Tribunal decisions

The decision

UPPER Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/09174/2015

THE IMMIGRATION ACTS

Heard at: Field House
Decision and Reasons Promulgated
On: 27 March 2017
On: 18 April 2017

Before

Deputy Upper Tribunal Judge Mailer

Between

Mr Hazim Ahmed
no anonymity direction made
Appellant
and

secretary of state for the home department

Respondent

Representation
For the Appellant: Mr P Turner, counsel (instructed by Morden Solicitors)
For the Respondent: Mr T Wilding, Senior Home Office Presenting Officer

DECISION AND REASONS
1. The appellant appeals with permission against the decision First-tier Tribunal Judge Roots promulgated on 27 September 2016, dismissing his appeal against the refusal by the respondent of his application made on 4 February 2015 for leave to enter the UK.
The background to the appeal
2. The appellant is a national of Pakistan, born on 19 August 1996. He applied on 4 February 2015 for leave to enter the UK pursuant to paragraph 352D of the Rules. His mother and sister made applications at the same time. Their applications were granted.
3. The entry clearance officer noted that the appellant did not meet the requirements under the Rules as he was 18 years old at the date of application. The respondent also referred to Article 8, and stated that the decision was justified and proportionate in the interests of maintaining effective Immigration control.
4. The appellant conceded before Judge Roots that he cannot succeed under paragraph 352D of the Rules. His case proceeded under Article 8 outside the Rules.
5. It was contended that the appellant had mental health issues and was no longer in education. His mother was receiving death threats and had to move to Islamabad. His sister had medical conditions. Accordingly his mother had not been able to travel back to Pakistan until recently “due to having to care for her daughter.”
6. It was submitted that the Judge had to consider the whole family. It was contended that the s.117B factors were less stringent in an entry clearance case.
7. The Judge found that the Article 8 arguments in the skeleton argument produced were “somewhat generic.” The skeleton is “thin on arguments” relating to the facts of the case. The Judge referred to the relevant Rule, the Human Rights Convention (Article 8) and the s.117B public interest considerations. The Judge referred to the decision in Mostafa (Article 8 in entry clearance) [2015] UKUT 112.
8. The principal facts were not in dispute. It was thus not in dispute that the appellant is living with his uncle in Pakistan. The Judge accepted that the appellant's sister has health problems. His mother had a miscarriage in 2016. That event occurred a year after the date of the decision in May 2015 and it was found not to be relevant to the matters to be considered.
9. The appellant was aged 18 when his father left for the UK. He was 18½ when he applied for entry clearance and was 18¾ at the date of decision. Although no longer a minor the Judge took into account that he was only 18¾ at the date of decision.
10. The Judge found that some of the facts claimed either post dated the date of decision or were vague, lacking in detail or are inconsistent. There was some supporting evidence that the appellant is suffering from mental health issues. The reports however were after the date of decision and were not evidence of circumstances appertaining at the date of decision. The appellant did not therefore produce evidence that he was suffering from any significant mental health problems as at the date of decision [21].
11. The witness statements lacked in detail on important issues. He gave no details of his current education or work status or where he was living. The appellant's mother's answers about the appellant's education were “extremely unclear.” There was little in her statement about her son's current circumstances. She stated that shortly after her husband left in December 2014, she moved to Islamabad, a few months later. She had taken her children, including the appellant, there.
12. In summary Judge Roots found that there was very little reliable evidence as to what the appellant was doing at the date of decision in May 2015 regarding any education. His mother's responses were not convincing. The evidence of his mental health post dates the date of decision. The witness statements lacked in detail in important points of his life in Pakistan.
13. When considering whether the decision interfered with his Article 8 rights Judge Roots followed the Razgar five step approach, noting that the circumstances as at the date of decision had to be considered. At that date, his father had already left and claimed asylum in the UK in December 2014. The decision therefore did not lead to any interference with his family life with his father. The decision of the respondent on 11 May 2015 was to grant leave to enter to his mother and sister but not the appellant. At the date of decision he was living in Pakistan with his mother and sister [28].
14. His mother and sister were aware of this decision when they came to the UK despite the refusal of the appellant's application. They failed to show that the interference was caused by the respondent's decision. It appeared that the interference was caused by the decision of the rest of the family to leave Pakistan. He had failed to explain why the decision caused interference with his family life.
