Tribunal decisions

The decision

IAC-AH-DP-V2

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/50439/2014
IA/50440/2014

THE IMMIGRATION ACTS

Heard at Manchester
Decision & Reasons Promulgated
On 2nd February 2017
On 13th February 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE D N HARRIS

Between

mrs noorunnisha imtiyaz saiyed (first appellant)
ms bibi batul imtiyaz saiyed (a minor) (second appellant)
(ANONYMITY DIRECTION not made)
Appellants

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellants: Ms Faryl, Counsel
For the Respondent: Mr A McVeety, Home Office Presenting Officer

DECISION AND REASONS

1. The Appellants are citizens of India born respectively on 4th May 1967 and 23rd June 2000. The second Appellant is the daughter of the first Appellant. There is an extensive immigration history in this matter. The Appellants entered the UK on 4th May 2006. Entry was at that time granted as a visitor until 22nd September 2006. It is important to note the basis upon which the first Appellant entered the UK and I am advised by the legal representatives that at that time the first Appellant was accompanied by her husband. He apparently left the Appellant in or about 2008. His whereabouts apparently are unknown and he does not play a part in these proceedings. I am reminded by Mr McVeety that in order to have entered the UK in the first place the visit must have been to a family members. Ms Faryl concedes that point albeit that she advises that there are no current family members of whom she is aware in the UK.
2. My understanding therefore is that at the time of entry the second Appellant was aged 5 and at the time this appeal was heard she was aged 15. She is now aged 16. The second Appellant has cerebral palsy.
3. The Appellant's current application follows a letter dated 27th October 2014 from the Appellant's instructed solicitors which was treated as an application for leave to remain in the UK based on human rights grounds under the European Convention of Human Rights. That application was refused by Notice of Refusal on 21st November 2014. Paragraph 3 of that Notice of Refusal sets out the extensive immigration history that transpired between August 2011 when the Appellant made an application for assisted voluntary return for families and children and 27th August 2014 when the first Appellant was refused permission to proceed with a judicial review application. I am advised that following the expiry of the judicial review application no further application was lodged until the current human rights application so treated by way of letter dated 27th October 2014 referred to above.
4. The refusal of that application was appealed and the appeal came before Judge of the First-tier Tribunal Brookfield initially on 7th December 2015 and latterly on 9th May 2016. In a decision and reasons promulgated on 24th May 2016 the Appellant's appeal was dismissed both under the Immigration Rules and on human rights grounds.
5. Grounds of Appeal were lodged to the Upper Tribunal on 8th June 2016. Those grounds contend that the judge failed to adequately consider the best interests of the second Appellant who requires a multi-disciplinary input into her complex needs. The grounds are extensive and settled by Counsel. On 25th November 2016 First-tier Tribunal Judge Landes granted permission to appeal. Those grounds are worth reciting:
"It is arguable that the judge erred in failing to take into account Bibi's own wishes about returning to India (see paragraphs 15 to 19 grounds). Whilst the judge found that the evidence did not establish that Bibi would attempt suicide if returned to India the judge did not make any findings about what Bibi's own wishes were when considering her best interests (the only reference to Bibi's wishes is at paragraph 8(xi)). This is arguably important because the judge came to her conclusions as to Bibi's best interests on the basis that there was no credible evidence that Bibi had developed any ties to the UK which it would be inappropriate to disrupt (8(xiv)) because if Bibi did indeed not want to return to India the reasons why might well shed light on whether or not Bibi has developed ties to the UK (see paragraph 21)."
6. On 14th December 2016 the Secretary of State responded to the Grounds of Appeal. Within the Rule 24 response the Specialist Appeals Team state:
"Judge Landes gave permission to appeal on the basis that Bibi's own wishes would not have been taken into account. It is clear that Judge Brookfield considered this issue at (8(vi)) (Judge Landes refers to (8(xi)). It may be understandable that Bibi may wish to remain in the UK, however this fact cannot it is submitted be capable of having a material impact in the judge's conclusion to dismiss the appeal."
7. It is on that basis that the appeal comes before me to determine whether or not there is a material error of law in the decision of the First-tier Tribunal Judge. The Appellants appear by their instructed Counsel Ms Faryl. Ms Faryl is familiar with this matter. She appeared before the First-tier Tribunal and she is the author of the Grounds of Appeal. The Secretary of State appears by her Home Office Presenting Officer Mr McVeety.
