Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/06653/2015

THE IMMIGRATION ACTS

Heard at Field House
Oral decision given immediately following
the hearing on
Decision & Reasons Promulgated
20 June 2016
04 August 2016

Before

UPPER TRIBUNAL JUDGE CRAIG
DEPUTY UPPER TRIBUNAL JUDGE L J MURRAY

Between

Bahy Mohamed Fathallah badreldin
(anonymity direction NOT MADE)
Appellant
and

ENTRY CLEARANCE OFFICER
Respondent

Representation:
For the Appellant: Mr E Hurley, Counsel instructed by Biscoes Solicitors
For the Respondent: Mr I Jarvis, Senior Home Office Presenting Officer

DECISION AND REASONS

1. The Appellant is a national of Egypt who was born on 7 August 1945. He applied for entry clearance on the basis of his relationship with his daughter, a British national and that application was considered by the Respondent under paragraph 317 of the Immigration Rules. The application was refused by the Entry Clearance Officer ("ECO") on 17 March 2015 on the basis that he was not satisfied that the Appellant had demonstrated that he was wholly or mainly dependent on a relative present and settled in the United Kingdom as he was still in employment.

2. The Appellant appealed that decision under s82 (1) of the Nationality, Immigration and Asylum Act 2002 and requested that his appeal be determined without an oral hearing. First-tier Tribunal Judge Fox dismissed his appeal in a decision promulgated on 23 September 2015. The Appellant applied for permission to appeal to the Upper Tribunal and permission was granted on 18 May 2016 by First-tier Tribunal Judge Grant-Hutchinson on the grounds that the Respondent should have considered the application under Appendix FM of the Immigration Rules and not paragraph 317 of the Rules. In granting permission Judge Grant-Hutchinson found that it was arguable that had the correct application of the Immigration Rules been considered by the Respondent, the Appellant could have submitted relevant documents for consideration and not the evidence relied upon by the Judge in reaching his decision. She considered that it was arguable that this made a material difference to the outcome or fairness of the proceedings.

The Grounds

3. The grounds contend that the First-tier Tribunal acknowledged in its decision that the Respondent should have considered the application under Appendix FM but that the mistake had not been taken into consideration. Had the application been considered under Appendix FM, any additional relevant documents would have been submitted. The Appellant claims to need daily family care after the death of his wife and that he requires long-term care to do everyday personal and household tasks due to his age and health conditions. He states that his family in the UK are able to look after him and that he struggled to do his job and that the fact that he was working did not mean that he was capable of living alone after the death of his wife.

The Hearing

4. Mr Hurley relied on his skeleton argument. He sought to rely on an unreported case in relation to the construction of the adult dependent relative provisions of Appendix FM of the Immigration Rules. We reminded him of paragraph 11.1 of the Practice Directions of the Immigration and Asylum Chambers of the First-tier Tribunal and the Upper Tribunal which provides that a determination of the Tribunal which has not been reported may not be cited in proceedings before the Tribunal unless the Tribunal gives permission. He had not complied with the formalities of that paragraph and identified the proposition for which the determination was to be cited or certified that the proposition was not to be found in any reported determination and had not been superseded by higher authority. Paragraph 11.3 provides that permission will only be given where the Tribunal considers that it would be materially assisted by the citation of the determination, as distinct from the adoption in argument of the reasoning to be found in the determination. Such instances are said to be likely to be rare and that it will be rare for such an argument to be capable of being made only by reference to an unreported determination. Mr Hurley decided that he could make his argument without reference to the unreported decision.

5. He submitted that the key point was that there was a technical error of law in the decision of the First-tier Tribunal. The ECO had applied the wrong Rule and the appropriate course of action should have been to remit the matter to the Secretary of State for a proper decision to be made. There was no assessment in the decision of the First-tier Tribunal of what amounted to care and no application of Appendix FM.

6. Mr Jarvis submitted that paragraph 317 of the Immigration Rules had limited applicability and the correct route was Appendix FM and Appendix FM-SE which set out demanding Rules. There seemed to have been some communication between the Appellant and ECO before the decision was made. The Appellant could not meet the requirements of the adult dependent relative route. The Appellant had to show that there was no one who could provide care. The Judge was entitled to apply the correct rule. Judge Fox had gone on to look at the correct Rule under which the application could never have succeeded. His application was based on potential future needs. In other words it was made too soon. The Rules were clear. The Appellant did not take the fullest advice and the only conclusion that the Judge could have reached was that the case was not made out. The grounds did not engage with Appendix FM-SE and show that the evidence was there. There was a procedural disadvantage but the Appellant knew what the appropriate route was. He should have produced the documentary evidence and where there was any unfairness that could have been remedied. No material evidence produced. The Appellant would have been in the same position in any event. He was not aware of the requirements of Appendix FM-SE but there was an absence of materiality.

7. Mr Hurley replied that the care could only be provided by his family. What this Appellant needed was his family and the Judge did have medical evidence and evidence of the depression.

8. We invited submissions on whether the matter should be remitted to the Respondent or reheard if we were to find an error of law. Mr Hurley submitted that the matter should be remitted to the Respondent and Mr Jarvis argued that the matter should be reheard by the First-tier Tribunal.

