Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/10211/2014

THE IMMIGRATION ACTS

Heard at Manchester, Piccadilly Decision & Reasons Promulgated
On the 22nd March 2017 On the 12th April 2017

Before:
DEPUTY UPPER TRIBUNAL JUDGE MCGINTY
Between:
MRS SAHIDAH MIR MOHAMAD HASAN
(Anonymity Direction not made)
Appellant
And

ENTRY CLEARANCE OFFICER ISLAMABAD
Respondent
Representation:
For the Appellant: Mr Salam (Solicitor)
For the Respondent: Mr McVeety (Senior Home Office Presenting Officer)
DECISION AND REASONS
1. This is the Appellant’s appeal against the decision of First-tier Tribunal Judge S. J. Clarke promulgated on the 26th March 2016, in which she dismissed the Appellant’s appeal against the refusal of the Appellant’s application for entry clearance as an adult dependant relative under Appendix FM of the Immigration Rules on the 17th July 2014. The decision of First-tier Tribunal Judge Clarke was promulgated on the 6th April 2016 and the decision was written by her on the 26th March 2016.
2. Prior to the case being before First-tier Tribunal Judge Clarke, the case had previously been heard by First-tier Tribunal Judge Talbot who had promulgated his decision on the 5th May 2015 and he had allowed the Appellant’s appeal under the Immigration Rules. However, permission to appeal was granted to the Respondent and Deputy Upper Tribunal Judge Chana in a decision dated the 15th November 2015 which was promulgated on the 19th November 2015, found that First-tier Tribunal Judge Talbot had made a material error of law in allowing the Appellant’s appeal in that Judge Chana found that First-tier Tribunal Judge Talbot had relied solely on the evidence of the Appellant and the Sponsor without seeking independent evidence as required under the evidential part of the Immigration Rules under Appendix FM-SE, and that the Judge had not taken into account the case of SS Congo, when allowing the Article 8 claim.
3. Within both the initial and the renewed Grounds of Appeal, both of which I have fully taken into account and which are a matter of record and are therefore not repeated in their entirety here, it is argued, inter alia, that upon the Appellant and her Sponsor reading the contents of Deputy Upper Tribunal Judge Chana’s determination, they had decided not to continue with using solicitors and barristers but had acted in person and made an application to the Upper Tribunal for review and/or correction and/or setting aside of the Upper Tribunal’s determination as on the face of it, it was argued that matters were treated wrongly. It is argued that this application is still pending and that the Sponsor raised this as a preliminary point before First-tier Tribunal Judge Clarke who in her determination did not deal with or refer to the application or the matters discussed therein. It was said that the Judge erred in not referring the matter to the Upper Tribunal to decide that application prior to continuing to rehear the appeal.
4. It is further argued within the Grounds of Appeal that First-tier Tribunal Judge Clarke did not deal with the error of law found by Judge Chana and did not in that regard refer to or consider the case of SS Congo which resulted in the decision of First-tier Tribunal Judge Talbot being set aside. It was argued that pursuant to Paragraph D(b)(ii) of Appendix FM-SE, if a specified document was not provided that the ECO should have sought it from the Appellant within a reasonable time, if it is said that independent evidence was lacking before refusing the application. It is argued that Judge Clarke should have found that the refusal was therefore not in accordance with the Rules. It is argued that Judge Clarke further erred in not going through the evidence recorded within the first determination, the contents of the written statement of the Appellant and the first witness statement of the Sponsor and most of the documents in the appeal bundle from the first hearing which were relied upon. It is said that the Judge erred in misreading the hospital letter of the 24th May 2014 by mixing up “medical care” with “personal care”. It was further argued that the Judge erred in finding that the burden of proof was on the Appellant to show that care was not available and that the policy guidance from the Respondent at IDI in respect of Appendix FM 6.0 at paragraphs 2.2.2 and 2.2.3 provided that “The ECO needed to establish that the Appellant had no access to the required level of care in the country where they are living...” and “The ECO should consider whether there is anyone in the country where the Appellant is living who can reasonably provide the required level of care.”. It is said that the hospital letter of the 24th May 2014 with the application spelt out the Appellant’s care requirements and that care facilities were not available as corroborated by the witness statements referring to “a lack of medical and care facilities in Afghanistan”. It is further argued that the Judge erred in finding that the second letter from the hospital dated the 14th April 2015 described the Appellant’s situation after the date of application and erred in giving no weight to what is argued to be important evidence and that the letter referred to the position in 2009, 2012 and 2014.
