Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/07224/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 21 September 2015
On 20 January 2016

Before

UPPER TRIBUNAL JUDGE CLIVE LANE

Between

Entry Clearance Officer - pretoria

Appellant
and

Cheryl Carmen Ribeli
(ANONYMITY DIRECTION NOT MADE)

Respondent

Representation:

For the Appellant: Mr I Jarvis, Senior Home Office Presenting Officer
For the Respondent: Mr G O'Ceallaigh, Counsel

DECISION AND REASONS
1. I shall refer to the appellant as the respondent and to the respondent as the appellant (as they appeared respectively before the First-tier Tribunal). The appellant, Cheryl Carmen Ribeli, was born on 8 August 1953 and is a female citizen of South Africa. The appellant is the mother of Mrs Carmen Steenkamp who is a British citizen living in the United Kingdom. The appellant applied for entry clearance to settle in the United Kingdom as her daughter's dependant but her application was refused by the respondent on 14 May 2014. The appellant appealed to the First-tier Tribunal (Judge Napthine) which, in a decision promulgated on 31 March 2015 allowed the appeal under the Immigration Rules. The Entry Clearance Officer now appeals, with permission, to the Upper Tribunal.
2. Judge Napthine found that the appellant satisfied the requirements of paragraph E-ECDR (eligibility for entry clearance as an adult dependent relative):
Section E-ECDR: Eligibility for entry clearance as an adult dependent relative E-ECDR.1.1. To meet the eligibility requirements for entry clearance as an adult dependent relative all of the requirements in paragraphs E-ECDR.2.1. to 3.2. must be met.
Relationship requirements E-ECDR.2.1. The applicant must be the- (a) parent aged 18 years or over; (b) grandparent; (c) brother or sister aged 18 years or over; or (d) son or daughter aged 18 years or over of a person ("the sponsor") who is in the UK.
E-ECDR.2.2.If the applicant is the sponsor's parent or grandparent they must not be in a subsisting relationship with a partner unless that partner is also the sponsor's parent or grandparent and is applying for entry clearance at the same time as the applicant. E-
ECDR.2.3. The sponsor must at the date of application be- (a) aged 18 years or over; and (b) (i) a British Citizen in the UK; or (ii) present and settled in the UK; or (iii) in the UK with refugee leave or humanitarian protection.
E- ECDR.2.4. The applicant 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.
E- ECDR.2.5. The applicant, or if the applicant and their partner are the sponsor's parents or grandparents, the applicant's partner, 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.
Financial requirements E- ECDR.3.1. The applicant must provide evidence that they can be adequately maintained, accommodated and cared for in the UK by the sponsor without recourse to public funds. This is detailed in Appendix FM-SE. E- ECDR.3.2. If the applicant's sponsor is a British Citizen or settled in the UK, the applicant must provide an undertaking signed by the sponsor confirming that the 5 applicant will have no recourse to public funds, and that the sponsor will be responsible for their maintenance, accommodation and care, for a period of 5 years from the date the applicant enters the UK if they are granted indefinite leave to enter.
3. In addition, Appendix FM-SE specifies the evidence which must be produced in support of such an application:
Adult dependent relatives
33. Evidence of the family relationship between the applicant(s) and the sponsor should take the form of birth or adoption certificates, or other documentary evidence.
34. Evidence that, as a result of age, illness or disability, the applicant requires long-term personal care should take the form of:
(a) Independent medical evidence that the applicant's physical or mental condition means that they cannot perform everyday tasks; and
(b) This must be from a doctor or other health professional.
35. Independent evidence that the applicant is unable, even with the practical and financial help of the sponsor in the UK, to obtain the required level of care in the country where they are living should be from:
(a) a central or local health authority;
(b) a local authority; or
(c) a doctor or other health professional.
36. If the applicant's required care has previously been provided through a private arrangement, the applicant must provide details of that arrangement and why it is no longer available.
37. If the applicant's required level of care is not, or is no longer, affordable because payment previously made for arranging this care is no longer being made, the applicant must provide records of that payment and an explanation of why that payment cannot continue. If financial support has been provided by the sponsor or other close family in the UK, the applicant must provide an explanation of why this cannot continue or is no longer sufficient to enable the required level of care to be provided.

