Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA481472014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 1st April 2016
On 14th June 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE JUSS

Between

Mr ashit kumar das
(ANONYMITY DIRECTION not made)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr S Karim (Counsel)
For the Respondent: Mr S Walker (HOPO)

DECISION AND REASONS

1. This is an appeal against the determination of First-tier Tribunal Judge Maxwell, promulgated on 13th May 2015, following a hearing at Richmond on 7th May 2015. In the determination, the judge allowed the appeal of Mr Ashit Kumar Das, whereupon the Respondent Secretary of State subsequently applied for, and was granted, permission to appeal to the Upper Tribunal, and thus the matter comes before me.
The Appellant
2. The Appellant is a male, a citizen of Bangladesh, who was born on 1st July 1950. He appealed against the decision of the Respondent Secretary of State refusing his application under paragraph 276ADE and Appendix FM for leave to remain in the UK on the basis of his poor health and incapacity, such that he is dependent on his family in the UK.
The Appellant's Claim
3. The Appellant's claim is that his now 65 years of age, suffers from poor health, and is incapable of looking after himself. He is effectively bedridden and his condition is a worsening one. He no longer has any family in Bangladesh who can look after him. All efforts made to find a care home for him in Bangladesh have proved fruitless and it is his family in this country that is in the best position to provide care for him.
The Judge's Findings
4. The judge made the observation earlier on in the determination that this was a case which had previously been before the Immigration Tribunal (appeal number IA/49550/2013), where the judge had held that the decision of the Secretary of State was not in accordance with the law, and had directed the matter be remitted back to the Respondent Secretary of State for further consideration and a fresh decision.
5. Judge Maxwell on this occasion had regard to the principles set out in Devaseelan [2002] UKAIT 00702. The judge went on to conclude that,
"There is a significant body of evidence before me; including several reports from his general practitioner, which lead to the conclusion he is incapable of looking after himself. He has, as I find it, little if any connection to life in Bangladesh other than on what might be termed an historical and linguistic basis. This was insufficient for there to be any meaningful tie in this Appellant's instance. His ties are family ties and it was conceded by the Respondent in the first sitting of this appeal that he has no family life in Bangladesh" (see paragraph 16).
6. The appeal is allowed.
The Grounds of Application
7. The grounds of application state that the judge failed to enunciate a holistic assessment of the facts of the case and it was not enough to say that just because the Appellant lacked familial ties to Bangladesh that he had "no ties". Reference was made to the case of Ogundimu (Article 8 - new Rules) Nigeria [2013] UKUT 60.
8. On 11th February 2016 confirmation to appeal was granted by the First-tier Tribunal.
9. On 1st March 2016, a Rule 24 response was entered by the Appellant's representative stating that the judge was perfectly entitled to attach as much weight as he saw fit to the evidence, given that there was evidence from various hospitals in Bangladesh that no facilities are available for the Appellant's care there, and there were no credibility challenges to the Appellant's evidence.
Submissions
10. At the hearing before me on 1st April 2016, the Appellant was represented by Mr S Karim and the Respondent was represented by Mr Walker. Mr Walker submitted that it was the Respondent's appeal before this Tribunal and that there was essentially one ground, namely, that the judge failed to consider that the Appellant had "no ties" in an appropriate fashion, focusing simply on the lack of familial ties in Bangladesh. The Appellant had lived most of his life in Bangladesh and it was not correct that he would have an inability to reintegrate into that society. In fact, no enquiry had been made in this respect into the prospect of his reintegration.
11. For his part, Mr Karim submitted that the Appellant was effectively housebound. He was not here today. The judge had made findings on the evidence and the Secretary of State had to show that there was a "perversity" in the decision-making process, which was a high hurdle, and which could no be met on the facts of this case. It cannot be said that no enquiries were made about the Appellant's care and reintegration in Bangladesh. There were two bundles before the Tribunal. These showed the direct contact having been made with various hospitals and institutions in Bangladesh and there was confirmation that there were no geriatric facilities in Bangladesh for this Appellant. There was a lengthy email sent by the Sponsor, the son of the Appellant, and this met with the confirmation that no facilities were available for the Appellant's care.
12. Indeed, there was an expressed concession made by the Respondent's representative in the previous appeal that the Appellant had no family left in Bangladesh (see paragraph 5). The judge proceeded with the application of Devaseelan on the facts of this case (see paragraph 7). He set out the Immigration Rules (see paragraph 9) he observed how the Appellant's case had been set out in the documentary evidence before him (see paragraph 10). He confirmed how this showed the Appellant to be 65 years of age and being in poor health and incapable of looking after himself (see paragraph 11). He then went on to say that, "Many efforts have been made to find suitable care for him in Bangladesh but to no avail. There is no-one to whom he can turn for physical support" (paragraph 12). It was after having observed all of this, that the judge came to the firm conclusion that, "The Appellant no longer has any ties to Bangladesh as his family is in the United Kingdom" (paragraph 13).
13. The fact that the reference here is to the Appellant's family does not mean to say that the focus has only been on the family because in the previous paragraphs the judge had set out everything that went to showing how the Appellant had no meaningful ties to Bangladesh. The case of Ogundimu (Article 8 - new Rules) Nigeria [2013] UKUT 60 makes it clear that what one has to show are "meaningful" ties. The judge refers to this particularly at paragraph 16 of the determination. Therefore, all the evidence has been meticulously referred to by the judge.
14. This was nothing more than a disagreement with the judge's determination. As for the question of integration, the judge makes it quite clear that, "Attempts seem to have been made to effect a form of integration by way of finding residential care for the Appellant in Bangladesh but these have proved fruitless" (paragraph 18). It could not be said that the decision was perverse.
15. In reply, Mr Walker submitted that as far as reference has been made to the two bundles of evidence before the First-tier Tribunal Judge, it was likely that the person who drafted the Grounds of Appeal before this Tribunal would not have had access to this evidence, and it was important that this was made clear.
No Error of Law
16. I am satisfied that the making of the decision by the judge did not involve the making of an error on a point of law (see Section 12(1) of TCEA 2007) such that I should set aside the decision. It is well-known that perversity "represents a very high hurdle" (see paragraph 11 of R (Iran) [2005] EWCA Civ 982, and it salutary to bear in mind Lord Justice Brookes' statement that, "Far too often practitioners use the word 'irrational' or 'perverse' where these epithets are completely inappropriate" (paragraph 12). This is a case where these comments are particularly opposite. The judge had referred to a concession at the earlier hearing in 2013 where it had been conceded that the Appellant did not have any family left in Bangladesh. He had applied the Rule in Devaseelan. He had made findings of fact on the basis of the two bundles of evidence before him now. He had noted the Appellant's condition. He had noted how many efforts had been made to find suitable care for the Appellant in Bangladesh but to no avail. He had addressed his mind to the fact that what one has to show are "meaningful" ties and that in the light of the "significant body of evidence ... including several reports from his medical practitioner" it could not be said that the Appellant would be able to look after himself in Bangladesh. He had proceeded to allow the appeal. That was a course that was entirely open to the judge on the facts of this case.
Notice of Decision
17. There is no material error of law in the original judge's decision. The determination shall stand.
18. No anonymity direction is made.

Signed Date

Deputy Upper Tribunal Judge Juss 11th June 2016