Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: OA/05698/2015
OA/05699/2015, OA/05701/2015
OA/05702/2015

THE IMMIGRATION ACTS

Heard at Birmingham Centre
Decision & Reasons Promulgated
On 15th September 2016
On 13th October 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE JUSS

Between

(1) pari [g]
(2) [m a]
(3) [S A]
(4) farkhunda [a]
(ANONYMITY DIRECTION not made)
Appellants
and

entry clearance officer, islamabad
Respondent

Representation:
For the Appellants: Mr E Pipi (Counsel)
For the Respondent: Mrs H Aboni (HOPO)

DECISION AND REASONS
1. For the avoidance of doubt, in this determination references to the Appellants in the First-tier Tribunal below, and references to the Respondent are to the Entry Clearance Officer in Islamabad, as was the case below. This is in order to maintain consistency and confusion.
2. Mr Pipi, of Counsel, represented the Appellants in this matter and Mrs H Aboni, a Senior Home Office Presenting Officer, acted on behalf of the Entry Clearance Officer in Islamabad.
3. The matter concerns the refusal of entry clearance to the United Kingdom for settlement of dependent relatives under Appendix FM. Judge Beg, in a determination promulgated on 30th October 2015, following a hearing at Taylor House on 15th October 2015, allowed the Appellants' appeals, whereupon the Respondent Secretary of State has, with permission, appealed against the decision and reasons statement of the judge below.
4. The Entry Clearance Officer in Islamabad considered the following matter. It was noted that Pari [G], the principal Appellant, and the mother of the remaining Appellant children, required long term personal care to perform everyday tasks, but the Entry Clearance Officer said that no evidence had been submitted to this effect although, there was a letter from the Afghan Swiss Hospital, but this was said not to detail any medical condition or disability. In any event, even if the Appellant was able to demonstrate that she required long term care the ECO had to be satisfied that care could not be received in her home country. The husband of Pari [G], the principal Appellant had been missing. Her case was that her health was deteriorating such that she needed the support of her adult son in the UK who was settled here. His name is [WM].
5. At the hearing before Judge Beg [WM] gave evidence and confirmed that he had been granted refugee status in this country and that his mother was living in Kabul with his friend, [F] and his siblings lived with the mother and he sends the family $400 every month because the siblings have nothing to do and have no employment (paragraph 7). The Sponsor said that his mother was mentally ill, depressed, and was always crying and receiving medical treatment and that his friend [F], and his siblings look after their mother (paragraph 8). The family had lived in Peshawar in Pakistan but moved back to Afghanistan because living conditions in Peshawar were very bad.
6. The judge had regard to two letters from the Afghan Swiss Hospital dated 10th December 2014. One letter is from Dr Sayed Sama Hussaini, who is "an Internal Medicine Specialist". e stated that Mrs Pari [G] suffered from loss of hearing, and had been diagnosed as suffering from a depressive episode with post-traumatic stress disorder, together with paranoid schizophrenia, auditory hallucination, and feeling persecuted (paragraph 12). A further letter stated that Mrs Pari [G] can recover from her depression with PTSD "with relevant family support and medication" (paragraph 13). The judge observed that her recovery would be greatly enhanced if she were surrounded by her son who is in the United Kingdom. The judge observed that Dr Hussaini was not a Consultant Psychiatrist but a General Physician.
7. However, there was a second medical report from a Dr Abdul Naser Kohistani, who described himself as a "Internal Medicine Specialist", and he did say that the Appellant suffered from depression and ischemic heart disease and did not have any relatives in Afghanistan and that she needed a person to help support her, prepare food and drugs for her (paragraph 14).
8. At the hearing before Judge Beg, the evidence given by the sponsoring son, [WM], was that his 17 year old sibling sister, who used to look after Pari [G], was herself now suffering from depression, and the judge observed that,
"At the hearing there was no challenge to the Sponsor's evidence that his father disappeared in 2007 and has never been heard of since. Nor was there any challenge to the Sponsor's evidence that his family effectively live in hiding at the Sponsor's friend [F]" (paragraph 15).
9. The judge went on to say that,
"I find that there is medical evidence to support the principal Appellant's claim that she suffers from serious mental illness including post-traumatic stress disorder, depression and symptoms of schizophrenia. I find that while she has access to some medical treatment, she is unable to care for herself properly on a day-to-day basis." (Paragraph 17).
