Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/15640/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 28th November 2016
On 20th December 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE D N HARRIS

Between

miss maham haziq butt
(ANONYMITY DIRECTION not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr R Solomon, Counsel instructed by Bespoke Solicitors
For the Respondent: Mr N Bramble, Home Office Presenting Officer

DECISION AND REASONS
1. The Appellant is a citizen of Pakistan born on 20th July 1994. The Appellant made application for family reunion. Her application was considered under paragraph 352D of the Immigration Rules and was refused by notice of refusal dated 7th November 2014. The basis of the Appellant's refusal was that the Secretary of State noted that her application was submitted on 1st September 2014 and her birth date as noted in her national passport and birth certificate was 20th July 1994. That meant that the Appellant was 19 years and 2 months of age when the application was submitted and consequently did not meet the requirements of paragraph 352D(ii).
2. The Appellant appealed and the appeal came before Judge of the First-tier Tribunal Row sitting at Birmingham on 14th March 2016. In a Decision and Reasons promulgated on 21st March 2016 the Appellant's appeal was dismissed on human rights grounds.
3. The Appellant lodged Grounds of Appeal to the Upper Tribunal. Those grounds came before First-tier Tribunal Judge Gillespie on 15th August 2016. Judge Gillespie noted that the appeal was by common cause confined to an issue of protection under Article 8 of the European Convention of Human Rights. He found that the points argued criticised the decision but did not disclose arguable material errors of law and refused permission. Renewed Grounds of Appeal were lodged on 1st September 2016. On 10th October 2016 Upper Tribunal Judge Reeds granted permission to appeal. Judge Reeds noted that it was arguable that when the judge reached his conclusions at paragraphs 24 and 25 that there was no special dependency based on health, emotional or financial needs that the judge did not consider the totality of the medical evidence. Whilst the judge made reference to the evidence as at the date of the hearing there was arguably earlier evidence relevant to her mental health as set out in her medical records. As to whether she was a single, lone female it was also arguable that the judge had failed to consider the corroborative evidence that was available and the finding that she had failed to produce such evidence was arguably a mistake of fact.
4. There appears to be no Rule 24 response in this appeal and it is on that basis that the appeal comes before me to determine whether or not there is a material error of law in the decision of the First-tier Tribunal Judge. The Appellant appears by her instructed Counsel, Mr Solomon. The Secretary of State appears by her Home Office Presenting Officer, Mr Bramble.
Submissions/Discussions
5. Mr Bramble adopts an extremely pragmatic approach to this matter. He asks as a preliminary point that it would be of considerable assistance to the Secretary of State to know exactly what medical evidence was relied upon when the matter came before the First-tier Tribunal Judge. He enquires exactly what medical evidence was available at the date of decision noting that there is a clear indication given, and acknowledged, by the Secretary of State within the Sponsor's witness statement of funding and clear evidence of dependency. He is most helpful in his approach in noting that the Appellant is to be construed as a lone female and that the judge has not engaged with the witness statement. It is accepted that the Appellant was on her own and that her brother had also made a similar application to the UK and had succeeded and that that appeal shows dependency. He is prepared to concede that all these factors were ones which were missed by the First-tier Tribunal Judge.
6. Mr Solomon takes me to the Grounds of Appeal that were lodged when the matter came before the First-tier Tribunal. He notes that there was a substantial Appellant's bundle before the Tribunal and that these bundles contained the relevant documents relating to the Appellant's health. He takes me to them. Initially he asked me to look at a report from the Neuro Clinician, Dr Naeem Mughal, from his Neuro Clinical Office where he is the Consultant Neuro Psychiatrist. He points out the references made therein that the Appellant has been suffering from depression and had disturbed sleep and fear. He thereafter takes me to the other bundle that was submitted and to the findings that the Appellant had been on medication for depression which had not been of long-term benefit and it was questionable how long she can remain on that medication.
7. Mr Bramble's concern relates to the date of decision and as to whether or not the correspondence set out by the Appellant's representatives predate or postdate that decision. He considers that this is an important feature to be made so far as any re-making of the decision is concerned.
The Law
8. Areas of legislative interpretation, failure to follow binding authority or to distinguish it with adequate reasons, ignoring material considerations by taking into account immaterial consideration, reaching irrational conclusions on fact or evaluation or to give legally inadequate reasons for the decision and procedural unfairness, constitute errors of law.
9. It is not an arguable error of law for an Immigration Judge to give too little weight or too much weight to a factor, unless irrationality is alleged. Nor is it an error of law for an Immigration Judge to fail to deal with every factual issue of argument. Disagreement with an Immigration Judge's factual conclusion, his appraisal of the evidence or assessment of credibility, or his evaluation of risk does not give rise to an error of law. Unless an Immigration Judge's assessment of proportionality is arguable as being completely wrong, there is no error of law, nor is it an error of law for an Immigration Judge not to have regard to evidence of events arising after his decision or for him to have taken no account of evidence which was not before him. Rationality is a very high threshold and a conclusion is not irrational just because some alternative explanation has been rejected or can be said to be possible. Nor is it necessary to consider every possible alternative inference consistent with truthfulness because an Immigration Judge concludes that the story is untrue. If a point of evidence of significance has been ignored or misunderstood, that is a failure to take into account a material consideration.
Findings on Error of Law
10. I have been greatly assisted by Mr Bramble in this matter. He has accepted that the judge has not engaged with the witness statement provided that the Appellant is a lone female and the Secretary of State accepts that she is here on her own and that her brother has succeeded on his appeal to the UK showing a dependency. Also there is clear support and evidence given within the witness statements attached as to the funding that is available to support the Appellant. This too has not been addressed. Given these concessions, which I fully endorse having looked at the First-tier Tribunal Judge's decision and the documentary evidence herein, I find that there is a material error of law and I consequently set aside the decision of the First-tier Tribunal Judge.
The re-making of the Decision
11. The issue arises at this stage as to whether or not the judge had before him at the date of the First-tier Tribunal sufficient medical evidence to consider whether or not the appeal should or should not be allowed under Article 8. I am satisfied after the submissions made and consideration of the documentary evidence that he did. The date of decision is 7th November 2014. The first letter seemingly written hereinafter is dated 14th January 2015 from Dr Mughal. That letter sets out that the Appellant had been socially withdrawn and had a lack of inability to study for some eight months prior to her seeing him, that she had suffered from aggression for six months, a lack of appetite and sleep for almost four and a half months and suicidal ideation for some two weeks. Save for the latter factor all those dates predate the date of the initial medical report and that view is endorsed by the expansive response set out in the clinical assessment of Dr Butt sent out on 20th August 2015. This remains the issue that was of concern to the Secretary of State. I am satisfied that it is properly addressed.
12. Consequently, bearing in mind all the above factors, I am satisfied that the correct approach is to re-make the decision allowing the Appellant's appeal pursuant to Article 8 of the European Convention of Human Rights based solely on the issue of protection that is extant.
Decision
13. The Appellant's appeal is allowed re-making the appeal pursuant to Article 8 of the European Convention of Human Rights.
14. No anonymity direction is made.

Signed Date 20/12/2016

Deputy Upper Tribunal Judge D N Harris

TO THE RESPONDENT
FEE AWARD

No application is made for a fee award.

Signed Date

Deputy Upper Tribunal Judge D N Harris