Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: OA/00045/2015
OA/00048/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 21 July 2016
On 4 August 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE MONSON

Between

Ms ALIA RAHIM (first appellant)
Ms SHAFIQA RAHIM (second appellant)
(ANONYMITY DIRECTION NOT MADE)
Appellants

and

Entry Clearance Officer
Respondent

Representation:

For the Appellants: Ms G Brown, Counsel instructed by Farani Javid Taylor Solicitors
For the Respondent: Ms Z Ahmed, Specialist Appeals Team

DECISION AND REASONS
1. The appellants appeal to the Upper Tribunal from the decision of the First-tier Tribunal dismissing their appeals against the decision of an Entry Clearance Officer to refuse them entry clearance as adult dependent relatives of a person present and settled here. The First-tier Tribunal did not make an anonymity direction, and I do not consider that the appellants require anonymity for these proceedings in the Upper Tribunal.
The Reasons for the Grant of Permission to Appeal to the Upper Tribunal
2. On 21st June 2016 First-tier Tribunal Judge Kelly granted the appellants permission to appeal in respect of the second, third and fourth grounds advanced in the permission application. As Ms Brown did not pursue ground 4, for present purposes it is only necessary to refer to the judge's reasons for granting permission in respect of the second and third grounds.
3. Judge Kelly held that it was arguable that the Tribunal was wrong in law to dismiss the expert report of Ms Uszma Moeen on the basis that she had relied "exclusively upon the instructions of the appellants and their representatives to arrive at her conclusions" [paragraph 68 of the decision, emphasis supplied] when the footnotes to her report clearly referred to the external sources of information upon which she had relied in reaching those conclusions (ground 2).
4. It was also arguable that the Tribunal was wrong in law to conclude the apparent inconsistency between the contents of Dr Khan's two medical reports was incapable of reasonable explanation, without at least providing the first appellant (sic) with an opportunity to comment thereupon (ground 3).
5. Judge Kelly added that it was arguable that these were matters which, singly or cumulatively, were material to the outcome of the appeal.
Relevant Background
6. The appellants are nationals of Afghanistan who have resided for over ten years in the Peshawar region of Pakistan. The first appellant is the daughter of the second appellant. Their dates of birth are 1st January 1946 and 1st January 1928 respectively.
7. In her application for entry clearance, the second appellant said she was living with her daughter, the first appellant. She had two sons in the UK, one of whom was her sponsor. She suffered from a bad liver, acute hypertension and swelling of the ankles. She was unable to carry out day-to-day tasks such as personal care, toileting and feeding herself. Her daughter was currently providing her with this care. She had needed such care for about fourteen years.
8. She was asked to explain why her current care arrangements could not continue to meet her needs. She answered that her daughter was suffering from severe depression and found it difficult to look after herself, let alone her. There was no-one else in Pakistan to look after her in place of her daughter. It was not possible to have a live-in carer in Pakistan who was trustworthy. She was asked whether her UK sponsor or another close relative could pay for her care arrangements in the country where she was living. She answered yes, and went on to explain why she was nonetheless seeking to relocate to the UK. She said it was not about affordability. Rather the risk of having a carer in Pakistan was too high, as it was common for carers to abuse the elderly. Her sponsoring son in the UK would be able to provide her with care and attention 24/7, and the sponsor would also be paying for any medical treatment that she required in the UK.
9. On 17th November 2014 an Entry Clearance Officer in Islamabad gave his reasons for refusing the application of the first appellant. The letter from her doctor was self-serving and contained no explanation as to why her depression required her to receive long-term personal care to perform everyday tasks. In addition, the letter stated she required help for her care "at present". This did not demonstrate a long-term need for personal care as was required by the Rules. She currently lived in Pakistan with her mother. Her mother's application had also been refused, and therefore she was not alone in Pakistan and she would not be alone as a result of the refusal decision.
10. Even if she did demonstrate that she required long-term personal care as described in the Rules, he also had to be satisfied that the care could not be received in the country in which she lived. Personal care was readily available in Pakistan. It was not uncommon for Pakistani individuals to make private provision for their own personal care, such as by hiring care givers. There was no satisfactory reason put forward in her application or in her mother's application for such arrangements not being put in place in Pakistan. Such assistance was available and they would be able to afford the care given the financial circumstances of their sponsor.
