Tribunal decisions

The decision

IAC-FH-LW-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/03336/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 6th March 2017
On 30th March 2017

Before

UPPER TRIBUNAL JUDGE FRANCES

Between

shaheda begum
(anonymity direction not made)
Appellant
and

ENTRY CLEARANCE OFFICER – NEW DELHI
Respondent

Representation:
For the Appellant: Mr S Karim, instructed by Kingdom Solicitors
For the Respondent: Mr I Jarvis, Home Office Presenting Officer

DECISION AND REASONS
1. The Appellant is a national of Bangladesh born on 10th October 1945. She appeals against the decision of First-tier Tribunal Judge M J Gillespie, promulgated on 11th October 2016, dismissing her appeal against the refusal of entry clearance under Appendix FM and Article 8.
2. Permission to appeal was granted by Upper Tribunal Judge McWilliam on 24th January 2017 on the grounds that it was arguable that the judge did not take into account the letter at page 35 of the Appellant’s bundle in respect of E-ECDR.2.5. and in the assessment outside the Immigration Rules. It could not be said that had this been considered the judge would have reached the same conclusion.
3. The relevant Immigration Rules are:
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.”
4. The judge came to the following conclusions:
“7. There is a profound paucity of detailed evidence. There are many expressions of general concern for the Appellant. She is frequently described as old and weak. Many neighbours and acquaintances in Bangladesh have submitted documents saying that they feel sorry for her and wish she could be with her children. Her doctor states that she has previously been cared for by a “poor agnate”, now deceased, and that no reliable replacement can be found. All these expressions made much of the alleged propensity of these unsatisfactory maids to steal the Appellant’s money and property. Particularity however is wanting.
8. The doctor who provides the supporting letter and some medical records, shows no more than that the Appellant had suffered a fall in the bathroom and experienced knee joint and hip pain. Records of treatment seem to relate solely to medication related to this incident. Reference is made by the doctor to having treated the Appellant a “few times”. No medical history is given. No unequivocal statement is made of a need for long-term care. The most that one can say is that the Appellant is an elderly person. One cannot say on the evidence given that she suffers illness or disability such as to need long-term personal care to perform everyday tasks as Rule 2.4 requires.
9. Even if one were to assume such a need one would need to address next Rule 2.5. This provides that the long-term personal care shown to be required must not be available in the country of residence. The inability of an applicant to access the necessary long-term personal care must by the terms of the Rule be caused by one of two reasons, either it must not be available and there must be no person in the country who can reasonably provide it, or it must be unaffordable. I address the first of these. There is no such proof of this requirement. The only attempt to address this requirement is the vague allegation that the Appellant has experienced dishonesty at the hands of employees. This is a grossly inadequate allegation. It is answered, as does answer the Entry Clearance Manager, with the proposition the police ought to have been involved if there is genuine such exploitation. The sponsor attempts to refute this with a new claim of vulnerability, saying that it is feared to involve the police, since the persons who have exploited the Appellant will seek reprisals should criminal investigations be undertaken. This is not credible, particularly given the many expressions of support for the Appellant from alleged neighbours and acquaintances. Otherwise, after the availability of care in Bangladesh it is said vaguely there is no care agency in the area. Precisely what area or locality is being referred to is unstated. It is equivocally acknowledged for the appellant that there might be care agencies in Dhaka, but is nevertheless suggested still without evidence of the nature of any such facility that these would not be adequate or reliable because the general nature of society in Bangladesh. This is an unacceptable generalisation and caries no probative weight. I am bound to conclude that the Appellant, even if it is assumed that she needs long-term care owing to age, illness or disability, has not proven that such care is not available in Bangladesh.”
Submissions
5. Mr Karim relied on the grounds and submitted that there was a lack of properly reasoned credibility findings. The judge heard oral evidence from the Sponsor and also had before him her statement, but he made no findings as to whether he found her evidence to be acceptable or whether he accepted it in its entirety.
6. Secondly, the judge had not taken into account all aspects of the doctor’s letter. Although the judge referred to the medical evidence, the judge failed to have regard to the letter at paragraph 33 of the Appellant’s bundle from Dr Robb, namely:-
“I treated her few times, she had accident, fell in bathroom and suffering from knee joint and hip pain. She is elderly and poorly. My other concern is that she really needed some help and support in her daily work. Recently she looks very anxious, scared and confused in my opinion someone needs to be with her at all the time….. In this situation it is quite impossible to survive by her own”.
