Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: OA/10050/2012
OA/10052/2012

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On 22 May 2013
On 4 June 2013

…………………………………

Before

UPPER TRIBUNAL JUDGE WARR

Between

AMARJIT SINGH (first appellant)
SUKHWANT KAUR (second appellant)

Appellants
and

ENTRY CLEARANCE OFFICER – NEW DELHI

Respondent

Representation:

For the Appellants: Mr Z Nasim of Counsel instructed by ZSN Immigration Services
For the Respondent: Mr Tarlow

DETERMINATION AND REASONS

1. The appellants are citizens of India and are husband and wife. The appellants were born respectively on 5 November 1938 and 5 September 1940. The appellants’ sponsors are their daughter and her husband who reside in this country. The appellants applied to join them as dependants under paragraph 317 of HC 395. The applications were refused on 26 April 2012.

2. There were two bases for refusal but only one of them remains relevant. This was because on appeal the First-tier Judge resolved in the appellants’ favour an issue that had been raised by the respondent under paragraph 320(7A) and I say no more about it.

3. The appeal came before the First-tier Judge on 23 January 2013. The issue that proved the stumbling block for the appellants was the question of financial support and dependency.

4. The judge heard oral evidence from the sponsors and noted that it was clear that the absence of evidence had been a crucial factor in the decision to refuse the application. The respondent had noted that there was only evidence of money transfers from the sponsor on one occasion and that was still the case. The judge comments that he received “somewhat unclear evidence as to how money was transferred from the United Kingdom to the appellants by the daughter.” He found that the sponsors had given inconsistent evidence as to the frequency of the transfers and the amount transferred and that there was no documentary evidence to show that money had been transferred. There was no statement from the relatives who were purported to have transferred the money to the appellants and there was no evidence from the appellants’ own bank accounts that the money had been received or deposited there. The determination continues:

“16. The amount of money that has been transferred in the past is relatively little. There is also an inconsistency as to whether money is sent by the sons who live outside India or not. Two of the sons who live in the United States have sent an affidavit that appears at pages 69 and 71 of the appellant’s bundle. These affidavits are of little value as regards whether or not they have sent money to the appellants for their support.

17. There is a letter from the village head man that appears at page 68 of the same bundle. This letter is of little evidential value as well. He says that the couple are living alone and are helpless and they do not have any close relatives “here”. That is obviously inaccurate as the first appellant does have siblings who live in the immediate area.

18. It is claimed that the first appellant was confused when the entry clearance officers telephoned him. He has not provided an affidavit or statements to support that.

19. Both appellants were fully aware that the issue in this case was whether or not they were being mainly maintained by their daughter in the United Kingdom. From the evidence that has been provided I can only conclude that they are not. They have an income of approximately Rs.10,000 a month from the first appellant’s pension. They have help towards their maintenance and accommodation through the food and money they receive from the rent of their land. They have an above average income. The medical conditions do not mean that their costs are excessive. There is no evidence to show that they are incapacitated or in need of care on a full-time basis. Although they are in advanced years there is nothing to show that they cannot look after themselves at the present moment. There do not appear to be any compassionate circumstances.

20. The appellant’s daughter only visits every year or so. She says she takes money with her at that time. There is no evidence to show that that money has been transferred or any other money has been transferred by her to the appellants. There is no evidence to show that the appellants are mainly dependent upon the daughter who lives in the United Kingdom.”

5. Because the appellants had failed to discharge the burden of proof to show that they were mainly dependent upon relatives settled in the UK the judge dismissed the appeal under the Rules. Where a case failed under the Immigration Rules in an application for settlement made from abroad the judge considered that in the majority of cases the decision under the Rules would be regarded as being proportionate and would not give rise to a breach of the appellants’ rights under Article 8. He considered there was no family life at present given the infrequent number of visits to the appellants by the sponsor. The parties had lived apart for many years and were obviously leading separate lives and there was no evidence of dependency. The appellants had not shown that the respondent’s decision breached their protected rights. Accordingly the appeals were dismissed under the Rules and in respect of Article 8.

