Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA160272014

THE IMMIGRATION ACTS

Heard at Bradford
Decision & Reasons Promulgated
On 15 March 2016
On 14 June 2016

Before

UPPER TRIBUNAL JUDGE CLIVE LANE

Between

ENTRY CLEARANCE OFFICER - ISLAMABAD
Appellant

and

SB
(ANONYMITY DIRECTION MADE)
Respondent

Representation:

For the Appellant: Mr Dywnycz, Senior Home Office Presenting Officer
For the Respondent: Mr Hussain, instructed by Harris & Green Solicitors

DECISION AND REASONS

1. I shall refer to the appellant as the respondent and to the respondent as the appellant (as they respectively appeared before the First-tier Tribunal). The appellant, SB, was born in 1942 and is a female citizen of Pakistan. She applied for entry to the United Kingdom as an adult dependant relative under Appendix FM of HC 395 (as amended). Her application was refused by a decision dated 9 December 2014. She appealed to the First-tier Tribunal (Judge Ince) which, in a decision promulgated on 1 July 2015 allowed the appeal under the Immigration Rules. The Entry Clearance Officer now appeals, with permission, to the Upper Tribunal
2. The appeal turned on the application of E-ECDR of Appendix FM. Significantly, the ECO now accepts (see grounds of appeal) that subparagraph 2.4 is met as the appellant "as a result of age, illness or disability requires long term personal care to perform everyday tasks." Refusing the application initially, the ECO considered that the appellant did not satisfy this part of the Rule. The ECO now accepts the finding was open to the judge on the evidence.
3. The ECO, however, continues to dispute that subparagraph 2.5 is met in the case of this appellant ("the appellant is unable even with the practical and financial help of the sponsor, to obtain a required level of care in a country where they are living because it is not available and there is no person in that country that can reasonably provide it."). The judge is criticised of having reversed the burden of proof [42] when, in discussing the availability of care homes in Pakistan, he found that it had not been shown that suitable care homes were available in Pakistan. The grounds note that the Presenting Officer before the First-tier Tribunal had asserted (and the sponsor who attended the hearing and gave evidence also accepted) that care homes did exist in Pakistan. The ECO submits that, in the absence of any evidence from the sponsor that such homes did not offer the required level of care for this appellant, the judge should have dismissed the appeal. Finally, the grounds assert that the judge had given inadequate reasons for,
"... accepting the sponsor's evidence that there was no one, amongst 180,000,000 people in Pakistan that could be employed as a personal live-in carer to the appellant. The sponsor's word alone is accepted on this point despite the damage to his credibility that must follow from his past history of bringing his mother to the UK on visit visas so she could receive NHS treatment to which she had no entitlement."
4. Reading the decision as a whole, I am not satisfied that the judge has, as the grounds allege, reversed the burden of proof. The availability and suitability of care home had never been raised by the ECO but was raised for the first time in cross-examination before the First-tier Tribunal by the Presenting Officer. The judge noted that he could find no evidence at all about care homes in any of the material before him, including the Home Office country report on Pakistan. Significantly, when refusing the application, the ECO had referred only to care possibly being provided by the appellant's daughters, a suggestion which the sponsor and appellant provided evidence to show was not practicable [40].
5. The judge had to determine this appeal on the evidence that was before him. He has not allowed the appeal because the ECO has failed to provide evidence of the availability of care homes in Pakistan. Rather, he was unable to conclude on the evidence that the required level of care in Pakistan is available. In short, the judge has accepted (as it was open to him to accept) the evidence of the sponsor that the required level of care can only be provided to this particular appellant if she is granted entry clearance to live in the United Kingdom. The judge has examined the evidence carefully and supported his findings with cogent reasoning. Although a different outcome to this appeal may have been possible on the same evidence, that is not the point; the judge has exercised his own judgment to the facts before him. The Upper Tribunal should hesitate before interfering with a properly reasoned decision of the First-tier Tribunal. The reasoning of the judge in this particular case is entirely clear and I am not satisfied that he has perversely or irrationally misapplied the Immigration Rules. In the circumstances, the appeal is dismissed.
Notice of Decision
6. This appeal is dismissed.

Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008

Unless and until a Tribunal or court directs otherwise, the appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of their family. This direction applies both to the appellant and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Signed Date 9 June 2016

Upper Tribunal Judge Clive Lane