Mr Karim submitted that the judge failed to take into account this part of the doctor’s evidence, which satisfied Rule 2.4 of the Immigration Rules.
7. The judge also failed to grapple with the letter at page 35 of the Appellant’s bundle. This was from a local Government female ward member in the area where the Appellant lived. She states, inter alia :
“… I know Mrs Shaheda Begum for 30 years. She has been living here alone, all of her children are living in the UK. I saw her a couple of times at her house as someone called me to help her, I took her to doctor as there was no one to assist her to take. Other occasions I saw other people took her to the doctor. So far I know her children are well off and they have been trying their best to look after her. They arranged some carer to look after their mother. Before she got a lady to look after her but she passed away suddenly. Since then she is really struggling. Her children requested me many times to arrange a maid for their mother, however nowadays this becomes a big problem in Bangladesh. Actually there is no established carer company in Bangladesh who could provide care service. We arranged some personally but that did not work well. They are stealing her money and goods as she is elderly and alone. Everybody trying to take the opportunity and police does not involve this type of small matters. Often we saw in the newspaper that the servants killed the owner and rob his/her valuables. Law and order situation also is not very well in Bangladesh. She is a widow and she lost her husband long time ago and struggling whole life with her children….”
8. Mr Karim submitted that it was clear from this letter that there are no established care services in Bangladesh and this documentary evidence was from an independent witness in local government. It therefore should have been taken into account in the judge’s assessment under Rule 2.5. The judge erred in law in failing to refer to it and deal with its contents in his decision.
9. Further, the judge erred in law in treating the Rules as a complete code. The last sentence of paragraph 12 where the judge states, “I do not think that there are good grounds for necessitating further consideration under Article 8” imposes a threshold test and the judge’s subsequent considerations under Article 8 were infected by such a finding. He also made confusing findings in stating that if there was an interference it was not one of even the minimum severity that would engage in principle the protection of Article 8. To conclude that Article 8 was not engaged on the facts of this case was irrational.
10. For the Respondent, Mr Jarvis submitted that there was nothing untenable about the decision. There were no misdirections in law or material errors of fact. On a fair reading the judgment showed that the judge considered all the evidence and he had concluded that the evidence was not clear enough or complete enough to satisfy the Immigration Rules. The doctor’s letter did not help the judge understand in clear terms what was required under the Rules.
11. Appendix FM-SE sets out the specific evidence that must be submitted, namely independent medical evidence that the Appellant was unable to carry out daily tasks without help and independent evidence that she was not able to obtain care. Neither the doctor’s letter nor the letter at page 35 of the Appellant’s bundle met the requirements of Appendix FM-SE.
12. The Appellant had not shown that she could not access a care home. There was a vague allegation of dishonesty which the judge did not accept. It did not matter where the allegation came from and therefore any lack of finding on the Sponsor’s credibility was not relevant. The explanation given for why the Appellant could not be cared for in Bangladesh was that carers in the past had stolen from her. The judge found that this allegation was not a credible one because it was not supported by evidence which the Appellant ought to have been able to produce if it was true.
13. Mr Jarvis submitted that, in relation to the letter at page 35, the Appellant had failed to show that she could not access a care home outside her local area or anywhere else in Bangladesh, and care arrangements have been made in the past, therefore it was possible to obtain care, given that the explanation for why they had ended was not a credible one.
14. In relation to Article 8, the judge was not compelled to consider Article 8 outside the Immigration Rules and he had not made confusing findings in the alternative. The judge had dealt with the case in all its alternatives. He acknowledged Singh v The Secretary of State for the Home Department [2015] EWCA Civ 74 and what was required outside the Immigration Rules. If his findings under the Immigration Rules were sound ones, he did not really need to say much in relation to Article 8 because in reality the Appellant was separated from her children by their own choices. The judge found that the Appellant had not shown that care was unavailable and therefore there was no need to go into great detail under Article 8.
15. Notwithstanding, the Rules are a detailed statement of public policy, so a failure to meet the Rules will not necessarily mean that the application should succeed outside the Rules. The threshold for Article 8(1) was a low one and the judge was entitled to find that the Appellant had not met it because of the defects in her evidence. The judge acknowledged that the application was not put together well and that particularised evidence was necessary. It was open to the Appellant to make a further application. On the evidence before the judge, there was no error of law in his decision to dismiss the appeal.