Submissions/Discussion
8. Ms Faryl submits that given that the second Appellant has been in the UK for nine years (at time of hearing) her interest should have been considered and that there was a strong suggestion that she did not wish to return. She acknowledges that evidence was given by the first Appellant that Bibi did not wish to return and that the judge has given due consideration to the history of this matter and why the approach for voluntary return was cancelled. Secondly she submits that there needs to be cogent reasons given as to why a vulnerable child who has been here for some seven years should not be allowed to remain and how she would be treated on return.
9. Ms Faryl indicates that both the Presenting Officer before the First-tier Tribunal and the judge had considerable concerns regarding Bibi's welfare and the matter was referred to social services. Social services accepted the concerns but indicated they were not intending to take any action. In these circumstances Ms Faryl queried how it can be reasonable for the second Appellant to be returned to India and these factors should have been considered by the First-tier Tribunal Judge. Ms Faryl comments that the judge has noted at paragraph 8(vi) that the second Appellant had threatened to commit suicide and the first Appellant had informed her that she had applied for assistance from the UK authorities to return to India and that the Appellant had withdrawn her application for voluntary return assistance. She submits that it is credible that such threats were made. On those bases she asked me to find that there are material errors of law in the decision of the First-tier Tribunal Judge and to set the decision aside.
10. In response Mr McVeety addresses the issue of the second Appellant's wishes pointing out that there is no evidence as to what they are save for the oral testimony of the first Appellant recited at paragraph 8(vi) of the First-tier Tribunal Judge's decision. He points out that this is an Appellant who claims to be tied to the UK. He submits that the natural language used by the Appellants is Gujarati and that all the second Appellant has done on her daughter's behalf is access the NHS. He points out that the second Appellant has been left without education and submits that she has no connection with the UK and that the only steps taken by the first Appellant are to take the second Appellant to the mosque. He submits that there has been no integration particularly by the first Appellant into UK society. He notes that the second Appellant has been refused education by the education authorities on the basis that there is no duty for her to be educated in the UK and he agrees and contends that she has been let down by everybody.
11. Ms Faryl interrupts by pointing out this is not a case of medical tourism and that the Appellants were here for some considerable period before it was necessary for the first Appellant to refer the second Appellant to her doctor for medical treatment. Mr McVeety acknowledges this position but points out that there has been a failure to integrate. Ms Faryl submits that the second Appellant has been educated informally, that the evidence provided by the mother is that she has a friend (who attends school) and who sees her and speaks English to her. Her submission is that the second Appellant has attempted to integrate into society even if the first Appellant has not.
The Law
12. Areas of legislative interpretation, failure to follow binding authority or to distinguish it with adequate reasons, ignoring material considerations by taking into account immaterial considerations, reaching irrational conclusions on fact or evaluation or to give legally inadequate reasons for the decision and procedural unfairness, constitute errors of law.
13. It is not an arguable error of law for an Immigration Judge to give too little weight or too much weight to a factor, unless irrationality is alleged. Nor is it an error of law for an Immigration Judge to fail to deal with every factual issue of argument. Disagreement with an Immigration Judge's factual conclusion, his appraisal of the evidence or assessment of credibility, or his evaluation of risk does not give rise to an error of law. Unless an Immigration Judge's assessment of proportionality is arguable as being completely wrong, there is no error of law, nor is it an error of law for an Immigration Judge not to have regard to evidence of events arising after his decision or for him to have taken no account of evidence which was not before him. Rationality is a very high threshold and a conclusion is not irrational just because some alternative explanation has been rejected or can be said to be possible. Nor is it necessary to consider every possible alternative inference consistent with truthfulness because an Immigration Judge concludes that the story is untrue. If a point of evidence of significance has been ignored or misunderstood, that is a failure to take into account a material consideration.
Findings on Error of Law