The word "independent" referring to the medical evidence required regarding an applicant's physical and mental condition (paragraph 34(a)) was inserted from 6 April 2014 (HC 1138 as amended by HC 1201).
4. There is one ground of appeal. The ECO noted that the appellant, as at the date of the refusal, had not been in receipt of any care despite claiming that assistance was required. It is unclear from the decision of the First-tier Tribunal what care or assistance the judge found will be required by the appellant. The judge noted [14] that the appellant is aged 60 and is approaching old age and may have "declining physical abilities". However, the judge failed to make a clear finding as to the actual care needs of the appellant. Further, there was no explanation in the decision as to what emotional support was being provided at the current time to the appellant by the sponsor or otherwise and what her future needs in this regard would be. Finally, at [23] the judge appeared to accept that certain services may be available in South Africa but that there was a question as to the reliability of delivery of these services. At [24] the judge found that the ECO had been wrong to find that the required level of care would be available in South Africa. Also, paragraph 35 of Appendix FM-SE has not been properly addressed by the judge. At [12-13] and [24] no reference has been made to any independent evidence which might indicate the availability or otherwise of care in South Africa. There was no proper basis for the judge finding that the ECO was in error to conclude there had been "no substantial evidence that care cannot be provided locally [in South Africa]."
5. I find that the determination of the First-tier Tribunal should be set aside. I have reached that conclusion for the following reasons.
6. First, it is clear that E-ECDR2.4 was concerned with an applicant's inability as a result of age, illness or disability to perform everyday tasks without long term personal care as at the date of the immigration decision. Much of Judge Napthine's decision is concerned with the possible future, rather than the situation as at the date of the immigration decision. At [14], he noted that the appellant "is approaching old age and she is in ill health with declining physical abilities as set out in her medical report. Her health and ability to look after herself will not improve with age. Her sense of isolation and vulnerability will not improve." I acknowledge that the use in the paragraph of the expression "long term personal care" indicates a need to project an applicant's requirement for care into the future; a need for short term personal care as a result of an illness or disability from which an applicant would recover would not fulfil the requirement of the Rules. However, at [17] the judge wrote:
One can have unmet needs. A person could struggle to survive against the odds and manage to survive but still have their needs unmet. And they will ill-fed, inadequately washed and dressed, lacking care and attention to the extent that their life is nothing more than physical existence in circumstances of pain and discomfort.
7. The ECO was concerned that the applicant had given contradictory evidence. In answer to question 1.9 of the application, the appellant stated that she was not currently receiving care but had enclosed a letter with her application stating that "[The appellant] needs assistance with tasks as basic as cooking, shopping and washing herself"[my emphasis]. The judge has not resolved that contradiction satisfactorily in favour of the appellant but has, instead, assumed that (i) the appellant does not receive care at the present time but; (ii) is nonetheless in need of such care. The failure of the judge to resolve the apparent contradiction in the appellant's evidence to the ECO amounts to an error of law. Further, it is clear that E-ECDR2.4 is written in the present tense; the requirement for long term personal care should exist at the date of the application/immigration decision as well as be required in the future..
8. Secondly, the ECO was concerned that such care as the appellant may require was also available in South Africa. A letter enclosed with the application indicated that "The availability of elderly care services is limited in the Table View area where [the appellant] lives". There was no evidence to show the availability of care within Cape Town more generally or, indeed, within South Africa as a whole. The judge should have concluded that paragraph 35 of Appendix FM-SE had not been met in that there was no independent evidence that the appellant was unable, even with the practical and financial help of the sponsor in the UK, to obtain the required level of care in the country where they are living [my emphasis].
9. Thirdly, at [23] the judge wrote:
Whilst such services [providing care] may be available the problem is whether the appellant is in a position to access them and then the liability of delivery of services without the oversight of a close relative/interested party. It is not just that such things come at a cost, but will people turn up when they are meant to and will they be trustworthy people who can be relied upon to look after an increasing frail elderly person?
10. With respect to the judge, his comments have the flavour of advocacy on the appellant's behalf rather than a reasoned assessment of the evidence. The judge did not refer to any independent evidence before him to support his assertion that, without the oversight of a close relative, the delivery of care services in South Africa would be wholly unreliable.
11. Mr O'Ceallaigh complained at the hearing that Mr Jarvis had widened the scope of the ECO's appeal to include reference to Appendix FM-SE and should not form part of the original refusal. However, as Mr Jarvis correctly pointed out the refusal of the ECO did not indicate that, other than those parts of the Rules referred to in the refusal notice, he/she was satisfied that the remaining Rules were met by the appellant. It was for the appellant to show, on appeal, that she was able to meet all relevant requirements of the Immigration Rules.
12. In the circumstances, I have set aside the decision of the First-tier Tribunal and I now remake the decision. For the reasons which I have given above, I do not find that the appellant meets the requirements of the Immigration Rules. The care requirements of the appellant as at the date of the application remain unclear, as noted by the ECO. In order to succeed in her appeal against the ECO's decision, the appellant is required to satisfy all the requirements of the Immigration Rules including those set out in Appendix FM-SE. I find that there is no independent evidence that the appellant is unable, even with the practical and financial help of the United Kingdom sponsor, to obtain the required level of care in South Africa. If the appellant has been receiving care, then there was no evidence to satisfy paragraph 37 of Appendix FM-SE. I agree with Mr Jarvis that the admission of adult dependent relatives under the Immigration Rules is intended to be subject to a rigorous and demanding test both as regards the care requirements themselves but also the evidence which must be provided to establish those requirements. It may well be the case in the future that the appellant may meet the requirements of the Immigration Rules but I am not satisfied that she has addressed the concerns of the ECO regarding inconsistencies in her application nor has she provided, in the current application, sufficient evidence of the type required by the Immigration Rules to establish that she has care needs. In the circumstances, I dismiss the appellant's appeal against the ECO's decision.
13. Article 8 ECHR was pleaded in the original grounds of appeal to the First-tier Tribunal but was not referred to by Judge Napthine in his decision. In the appellant's Rule 24 notice dated 9 June 2015 under the heading "cross appeal" the appellant "seeks to appeal the failure [of the First-tier Tribunal] to consider her claim under Article 8 ECHR and the EU law." It is also stated that "the appeal will not be pursued should the appellant's appeal [in respect of the Immigration Rules] fail." At the Upper Tribunal hearing, Mr O'Ceallaigh made no reference at all to Article 8. Insofar as the appeal is pursued on Article 8 grounds, I am satisfied that no evidence has been produced which would lead the Upper Tribunal to allow the appeal on those grounds where it has decided to dismiss it under the Immigration Rules. Some mention is made in the evidence of the appellant's isolation in South Africa and a need for the emotional support of the United Kingdom sponsor but I note (as did the ECO) that the evidence submitted with the application for entry clearance indicated that the United Kingdom sponsor "will have to leave the United Kingdom to care for [the appellant] if the instant application is not approved." That statement indicates a willingness on the part of the United Kingdom sponsor to travel to South Africa to care for her mother if necessary. I find it would be reasonable for her to do so. In those circumstances, there would be no disproportionate breach of the rights of the appellant protected under Article 8 ECHR. In so far as it is pursued, the appeal is dismissed on Article 8 grounds also.
Notice of Decision
14. The decision of the First-tier Tribunal promulgated on 31 March 2015 is set aside. I have remade the decision. The appellant's appeal against the ECO's decision dated 14 May 2014 is dismissed under the Immigration Rules and on human rights grounds (Article 8 ECHR).

No anonymity direction is made.

Signed Date 1 January 2016

Upper Tribunal Judge Clive Lane