Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/38332/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 16 May 2016
On 11 August 2016

Before

UPPER TRIBUNAL JUDGE KOPIECZEK

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

Ms
(anonymity ORDER MADE)

Respondent

Representation:

For the Appellant: Mr S Kotas, Home Office Presenting Officer
For the Respondent: Mr M Biggs, Counsel, instructed by Mayfair Solicitors

DECISION AND REASONS

1. The appellant is a citizen of Malaysia born on [ ] 1960. A decision was made by the respondent on 8 September 2014 to refuse to issue the appellant a derivative residence card pursuant to regulations 15A and 18A of the Immigration (European Economic Area) Regulations 2006 ("the EEA Regulations").
2. The appellant's appeal against that decision came before First-tier Tribunal Judge James ("the FtJ") on 30 July 2015 whereby she allowed the appeal. The respondent appealed against that decision and following a hearing on 12 February 2016 Upper Tribunal Judge Pinkerton ("the UTJ") found an error of law in the decision of the FtJ and set her decision aside. To summarise, the UTJ concluded that the FtJ had not reasoned, or sufficiently reasoned, how the appellant is able to satisfy the requirements of reg 15A(4A) of the EEA Regulations. He referred to the decision in Ayinde and Thinjom (Carers - Reg. 15A - Zambrano) [2015] UKUT 560 (IAC).
3. The appeal then came before me for the re-making of the decision. In the error of law decision at [10], the UTJ said as follows in terms of what findings, if any, should be preserved:
"Mr Biggs submitted that the findings should be preserved and this was agreed by Mr Staunton. Of necessity it seems to me that those agreed findings are limited in the sense of those relating to the appellant's personal circumstances, the sponsor's personal circumstances, and the family history. There can be no agreement in relation to findings that were insufficiently reasoned, particularly as identified above."
4. There was some measure of disagreement between the parties before me in terms of the effect of the UTJ's decision relating to preserved findings. I consider that matter further below, after setting out what the factual findings of the FtJ were. I heard oral evidence as follows.
The oral evidence
5. The appellant said in examination-in-chief that her mother had lost her husband and son. She, the appellant, had been with her since childhood and her mother had counted on her since she had grown up and matured. Her mother is very attached to her. They have such a strong bond. The appellant's two elder sisters left Malaysia in their teens, which is why her mother is very attached to her, the appellant. The appellant's younger sister is disabled. She is the "last pillar" for her mother, after she lost her husband and son. Her mother feels that her world has crumbled.
6. Her son was her only son and there is a big hole in her life now that he is no longer around. When he was alive he was the main carer but in terms of her mother's personal needs, she assisted in attending to matters that he could not. So far as reliance on state provision or care is concerned, her mother is not one of those who seeks benefits. She feels that if she is here and has medical treatment she would be looked after. She has a pension here. It is not the case that her mother would be adequately cared for if she, the appellant, was not able to live in the UK. She would not be adequately cared for in terms of her being taken to hospital appointments or in terms of her personal care.
7. Having been referred to [22] of the FtJ's decision she said that she agreed that Social Services are reliant on the care that they (as a family) provide. They do not provide daily meals. Her mother is very religious and only eats vegetarian meals. Frozen meals that are provided from outside contain eggs but she does not eat eggs. She is more of a vegan. Her mother offers freshly cooked meals to "the deity" at mealtimes and carers cannot provide that.
8. As found by the FtJ, there were problems with washing and personal hygiene.
9. Her mother would not be able to live on her own if she were not there. She is registered blind and has a lot of medical complications. She values her dignity and had heard stories of elderly people being abused. Her father had not been cared for properly. Her mother could not be on her own. She would have to leave the country with her, the appellant. In residential care she would not get the support provided by the appellant.
10. In terms of whether her mother would choose to be in residential care or leave with the appellant, she said that her mother would reluctantly choose to go with her as she could not survive without her. Her mother is emotionally dependent on her as well as dependent on her for her care. The council in Warrington said that they could not provide the care that she provides. They said that they could only provide basic microwave meals.
11. In cross-examination she said that her mother came to the UK in 2004. The last time she went to Malaysia, she thought, was in 2006. They have no close family in Malaysia and no property. It is true that her mother is quite heavily reliant on the NHS.