15. Even if wrong about that, Judge Roots stated that the interference would have sufficiently significant consequences to engage Article 8 and considered whether there was a proportionate interference in the circumstances.
16. The s.117B considerations were set out. These were not addressed by the representative “in any substantive way.” The maintenance of effective immigration control is in the public interest. There was no evidence about his ability to speak English. It was not argued that he was financially independent. The grounds of appeal stated that he was dependent on his parents [30]. The failure to satisfy the Rules is a weighty consideration which must be taken into account. This had not been addressed by the representative. Judge Roots accepted that the family has been under a great deal of stress [32].
17. There was no evidence that the appellant had any significant mental health conditions at the date of decision. Judge Roots accepted that he was only 18¾ at the date of decision and that his application was apparently refused because he was over 18 at the time.
18. Judge Roots considered the effect on the whole family and took into account that it was nonetheless the decision of the mother and sister to accept the positive decision of the respondent and to leave the appellant in Pakistan. This was relevant to the question of proportionality if indeed there is any interference caused by the decision, as they were fully aware that the appellant's application had been refused.
19. The reference to threats made to the mother and the appellant were vague [36]. His mother has been able to return to Pakistan. Although the father has been granted asylum it was not accepted that any persuasive evidence of any serious threat or risk to the appellant's safety had been provided.
20. Judge Roots concluded that the appellant has failed to show that the decision interferes with his Article 8 rights. If there is such interference, the respondent can justify it as proportionate. His appeal was accordingly dismissed under the Rules and on human rights grounds.
21. In granting permission, First-tier Tribunal Judge Landes stated that it is arguable that the Judge erred in concluding that Article 8 was not engaged. Further, the decision in May 2015 involved the refusal of a human rights claim as well as the refusal of entry clearance - (paragraph 9 of the Commencement Order to the Immigration Act 2014 as amended by and set out in SI no 371). Accordingly, the time for consideration of the relevant circumstances is the date of hearing which may be significant so far as the appellant's mental health is concerned.
The appeal
22. Mr Turner submitted that from the transitional provisions which applied to an application made before 6 April 2015, an entry clearance application such as this is to be treated as a human rights claim. This was an application for reunion. In this case there was family life which had existed between the appellant, his father, mother and sister prior to the father's coming to the UK.
23. Family life continued after that between the appellant, his mother and sister. They had accordingly always lived together as a family. The reason the appellant's application was not granted was because of his age, as he was about 18½ at the date of application. In those circumstances, family does not abruptly cease. It can continue.
24. Moreover, the Judge did not treat this as a human rights claim.
25. He further submitted that the Judge erred in finding that it was the act of the respondent in refusing the application which led to the interference with the appellant's family life. The causative act must be taken as being the refusal of the entry clearance under Article 8 and not the family's decision to exercise their right to enter the UK pursuant to the grant of entry clearance.
26. The finding that the cause of the interference with family life was the decision of the mother and sister to come to the UK in circumstances where the appellant does not have entry clearance is 'perverse'.
27. Mr Turner referred to paragraph [17] of Mostafa, where the the Tribunal held that they had no hesitation in stating that on the facts of this case the decision to refuse the claimant entry clearance interferes with his and his wife's private and family lives and the interference is of sufficient gravity as to engage the operation of Article 8.
28. He submitted that the alternative would have meant that his family remain in Pakistan despite the grant of entry clearance which would have amounted to a breach of their protected Article 8 rights, with the causative act again being the refusal of the appellant's entry clearance.
29. He contended that the Judge did not conduct a sufficient analysis as to the impact of the refusal on the family as a whole. Pragraph [35] was not a sufficient consideration of the impact on the family - Beoku-Betts [2008] UKHL 39.
30. The Judge did not properly consider the mental health condition of the appellant as at the date of decision, finding that there was no evidence before the Tribunal that the appellant had any significant mental health conditions.
31. However, a report from the Hospital Islamabad (Psychiatry Clinic) dated 21 June 2016, was produced. The clinical notes (which are sparse) refer to his irritability, weakness, and to the fact that his parents have been abroad for a year. He is living with his grandmother's eldest son. The treatment that was prescribed is not set out in English. There is also a report at page 15 from Dr Ishaq Shahid dated 10 August 2016 certifying that the appellant is suffering from “depration” due to living without his parents. He is under her treatment. Again, medicine has been prescribed. It appears that “drops” were given.