5. Permission to appeal was initially refused by Resident Immigration Judge Martin on the 27th October 2016, but was subsequently granted by Upper Tribunal Judge Grubb on the 12th December 2016. In granting permission to appeal, Judge Grubb found that whilst the merits of the Rule 42/43 application may not be strong it was arguable that the First-tier Tribunal Judge erred in law in considering the Appellant’s appeal before the application was determined by the Upper Tribunal and as far as he could tell that application still had not been considered and decided by the UT. He further found that it may well be the application that should have been considered in substance as an application for permission to appeal to the Court of Appeal. He therefore granted permission to appeal.
6. It was on that basis that the case came before me in the Upper Tribunal. In his oral submissions, Mr Salam argued that the Rule 42 and 43 application was still pending in the Upper Tribunal and had not been considered. Mr Salam argued that Deputy Upper Tribunal Judge Chana erred when at [14] the Judge found that the fact that the Appellant went to the UAE, even if it was to make her application for entry clearance, suggested to the Judge that the Appellant was not someone who was so ill and requiring of daily care that she was able to travel to the UAE and he argued that in fact what was written by Deputy Upper Tribunal Judge Chana was the opposite of what was written by First-tier Tribunal Judge Talbot. He argued that Judge Chana further made omissions when finding that Judge Talbot should have been required to look for independent evidence that there was a lack of available paid care to meet the Appellant’s needs in Afghanistan and that the medical evidence submitted in the Appellant’s bundle and in particular the evidence from the 14th April 2015 at pages 93 to 100 of the Appellant’s bundle from the Alsayed Curative Hospital, indicated that such care are was not available in Afghanistan. He further sought to argue that the Respondent’s own Immigration Directorate Instruction stated that the burden of proof was on the Respondent rather than the Appellant to show that care was not available. He further argued that if the application had been considered as an application for permission to appeal to the Court of Appeal, that there were compelling reasons for permission to appeal to the Court of Appeal to be granted against the decision of Deputy Upper Tribunal Judge Chana. He said that the Appellant had not made an application to appeal to the Court of Appeal as she was not represented. He argued that Judge Clarke should not have considered the appeal, while the application to the Upper Tribunal was pending.
7. Mr Salam further argued that the Judge was wrong in paragraph 3 of the decision to state that the Respondent had regard to the previous refusal in 2008 when the Appellant stated that she had lived with family in her country and that decision was unsuccessful and that in fact the Appellant had been picked up by her family and come to the UK and that an application had then been refused and she had then gone back to make a further application. Mr Salam argued that in respect of Rule 43, he was simply seeking to argue that there was procedural irregularity in proceedings before Judge Chana, rather than any other ground in Rule 43 and that the Judge had overlooked the fact that when considering whether there was a material error that at the appeal hearing before First-tier Tribunal Judge Talbot, he argued that the Home Office conceded that the medical evidence said what the Appellant said it said and that care was not available in Afghanistan.
8. Mr McVeety said that the only concession that was made at the appeal before Judge Chana was that ground G of the Grounds of Appeal was inaccurate and that that was just in respect of the availability of outreach services, and that the further Grounds of Appeal including grounds H and I had not been conceded regarding the availability of independent care and availability of care being provided on a private basis, given that it is said that maids were caring for her as at the date of the application.