12. She sees a doctor when she needs a check-up, which is about twice a month. Her GP is five minutes away by car and the hospital twenty minutes by car. The council are going to put in a lift at her mother's property. At the moment she walks on her hands to go upstairs. She receives attendance allowance and a state pension. They do not receive carer's allowance.
13. In Malaysia there is free medical treatment for locals but she would not be able to obtain it because she is a foreigner. She, the appellant, is herself 55 years of age and she needs to look after her mother 24 hours a day.
14. As to whether because she has NHS support in the UK, carers and no property in Malaysia she would in reality decide to stay in the UK, the appellant said that for her mother, she is her life, repeating that she is very emotionally attached to her having lost her son and husband.
15. It is true, as found by the FtJ, that she had cancelled the care provided by the local authority because the carers used to stand around and do nothing and her mother used to have to bathe herself. She got new carers each time. Whatever they do they do it together. If she is unwell, her mother provides support for her. They provide support for each other.
16. If she were not around, the quality of care provided to her mother would not be as good. It would shorten her life and she would not get the care that she provides her. She had complained to the local authority about the care provided.
17. In re-examination, asked again whether if she had to leave the UK what her mother would do, she said that her mother would follow her. She was very sure about that.
18. In examination-in-chief Dalbit Kaur adopted her witness statement. She said that her daughter is her life. She looks after her, cooks for her, bathes her and does everything for her. She gives her her medication.
19. If her daughter had to leave the UK, her daughter would not survive in Malaysia. "They" would force her to go with her. The government is saying that she should go with her. However, she is a British national and why should she leave the country? There is no way that they could survive in Malaysia because they have no house and would have nothing to eat. She is very happy in the UK, and has all facilities here. The carers only come for half an hour a day, however. One day a different one would arrive. She does not understand them as they speak English.
20. She had thought about what would happen if her daughter was made to leave the UK. She would not like her daughter to go to Malaysia and she would not want to go there either. They should stay here, as what else would they do. After the question was repeated she said that she would have to leave the country. However, she said that it is an 18 hour journey and she could not sit for that long. Who would be responsible for her if something happened to her?
21. In answer to my question on this issue, as to whether if her daughter had to leave the UK she would stay in the UK or go with her, she said that she was not happy to go there but as a last resort she would have to go because she could not leave her daughter on her own.
22. In cross-examination she agreed that the reason she would choose to go back to Malaysia with her daughter was because she was worried for her welfare. Her daughter had nowhere to live and no means of subsistence or maintenance.
23. In terms of help she is getting from the NHS, she said that she sees her doctor sometimes three times a week, sometimes more or less. She agreed that her house was going to be adapted for her. It is true that the doctor and the hospital are close to where she is and she receives medication. She accepted that she did not pay for her medical treatment. As to whether she would therefore be prepared to give all that up and start again in a country where she had no property, if her daughter were sent back, she asked what else she could do. For a mother her child is so important. Her son had died and it would not be easy to part with her daughter. Her son's body was brought to the UK and cremated here. Her daughter is still alive and she could not part with her.
24. In answer to my questions she said that she wants to stay in the UK but there should be someone to look after her. Her daughter cares for her. At first her son looked after her. Her daughter then accepted full responsibility from him.
25. In further cross-examination she said that it was true that she stopped the care provided by Social Services because they did not wash her properly. That is also why her daughter took over her care.
Submissions
26. Mr Kotas submitted that the appellant's circumstances are on all fours with the appellants in Ayinde and Thinjom. He relied on the decision in MA and SM (Zambrano: EU children outside EU) Iran [2013] UKUT 380 to the effect that the right of residence is a right to reside in the territory of the EU but not a right to any particular quality of life or standard of living. If the appellant's mother were alone in the UK the local authority would have to fulfil its statutory duty and provide care for her. Various aspects of the decision in Ayinde and Thinjom were relied on. In particular it was submitted that the Tribunal is entitled to look critically at a claim that a person will be forced to leave the EU because of a refusal of leave to remain for the person's carer. It was submitted that it was "far-fetched" to contend that the appellant's mother would be forced to go with the appellant to Malaysia bearing in mind the availability of services to her where she lives in the UK, with her GP and the hospital very close by. In Malaysia, as was said in evidence, the family have no property and the appellant's mother would have no access to benefits.
