relationship with Rules) [2015] UKUT 415 (IAC). held that a tribunal will first consider an appellant's Article 8 claim by reference to the Immigration Rules. This exercise is performed without reference to Part 5A which is engaged directly only where the decision making process reaches the stage of concluding that the person does not satisfy the requirements of the Rules. Thereafter, Part 5A will be applied in the determination of the proportionality question. It is my conclusion that a freestanding article 8 assessment is appropriate in the circumstance. It was accepted there are strong family ties which will not be severed but significantly disrupted if the appellant had to return. Her situation is not one covered within the rules.

35. The factors for and against have already been set out in the First-tier Tribunal decision. Into the balancing exercise the factors set out in section 117 B are relevant. Section 117B makes public interest considerations applicable to all cases. The fact the appellant does not speak English, relevant to integration, is not a significant feature. Given her age issue if she were applying under the rules for entry clearance, for instance, as a spouse she would be exempt from the English language requirement. At this stage her focus is upon her family and members of the Pakistani community in the United Kingdom. She is of retirement age. Much of her core family life existed before he came to the United Kingdom, for instance with her mother, siblings and children. She does not have parental responsibility towards her grandchildren but nevertheless a bond is accepted. Some of that relationship will have developed when she was here illegally.

36. I do not see evidence to suggest that the appellant came to this country intending to remain and to avail of the healthcare system. The evidence presented is that she came as a visitor. It is documented that while she was here she had a sudden medical emergency. It may be after she recovered she could have returned home but decided to remain. This is supported by her earlier applications. Thereafter, there was an extended period when she was here unlawfully. However this is not the situation of someone who deliberately comes into the country for an abusive purpose.

37. The appellant is fortunate in having a loving family who are not only willing but want to provide for her in her declining years. She does have significant health problems and there is medical evidence that she requires 24-hour care. The principal negative factor is the cost her presence will place upon the State. It is likely she will have ongoing health issues. There may also be Benefit claims. Resources are finite and this is a relevant consideration. I balance this against her age and frailty and the strong family life in existence.

38. There is overall public interest in immigration control. Against this, I do not find the evidence to show the appellant came here abusing the process, intending to avail of facilities and to overstay. Apart from immigration control, the greatest factor I see against her is the cost she presents to the State. However, when I balance these two factors against all the surrounding circumstances it is my conclusion that the decision made is a disproportionate interference with her right to family life. For this reason I would allow the appeal.

Decision.

The decision of First-tier Tribunal Judge Moran dismissing the appellant's appeal materially erred in law and is set aside. I remake the decision allowing it on article 8 grounds.

Deputy Judge Farrelly

24th April 2017