Tribunal decisions

The decision

IAC-FH-LW-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/31435/2015

THE IMMIGRATION ACTS

Heard at Bradford
Decision & Reasons Promulgated
On 6th February 2017
On 21st Feburay 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE D E TAYLOR

Between

sharifan alam
(ANONYMITY DIRECTION not made)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr Karnik of Counsel instructed by Berwicks Solicitors
For the Respondent: Mrs Petterson, Home Office Presenting Officer

DECISION AND REASONS

1. This is the appellant's appeal against the decision of Judge Hillis made following a hearing at Bradford on 8th August 2016.
Background
2. The appellant is a citizen of Pakistan born on 1st January 1949. She came to the UK as a visitor on 11th April 2014, with leave, and, within the currency of that leave made an application to remain on human rights grounds. She was refused on 7th September 2015, and appealed against the refusal to an immigration judge.
3. It does not appear to have been argued at the hearing that the appellant could meet the requirements of the Immigration Rules.
4. The judge considered all of the evidence, including the medical evidence, and concluded that the Entry Clearance Officer was satisfied at the time of the issue of the visit visa that she was intending to return to Pakistan and that she would be able to manage her day-to-day care there. She has at least six daughters in Pakistan, and numerous grandchildren.
5. He did not accept that she would be unable to care for herself in the same manner as she did prior to coming to the UK to visit her son and his family.
6. He wrote as follows:-
"I find that there are no compelling circumstances before me to show that the appellant's claim engages Article 8 of the ECHR. It was conceded by Mr Williams at the start of the hearing that the appellant's only claim was under Article 8 and that her medical condition did not engage Article 3 of the ECHR."
The Grounds of Application
7. The appellant sought permission to appeal on the grounds that the judge had erred in law in misdirecting himself, suggesting that compelling circumstances were necessary to engage Article 8, and had improperly failed to follow the correct steps as set out in Razgar. He had also erred in fact by finding that the appellant's need for daily insulin injections arose when she was in the UK and he had not taken into account the fact that it was her son who injected the appellant on a daily basis, although Mr Karnik at the hearing withdrew the second ground accepting that the appellant was in fact being injected with insulin in Pakistan.
8. Permission to appeal was granted by First-tier Judge Gillespie for the reasons stated I the grounds on 7th December 2016.
Submissions
9. Mr Karnik submitted that it was the family's cultural expectation that the sponsor, as her son, would be the one to look after the appellant. Her health needs had deteriorated considerably since her arrival in the UK and she had also developed strong relationships with her family here, including the four grandchildren under the age of 18. The family were particularly concerned about her ability to cope during the night-time and were very anxious to ensure that she would be safe. They did not think that they could be assured of her wellbeing if she had to return.
Findings and Conclusions
10. Undoubtedly the judge erred in his finding that compelling circumstances were required to establish that the claim engages Article 8. Article 8 is engaged if family or private life is established.
11. Having said that, it is quite clear that in order to succeed in an Article 8 case outside the Immigration Rules the appellant does have to show circumstances sufficiently compelling to meet the proportionality test i.e she has to show whether her particular circumstances are such which might warrant a grant of leave to remain in the UK.
12. I accept that, during the past few years, the sponsor has provided for his mother a safe and secure environment, that the normal emotional ties which exist between mother and son have been strengthened and, most importantly, that there is a degree of dependency here. The original judge accepted that the sponsor injected insulin for his mother each day. I therefore accept that family life exists and clearly, her removal would be an interference with that family life.
13. It would however be lawful since the appellant has no basis of stay in the UK. She came as a visitor. She is not able to switch categories to that of dependent relative and she does not meet the requirements of the Immigration Rules with respect to private life. Removal would clearly be in pursuit of a legitimate aim since it is apparent that the appellant is receiving treatment on the NHS for a number of different health conditions and is accordingly a drain on the resources of the state.
14. So far as proportionality is concerned, the starting point is the fact that the appellant does not meet the requirements of the Immigration Rules, which are compliant with the UK's obligations under the ECHR. The Secretary of State is therefore right to say that in order to succeed outside the Immigration Rules the appellant has to establish that there are compelling circumstances in her particular case.
15. The appellant suffers from diabetes and epilepsy, but these are conditions which predate her arrival into the UK and which she managed whilst she was in Pakistan. According to the notes provided by the Entry Clearance Officer, her evidence was that at that time that she was able to stay alone at her own property, but when she was not well she could visit her daughters and stay with them. Her son sent money to her every month and she was assisted by a maid.
16. It is therefore quite clear that she has emotional support from close family in Pakistan and, whilst there is a cultural preference for the son to assume responsibility for his mother this is not a family where the daughters have no involvement. Indeed, it appears from the evidence given to the Entry Clearance Officer that she stays with them when she is not well.
17. The medication to treat her epilepsy and diabetes is available to her in Pakistan.
18. Whilst I quite understand the sponsor's anxiety and desire to do the best for his mother, that is not a proper basis upon which to decide that the UK would be in breach of its international obligations by the appellant's removal. The sponsor will, I have no doubt, continue to support his mother financially and if night-time care is required it can be provided for by monies sent from him.
Notice of Decision
19. The original judge erred in law and his decision is set aside. It is remade as follows. The appellant's appeal is dismissed.
20. No anonymity direction is made.

Signed Date 21 February 2017

Deputy Upper Tribunal Judge Taylor