Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/31892/2015

THE IMMIGRATION ACTS

Heard at Bradford
Decision & Reasons Promulgated
On 18th April 2017
On 27th April 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE D E TAYLOR

Between

Azza Aboel-Fetouh Aboel-Ghafar Mohamed
(ANONYMITY DIRECTION not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Hussain of Counsel instructed by Barrass White Legal
For the Respondent: Mr Mills, HOPO

DECISION AND REASONS
1. This is the appellant’s appeal against the decision of Judge Hindson made following a hearing at Bradford on 14th July 2016.
Background
2. The appellant is a citizen of Egypt born on 29th October 1947. She first arrived in the UK in February 2009, for a visit, returning in October 2009 with leave until 15 April 2010. Shortly before that leave expired she made an unsuccessful application for leave to remain as a parent, and a further application outside the Rules in August 2013 which was refused with no right of appeal. The present application was made on 1st March 2015.
3. The appellant could not apply for leave to remain as a dependant parent from within the UK and her application was therefore considered under the Rules with respect to private life and whether there were exceptional circumstances requiring a grant of leave in the UK.
4. The underlying facts are not in dispute. The Immigration Judge accepted that the appellant was very infirm and that she required long-term care to perform everyday tasks. He also accepted that there was a strong familial bond between her and her son and grandchildren. He did not dispute that it remained the norm in Egypt that children take care of their elderly parents.
5. However, he was satisfied that residential care for her was available in Egypt and that her son, who has a substantial income as a GP, would be able to pay for that care. Whilst her return to Egypt would disrupt the family life which she had enjoyed with her family in the UK, contact could continue, and it was open to her to make the appropriate out of country application. He therefore concluded that it was proportionate that she be removed.
The Grounds of Application
6. The appellant sought permission to appeal on the grounds that the judge had failed to engage with the principles set out in the established jurisprudence of Huang and Kashmiri v SSHD [2007] UKHL 11, had erred in concluding that it was open to her to return to Egypt and make an out of country application and had failed to give sufficient weight to the severe hardship which the appellant would suffer if she were to be required to return and leave her family. She relied on the case of BritCits v SSHD [2016] EWHC 956 in which the court acknowledged that the adult dependent relative Rule under Appendix FM was certain to interfere with the family life of a significant number of frail and elderly parents or persons settled in the UK. Finally, the judge had failed to consider the best interests of the appellant’s grandchildren.
7. Permission to appeal was granted by Judge Scott-Baker on 20th December 2016. She said that it was arguable that the judge had failed to make adequate findings in his decision.
8. On 18th January 2017 the respondent served a reply defending the determination.
Submissions
9. Mr Hussain submitted that the judge had erred by in effect taking the Immigration Rules as both his starting point and his end point. The appellant’s family life was entrenched here. The judge had not carried out a lawful proportionality assessment which was material because the appellant’s case was capable of succeeding outside the Immigration Rules. He took me through the Supreme Court decision in R (on the application of Agyarko) v SSHD [2017] UKSC 11 and in particular paragraph 60 where Lord Reed said:-
“It remains the position that the ultimate question is how a fair balance should be struck between the competing public and individual interests involved, applying a proportionality test. The Rules and Instructions in issue in the present case do not depart from that position. The Secretary of State has not imposed a test of exceptionality, in the sense which Lord Bingham had in mind: that is to say, a requirement that the case should exhibit some highly unusual feature, over and above the application of the test of proportionality. On the contrary, she has defined the word ‘exceptional’, as already explained, as meaning ‘circumstances in which refusal would result in unjustifiably harsh consequences for the individual such that the refusal of the application would not be proportionate’. So understood, the provision in the Instructions that leave can be granted outside the Rules where exceptional circumstances apply involves the application of the test of proportionality to the circumstances of the individual case, and cannot be regarded as incompatible with Article 8. That conclusion is fortified by the express statement in the Instructions that ‘exceptional’ does not mean ‘unusual’ or ‘unique’: see para 19 above.”
10. Mr Mills defended the determination. He submitted that the judge had in fact had proper regard to all relevant matters. It was clear on the facts of this case that Chikwamba was irrelevant since it seems that the appellant could not meet the requirements of the entry clearance Rules but, in any event, an Entry Clearance Officer would be in a better position to assess whether the care available in Egypt was a realistic proposition. He reminded me that the appellant’s status in the UK had always been precarious and accordingly, the judge would have been obliged by virtue of Section 117B to give it little weight.
Findings and Conclusions
11. This determination is a little thin, which renders it vulnerable to appeal. It is however clear that the judge has taken all relevant matters into account and reached a decision open to him.
12. It is not true to say that the judge has failed to record the interests of the appellant’s son, daughter-in-law and grandchildren. Neither is it true that he has failed to assess the medical evidence. None of these matters were in dispute. The judge made no specific findings on family life but it is quite clear from reading the determination as a whole that he accepted that there was family life in this case and that the appellant’s removal would be a clear interference with it.
13. He was right to take as his starting point the requirements of the Immigration Rules and to find that the appellant could obtain the required level of care in Egypt with the financial help from the sponsor. It remains the case that, where the requirements of the Rules cannot be met, there have to be exceptional circumstances requiring leave to be granted outside them. Where, as in this case, family life has developed when the appellant’s immigration status has been precarious, there needs to be something very compelling required to outweigh the public interest in applying a proportionality test.
14. In this case it is difficult to see how the judge can have erred in deciding that there is no such compelling reason. The appellant’s family life has developed when she was in the process of pursuing her lawful appeal rights, but there can be no criticism of the Secretary of State in failing to remove her for eight years, since during that period the appellant was endeavouring, unsuccessfully, to pursue all avenues open to her. There are no factors which dilute the public interest in maintaining immigration control. On the facts, the appellant will be able to obtain physical care in Egypt, where she has lived for the vast majority of her life. She will of course miss her family here, as they will her, but contact and visits can continue. This is not a case where, if she were to return, she would necessarily be able to obtain entry clearance.
15. Whilst the decision could have been more detailed it is not possible to say that this assessment of proportionality was in any way unlawful or perverse.
Notice of Decision
16. The original judge did not err in law. His decision stands. The appellant’s appeal is dismissed.
17. No anonymity direction is made.

Signed Date 26 April 2017

Deputy Upper Tribunal Judge Taylor