Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/11572/2013

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On 26th March 2014
On 17th April 2014

Before

upper tribunal JUDGE RENTON

Between

iftikhar ilahi
(ANONYMITY DIRECTION NOT MADE)
Appellant

and

Entry Clearance Officer - Islamabad
Respondent

Representation:

For the Appellant: Mr S Mahmud, Counsel instructed by Magna Solicitors
For the Respondent: Ms A Everett, Home Office Presenting Officer

DETERMINATION AND REASONS

Introduction
1. The Appellant is a male citizen of Pakistan born on 1st January 1947. He applied for entry clearance to join his son, the Sponsor Shahid Iftikhar. That application was refused for the reasons given in a Notice of Decision dated 30th April 2013. The Appellant appealed, and his appeal was heard by Judge of the First-tier Tribunal Monro (the Judge) sitting at Richmond on 15th January 2014. She decided to dismiss the appeal under the Immigration Rules and on Article 8 ECHR grounds for the reasons given in her Determination dated 25th January 2014. The Appellant sought leave to appeal that decision, and on 6th March 2014 such permission was granted.
Error of Law
2. I must first decide if the decision of the Judge contained an error on a point of law so that it should be set aside.
3. The application for entry clearance was refused under the provisions of paragraph EC-DR.1.1(d) of Appendix FM of HC 395. The Entry Clearance Officer was not satisfied that the Appellant required long-term personal care to perform everyday tasks, nor that if such long-term care was required it could not be provided in the Appellant's own country.
4. The Judge dismissed the appeal because although she accepted the evidence that the Appellant was becoming less able to care for himself due to his increasing age and periods of illness, and that he lived in a small community some distance from medical facilities and his daughters, nevertheless there was no medical evidence to discharge the burden of showing that the Appellant required long-term personal care to perform everyday tasks; nor that such care was not available to him in his own country. The Judge commented that there was no evidence as to what public or private care services were available to the Appellant. The Judge also dismissed the appeal on Article 8 ECHR grounds. Applying the decision in Ghising (family life - adults - Gurkha policy) [2012] UKUT 00160 (IAC), the Judge was not satisfied that the Appellant had a family life with his adult children.
5. At the hearing, Mr Mahmud argued that the Judge had erred in law in coming to those conclusions. He referred to the grounds of application and submitted that the Judge had not carefully analysed the evidence before her and had given insufficient reasons for her decisions. The Judge had appeared to apply a higher standard of proof by requiring medical evidence. As regards Article 8, the Judge had failed to take into account the rights of other members of the Appellant's family.
6. In response, Ms Everett argued that the Judge had not made any error of law. She had accepted most of the evidence given about the Appellant's circumstances but had found that those circumstances did not meet the requirements of the particular Immigration Rule. That was a decision open to the Judge and which was not perverse. It followed that as the Judge had found no particular dependency between the Appellant and his relatives in Pakistan as regards the Immigration Rules that she would find that there was no family life between the Appellant and those relatives.
7. I found that there was no error of law in the decision of the First-tier Tribunal which I therefore do not set aside. The Judge stated at paragraph 13 of the Determination that the appropriate standard of proof was the balance of probabilities and I am satisfied from what the Judge wrote in her Determination that that was the standard applied. The Judge did not make it a requirement of the Immigration Rules that there was medical evidence in support of the application. That was just one factor taken into account by the Judge.
8. It is true that the Judge's reasons for dismissing the appeal under the Immigration Rules are not extensive. However, in my view they are sufficient. The Judge accepted much of what was said about the Appellant's circumstances, but she did not find that those circumstances met the requirements of the relevant Immigration Rule. As Ms Everett argued, that was a decision open to the Judge on the basis of her finding of facts. Finally, as the Judge found only a limited dependency upon his children by the Appellant, it followed that she would find that the first of the questions posed in Razgar [2004] INLR 349 would be answered in the negative. There was therefore no need for the Judge to proceed further.
Decision
The making of the decision of the First-tier Tribunal did not involve the making of an error on a point of law.
I do not set aside the decision.
Anonymity
The First-tier Tribunal did not make an order pursuant to Rule 45(4)(i) of the Asylum and Immigration Tribunal (Procedure) Rules 2005 and I find no reason to do so.

Signed Date

Upper Tribunal Judge Renton