11. On the same day an Entry Clearance Officer in Islamabad issued a notice of refusal of entry clearance to the second appellant which was based on similar reasoning.
12. The Entry Clearance Manager subsequently gave his reasons for upholding the refusal decisions notwithstanding the grounds of appeal. In the ECM appeal review statement directed to the first appellant, the Entry Clearance Manager noted that the grounds of appeal stated that both appellants were in such a poor health that not only was physical care needed, but also the emotional support of a close family member.
13. Given that mother and daughter were currently living together in Pakistan, he considered that each of them had the emotional support of the other, and hence of a close family member. The proposition that it was not possible to have a carer in Pakistan who was trustworthy was not a sufficient reason for not accepting that care was available in Pakistan.
The Hearing before, and the Decision of, the First-tier Tribunal
14. The appellants' appeal came before Judge Fox sitting in the First-tier Tribunal at Hatton Cross on 8 December 2015. The appellants were represented by Ms Braganza of Counsel, and the Entry Clearance Officer was represented by a Home Office Presenting Officer. The judge received oral evidence from the UK sponsor and his daughter, and this evidence is summarised in paragraphs [11] to [26] of his subsequent decision.
15. The first appellant could no longer care for the second appellant due to her age and illness. Someone cared for them by visiting for one to two hours per day, although they required 24 hour support. They lived with neighbours, who were also their landlords. This arrangement had continued for ten years. The person whom the sponsor had arranged to visit the appellants on a daily basis ("the visitor") was unreliable. The visitor cooked and cleaned for the appellants, and stocked the refrigerator.
16. In her evidence, the sponsor's daughter said that they employed a domestic servant, but he/she was unreliable and inadequate. Also domestic staff could not assist with the administering of medication. The costs of residential care in Pakistan would be approximately 80,000 Pakistani rupees per month, but a personal assessment of the appellants would be required for an accurate figure to be ascertained. She did not know whether her father would be able to afford to pay for the appellants to reside in a care home in Pakistan. Sheltered accommodation was inappropriate to their needs. There were no privately funded care homes in the Peshawar region of Pakistan. Also, the appellants did not speak Urdu, and there were no care homes with the appropriate language available in Peshawar. The appellants had resided in Pakistan since 1990, and the sponsor's brother had lived in close proximity to the appellants until 2013. The current need for daily care had arisen due to the deterioration in the first appellant's health.
17. In his closing submissions on behalf of the Entry Clearance Officer, the Presenting Officer submitted that carers and care homes were available. The appellants' circumstances were not as grave as promoted by the witnesses. The appellants had ample support from the landlord and domestic staff. The medical support available to them was demonstrated by the documentary evidence. They had lived together for ten years, and they had coped thus far. This care could continue as before or they could relocate to a care home. The sponsor's daughter was not a credible witness, as she provided evidence which was inconsistent with the sponsor's ability to provide financial support.
18. On behalf of the appellants, Ms Braganza submitted that appropriate support for the appellants was not available in Pakistan. Only the appellants' family in the UK could provide appropriate support. The Immigration Rules could not be interpreted in a manner which defeated that family support. The Immigration Rules required more than a financial assessment. The appellants would be vulnerable wherever they resided, but there would be a life-changing improvement in their quality of life if they moved to the UK. Entry clearance would give the first appellant an incentive to live. The expert report addressed the issue of the appellants' vulnerability.
19. In his subsequent decision, Judge Fox gave extensive and detailed reasons for finding that neither the sponsor nor his daughter was a reliable witness on the matters in issue. Between paragraphs [37] and [67], the judge identified a number of respects in which their evidence was inconsistent or lacking in credibility or unreliable. The judge then turned to address the expert report and the available medical evidence, and for present purposes it is convenient to set out verbatim the judge's findings at paragraphs [68] to [76] and at paragraphs [80] to [82]:
68. The expert report at page 17 of the appellants' bundle is of limited probative value. The expert relies exclusively upon the instructions of the appellants and their representatives to arrive at her conclusions. For the reasons stated above the appellants and their witnesses cannot be relied upon to provide a reliable or honest account of their circumstances. For the same reasons the expert report does not assist the appeal.
69. I have considered the available medical evidence. I note that the first appellant's age is incorrectly documented at page 70 of the appellants' bundle. The medical evidence at page 258 is dated 8 December 2013 and states that the second appellant has been under the care of Dr Musharaf Kamal Khan ("Dr Khan") for one year ("first report").
70. However, Dr Khan provides another letter dated 8 December 2012 in which he documents a follow-up consultation in which the second appellant displayed no improvement ("second report"). It follows that either the first report is incorrect or the second report is incorrect.
71. In either event I can place no weight upon the contents of these documents and when the evidence is considered in the round I must consider the potential for the appellants to rely upon false documents to advance their claims.
72. In any event the available evidence taken at its highest demonstrates that the appellants have access to adequate medical treatment. The issue in dispute is the alleged need for the appellants' presence in the UK to recover from and manage their conditions.
73. Despite the second appellant's alleged inability to cope with her circumstances (appellants' bundle page 75) the author is silent on the consequences of this and the second appellant's ability to maintain stability of health in these circumstances.
74. Despite the absence of meaningful daily care arrangements the second appellant's medical practitioner only deems it necessary to review the second appellant every 3 months (appellants' bundle pages 76 and 78). This is not consistent with the appellants' claims that their health is at imminent risk due to daily neglect.
75. For the reasons stated above the appellants have failed to demonstrate that they require long term personal care for daily needs. In addition and in the alternative the appellants have failed to demonstrate that care is not available or affordable in Pakistan. Upon the available evidence they have also failed to demonstrate that they live alone.
76. Their evidence taken at its highest demonstrates that they live within their landlord's family home with access to domestic care services which are funded by the sponsor. However for the reasons stated above I have concerns relating to the true identity of the landlord. For these reasons the appeals must fail under the Immigration Rules
?
80. If I am wrong about this, any interference with Article 8 ECHR is proportionate to the legitimate aim pursued; economic well-being of the country often expressed as effective immigration control. The appellants have failed to demonstrate that they are entitled to entry clearance and there is no reliable evidence to demonstrate why the appellants should be entitled to employ Article 8 ECHR to effectively circumvent the Immigration Rules.
81. As medical evidence has been made available as part of the appeals I consider Article 8 ECHR in the context of physical and moral integrity. For the reasons stated above there is no reliable evidence to demonstrate that the appellants' physical and moral integrity will be compromised sufficiently to engage Article 8 ECHR.
82. While there is evidence of suicidal ideation by the first appellant I approach the medical evidence with caution for the reasons stated above. I also note that there has been no meaningful assessment of the second appellant's intentions by a medical practitioner to test the veracity of her claims. Nor is there any reliable evidence to demonstrate that any medical practitioner or family member considers the first appellant's claims to be sufficiently serious as to require active steps to supervise her.
The Hearing in the Upper Tribunal
20. At the hearing before me to determine whether an error of law was made out, Ms Brown developed grounds 2 and 3. In reply, Ms Ahmed adhered to the Rule 24 response settled by her colleague, Mr Tufan. It was apparent from the comprehensive determination the judge had considered all the evidence presented, including the medical reports and the country expert report. There was evidence the sponsor had the financial means to finance the appellants' care in Pakistan. There was also evidence the appellants had hitherto been satisfactorily cared for by employed help. On the factual matrices of these linked cases, the appellants could not satisfy the high threshold required by the Rules.
Discussion
21. It is convenient to deal first with ground 3. Ms Brown submits that it was procedurally unfair for the judge to place weight on the apparent inconsistency which he identified at paragraph [70] of his decision. She submits that a possible explanation for the inconsistency is that the second appellant had been seen by another doctor before she was seen for the first time by Dr Khan in December 2012. She submits that it was unfair that the sponsors were not given an opportunity to address the perceived inconsistency in their evidence. (Judge Kelly envisaged the first appellant being given the opportunity to comment, but clearly this was impossible as she was not present at the hearing.)