9. Mr McVeety said that the Tribunal had to consider the bigger picture in this case. He argued that following the case of Jan (Upper Tribunal: set aside powers) [2016] UKUT 00336, and the case of Katsonga v Secretary of State for the Home Department [2016] UKUT 00228, as referred to therein, that Rule 42 included a slip rule and that the slip rule was not available for the purposes of reversing a decision already communicated to the parties and therefore could not be used to overturn the decision. He argued that in respect of the question as to whether there was procedural irregularity before Judge Chana, there was no procedural irregularity and the Judge was entitled to find that the Appellant must have had a carer when the Sponsor was not visiting her and had properly considered the contents of the medical evidence and that reference was made at page 97 to the fact that she had to heat water on gas for washing and had to use the toilet in her residence and she had to turn on a gas heater for winter and that these were all very dangerous for someone with a physical disability, unless the above chores could be done by a maid who could stay with her 24/7, which was very difficult to obtain in Afghanistan. He argued the Judge properly considered the availability of maids and there was no procedural irregularity. It was simply said that the Claimant disagreed with the decision of Judge Chana. He further submitted there was no public interest criteria met in the case such as to justify any appeal to the Court of Appeal.
10. In reply, Mr Salah argued that a review could be treated as an application for permission to appeal and relied upon paragraph 28 of the case of Jan in that regard.
My Findings on Error of Law and Materiality
11. I remind myself in considering this appeal that I am not sitting on an appeal from the decision of Deputy Upper Tribunal Judge Chana. I am sitting on an appeal against the decision of First-tier Tribunal Judge Clarke. Although it is argued on behalf of the Appellant that she had raised the issue of the outstanding Rule 42/Rule 43 application to the Tribunal before First-tier Tribunal Judge Clarke, but that Judge Clarke had refused to adjourn the case and had not dealt with the same in her determination, having considered the record of proceedings of Judge Clarke, there is in fact no reference to her having been asked at the start of the appeal to adjourn the case to allow the Upper Tribunal to consider an outstanding application under Rule 42/43, and I am not satisfied that in fact, the Appellant who was not legally represented at the time, did in fact ask for the appeal to be adjourned on that basis, there being no record of the same within the Judge’s notes of the hearing.
12. In any event, even if she had, I find that in the circumstances of this case, it was perfectly proper for Judge Clarke to proceed to hear the appeal. An application under Rule 42/43 does not amount to a stay on the proceedings, and by the time the case was relisted before First-tier Tribunal Judge Clarke, it appears that the Appellant’s letter asking for the case to be looked at again under Rule 42 and 43 had not been considered. However, Judge Chana had already made her decision, and the case had been remitted properly back to the First-tier Tribunal. In the absence of a stay, it was perfectly open to the Judge to proceed to rehear the case.
13. It is further significant in this regard, that the application under Rule 42/43, in fact is entirely without merit. Within the application it was argued that Deputy Upper Tribunal Judge Chana had materially erred in law where it is said that she had missed that the Home Office Presenting Officer conceded that the medical report relied upon by the First-tier Tribunal Judge did in fact say that the required care was not available to the Appellant in Afghanistan and had read the opposite of what the previous First-tier Tribunal Judge had concluded about the Appellant travelling to the UAE. It was argued that the omission of the concession from the Home Office Presenting Officer amounted to procedural irregularity and that the Judge had misstated the facts found by the First-tier Tribunal Judge in terms of the Appellant going to the UAE even though it was to make an application for entry clearance, had suggested to the Judge that the Appellant was not someone who was so ill and requiring daily care that she was not able to travel to the UAE, which it is argued is the opposite to what the First-tier Tribunal Judge had found.
14. However, as properly stated by Mr McVeety, the case of Katsonga v Secretary of State for the Home Department [2016] UKUT 00228, as was conceded and affirmed in the case of Jan (Upper Tribunal: set aside powers) [2016] UKUT 00336, makes it clear that both the Upper Tribunal rules at Rule 42 and the procedural rules of the First-tier Tribunal include a slip rule and that the slip rules as not available for the purposes of reversing a decision already communicated to the parties. Rule 42 makes it clear the Upper Tribunal at any time could correct any clerical mistake or other accidental slip or omission in a decision or record rescission, but as was made clear in those 2 cases, the slip rule is not designed as a way of challenging the substance of a decision itself. The slip rule could therefore not have been utilised to overturn the decision of Deputy Upper Tribunal Judge Chana that the decision of First-tier Tribunal Judge Talbot did contain a material error of law and should be set aside and the case remitted back to the First-tier Tribunal.