6. There was an application for permission to appeal. It was pointed out that the Rules referred to “wholly or mainly” in relation to dependency and the judge had not had this in his mind. It was pure speculation for the judge to find that the income from the pension and the land income had been sufficient. He had needed to consider whether the financial support was of “necessity” or “choice” as the case law required. The fact that the appellants had their own income was not conclusive since the next question was whether the income from India was sufficient for their needs and it was submitted that the evidence showed that that was not the case. The judge had decided matters by reference to Indian rather than UK standards. He had been wrong to seek documentary evidence of remittances. The money had been taken by relatives. It was further argued that it was not necessary for the appellants to demonstrate exceptional compassionate circumstances since they were both aged over 65. While there may have been little documentary evidence there was oral evidence from the sponsors.

7. In relation to Article 8 it was said that the judge’s decision was perverse and there was clearly family life established. The sponsor had visited her parents every year or so and left the money for their expenses.

8. In relation to the sons in the USA they were not allowed to take on responsibility for their parents.

9. The judge had not given weight to the evidence of the village head man. Although the first appellant had siblings they were very old and were not willing to offer any support.

10. The grounds noted that the judge had referred to the evidence given by the first appellant at interview in paragraph 18 of the determination. The judge should have considered whether the appellant was nervous in view of his age.

11. In relation to Article 8 reference was made to Quila v Home Secretary [2011] 3 WLR 836 at paragraph 43, declining to follow Abdulaziz [1985] 7 EHRR 471. The judge had not given the evidence the required scrutiny.

12. Permission to appeal was granted on 15 April 2013.

13. Responses from the respondent were lodged on 29 April 2013. It was pointed out that the issue was whether the appellants were being mainly maintained by their daughter in the United Kingdom. Following Kugathas [2003] EWCA Civ 31 the appellants and sponsor needed to show more than merely emotional ties. Given that the visits were infrequent and the sponsor had lived apart from the appellants for many years the grounds had no merit.

14. Mr Nasim submitted that the judge had not properly considered the issue of whether the appellants were mainly dependent. The reference to mainly in paragraph 19 was insufficient. There was clearly a need for medical treatment. The daughter in her witness statement referred to the first appellant’s diabetes, for example. The rental income was only just enough. The income from the pension was only just enough. The judge had erred in paragraph 19 in focusing on the issue of above average income and had not considered the issues of whether the dependency was of necessity or choice. The judge had taken into account irrelevant matters in paragraph 19 and had speculated about matters such as costs not being excessive. The issue of compassionate circumstances was irrelevant. The only issue was financial dependency. Compassionate circumstances might be relevant to Article 8 but not to issues under the Rules. Concerning the lack of documentary evidence about remittances there had been a letter at page 87 of the bundle. Some further evidence had been submitted but it was acknowledged this had not been before the First-tier Tribunal.

15. Article 8 was clearly engaged and the judge had erred in not going through the Razgar steps. The appellants had been maintained and supported by the sponsor. Family life had clearly been established The sons could not take on the responsibility for the appellants.

16. Mr Tarlow relied on the responses that had been filed. He referred me to the interview that had been held with the first appellant. He had said that he owned his property and that he had a pension and that his pension and income from land was sufficient. Medicine was not very expensive. The judge’s findings had been properly based on the evidence before him. There was no evidence of regular financial transfers. The judge’s conclusion was open to him. There was no material error in the judge’s brief decision in respect of Article 8. Even if he had gone through the Razgar steps the result would have been the same.

17. In reply Counsel pointed out that the appellant had been nervous and confused at his telephone interview. The judge had placed little weight on this aspect. It should be treated with caution. If there was a material error of law the appellants were content that I determine this issue on the papers as they had trouble getting to London and taking time off work.

18. At the conclusion of the submissions I reserved my decision. I have carefully considered the evidence before me, the grounds and submissions and the responses that have been filed.

19. I remind myself that I can only interfere with a decision if it was flawed by an error of law. I also remind myself that the judge had the benefit of hearing from the sponsors and that the appellants were represented by Mr Nasim at the hearing before the First-tier Judge.

20. It does appear to me quite clear that the judge was well aware of the issue as to dependency and the question was whether the appellants were mainly dependent on the sponsor. He uses the word mainly maintained or mainly dependent in paragraphs 19, 20 and 21 of the determination.

21. It is said that the judge gave little weight to the interview which had been conducted by the respondent with the first appellant. It was represented in the initial grounds of appeal that the appellant could as a 73 year old get very confused and nervous on the telephone. The judge was indeed alive to this claim and the evidence about the interview since he refers to it in paragraph 18 of the determination which I have reproduced above.