22. In oral argument, Ms Brown acknowledged that the leading authority upon which she relies, namely R (on the application of Maheshwaran) v SSHD [2002] EWCA Civ 173 is against her. At paragraph 5 of Maheshawaran, Schiemann LJ said as follows:
Where much depends on the credibility of a party and when that party makes several inconsistent statements which are before the decision maker, that party manifestly has a forensic problem. Some will choose to confront the inconsistencies straight on and make evidential or forensic submissions on them. Others will hope that 'least said, soonest mended' and consider that forensic concentration on the point will only make matters worse and that it would be better to try and switch the Tribunal's attention to some other aspect of the case. Undoubtedly it is open to the Tribunal expressly to put a particular inconsistency to a witness because it considers the witness may not be alerted to the point or because it fears that it may have perceived something as inconsistent with an earlier answer which in truth is not inconsistent. Fairness may in some circumstances require this to be done but this will not be the usual case. Usually the Tribunal, particularly if the party is represented, will remain silent and see how the case unfolds.
23. As Schiemann LJ went on to say in paragraph [6], the requirements of fairness are very much conditioned by the facts of each case. I do not consider that it was procedurally unfair for the judge not to draw attention in the course of the hearing to any of the inconsistencies upon which he later commented in his decision, including the apparent inconsistency between the report dated 8 December 2012 and the report dated 8 December 2013. As the appellants were legally represented, there was no particular reason why the Tribunal should have alerted either of the two witnesses who gave evidence to the apparent inconsistency, so as to give one or both of them an opportunity to comment upon it. Moreover, since the apparent inconsistency arose in medical reports of which neither witness was the author, prima facie this was not a matter on which either of them could assist the Tribunal. If Dr Kamala had been giving oral evidence, the appellants would have a legitimate complaint if the inconsistency had not been put to him in cross-examination. Fairness did not require that a matter which went to his credibility should have been put to the UK sponsor or his daughter.
24. The better point for the appellants is that the apparent inconsistency is arguably an insufficient ground in itself to justify placing no weight on the medical reports at all. However, although this is the finding which the judge makes at paragraph [71], he goes on at paragraphs [72] to [74], and at paragraph [82], to assess the implications of the medical evidence, and it was open to the judge to find that, taken at its highest (i.e. giving it due weight), the medical evidence did not establish that either appellant met the requirements of the Immigration Rules.
25. Turning to ground 2, it is helpful to bear in mind the requirements which the appellants needed to satisfy:
E-ECDR.2.4 The applicant?must as a result of age, illness or disability require long-term personal care to perform everyday tasks.
E-ECDR.2.5 The applicant?must be unable, even with the practical and financial help of the sponsor, to obtain the required level of care in the country where they are living, because-
(a) It is not available and there is no person in that country who can reasonably provide it; or
(b) It is not affordable.
26. Mrs Moen is not a medical professional, and she does not purport to give expert evidence bearing upon the question of whether either appellant meets the requirements of 2.4. Her expert evidence is directed at 2.5.
27. It is not true that Mrs Moeen relies exclusively upon the instructions of the appellants and their representatives to arrive at her conclusions on the availability of suitable care.
28. Mrs Moeen of the Asian Legal Advice Service is a former senior lecturer in Pakistani law who worked at several law colleges in Pakistan from 1996. Her instructions were to express an opinion on the case advanced by the Entry Clearance Officer that personal care was readily available in Pakistan and it was not uncommon for individuals in Pakistan to make private provision for their own personal care such as by hiring care givers.
29. She sets out her instructions at paragraph 8 of her report. She was asked whether it was plausible that an elderly, infirm, vulnerable mother and daughter would seek adequate care facilities through personal care givers in Pakistan with the financial assistance of their sponsor living in the UK? Was there any social stigma attached to leaving one's elderly mother and sister at the mercy of paid care givers/providers in Pakistan? She was asked to comment on the vulnerability of, and risk to, the appellants at the hands of their care givers in Pakistan and, she was asked to comment on whether there would be any reasonable or effective measures taken by the government or private sector to check any abuse or any other harm that could be inflicted on the appellants due to their vulnerability in the event that they were taken care of by a paid worker in Pakistan or in a care home or in a medical centre for the elderly?
