Tribunal decisions

The decision

Upper Tier Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/40167/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 23 February 2017
On 2 March 2017

Before

Deputy Upper Tribunal Judge Pickup

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

Muktherun Nesa Khathun Choudhury
[No anonymity direction made]
Claimant

Representation:
For the claimant: Mr N Ahmed, instructed by Lincoln’s Chambers Solicitors
For the appellant: Mr S Staunton, Senior Home Office Presenting Officer

DECISION AND REASONS
1. This is the Secretary of State’s appeal against the decision of First-tier Tribunal Judge Adio promulgated 6.6.16, allowing, on article 8 human rights grounds, the claimant’s appeal against the decision of the Secretary of State, dated 15.9.14, to refuse his application for leave to remain in the UK on human rights grounds.
2. The Judge heard the appeal on 16.5.16.
3. First-tier Tribunal Judge Andrew granted permission to appeal on 18.1.17.
4. Thus the matter came before me on 23.2.17 as an appeal in the Upper Tribunal.
Error of Law
5. In the first instance I have to determine whether or not there was an error of law in the making of the decision of the First-tier Tribunal such that the decision of Judge Adio should be set aside.
6. The claimant entered the UK on 18.3.12 as a visitor, but she failed to leave, instead submitting an application for LTR as a dependant relative of a person present and settled in the UK. The application was refused on 6.12.12, having been considered under Appendix FM and paragraph 276ADE of the Immigration Rules.
7. On 23.9.14 the Secretary of State decided to remove the claimant to Bangladesh. Her subsequent appeal against that decision was dismissed. Judge Howard considered that her claimed infirmity was exaggerated and the support available to her in Bangladesh minimised, and dismissed the appeal, finding that article 8 was not engaged.
8. That decision was set aside by the Upper Tribunal on 5.1.16, on the basis that having found that the claimant’s removal would “substantially change the way in which family life is currently enjoyed,” the judge was wrong to conclude that article 8 was not engaged, and should have gone on to consider the proportionality balancing exercise. The appeal was then remitted to the First-tier Tribunal to be reheard afresh, resulting in the decision of Judge Adio, allowing the appeal on human rights grounds.
9. In essence, the claimant’s case is that she is a 78-year-old infirm, disabled person in need and receipt of substantial medical treatment and personal care and assistance from family members in the UK. It is asserted that she would have no home to return to in Bangladesh and would not be equipped to cope with what would be a solitary and unsupported existence. Her condition has deteriorated further since she first made application for LTR in 2012, and she is said to be now virtually blind and cannot hear. She sat in the hearing with her eyes closed throughout.
10. The grounds of application for permission to appeal assert that the appellant could not meet the requirements of the relevant immigration rule, which is a complete code encompassing article 8 ECHR assessment. It is submitted that a finding that the claimant’s case was exceptional simply on the basis that she did not meet the Rule is a misdirection in law. It is also asserted that in any event the proportionality assessment was entirely one-sided and failed to give weight to the public interest. Finally, the grounds assert that the appeal appears to have been allowed purely on the basis that the care the claimant receives in the UK is superior to that available to her in Bangladesh.
11. In granting permission to appeal, Judge Andrew found it arguable that the First-tier Tribunal Judge failed to weigh the public interest in the balancing exercise. “It is further arguable that the Judge allowed the appeal on the basis that the care the appellant receives in the UK is better than that she had in Bangladesh. It is arguable that this is not the test and the Judge failed to give adequate reasons as to why there would be a breach of Article 8 if the (claimant) were to be returned to Bangladesh.”
12. At [20] the judge noted that all parties agreed that the claimant could not meet the requirements of the Immigration Rules for leave to remain. I reject the argument made in the grounds that the relevant rule was a complete code. That was not asserted in the refusal decision, which went on to consider the claimant’s circumstances outside the Rules, but concluded that on the submitted evidence there were no compelling or compassionate circumstances to warrant a grant of leave.
13. Very properly, Judge Adio went on, pursuant to SS (Congo) to consider where there were sufficiently compelling circumstances to justify consideration outside the Rules on article 8 ECHR private and/or family life grounds. Given the claimant’s poor state of health and the other circumstances in the case, Judge Adio concluded that there were compelling circumstances. At the hearing before me, Mr Staunton did not challenge that part of the decision and did not challenge that the circumstances are sufficiently compelling to justify an article 8 ECHR assessment.