15. Further, Mr Salam stated specifically that he was only relying upon Rule 43(2)(d) in stating there had been some other procedural irregularity in the proceedings. It is clear having read the decision of First-tier Tribunal Judge Chana and having considered the application under Rule 43 and the submissions of Mr Salam, that there was no procedural irregularity in the proceedings. The arguments raised by Mr Salam in that regard that the Judge had misquoted First-tier Tribunal Judge Talbot in respect of the ability of the Appellant to travel to the UAE and in terms the Judge having failed to record and take account of a concession made by the Home Office Presenting Officer reported on the basis that the care was not available in Afghanistan did not amount to arguments about procedural irregularity, but are simply arguments that the Judge failed to take account of material evidence or a submission/concession, and amount to a disagreement with the decision reached, rather than an argument that the proceedings were procedurally unfair. There was no procedural irregularity in the decision reached by Judge Chana.
16. However in any event, I accept the argument from Mr McVeety, that the only concession in fact made was in respect of the presenting officer stating that medical evidence did say what the Appellant said regarding the availability of outreach services, rather than a concession regarding the lack of the availability of care in Afghanistan. Had the appeal itself been conceded, there would have not been a need for Deputy Upper Tribunal Judge Chana to reach any decision on error of law and materiality. The arguments raised amounted to a disagreement with the decision reached and were arguments seeking to appeal from that decision on arguments on “error of law” rather than procedural irregularity and therefore Rule 43 could not have been utilised to overturn that decision in any event.
17. In respect of Upper Tribunal Judge Grubb’s suggestion as to whether or not the Rule 42/43 application should have been considered as an application for permission to appeal to the Court of Appeal, it is clear that in fact the Appellant has not sought permission to appeal to the Court of Appeal at any stage. Even though it is said she was not represented at that stage, having considered the contents of that application, it is clear that in fact the Appellant must have had some legal assistance, even if the solicitors were not formally on record, in drafting that application, as the phraseology and abbreviations used, and knowledge of the existence of Rule 42 and 43 of the Upper Tribunal Rules, is indicative of someone with legal knowledge and experience. In any event, although the case of Jan is clear that an application to the Court of Appeal can also be utilised for the purposes of the Upper Tribunal reviewing its own decision, it is not authority for the proposition that, a request under Rule 42/43, that in itself can be taken as an application to the Court of Appeal. No application to the Court of Appeal was made. However, even if it had been, there was no point raised of particular public importance such as to justify leave being granted to the Court of Appeal on a second appeal, nor were there any other compelling reasons why the Court of Appeal should consider the case. Permission would not have been granted if an application for permission to the Court of Appeal had been sought.
18. In circumstances where the case had properly been remitted back by Deputy Upper Tribunal Judge Chana to the First-tier Tribunal, and where the application under Rule 42/43 completely lack merit, and where I am not persuaded that First-tier Tribunal Judge Clarke was in fact asked for an adjournment for that application to be considered by the Upper Tribunal, and where the application itself does not amount to a stay, I find that it was perfectly open to First-tier Tribunal Judge Clarke to hear the appeal and that there is no error of law or procedural irregularity in that regard.
19. In respect of the submission that Judge Clarke erred at paragraph 3 in finding that “The Respondent had regard to the previous refusal in 2008 when the Appellant stated that she lived with family in her country and that decision was unsuccessful”, and the argument that the Appellant had been brought by family to the UK for the purposes of making an application, but when unsuccessful she had then returned back to her own country and made a further application, the Judge at that point was simply quoting the history, and was not making any findings of fact which were relevant to the outcome of the decision. There was no material error of law in that regard.
20. In respect of the submission that First-tier Tribunal Judge Clarke failed to refer to the decision in SS Congo, which was why the case had been remitted back to the First-tier Tribunal, the whole point of Deputy Upper Tribunal Judge Chana referring to the case of SS Congo was the fact that Judge Talbot had allowed the appeal, in circumstances where it appeared that the evidential requirements of the Immigration Rules under Appendix FM-SE were not met, and there were no compelling or exceptional circumstances described by Judge Talbot which would have justified the appeal being allowed on Article 8 grounds outside of the Immigration Rules. Given that Judge Clarke at [15] found specifically there were no compelling circumstances to justify the appeal being allowed under Article 8 outside of the Immigration Rules, she has properly dealt with the SS Congo point.