30. Mrs Moeen's answers to these questions assume that the appellants have the level of serious vulnerability attributed to them in the instructions, whereas the judge found that the difficulties they were said to face had been exaggerated and that they were receiving adequate support and assistance from their neighbours/landlord and the person who visited them on a daily basis. In short, he rejected the basic premise upon which the instructions were founded.
31. Nonetheless in reaching her conclusions on issues arising under E-ECDR.2.5 Mrs Moeen also draws upon some background evidence and personal research.
32. It is arguable that the judge's failure to engage with Mrs Moeen's report is not material to the outcome, as the appellants had failed to show that their current care arrangements were insufficient, and so the question of whether better, more reliable and more comprehensive care provision was available in Pakistan did not arise.
33. However, justice must not only be done, but must be seen to be done, and so I decline to find that the error of law with respect to the judge's treatment of Mrs Moeen's report is not material. Accordingly, I find an error of law is made out such that the decision must be set aside and remade.
The Remaking of the Decision
34. Ms Brown's preference was for a rehearing if an error of law was made out, but she acknowledged in oral argument that remaking without a further hearing was a possible avenue, depending on the nature and extent of the error.
35. I do not consider that it is necessary for me to hear further evidence for the purposes of remaking the decision, or to disturb the judge's adverse credibility findings.
36. As canvassed in my discussion above, the judge reached sustainable findings that the current arrangements for the appellants in Pakistan were adequate and the appellants did not need any additional care or support at home beyond that which they were already receiving. Mrs Moeen's report does not impinge on these findings. Her report addresses the alternative case advanced by the Entry Clearance Officer which is that if both appellants do in fact require long-term personal care to perform everyday tasks (and the first appellant cannot fulfil the role of carer for her elderly mother, the second appellant, who is approaching 90 years of age) such care will be available to them through a private care service.
37. I find that Mrs Moeen's evidence on this topic does not assist the appellants. At paragraph 15, she says that the cost of skilled nursing is much higher than the cost of full-time care by unqualified carers, which to her knowledge costs around 60,000 to 70,000 rupees per month. She goes on to say that the assistance provided by private care givers is not only inadequate, but it is also coupled with a lack of trust and accountability. But it is only unqualified carers who are inadequate on this ground, precisely because they are unqualified and are not paid as well as qualified carers. She cites no background or objective evidence to support the proposition that it is not reasonable to expect to able to hire suitably qualified carers in Pakistan who can give adequate care and who are trustworthy. The few examples she gives of the elderly and vulnerable being abused by domestic staff, as reported in the Pakistani press, do not present as examples of qualified carers being untrustworthy.
38. The appellants did not seek to make out a case that the sponsor could not afford to pay for 24 hour care at home. Their case was that in practice it was not possible to obtain such care in Pakistan. I find that Mrs Moeen's report does not provide support for such a case, and so the appellants have not shown that they meet the requirements of E-ECDR.2.5. In addition, her report does not show that the appellants are highly vulnerable per se merely because of their respective ages and infirmities, and because there is no adult male family member living with them or living close by. So, having failed to meet the requirements of the rules, there are not sufficiently compelling circumstances justifying them being granted Article 8 relief outside the rules, having regard inter alia to the relevant public considerations arising under Section 117B. Although it is not disputed that the sponsor has sufficient wealth to ensure that they will be adequately maintained and accommodated in the UK without recourse to public funds, the sponsor's promise to fund their medical care in the UK is unenforceable. So the public interest in protecting the country's economic well-being is strong, and the proposed interference is proportionate.
Notice of Decision

The decision of the First-tier Tribunal contained an error of law, accordingly the decision is set aside and the following decision is substituted: these appeals are dismissed.

I make no anonymity direction.

Signed Date 04/06/2016

Deputy Upper Tribunal Judge Monson