16. In response, Mr Karim submitted that at paragraph 8 the judge had erred in law in finding that there was no unequivocal statement of a need for long-term care. This was wrong given the paragraph referred to in the doctor’s letter. The doctor specifically stated that the Appellant needed somebody to be with her at all times. The judge had misunderstood the doctor’s evidence or failed to properly take into account the entirety of the doctor’s evidence. In relation to Appendix FM-SE, page 35 was precisely the type of evidence envisaged. The evidence was critical to the Appellant’s case and there was no indication that the judge had engaged with it. This evidence also confirmed that what was said by the Sponsor, in relation to the thefts, was in fact correct. The judge had erred in his conclusions at paragraph 12 in finding that there were no good grounds necessitating further consideration under Article 8.
Discussion and Conclusions
17. Ground 1: the judge failed to make proper credibility findings in respect of the written and oral evidence of the Sponsor.
I find that there was no material error of law. The judge clearly took into account the Sponsor’s evidence and found the allegation that the Appellant had experienced dishonesty at the hands of employees was not credible (even though it was supported by neighbours and acquaintances) because the matter had not been reported to the police. The failure to make a credibility finding was not material to the overall decision because the judge had made it quite clear which part of the Sponsor’s evidence he did not accept and he gave adequate reasons for why he came to the conclusion he did at paragraph 9.
18. Ground 2: the failure to take into account the totality of the doctor’s letter.
The judge clearly took into account the doctor’s letter and found that it was equivocal. The extract relied upon by Mr Karim in submissions and set out in the grounds of appeal does not prevent the judge from finding that no unequivocal statement is made of need for long-term care. What is written in the letter and set out above is insufficient to show that the Appellant required long-term personal care to perform everyday tasks. The letter states that she needed some help and support in her daily work and someone needed to be with her at all times. In any event, a finding under Rule 2.4 was not material because the judge went on to consider, in the alternative, whether care could be provided in Bangladesh.
19. Ground 3: the failure to take into account the letter from a local government member.
Mr Karim submits that the evidence of the local government member showed that there were no care services in Bangladesh. The judge took into account this evidence at paragraph 9. However, it is clear on the Sponsor’s own evidence, and that set out in the letter at page 35, that the Appellant had been cared for in the past by employees, therefore it was possible to obtain some form of care in Bangladesh. The judge found that the ability to afford such care was not an issue in the appeal and there was no challenge in that respect. The issue is whether the evidence set out in the letter at page 35 is sufficient to show that care was not available in Bangladesh and there was no person in the country who could reasonably provide it. The Appellant on her own evidence has shown that it is possible to hire somebody to look after her, but that they do not wish to because of the fear that she will be the subject of theft and dishonesty. The judge specifically dealt with that explanation and rejected it for the reasons he gives at paragraph 9. Accordingly, the Appellant has not shown that she can satisfy paragraph E-ECDR.2.5 and the letter at page 35 does not satisfy Appendix FM-SE.
20. Ground 4: the failure to properly consider Article 8 outside the Immigration Rules.
Since the Appellant could not satisfy the Immigration Rules and there seemed to be no other considerations which might render the refusal disproportionate, there was no arguable material error of law in the judge stating that he did not need to consider Article 8. In any event, the judge went on to consider Article 8 and found that the interference with family and private life was not one which reached the minimal severity to engage Article 8. This finding was open to the judge on the evidence. Notwithstanding such a finding the judge again goes on to consider whether, taking into account all the circumstances of the case, the refusal was disproportionate. His conclusion that it was not, was one which was open to him. That is not to say that the Appellant could not provide evidence to satisfy the Immigration Rules at some point in the future. The judge identified where the evidence was lacking and acknowledged that it was open to the Appellant to make a fresh application.
21. I find that there is no error of law in the judge’s decision. He has taken into account all relevant information, including the letter at page 35 and the evidence from the doctor, and he found that such evidence was insufficient to satisfy the Immigration Rules. The judge’s conclusion that the evidence before him was insufficient to satisfy the Immigration Rules was one which was open to him. The refusal of entry clearance did not breach Article 8. The Appellant’s appeal is dismissed.

Notice of decision
I dismiss the Appellant’s appeal.
No anonymity direction is made.

J Frances

Signed Date: 29th March 2017

Upper Tribunal Judge Frances

TO THE RESPONDENT
FEE AWARD
I have dismissed the appeal and therefore there can be no fee award.

J Frances

Signed Date: 29th March 2017

Upper Tribunal Judge Frances