22. The appellant was asked whether he was fit and well and not tired or confused at the beginning of the telephone conversation and replied that he was fit. He talks of having two sons in the USA and a daughter in the UK. He lived with his wife and owned his property. He got a pension and in answer to question 14 he said “My pension and income from land is sufficient for us, some times son send us money only if we need.” The property where they lived had all necessary facilities. He was asked about his brothers and sisters and replied “We are four brothers, two live in my neighbourhood and do farming and one is in Chandigarh – he is army pensioner. We all meet regularly. My wife has two brothers and one sister, they all live in Uttar Pradesh.” He repeats that they all met regularly. He and his wife share the shopping, his wife cooked. He took three tablets a day for diabetes and states that the medicine was not very expensive and that he bought it from the chemist. His wife was not under medical care. He had understood all the questions and answered them all honestly and was happy with the way the interview had been conducted and was not nervous or confused during the interview.

23. The judge made the necessary findings of fact in this matter. He noted the absence of evidence of financial support – this was a crucial factor in the decision under challenge. The evidence before him was unclear about money transfers. The judge’s decision is more than adequately reasoned in my view in this respect. He was entitled to find a confusion on the evidence about remittances from the sons who lived outside India. The judge took into account the letter from the village head man. In my view the grounds of appeal express disagreement with the judge’s findings on this and indeed other matters and do not establish that the judge was not entitled to reach the conclusion he did. He considered the submission about the confusion of the first appellant and was plainly not satisfied about that.

24. It was open to the judge to conclude from the evidence before him that the appellants were not being mainly maintained by the sponsor. His comments about their income being above average and the medical costs not being excessive were plainly open to him on the evidence before him.

25. It is said the issue of exceptional compassionate circumstances was irrelevant. However the grounds of appeal before the judge asserted that the respondent made the decision without any proper thought about the appellants’ exceptional compassionate circumstances: see paragraph 10 of the initial grounds. Counsel concedes that the issue of compassionate circumstances would be relevant to Article 8. In the premises the judge was right to consider the matter of compassionate circumstances.

26. The findings made by the judge in paragraph 19 and 20 were not irrelevant to the issues arising under Article 8. He found there were no compassionate circumstances and that the sponsor’s visits were infrequent, that transfers of money had been small and that the appellants were living in reasonable circumstances with above average income and so on. They were in advanced years but able to look after themselves at present. These were all findings open to the judge.

27. In the light of the infrequency of visits and the fact that the appellants had lived apart from the sponsor for many years and were obviously leading separate lives and in the absence of evidence of dependency it was open to the judge to find that the decision did not breach the appellants’ protected rights.

28. In Kugathas at paragraph 14 Sedley LJ accepted what was set out in S v United Kingdom [1984] 40 DR 196 at page 198 as a proper approach:

“Generally, the protection of family life under Article 8 involves cohabiting dependants, such as parents and their dependent, minor children. Whether it extends to other relationships depends on the circumstances of the particular case. Relationships between adults, a mother and her 33 year old son in the present case, would not necessarily acquire the protection of Article 8 of the Convention without evidence of further elements of dependency, involving more than the normal emotional ties”.

29. At paragraph 25 Arden LJ states as follows:

“Because there is no presumption of family life, in my judgment a family life is not established between an adult child and his surviving parent or other siblings unless something more exists than normal emotional ties …”

It is acknowledged that such ties might exists “if the appellant were dependent on his family or vice versa.” The case of Quila was dealing with rather different circumstances. In that case the Secretary of State had refused to allow foreign spouses to reside in the UK with the British citizens whom they had recently married which must represent an interference – see paragraph 43 of the judgment of Lord Wilson. A distinction between positive and negative obligations was elusive and should not generate a different outcome in such a context.

30. I do not consider that on the facts of this case the judge was required to go further than he did. However, in the light of his findings such family life as existed was exiguous. As Mr Tarlow submits it is quite clear that any more extended treatment of Article 8 would not and could not have yielded a positive outcome insofar as the appellants are concerned. Accordingly I find that the determination does not involve a material error of law under the Rules or in respect of Article 8. The decision of the First-tier Judge shall stand.

Signed Date 3 June 2013

Upper Tribunal Judge Warr