Although the family lived with the Sponsor's friend, [F], this was "in very cramped conditions in a three bedroom house where Farruk's parents, wife and children also lived". The judge went on to say that,
"In conclusion I find that the first Appellant requires long term personal care to perform everyday tasks as the result of her illness. In respect of the second, third and fourth Appellants, I find that their circumstances constitute serious and compelling family or other considerations which make their exclusion from the United Kingdom undesirable. I find that their father disappeared in 2007 and they are wholly reliant upon funds sent to them by their brother in the United Kingdom" (paragraph 18).
10. The appeal was allowed.
11. At the hearing before me on 15th September 2016, Mrs Aboni relied upon the grounds of application. She submitted that the judge had concluded that the principal Appellant required long term personal care, but the second part of the Rule is whether there can be care that could be accessed in Afghanistan itself, and the judge had failed to address this properly. Second, the Appellant had already been receiving treatment in Afghanistan and so it needed to be considered and explained why that care could not continue. Third, there was no evidence from the Sponsor's friend, [F], and this could have made all the difference.
12. In relation to the sibling children of Pari [G], the judge was wrong to have allowed the appeal on the basis that their exclusion was undesirable on the basis that there were serious and compelling family or other considerations. This is because the case of Mundeba [2013] UKUT 00088 made it clear that there was a very high threshold. Reference was made by Mrs Aboni to paragraph 34 which she described "serious" to mean that "there needs to be more than the parties simply desiring a state of affairs to obtain". As far as "compelling" was concerned in the context of paragraph 297(1)(F), this indicated considerations "that are persuasive and powerful".
13. For his part, Mr Pipi relied upon his detailed and helpful skeleton argument. He submitted that regard had properly to be given to Rule E-ECDR2.4 which states, "The Appellant, or if the applicant, and their partner are the Sponsor's parents or grandparents, the applicant's partner, must as a result of age, illness or disability require long term personal care to perform everyday tasks". He submitted that the bone of contention was "to perform everyday tasks". There was no definition of what was meant by "personal care". This was a fact-sensitive matter. It had to be considered in an individual case on the facts. For example, an 80 year old may be in perfectly good health and would not have any difficulty in performing "everyday tasks". On the other hand, a 40 year old may be severely disabled and require such care as to be able to "perform everyday tasks". The judge did identify what it was that the Appellant could not do and did identify her care needs and did identity how those care needs were presently being met and would be met in the future.
14. In the instant case, Judge Beg did (at paragraph 14) refer to the unchallenged medical evidence (at pages 22 to 23) that,
"She can recover from her depression and PTSD with the relevant family support and medication. This discovery will be greatly enhanced if she was surrounded by her son who is in the UK. The relapses in her condition are down to her feeling neglected and abandoned by her family".
This was in circumstances where her husband had abandoned her and disappeared without any trace. This, submitted Mr Pipi, aptly demonstrated that the personal care that the principal Appellant needed could only be met by a family member, namely, her son.
15. Second, in relation to "everyday tasks" these included not fully cooking, shopping, and dressing, but also the ability to leave one's home and interact with the outside world and engage in everyday tasks. The Appellant was a person suffering from schizophrenia and held a fear of being persecuted, such as to be unable to perform these everyday tasks and the judge made that finding precisely at paragraph 18 of the determination. The grounds of application at ground 7 do not challenge this finding at all. What is said instead is that the second limb is not satisfied.
16. Third, the judge specifically considered how the Sponsor in the UK was providing practical and financial help. He had not only been sending $400 to the family but he had arranged through his friend, [F], to take the family into his home and to look after them. At paragraph 5 of the witness statement, the Sponsor makes this clear and this was taken into account by the judge at paragraphs 7 and 11 of the determination. The grounds did not challenge this finding.
