Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA114522014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 25 May 2016
On 20 June 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE MAHMOOD

Between

Ms THANKAMMA JOHN CHITALAPULLY
(Anonymity Direction Not Made)
Appellant
and

ENTRY CLEARANCE OFFICE, CHENNAI

Respondent

Representation:

For the Appellant: Ms Taylor-Gee, Counsel instructed by Inayat Solicitors
For the Respondent: Mr Duffy, Senior Presenting Officer

DECISION AND REASONS

1. This matter comes before me pursuant to permission having been granted by First-tier Tribunal Judge P J M Hollingworth dated 12 April 2016. The appeal relates to a decision by First-tier Tribunal Judge Peter-John White promulgated on 28 September 2015. The Judge had dismissed the Appellant's appeal against the Respondent's decision refusing entry clearance as an adult dependent relative.

2. The Appellant's grounds of appeal seeking permission to appeal had contended that the Judge's decision was flawed because:

(1) The Judge failed to make any findings as to whether an elderly person with medical complications would be refused admission to a care home.
(2) A strong hostility to being admitted to a care home is highly relevant in considering whether the Appellant should succeed under the Rules. No elderly person can be required to be admitted to a care home. This would amount to detention or false imprisonment;
(3) Sections 5 and 9 of the Equality Act 2010 are cited and that the Immigration Rules are inconsistent with primary legislation by failing to provide autonomy, dignity, freedom of choice or respect for private life of the elderly;
(4) At paragraph 29 the Judge was equivocal about whether or not the Appellant can lead an independent life; and
(5) The Judge failed to consider whether the refusal or admission of the Appellant to the United Kingdom breached Article 8 of the European Convention on Human Rights.

3. At the hearing before me Ms Taylor-Gee made oral submissions before me and also relied on written submissions dated 25 May 2016. In summary she submitted that in respect of Ground One which related the availability of care in India the letter from the care home made it clear that as the Appellant had no relatives in India they would not admit the Appellant.

4. In relation to ground two, it was submitted that the Appellant was hostile to going to a care home. The Judge did comment on this in respect of her Article 8 rights. It was a merits consideration. If it was a child and whether considering putting the child into an orphanage there would be very difficult considerations. The wishes and feelings of the Appellant need to be taken into account. Therefore there are very different considerations in this case. The Appellant is of sound mind. You could not force a person into a care home. There is a right to liberty. There was no consideration of this and therefore it was an error of law. There was reliance on an unreported case of Osman. A decision by Upper Tribunal Judge Grubb promulgated on 15 November 2013.

5. In respect of Ground 3 which related to arguments in respect of the Equality Act, Ms Taylor-Gee said she would not make no submissions.

6. The submissions in respect of Ground 4 was that the Judge needed to have made adequate findings in respect of the long term care. Dr Kumar's report was to be noted. The Judge said he accepted all of the evidence but then said that he did not have the evidence.

7. Finally it was submitted that there needed to be adequate reasons in respect of Article 8. The conclusion was not a rational conclusion. The issue was proportionality and not interference. It was submitted what about the Article 8 rights of the sponsor who has lived here for some 8 years and the Appellant has a grandchild? The error was material and therefore the decision was unsafe.

8. Mr Duffy submitted that the Judge's decision cannot be in error in respect of the Rules, but even it is, it cannot be material because of the requirements of Appendix FM. There needed to independent evidence that everyday tasks could not be performed. Even if that is wrong, why can there not be practical help from the UK? A letter from a single care home does not meet that requirement. There was no sufficient evidence before the Judge.

9. The fact that the Appellant does not want to go to a care home does not mean that there is a flagrant denial of Article 8 rights in an EM (Lebanon) sense.

10. In terms of Article 8, once the Immigration Rules aspect fails then it weighs against the Appellant. Why can the evidence not be put together it was submitted. It is not disproportionate to make the right application.

11. In reply Ms Taylor-Gee said that at page 109 the letter did say that the Appellant cannot perform everyday tasks. The evidence was there. There was power for the Entry Clearance Manager to refer the Appellant for a medical examiner. The care for the Appellant was no longer available. Paragraph 2.33 of the Immigration Directorate Instructions was referred to. Submissions were also made in respect of Article 8.

12. I had reserved my decision.

13. Appendix FM in respect of the adult dependent relative route is not simply a matter of whether the British sponsor would prefer her mother to be living with her here in the United Kingdom. Of course from a human point of view the Sponsor is to be commended for wishing to look after her mother, but the Rules require much more than that. Similarly, some of the grounds relating to the Equality Act and other aspects which seek to apply English statutes to what ought to happen in India are far off the mark in my judgment. I do not wish it to be seen that the Sponsor is being punished for wishing to work in the United Kingdom and to have her mother join her here. However choices have been made and have to be made. There is little evidence why the Sponsor cannot return to India to live with her mother. I note of course that the Sponsor is British, but that is a relatively recent event compared with how long she was not British and not living in the United Kingdom. I accept and know well the cultural aspect of such care. That cultural aspect does not mean that the care has to be provided by the Sponsor here in the UK. It can be in India.

14. Similarly, as I indicated during the hearing, I simply cannot accept that there are no suitable care homes in India for older persons unless they have relatives living nearby who can assist them. Indeed such a state of affairs does not make sense to me. As I rhetorically asked during the hearing, what of the many elderly people in India who can afford care homes but who have no surviving relatives? Is there really no care home for them? There obviously must be.

15. The care home which had provided the letter at page 48 of the bundle stating that they had a policy requiring a relative to be available is one thing, but before Appendix FM E-ECDR 2.4 and 2.5 could be met the letter had to go much further and there had to be good evidence to show that there was 'no' care home which could provide the required level of care for the Appellant in India. In my judgment the Judge was quite right to conclude that the single, short letter from the care home was not sufficient.

16. In the end what concerns me about the case is the Judge's decision at paragraph 30 when he said that he was not satisfied about whether the Appellant requires long term care to perform everyday tasks. It was submitted that this was contradictory to other parts of the decision.

17. At paragraph 22 the Judge stated he noted that the medical reports (at pages 109 to 111 of the bundle) refer to long-term personal care being required for everyday tasks, this report was not entirely clear about the extent, duration or causation of the condition.

18. The medical report is not particularly detailed. The shorter handwritten medical notes emphasise that the Appellant is on her own in India. On the other hand the report does say that the Appellant needs help with her day-to-day activities and that she has taken overdoes of her medication.

19. The Judge was appropriately sympathetic to the plight of the Appellant and her daughter. I can see how some of the more elaborate submissions and grounds put before the Judge probably side-tracked him from the core assessment he was undertaking. Overall however, in my judgement there is a material error of law in respect of the assessment of the evidence. The medical evidence, albeit limited, did indicate that the Appellant required assistance with everyday tasks.

20. There is also the Appellant's reluctance to agree to going into a care home. For the reasons I have referred to above, it may well be that more work needed to be done by the Sponsor to see if there is a suitable care home which would accept the Appellant without close relatives living close by and indeed a suitable care home which the Appellant might have been happy to live in.

21 With some hesitation, I have concluded that there is an error of law in the Judge's decision because of the apparently contradictory findings and because of the application of those findings.

22. The matter will therefore require further consideration. That is best performed at the First-tier Tribunal. None of the findings from the current decision shall stand.

Notice of Decision

The decision of the First tier Tribunal Judge involved the making of a material error of law and is set aside.

The matter is remitted for hearing to the First-tier Tribunal

No anonymity direction is made.

Signed Date: 1 June 2016

Deputy Upper Tribunal Judge