Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/04919/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 15 December 2015
On 4 January 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE MANUELL

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
And

Ms PARI SULTAN
(ANONYMITY DIRECTION NOT MADE)
Respondent

Representation:

For the Appellant: Mr S Staunton, Home Office Presenting Officer
For the Respondent: Mr A Pretzell, Counsel, (instructed by Haris, Ali & Co)

DETERMINATION AND REASONS

Introduction

1. The Appellant (the Secretary of State) appealed with permission granted by Upper Tribunal Judge Gill on 3 August 2015 against the decision and reasons of First-tier Tribunal Judge Quinn who had allowed the Respondent's appeal on Article 8 ECHR family life grounds only against the Entry Clearance Officer's decision dated 17 March 2014 to refuse to grant the Respondent leave to enter the United Kingdom for settlement as an adult dependant relative under Appendix FM of the Immigration Rules. The decision and reasons was promulgated on 7 April 2015.

2. The Respondent is a national of Afghanistan, born there on 10 March 1943. She is currently resident in Pakistan. She had applied for entry clearance at the same time as her daughter-in-law and grandchildren. Their applications had been granted and they are now in the United Kingdom. The Respondent claimed that she had care needs which met the Immigration Rules, paragraph EC-DR.1.1. The Entry Clearance Officer (and the Entry Clearance Manager on review) refused the application because (a) the claimed relationship between the Respondent and the sponsor was not proved and (b) she was able to care for herself. Any breach of Article 8 ECHR was proportionate.

3. Judge Quinn found that the sponsor and other witnesses gave reliable evidence. He found that the evidence fell short of demonstrating that any necessary care was not available in Pakistan with the practical and financial help of the sponsor or that there was no person in Pakistan who could reasonably provide such care or that it was not affordable. The appeal under the Immigration Rules failed but the judge found that the Respondent's exclusion from the United Kingdom would amount to a disproportionate interference with her family life and that of the sponsor and his wife and children. The Respondent had lived for 20 to 25 years with the sponsor and/or his wife and had assisted her daughter-in-law with raising the grandchildren. There would be no burden on public funds as the sponsor would look after her.

4. Permission to appeal to the Upper Tribunal as sought by the Appellant was granted by Judge Gill because she considered that it was arguable that the judge had failed to (a) apply section 85(5) of the Nationality, Immigration and Asylum Act 2002; (b) consider whether it was reasonable to expect the family members (in the United Kingdom, Pakistan or Afghanistan) to look after her in Afghanistan or Pakistan; (c) resolve a material conflict in the evidence and (d) consider SS (Congo) [2015] EWCA Civ 387 in the context of whether the evidential requirements were satisfied in assessing the Article 8 ECHR claim outside the Immigration Rules, in particular, the compelling circumstances required to justify a grant of leave where those evidential requirements were not met.

5. Standard directions were made by the Upper Tribunal, indicating that the decision would be remade immediately in the event that a material error of law were found.

Submissions - error of law

6. Mr Staunton for the Secretary of State submitted that this was a clear case of legal error, as the grant of permission to appeal by the Upper Tribunal Judge Gill had indicated. The judge had taken into account post decision evidence which was impermissible, as seen at [31], [33], [45], [48] and [49] of the determination. At the date of the Entry Clearance Officer's decision the Respondent had been residing with her daughter-in-law and grandchildren. The judge should have considered whether it was reasonable for the family or members of the family to remain in or to return to Afghanistan or Pakistan to live with the Respondent. The public interest had not been adequately considered. The Appellant had claimed that she did not need any particular care and the judge had not resolved the apparent conflict in the evidence. The judge should have examined Article 8 ECHR through the lens of Appendix FM of the Immigration Rules and had not done so. His Article 8 ECHR decision should be set aside, and remade so as to dismiss the appeal on Article 8 ECHR grounds as well as under the Immigration Rules.

7. Mr Pretzell for the Respondent accepted that there were difficulties in the judge's approach to section 85(5), but AS (Somalia) [2009] UKHL 32, per Lord Hope at [21] indicated that there might be cases (identifiable on a case by case basis) where the application of 85(5) might be disproportionate for Article 8 ECHR purposes. The Respondent was a vulnerable adult and the judge had been entitled to take that into account. In any event, the "new" matters which the judge was said to have taken into account were not really new, especially if the Entry Clearance Manager's decision reached in October 2014 were treated as the final date of decision. The conflict of evidence complained of was more apparent than real. The judge had taken all relevant factors into account when reaching his proportionality decision. The judge's decision should be upheld, but if a material error of law were found then it was accepted that the appeal could be remade without further evidence or submissions.

8. The tribunal reserved its decision which now follows.

The error of law finding

9. Judge Quinn's determination was admirably clear but the tribunal finds that he fell into material error of law when allowing the appeal under Article 8 ECHR. The undisputed starting point was that the applications of the Respondent, her daughter-in-law and grandchildren were voluntary. They had lived together in Pakistan for some 25 years, mainly in the sponsor's absence, as was unchallenged. There was no evidence that they were not free to remain there. The basis on which they were entitled to apply to enter the United Kingdom was fixed by Appendix FM of the Immigration Rules which applied to all post 9 July 2012 applications. On the other hand, the sponsor (a British Citizen), had lived in the United Kingdom since 2001, making visits to his wife and children from time to time.