32. The appellant referred in his witness statement to his feeling scared and worried that he will be killed. He has received threatening phone calls. These are from the K.N. Organisation. He was told that his father has escaped and saved himself but that he, the appellant, would not be spared. At the date of his statement in August 2016 he was still receiving these threats. He kept thinking about being targeted by the Mullahs and has constant nightmares that they are after him. This has contributed towards his ailment and caused him to have depression. It has since escalated to the extent that he wanted to kill himself. His parents talk to him on a daily basis and have provided essential support at the time. Seeing his distressed condition, his mother and sister were “forced” to travel to Pakistan to see him. He is currently undergoing treatment for depression.
33. He referred to the effect that this has had on his parents who are extremely worried about him. His mother suffered a miscarriage whilst in Pakistan with him. He attributes the cause to excessive worrying about him when she travelled to see him.
34. Mr Turner also referred to the witness statement of the appellant's father which was produced before the First-tier Tribunal. He also set out (at paragraphs 4, 5 and 8), the appellant's reactions to his migration to the UK and that the appellant constantly cried over the phone. He himself feels the emotional stress and anxiety and is disturbed every day. He referred to the appellant's mental condition at paragraph 10. His brother in law has felt burdened by the fact that he has to take care of the appellant.
35. The appellant's mother also stated at paragraphs 8 and 9 of her witness statement before the Tribunal that they are worried about the appellant. She and her daughter were forced to travel to Pakistan to be with him. She was four months pregnant at the time. Hearing what the appellant had said and seeing his condition, affected her pregnancy. She suffered stress and eventually suffered a miscarriage. Knowing that she had to leave him in Pakistan “killed me inside.”
36. Mr Turner submitted that the Judge did not have proper regard to any of this evidence, nor to the skeleton argument produced at the hearing.
37. He was also critical of Judge Roots' repeated assertion that this was an out of country appeal and had to be determined on the basis of facts which existed at the date of decision [15]. Accordingly, the Judge did not accept at [21] that the appellant produced evidence that he had been suffering from any significant mental health problem at the date of decision. The Judge also noted that his mother's miscarriage in 2016 was not relevant as this occurred after the date of decision in May 2015.
38. Although s.55 does not constitute a “trump card” Mr Turner submitted that the evidence relating to his sister should have been considered and factored in having regard to the documents produced at the hearing.
39. As a result, he submitted that there has been a fundamental error as to what could be considered and looked at the date of decision.
40. I was referred to reports from the London Borough of Sutton relating to [S] Mubarak, the appellant's sister, prepared by the Special Education Needs Case Worker. It was stated that [S] attends the Carshalton High School for Girls. The local authority agreed to carry out a statutory assessment of her education, health and care needs. The letter, which is sent to the parents of [S], is dated 29 July 2016.
41. In a letter dated 29 July 2016 from the Special Education Needs Case Worker to the Educational Psychology service, it is stated that the local authority has decided to conduct an education, health and care assessment for [S]. The letter was also sent to the Principal Physician in Child Health Community Paediatrics at the Queen Mary Hospital for Children. It was also sent to the Manor Practice, Roundshaw Health Centre, in Warrington as well as to the Sensory Impairment Service.
42. The recipients of the letters were requested to provide written advice by 18 October 2016. There was also a request that Carshalton High School convenes a meeting with the family, inviting the professionals who are currently working with [S], in the week beginning 1 November 2016.
43. I was informed that these documents were made available to Judge Roots at the hearing. They are contained in the bundle from the First-tier Tribunal.
44. Mr Turner submitted that there is no evidence from the Judge's decision that these matters were referred to or considered. Nor was the outcome of this assessment, if any, revealed to the Judge.
45. In the circumstances, he submitted that the decision should be set aside and remitted to the First-tier Tribunal for a fresh decision to be made.
46. On behalf of the respondent, Mr Wilding accepted that there was a human rights claim available under the 2012 Act. The relevant date was the date of hearing.
47. He submitted that the issue however was whether the Judge has “materially erred” in excluding the evidence available at the date of decision. If so, the decision would have to be set aside.