Discussion and Findings

9. We find that there is an error of law in the decision of the First-tier Tribunal for the following reasons. The Appellant applied for entry clearance as the dependant of his daughter. His application is dated 18 January 2015 and therefore the ECO should have considered the application under Appendix FM of the Immigration Rules which was introduced in July 2012. The First-tier Tribunal noted that the ECO had applied the wrong rule at paragraph 8 of the decision. The First-tier Tribunal's reasoning and conclusions are set out at paragraphs 10 to 13 of the decision:

"10. Upon the available evidence the appellant does not appear to satisfy the ADR criteria. He lives alone and the sponsor and her brother are both in full-time employment in the UK. It therefore follows that the appellant's relatives do not provide care for his daily needs and there is no reliable evidence to demonstrate whether any individual, other than the appellant, provides care for the appellant's daily needs.
11. The appellant maintains employment status to preserve his residency and entitlements to health care. It is reasonable to conclude that the appellant's application is based upon potential future needs as demonstrated by the undated letter written by Doctor S Badreddin.
12. The appellant's son confirmed in his letter dated 2 March 2015 that the appellant withheld material information from his application and that the appellant's son also wishes to volunteer information in a surreptitious manner. This does not assist the respondent to make a reasoned decision based upon the limited evidence made available to her.
13. There remains the anomaly of the respondent's requests for the appellant to withdraw the application. This is outside my remit and I confine myself to the evidence appertaining to the relevant date. If I am wrong to find that the appellant does not satisfy the Immigration Rules in accordance with ADR I direct that the matter is returned to the respondent to reconsider the application in accordance with the appropriate Immigration Rule."

10. In CP (Section86 (3) and (5); wrong rule) Dominica [2006] UKAIT 00040 the Upper Tribunal held that where an Entry Clearance Officer applies the wrong rule, the resulting immigration decision is technically unlawful. However, subject to the requirements of fairness, an immigration officer should apply the correct rule when deciding an appeal. If the appellant satisfies the requirements of the correct rule, the appeal will be allowed in full under s 86 (3) of the 2002 Act. If any (or all) of the requirements are not satisfied, the appeal will be dismissed in substance under s 86 (5). However, the appeal will be allowed in part under s 86 (3) to the limited extent that the decision was not in accordance with the law.

11. The Upper Tribunal in CP explored the circumstances where the Tribunal would be unable or could not fairly proceed to determine the appeal on the basis of the correct immigration rule at paragraph 22:

"It may be that because of the decision-making process the Immigration Judge lacks the relevant evidence upon which to make his decision. For example, recourse to evidence relevant to the correct rule - particularly where its requirements differ from the rule actually applied - may be impossible in an out-of-country appeal where the appellant is not represented or where there is no appeal hearing because it is a 'paper case'??In cases of this sort, the only proper course of action for the Immigration Judge will be to allow the appeal as not being in accordance with the law. The appeal will be allowed to the effect that the appellant's application remains outstanding and there will be a direction that the decision-maker considers it correctly under the Rules. This is because, in contrast to the situation in paragraph 20 above (and in this case), the fault cannot be cured by the findings within the appellate process."

12. We consider that this is precisely the situation here. The requirements of section EC-DR are stringent and without doubt more onerous and difficult to satisfy than the requirements of paragraph 317 of the Immigration Rules. The applicant is required to demonstrate that he or she requires as a result of age, illness or disability long-term personal care to perform everyday tasks. Further, the applicant must demonstrate that he or she is 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 it is not available and there is no person in that country who can reasonably provide it or it is not affordable. Those requirements are supplemented by evidential requirements set out at paragraphs 33 to 37 of Appendix FM-SE which require inter alia evidence of the applicant's inability to obtain the required level of care in his own country to be from a health professional.

13. It is clear from the grounds of appeal that the Appellant, although unrepresented, knew that the ECO had applied the wrong rule and that the correct one was EC-DR. He makes reference to the application guidelines on the Respondent's website in his grounds of appeal. He submitted medical evidence in the form of a letter from a Professor of Medicine and from a consultant radiologist as well as a record of his treatments. He was clearly not aware however, of the entire case under EC-DR that he would have to meet as the evidence does not address or purport to address the requirements of Appendix FM-SE. The Appellant was not represented and this was a paper case. In the circumstances we conclude that the First-tier Tribunal should have found that he lacked the relevant evidence in relation to the Appellant through no fault of the Appellant. We consider that the error was material. The Appellant's case under EC-DR was not unarguable. We therefore conclude that this was a fault that was not capable of being cured by findings within the appellate process and the First-tier Tribunal therefore erred in law in failing to allow the appeal as being not in accordance with the law.

Notice of decision

We set aside the decision of the First-tier Tribunal and remake the decision. This appeal is allowed to the extent that the application remains outstanding before the ECO and we direct that the decision-maker considers it properly under section EC-DR of Appendix FM.

No anonymity direction is made.

Signed Dated 27 July 2016

Deputy Upper Tribunal Judge L Murray