27. It was also to be remembered that it was insufficient for it to be argued that there would be a disparity in the quality of care were the appellant's mother to remain in the UK without the appellant. The appellant's mother stopped the carers attending her.
28. Although the outcome of an Article 8 claim might be different, Article 8 is not available to the appellant in this appeal, it was submitted.
29. Mr Biggs accepted that this was not an Article 8 case, having regard to the decision in Amirteymour and others (EEA appeals; human rights) [2015] UKUT 00466 (IAC).
30. So far as reg 15A(4A) is concerned, 'unable to reside' requires an assessment of whether the substance of the EU rights would be destroyed. That involves a qualitative assessment and is consistent with the decision in Hines v London Borough of Lambeth [2014] 1 WLR 4112. In this case, the appellant's mother has particular religious and physical needs. She would be required to go into residential care and her son and husband have died. It was conceded however, that it was decided in Ayinde and Thinjom that it was not a qualitative assessment that was required.
31. Mr Biggs relied on Mr Kotas' acceptance of the credibility of the witnesses. Although it was argued for the respondent that that does not dispose of the issue of whether the appellant's mother would in fact leave, the appellant's mother would have to remain in the UK without the appellant, with no family support and with the cultural issues that have been described. It is true that in having to leave the UK, life in Malaysia would be less than ideal. It was a question for the Tribunal as to which the appellant's mother would choose. She said in evidence that she would leave. She is an elderly woman, is plainly very dignified and has said that for her daughter she would leave. It was submitted that I did not have to accept that that would be her reason for leaving but the fact is that she said she would leave. As was said in Ayinde and Thinjom at [55] "unable to reside" is not to be taken literally.
The FtJ's findings
32. At [9] the FtJ said that it was accepted by the respondent that the appellant's sister, MK, who suffers from spina bifida, is unable to care for their mother. In a series of findings from [12] - [18] the FtJ concluded that another sister, MB, and a further sister, JK, are unable to care for their mother because of health issues and matters relating to domestic violence which have involved the courts. The FtJ found that the appellant, her mother, and sister MK were credible witnesses in those respects. No issue is taken as to those findings on behalf of the respondent.
33. So far as the appellant's mother is concerned, it was found that she is a widow aged 84 whose husband and son had died and are buried in the UK. She visits their graves often and offers prayers as a devout orthodox Sikh. The appellant's mother's initial carer was her only son, SS, who came to the UK in 2005 in order to care for his mother, and again in 2007. However, he died in Malaysia on 8 December 2012 and his remains were repatriated to the UK for burial. During the period that her son SS cared for her, the appellant in any event attended her mother to provide intimate personal care that her son was unable to provide.
34. So far as the appellant's mother's health problems are concerned, the FtJ made a number of findings about those at [21]. The evidence before her included various reports and documentary evidence. She uses a walking stick and Zimmer frame in the house and a wheelchair outside. She has memory problems and short-term memory loss. She needs to be assisted to take her daily medication and her partial eyesight is deteriorating. The assistance with medication is undertaken by a family member. She needs help to shower and dress, being unable to do so independently. She requires a carer to apply medication to her arms, legs and feet. The professional care worker is required to dispose of incontinence pads in the outside bin. The carer also needs to prepare and cook food for the appellant's mother according to her religious vegetarian dietary beliefs and prayer times, being three times a day. The carer is needed to wash, dry and iron her clothes, and this is undertaken by "the family member". Various adaptations have been made to the appellant's mother's home, including to the shower, toilet and stairs. She needs help using the stairs, as well as the shower, and also needs help getting up in the morning. The family help with her shopping and the paying of bills and bank transactions.
35. At [22] the FtJ found that there was a significant gap between the services that are provided by the local authority and what is provided by the family, in terms of the help provided by the appellant's mother's son when he was alive. Since his death the appellant undertakes all these tasks, as well as the more intimate personal care tasks. The local authority care package is highly reliant on the family providing intensive daily care in order fully to address the appellant's mother's care needs. It is the appellant's mother's choice that her daughter cares for her and has done for a significant number of years.