10. There was no challenge to Judge Quinn's finding of fact that the Respondent was not able to meet the Immigration Rules, which was plainly a correct decision. Although the judge was satisfied that the Respondent and her sponsor were related as claimed, he found that the Respondent did not meet the care requirements: see [3], above. The focus of the appeal before Judge Quinn had been the Appellant's ability to meet the Immigration Rules. Indeed, Counsel's skeleton argument below (dated 16 March 2015) made no mention at all of Article 8 ECHR. It appears that the judge may not have been directed to the relevant authorities: see [40] of the determination. There is, for example, no mention of SS (Congo) [2015] EWCA Civ 387. This may explain how the error of law arose.

11. There is a direct and irreconcilable conflict between the judge's finding that the Respondent was unable to meet the Immigration Rules (see, e.g., [32] and [39]) and his other findings in the Respondent's favour based on her need of care: see, e.g. [36] of the determination. The threshold for Article 8 ECHR purposes was fixed by the Immigration Rules, because a complete code was provided: see, by analogy, MM (Lebanon) [2014] EWCA Civ 985. As Patel v SSHD [2013] UKSC 72 (per Lord Carnwarth) states Article 8 ECHR is not a general remedial power.

12. In the tribunal's view, the determination creates the strong impression that the judge took into account post decision evidence, which was impermissible. The departure of the daughter-in-law and grandchildren was a post decision event. They had permission to enter the United Kingdom but it was up to them whether they left Pakistan if it meant that the Respondent would be without them.

13. Mr Pretzell submitted that Lord Hope in AS (Somalia) (above) left open the possibility that there might be cases where Article 8 ECHR dictated an exception to the strict regime laid down by parliament in section 85(5) of the Nationality, Immigration and Asylum Act 2002 and that the present appeal met Lord Hope's suggested criteria. Although Lord Hope agreed with his fellow judges, the leading speech was from Lord Phillips. Lord Hope's speech was the only one which suggested the possibility of an exception to section 85(5) with reference to Article 8 ECHR and his observations must be regarded as obiter.

14. Now if the tribunal were mistaken in that view, the evidence before the tribunal was that the Respondent remained capable of her own care. It is frankly hardly, likely taking into account the judge's findings of fact, that her daughter-in-law and grandchildren would otherwise have left Pakistan without making suitable arrangements for her. The judge stressed the emotional loss to the Respondent: see [45]. These were decisions which the daughter-in-law and grandchildren had chosen to make. There was no finding by the judge of any significant delay by the Entry Clearance Officer or Entry Clearance Manager in the decision-making process. The tribunal finds that there was no evidence sufficient to meet the possible criteria suggested by Lord Hope. Nor did the judge refer to AS (Somalia) (above) to justify his departure from section 85(5), no doubt because he was not referred to it.

15. In the tribunal's view, the judge misdirected himself in his approach to Article 8 ECHR. The Respondent's situation had been addressed comprehensively in Appendix FM. The judge identified no compelling circumstances which justified going outside the Immigration Rules (see SS (Congo) [2015] EWCA Civ 387). At [45] and at [49], where he said "It did not seem right to me to leave the Appellant in the hands of strangers?" he gave the impression of having forgotten how that situation had come about, as well as giving the impression - doubtless unintentionally - that he was preferring his personal views to the strict provisions of Appendix FM.

16. The judge referred to section 117B of the Nationality, Immigration and Asylum Act 2002, but that section merely identifies relevant factors for the tribunal to consider and creates no rights. As no compelling circumstances had been identified, section 117B took the Respondent's case no further.

17. For all of those reasons, the tribunal finds that the decision and reasons was subject to material errors of law, such that the decision and reasons must be set aside and remade.

The fresh decision

18. For clarity the tribunal will now refer to the parties by their original designations in the First-tier Tribunal. Judge Quinn's finding that the Appellant was unable to satisfy the demanding requirements of Appendix FM applicable to an adult dependent relative stand.

19. The evidence produced discloses no compelling circumstances and nothing which would require the Entry Clearance Officer/Secretary of State or the tribunal to consider the application outside the Immigration Rules. The Appellant and her family are able to continue their family life in Pakistan where they have long been resident. Their wish to live elsewhere was voluntary. The sponsor has been able to visit the Appellant from time to time. The refusal decision did not interfere with the existing level of family life. The Appellant and her sponsor can live as family in other places apart from the United Kingdom, with which she has no connection. The Appellant has been able to access health services locally, as her medical reports showed.

20. If the tribunal were mistaken to consider that the refusal of entry clearance for settlement caused no interference with the family life of the Appellant or her sponsor, or any other relevant person, the tribunal finds that the interference is lawful and proportionate. Parliament has laid down the procedure by which foreign adult dependant relatives can be admitted to the United Kingdom. That procedure is in pursuit of a legitimate objective, set out in Article 8.2 ECHR, usually summarised as immigration control. The public interest in maintaining immigration control outweighs the Appellant's private interests. The Appellant is able to live her family life elsewhere. That is a choice open to her relatives.

21. There was no application for an anonymity direction and the tribunal sees no need for one. The appeal is dismissed.

DECISION

The making of the previous decision involved the making of an error on a point of law. The tribunal allows the onwards appeal to the Upper Tribunal, sets aside the original decision and remakes the original decision as follows:

The appeal is dismissed

Signed

Deputy Upper Tribunal Judge Manuell

TO THE RESPONDENT
FEE AWARD

As the appeal was dismissed, there can be no fee award

Signed

Deputy Upper Tribunal Judge Manuell