17. Fourth, this was a case where the level of support is not available in Afghanistan where the Appellants live. The level of personal care needed by this applicant can only be delivered by a family member, according to medical evidence that was before the judge. It does not matter how much financial support the applicant receives from the Sponsor because it will not replace the nature of "personal care" that she needs. The reference is to "the" level of support. There was no person in Afghanistan who can reasonably provide that level of support. The judge identified the lack of support in Afghanistan at paragraphs 10, 14 to 15, and 17, and the Sponsor's statement at paragraphs 10 to 12 also makes the same point. The Rule also refers to the alternative, "all that level of support is not affordable" and the judge considered this specifically at paragraph 13 of the determination. Moreover, even if the required level of care is available to Mrs Pari [G], the principal Appellant, on the facts this is irrelevant to her if she is in hiding. A person in hiding, and one who is mentally ill, is not in a position to access any help there may be in the wider society because of their inability to do so and the fear of being located. Finally, the suggestion at grounds 9 and 10 of the appeal papers that the burden of proof had been reversed was misconceived because the judge was simply making an observation. The children are minors. The 17 year old is herself suffering from depression for which she is receiving no treatment. The others have problems understanding and handling mental health issues and the judge was simply making a statement of fact that the children cannot understand mental health issues and there was no evidence before her that they did in fact do so. This is entirely different from saying that the Entry Clearance Officer bears the burden of proving that the children understand mental health issues. The same indeed applies to [F]'s family.
18. I have given careful consideration to the submissions before me. 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 TCA 2007) such that I should set aside the decision. It is well-known that "perversity" represents "a very high hurdle" (see R (Iran) [2005] at paragraph 11). In that case it was made clear that, "far too often practitioners use the word 'irrational' or 'purpose' when these epithets are completely inappropriate" (paragraph 12). I find the same to be the case here. For the reasons given in Mr Pipi's helpful submissions before me, and set out in his exceptionally well-crafted skeleton argument, I find that the judge was perfectly entitled to come to the conclusions that she did too.
19. First, there is the medical evidence of Dr Hussaini and of Dr Kohistani. The judge observes that the first of these is not an excerpt but the second is. The principal Appellant's condition (set out at paragraph 14) is not in dispute. It is not in dispute that her husband has abandoned her. The 17 year old daughter is herself suffering from depression. The judge made independent findings that the family was without a male protector in Afghanistan and "are finding it impossible to cope", in circumstances where they have no other relatives in Afghanistan. Added to this "There is medical evidence to support the principal Appellant's claim that she suffers from serious mental illness including post-traumatic stress disorder, depression and symptoms of schizophrenia" (paragraph 17). The judge then observed that whilst the principal Appellant
"has access to some medical treatment, she is unable to care for herself properly on a day-to-day basis, and took into account the fact that the minor children were living with her but did not understand her illness and were not able to look after her properly" (paragraph 17).
20. Second, in relation to the remaining children, although Mrs Aboni referred to Mundeba, paragraph 34 needs to be looked at in its entirety. What it makes clear is that serious and compelling does not mean that a party simply want to have a state of affairs to obtain. It is stated that, "The analysis is one of degree and kind". It is not to do with "simply the wish of the parties to be together however natural that ambition may be" (paragraph 34). On the facts of this case, this is not the case here. If, as I have suggested, the judge was right in concluding that the principal Appellant does succeed under the Rules, then for her to leave the children and come to the UK, in circumstances where they have no relatives, and have had their father abandon them, would indeed lead to serious and compelling circumstances being created amounting to "considerations that are persuasive and powerful" (paragraph 34 of Mundeba). In short, the judge was entirely right in concluding as she did. This Tribunal has a supervisory jurisdiction and it can only intervene in cases of findings made by a judge that were not open to her.
Notice of Decision
21. There is no material error of law in the original judge's decision. The determination shall stand.
22. No anonymity order is made.

Signed Date

Deputy Upper Tribunal Judge Juss 12th October 2016