21. In respect of the submission that if documentary independent evidence was lacking that the ECO should have sought that from the Appellant within a reasonable time before refusing the application under Appendix FM-SE Paragraph D(b)(ii) that simply relates to a situation where the Appellant had submitted a sequence of documents and some of the documents in the sequence had been omitted or a document was in a wrong format or a document is a copy and not an original document or a document did not contain all the specified information or the Appellant had not submitted a specified document the decision-maker had the power to contact the Appellant or his representative in writing or otherwise and request the document or correct version. It did not impose an obligation on the Respondent to seek the missing independent evidence regarding the inability of the requisite care to be provided, even if paid for by the Sponsor, in Afghanistan. It was not a requirement for the Respondent to allow the Appellant to satisfy every evidential hole in their case, prior to determining the application.
22. Nor was Judge Clarke in error in not going through the evidence recorded in the first determination, given that that determination had in fact been set aside. It was for Judge Clarke to make her own assessment of the evidence, before her, which she has properly done.
23. Nor do I find that Judge Clarke has made a material error of law in misreading [13] the hospital letter of the 24th May 2014 by mixing “medical care” with “personal care” and I find that the Judge had properly summarised the evidence in the letter dated the 24th May 2014 at [13] of her decision. That letter did say that for any basic medical care she would have to travel Kabul on a regular basis as she did then to receive such care. The reference in the letter to such medical facilities and care not existing in her home province, is in fact a reference to medical care rather than personal care and that the Judge has therefore not materially erred in that regard and made findings which were open to her having considered that evidence.
24. Further, in respect of the argument that the Respondent’s own IDI indicates that the burden of proof is on the Respondent to establish that the Appellant has no access to the required level of care, although the IDI says that the ECO needs to establish that the applicant has no access to the required level of care in the country where they are living, that is simply indicating the threshold that had to be met, rather than placing any burden on the Respondent. Nor did the statement that the ECO should consider whether there is anyone in the country where the applicant is living who can reasonably provide the required level of care impose any obligation on the Respondent. The burden is clearly on the Appellant in that regard, not the Respondent.
25. Nor has First-tier Tribunal Judge Clarke erred in her consideration of the letter from the Alsayed Curative Hospital dated the 14th April 2015, and it was open to the Judge having considered that evidence and the history of the Appellant’s condition as set out therein, to find that the Appellant’s condition had deteriorated since the date of the original decision, but that she was considering the circumstances appertaining as at the date of the decision, and that as at that date she required and received more limited care than she may have required as at the date of the hearing before Judge Clarke. That was a finding open to her on the evidence. The weight to be attached to such evidence was clearly a matter for Judge Clarke in the absence of any irrationality, and that there was no such irrationality or perversity in her findings in that regard.
26. In respect of the argument that Judge Clarke erred by referring to Iran in paragraph 10 rather than Afghanistan, I find that that is simply a typographical error, and the test set out in paragraph 10 in terms of the fact the Appellant had to show that as a result of age of physical disability that she required long-term care in terms of performing everyday tasks such as washing, dressing and cooking which she was unable even with the practical and financial help of her Sponsor to obtain in her home country either because it was not available or there was no person in that country who could reasonably provide or because it was not affordable, was properly set out, and that a simple typographical error in that regard, did not amount to a material error of law. The Judge has actually when reading the decision properly considered the situation in Afganistan.
27. The decision of First-tier Tribunal Judge S. J. Clarke does not contain any material errors of law and is maintained.

Notice of Decision
The decision of First-tier Tribunal Judge S. J. Clarke does not contain any material errors and is maintained. The Appellant’s appeal is dismissed.
I make no order in respect of anonymity, no such order having been made by First-tier Tribunal Judge Clarke and no such order having been sought before me.

Signed

Deputy Upper Tribunal Judge McGinty Dated 24th March 2017