14. Occasionally judges hear cases which cause them great concern. Undoubtedly this is one of them. It is clear from Judge Brookfield's decision and the reference to social services that was made therein that this caused not only her but also Mr Dillon, who appeared on behalf of the Secretary of State, very great concern indeed. It causes me similar concerns. Whatever the merits of the appeal and the history of this matter the fact remains that society has apparently completely failed the needs of the second Appellant. It is not the job of this decision to apportion blame. Nor is it the role of this Tribunal to criticise the first Appellant. The first Appellant has not integrated into society. It is clear that her life centres on looking after the second Appellant. Her husband disappeared after two years in this country. The family were at that stage overstayers. She has three sons, two of age, one in his late teens who live in India with a maternal aunt. They feel that they have been abandoned by their mother. Without prying deeply into what has gone on this case appears to be one of a mother who has taken it upon herself without the support of society to look after her daughter who has severe cerebral palsy.
15. None of the above is an issue that is before me. The role of the Upper Tribunal is to evaluate whether or not there is a material error of law in the decision of the First-tier Tribunal Judge. For reasons given below I find that that decision does not disclose any material errors of law. I acknowledge that that will come as a very considerable disappointment to both Appellants. Mr McVeety has indicated to me during the proceedings that irrespective of the decision the issues in this case are ones that he will refer to appropriate authorities within the Home Office. I too express concerns that the issues within this family are ones that need addressing by the appropriate authorities. What happens thereafter is a matter for another day but it is appropriate that those views are expressed within this decision.
16. Turning to the appeal itself the decision of Judge Brookfield is well constructed. It sets out the family history and the position in law and then takes into account the evidence. Paragraph 6 sets out in detail the evidence that was before the judge and what she had considered. That included the Appellant's bundle and a report on the Indian Institute of Cerebral Palsy and the Institute of Child Development provided by the Respondent. The judge also heard and took into account the evidence of the first Appellant.
17. At paragraph 8(vi) the judge has noted the evidence given by the first Appellant with regard to the second Appellant's wishes. She has made findings therein which she was entitled to and given reasons. Judge Brookfield concluded that on the evidence before her she did not find it established that there was a reasonable degree of likelihood that the second Appellant would attempt suicide if she were to return to India with her mother. She has looked thoroughly at the evidence that was before her and made findings that she was entitled to. The grant of permission and the submissions of Ms Faryl effectively amount to little more than disagreement with the approach adopted by the judge. It is not an issue as to whether another judge may have come to a different decision. Based on the evidence heard by the First-tier Tribunal Judge she has made findings that she was entitled to make and has made findings with regard to the likelihood of the second Appellant's attempting suicide. As such, such findings do not disclose any material error of law.
18. The second issue relates to the second Appellant's purported ties to the UK. The fact that the Appellant has a friend who visits and speaks English to her and is taught informally in the UK does not constitute sufficient private life grounds to justify an appeal pursuant to Article 8. What in fact the judge has done is at paragraphs 8(iv) to paragraph 8(x) is to consider carefully the options that would be available if the Appellants were returned to India and has very sympathetically set out the positives that are available for the first and second Appellant. As such the decision on this ground clearly discloses no material error of law.
19. The appeal is consequently dismissed and the decision of the First-tier Tribunal Judge is maintained. I emphasise however that it appears clear from the history of this matter and the submissions made that these are Appellants who are in need of considerable help from the relevant authorities. All this court can do is to urge that this decision is circulated to the relevant authorities and that steps are taken to assess the position particularly of the second Appellant and thereafter steps taken to ensure that her physical, mental and social needs are addressed as a matter of urgency in the event that the relevant authorities consider that that is appropriate.
Notice of Decision

The decision of the First-tier Tribunal Judge contains no material errors of law and the Appellant's appeal is dismissed and the decision of the First-tier Tribunal is maintained.

No anonymity direction is made.

Signed Date

Deputy Upper Tribunal Judge D N Harris

TO THE RESPONDENT
FEE AWARD

No application is made for a fee award and none is made.

Signed Date

Deputy Upper Tribunal Judge D N Harris