14. Mr Staunton had no material disagreement with the decision of the First-tier Tribunal up to [24] of the decision. Although wrongly referred to as section 117D, the judge was clearly referring to the s117B public interest considerations, and listed those factors which supported the claimant’s removal, including that immigration control is in the public interest and that her status was always precarious. At [25] the judge also noted that the claimant may have come to the UK as a health tourist, seeking medical treatment. She has had substantial treatment on the NHS, to which she was not entitled.
15. The Secretary of State’s concern, emphasised by Mr Staunton, is that there was no, or no adequate, Razgar proportionality assessment and that the public interest was not given sufficient weight. This is evident in [26] of the decision of the First-tier Tribunal. There the judge compassionately noted, “I find that her vulnerability and inability to do anything for herself means that the final years of her life would have more meaning spending it with her son and daughter and grandchildren who are able to give her the kind of care she would not be able to get in Bangladesh.” The decision concludes with this sentence, “On the whole I am prepared to accept that the age, deterioration of health and vulnerability and care required by the (claimant) means that the end years of her life will be much better spend with her children and grandchildren in the United Kingdom.”
16. It appears that the judge became somewhat side-tracked and failed to directly address the proportionality balancing exercise between, on the one hand, the rights of the claimant and her family members, and, on the other, the legitimate and necessary aim to protect the economic well-being of the UK through immigration control. The public interest whilst mentioned at [24] is not brought into any balancing exercise. The basis for allowing the appeal is flawed. The fact that care in the UK will be superior to that available to her from the state or family members remaining in Bangladesh is not the correct test. The judge has not found that care in Bangladesh would be so poor as to breach her human rights.
17. However, all the necessary elements for the proportionality balancing exercise are present and can be identified from the decision. There is no issue with the factual findings of the decision and the public interest factors have been correctly identified. The factors in favour of allowing the claimant to remain on family and private life grounds have also been set out.
18. On the facts of this case as found by the judge, and with which I find no reason to interfere, I am satisfied that had the judge continued on and make a clear, balanced proportionality assessment, the outcome would certainly have been that on the circumstances of this case, the claimant’s removal was not proportionate. It is clear that this was the intended conclusion of the judge, although not adequately expressed and reasons not adequately set out. Whilst her medical condition does not reach the article 3 threshold and could not succeed under article 8 on that ground alone, the claimant is in such difficult circumstances with such poor ability to care for herself in her old age, with no or limited sight, and apparently unable to hear or comprehend the appeal proceedings, that it would be disproportionate to return her now to very difficult circumstances in Bangladesh, especially after living with the support of her caring family in the UK for the past 5 years. I am satisfied that the public interest, including the economic cost of medical treatment and the burden she will be to the state, is on the facts of this case outweighed by the factors in the claimant’s favour.
19. As I stated to the parties at the hearing before me, if I were to set the decision aside and remake it on the same facts and circumstances, I would be driven to conclude that the claimant’s removal is not proportionate, the decision to refuse her claim disproportionate, and thus the appeal would have been allowed. In those circumstances, whilst there are clear errors of law in the decision, they are not in fact material to the ultimate outcome of the appeal, and I see no purpose in setting the decision aside only to remake it by allowing the appeal.
Conclusions:
20. The making of the decision of the First-tier Tribunal did not involve the making of an error on a point of law such that the decision should be set aside.
I do not set aside the decision.
The decision of the First-tier Tribunal stands and the appeal remains dismissed on immigration grounds, but allowed on human rights grounds.

Signed

Deputy Upper Tribunal Judge Pickup

Dated

Anonymity
I have considered whether any parties require the protection of any anonymity direction. No submissions were made on the issue. The First-tier Tribunal did not make an order.
Given the circumstances, I make no anonymity order.
Fee Award Note: this is not part of the determination.
In the light of my decision, I have considered whether to make a fee award pursuant to section 12(4)(a) of the Tribunals, Courts and Enforcement Act 2007.
I have had regard to the Joint Presidential Guidance Note: Fee Awards in Immigration Appeals (December 2011).
I make no fee award.
Reasons: The appeal of the Secretary of State has been allowed and no fee was payable.

Signed

Deputy Upper Tribunal Judge Pickup

Dated