36. Other health issues suffered by the appellant's mother include diabetes, hypertension, hyperlipidaemia, heart failure, chronic kidney disease, cerebrovascular disease, osteoarthritis, peripheral vascular disease, and she is partially sighted. She takes nine different medications and the medication regime requires significant input from a sighted person who reads and can translate into Punjabi. The appellant acts as her mother's interpreter for her appointments at the GP's surgery and the like.
37. Since the death of her son it was noted by the community care specialists that the appellant's mother lacks motivation and relies on her daughter, the appellant, for emotional support.
38. During her oral evidence the appellant's mother confirmed that she was doubly incontinent. At [32] the FtJ explained in detail the problems that that presented in terms of the input from the carers and the need for the appellant ultimately to undertake the intimate care for her mother that was required.
39. At [33] the FtJ said that the appellant's mother is in receipt of mobility payments and attendance allowances due to her disabilities. She would lose these payments should she leave the UK.
40. She also found that it would not be an adequate alternative arrangement to expect the appellant's mother to be placed in residential care. Nor would it be appropriate for her to live with her two other daughters who are in a violent relationship with a convicted criminal and in respect of whom the appellant's mother has previously taken out a non-molestation order from the courts.
41. At [40] she found that the quality and standard of the appellant's mother's life would be seriously impaired by the removal of the appellant from the UK.
Conclusions
42. Initially, Mr Kotas suggested that the preserved findings should not extend to conclusions as to the assistance that could be provided by other family members, apart from the appellant. It was submitted that UTJ Pinkerton would have expressly stated that no other person could look after her if that was to be a preserved finding.
43. However, it was accepted that there was no direct challenge to those findings on behalf of the respondent. Indeed, it is to be remembered that Judge Pinkerton said that the agreed findings are limited to those relating to the appellant's personal circumstances, her mother's personal circumstances and the family history. He said that there could be no agreement in relation to findings that were insufficiently reasoned "particularly as identified above". It seems to me that what Judge Pinkerton meant by "particularly" as identified above was 'specifically' those identified above. The insufficient reasoning was confined to the conclusion that the appellant's mother would be unable to reside in the UK. Nothing else is identified in Judge Pinkerton's decision as being a matter that is insufficiently reasoned. Furthermore, at [10] it is clear that the respondent's representative before Judge Pinkerton agreed that the findings should be preserved (except as indicated by Judge Pinkerton).
44. The findings of the FtJ that I have set out at [32]-[41] above are those which are the preserved findings. I have not included in that the conclusion that the appellant's mother would not be able to reside in the UK if the appellant had to leave.
45. So far as the evidence before me is concerned, it was accepted by Mr Kotas that the appellant and her mother gave credible evidence.
46. So far as material, reg 15A of the EEA Regulations provides as follows:
"15A. (1) A person ('P') who is not an exempt person and who satisfies the criteria in paragraph (2), (3), (4), (4A) or (5) of this regulation is entitled to a derivative right to reside in the United Kingdom for as long as P satisfies the relevant criteria.
?
(4A) P satisfies the criteria in this paragraph if -
(a) P is the primary carer of a British citizen ('the relevant British citizen');
(b) the relevant British citizen is residing in the United Kingdom; and
(c) the relevant British citizen would be unable to reside in the UK or in another EEA State if P were required to leave.
?
(7) P is to be regarded as a 'primary carer' of another person if
(a) P is a direct relative or a legal guardian of that person; and
(b) P -
(i) is the person who has primary responsibility for that person's care; or
(ii) shares equally the responsibility for that person's care with one other person who is not an exempt person."
47. Under reg 18A the Secretary of State is to issue a person with a derivative residence card on application and production of a valid passport and proof that the applicant has a derivative right of residence under reg 15A.
48. The critical question in this appeal is whether the appellant's mother would be "unable" to reside in the UK if the appellant were required to leave.