48. He submitted however that it was not entirely clear that Judge Roots did not consider such evidence. He referred to paragraph [28] of the decision. There it is noted that at the date of decision the appellant was still living in Pakistan with his mother and sister. That thus post dated the date of decision. The Judge referred to the fact that the decision was dated 11 May 2015 and also accepted at [32] that the family has been under a great deal of stress. It was accepted that the effect on the family as a whole had to be considered [35].
49. However, the Judge also noted that there was a paucity of evidence and not much by way of post decision evidence. There were two handwritten notes from two medical practitioners. These do not tell us much about the appellant's mental capacity. At its highest he was suffering from depression. It does not tell us anything about his inability to cope or that there are circumstances amounting to a disproportionate interference with his physical and moral integrity. The fact that he is a young adult is a weighty factor. There was accordingly no family life that had been established on the evidence.
50. There was thus a failure by the appellant and his advisers to produce cogent evidence showing that the decision constitutes a disproportionate interference with his Article 8 rights.
51. As regards the s.55 submission, this was not part of the grounds of appeal. There is nothing in the evidence in any event which would lead to a different outcome.
52. Accordingly there has been no material error in law. There is no need for the decision to be remitted: it can be re-made on the basis of the evidence available.
53. Mr Turner submitted in reply that there has been no mention of the documents relating to the appellant's sister that were made available. These should have clearly been factored into the assessment.
54. Mr Turner then sought an adjournment to ascertain the “triggering factors” leading to the local authority's educational health and care assessment. This he submitted goes to the core of the Article 8 argument. The appellant's sister is 12 years old.
55. Mr Wilding opposed that application. There had been no application under paragraph 15(2A) of the 2008 Rules. There was nothing specifically in the letters which inform the basis of why such an assessment is sought.
56. I refused the adjournment. The appellant has had the opportunity prior to the date of hearing to obtain information from the local authority. No evidence or even an explanation has been provided as to why such information has not been sought in time.
Assessment
57. I have had regard to Mr Wilding's submission that the Judge has in effect considered evidence after the date of decision. Further, any omission to consider such evidence is not material. There is force in his submissions that the evidence produced including the sponsor's evidence, lacked in detail on important issues. Such cogent evidence ought to have been produced by those appearing on the appellant's behalf.
58. However, I also have regard to the fact that the Judge did not properly bear in mind that the assessment to be undertaken was on the basis that there had been a refusal of not only an entry clearance application, but a human rights claim as well. Accordingly, the time for consideration of the relevant circumstances was at the date of hearing. There are several paragraphs where the Judge felt restricted in considering evidence which post dated the decision. That included the finding that the appellant's sister's health problems and his mother's miscarriage in 2016 post dated the decision and were thus not relevant to the matters which had to be considered - [19].
59. I have set out in some detail the available evidence produced in the appellant's bundle before the Tribunal, as to the various problems regarding both the appellant's sister and his mother.
60. I have also had regard to the evidence produced of the appellant's own mental health problems, which the Judge was aware of, but which was not considered as relevant, as it post dated the date of decision [25].
61. In the circumstances, the failure by the Judge to have any regard to the evidence of the appellant's or his sister's condition, amounts to an omission to consider potentially significant evidence. Moreover, it was not ascertained why the local authority assessment of the appellant's sister was being undertaken. There was only a brief reference to the appellant's sister having “medical conditions.”
62. Nor in the circumstances did the Judge give adequate reasons as to why family life had not been engaged.
63. I am unable to conclude that if such evidence had been fully assessed, a different result would not have been reached.
64. In the circumstances I set aside the decision, which will have to be re-made.
65. I have considered the competing submissions relating to the disposal of the appeal. I find, having regard to the extent of fact finding that will be necessary, including the evidence which was not considered before the First-tier Tribunal, that this is an appropriate case to be remitted to the First-tier Tribunal for a fresh decision to be made.

Notice of Decision
The decision of the First-tier Tribunal involved the making of an error on a point of law and is set aside.
The appeal is remitted to the First-tier Tribunal (Hatton Cross) for a fresh decision before another Judge.
No anonymity direction is made.

Signed Date 11 April 2017
Deputy Upper Tribunal Judge Mailer