49. In Ayinde and Thinjom it was said that the effect of reg 15A is that the carer, that is to say the appellant, must establish as a fact that the British citizen would be forced to leave the territory of the European Union. That requirement is not met by an assumption that the citizen will leave and does not involve a consideration of whether it would be reasonable for the appellant/carer to leave the UK. A comparison of standards of living between the UK and the destination country is only material in the context of whether the British citizen will leave the UK. It was also said that a critical examination of the contention that the British citizen will leave is required if the benefits the person currently receives in the UK are unlikely to be matched in the destination country (see [61]).
50. Mr Kotas relied on the decision in Ayinde and Thinjom, submitting that it would be far-fetched to say that the appellant's mother would be forced to go to Malaysia with her. The appellant's mother would in effect have to "start again" in terms of seeking medical and other care. Furthermore, the appellant's mother does not have a right to any particular quality of life or any particular standard of living, as was made clear in MA and SM.
51. Although Mr Biggs submitted that Hines v London Borough of Lambeth endorsed a qualitative assessment, he accepted that in Ayinde and Thinjom that was not found to be the case.
52. It seems to me that a qualitative assessment cannot be determinative of an appeal of this sort, and certainly not on the facts of this appeal. The differential in the standard of care that could be provided may, depending on the facts, be a relevant consideration. Indeed, arguably contrary to Mr Biggs' submissions, the Tribunal in Ayinde and Thinjom concluded that the greater the differential the more critically one would need to examine a claim that a British citizen would leave the UK if the standard of care in the destination country would be significantly lower.
53. Nevertheless, in a sense once it was conceded that the evidence given to me was credible, the answer to the appeal is clear. The appellant's mother said in evidence that she could not be without her daughter. In other words, if her daughter left she would leave.
54. Of course, the phrase "unable to reside in the UK" cannot literally mean unable because a British citizen cannot be required to leave the UK as a matter of law. "Unable to reside" means that the British citizen would, as a matter of fact, be compelled to leave.
55. As is clear from my summary of the evidence, whilst it was apparent from the appellant's evidence that her view was that her mother would, albeit reluctantly, choose to go with her to Malaysia, the appellant's mother's evidence required some exploration in order to understand her view on whether she would stay or go. I do not consider that that was because she did not have a strong view on the matter, or that she was being deliberately vague or evasive. It was my impression that the appellant's mother simply found it almost impossible to contemplate living without her daughter. I do not consider it necessary to resolve the issue of whether she would feel compelled to leave because of concern for her daughter or because of her need for her daughter's care and the emotional attachment between them, or a combination of the two. It is perfectly possible for a person to be unable to reside in the UK in accordance with reg 15A(4A) for more than one reason.
56. Aside from her concern for her daughter's welfare, the appellant's mother's circumstances are inextricably linked with the death in particular of her son, who used to provide care for her, although not the intimate care that she has come to need and which the appellant provides.
57. My impression of the appellant's mother's evidence was that she was aware of the state provision that she is getting in the UK, in particular in terms of medical care, but her desire not to be separated from her daughter was paramount.
58. It is also clear that the appellant's mother does not want to leave the UK and feels that she should not have to. But I am entirely satisfied that if the appellant was removed from the UK the appellant's mother would inevitably leave with her. It is for those reasons that I am satisfied that the conditions in reg 15A(4A) are satisfied. In particular, I am satisfied that the appellant's mother would be unable to reside in the UK if the appellant were required to leave. That is the clear import of the appellant's and the appellant's mother's evidence. It is also consistent with the (preserved) findings of fact made by the FtJ, including the absolute impossibility of there being any other family member to care for her in the UK, given the personal circumstances of the appellant's sisters.
59. Accordingly, I am satisfied that the appellant has established that she is entitled to a derivative right of residence, and thus to be issued with a derivative residence card.
Decision
60. The decision of the First-tier Tribunal involved the making of an error on a point of law. Its decision having been set aside, the decision is re-made, allowing the appeal under the EEA Regulations.

Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008

Unless and until a Tribunal or court directs otherwise, the appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify her or any member of her family. This direction applies both to the appellant and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Upper Tribunal Judge Kopieczek 9/08/16