Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/19148/2011

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On 13 June 2013
On 24 June 2013
Prepared 14 June 2013
…………………………………

Before

LORD BURNS
UPPER TRIBUNAL JUDGE RINTOUL

Between

Faridoon Zazai Kandahari
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr G Lee, Counsel, instructed by Malik & Malik solicitors
For the Respondent: Mr Melvin, Presenting Officer

DETERMINATION AND REASONS
1. The appellant appeals with permission against the determination of First-tier Tribunal Judge Lobo promulgated on 6 June 2012, dismissing his appeal against the decision of the respondent made on 9 March 2010 to refuse him indefinite leave to enter the United Kingdom as the dependent relative of a person present and settled here.
2. The appellant was born on 10 May 1978 and is a citizen of Afghanistan. His case is that he suffers from various mental conditions including depression and cannot live on his own satisfactorily. His financial needs are met by his family which includes his parents who live in the United Kingdom and two of his brothers who live in the United Kingdom. Until relatively recently the sponsor and his family in the United Kingdom have relied on neighbours both in Afghanistan and Pakistan to look after the appellant and for some years his parents have travelled to Afghanistan to spend six months a year with him. It is claimed that he meets the requirements of paragraph 317 of the Immigration Rules and, in the alternative, that it would be contrary to the United Kingdom’s obligations pursuant to Article 8 of the Human Rights Convention to refuse him entry clearance to the United Kingdom.
3. The respondent refused the application on the basis that the appellant had failed to provide evidence that he was wholly or mainly financially dependent on relatives in the United Kingdom, that he would be living alone in the most exceptional compassionate circumstances, or, had no other close relatives in his own country to whom he could turn for financial support.
4. On appeal, the matter came before First-tier Tribunal Judge Lobo sitting at Taylor House on 9 May 2012. The respondent was not represented but the appellant was represented by Mr Jaisri of Counsel. The judge heard evidence from the appellant’s brother the sponsor, finding:
(i) that there was no verifiable evidence as to what the financial requirements had been since 2005 and now or that the sponsor has supported the appellant nor is there any evidence of the sums claimed to be transferred [18(d) and (e)];
(ii) that although the sponsor said that he sends money when his parents travel to see the appellant in Afghanistan and Pakistan that there was no evidence of this from the parents [18(f)];
(iii) that although there was evidence that the sponsor sends money regularly every two months to the appellant the relevant letter did not state the specified period for which the money had been sent nor the amount and the letter postdates the decision [18(g)];
(iv) that although the sponsor claims that the parents stay in Afghanistan to look after the appellant because he cannot look after himself this was not evidence that could be readily accepted in the absence of evidence from the parents [18(h)], that there was no evidence that the appellant lives in properties rented by the sponsor or from the neighbours to show that they assist the appellant [18(i) and (j)];
(v) that there were significant difficulties with the medical evidence adduced from Dr Mufti, Dr I Ahmed and Professor Sultan saying that there were discrepancies between them as to the treatment the appellant is receiving;
(vi) that it could not be said that the appellant was living alone outside the United Kingdom in the most exceptional compassionate circumstances or was financially wholly or mainly dependent on a relative present and settled in the United Kingdom;
(vii) that whilst there may be a family life existing between the appellant and his brothers and parents [21] but although the appellant has significant health problems [25] any interference with the right to respect for private and family life is proportionate [26].
5. The appellant sought permission to appeal against this decision on the grounds:
(i) that the decision that the appellant was not financially wholly or mainly dependent on the sponsor was perverse given that he accepted the core of the appellant’s evidence [2];
(ii) that the judge had applied a higher standard of proof than that applicable by implying that there should be evidence available for “each limb for each account given by the sponsor” [3];
(iii) that the judge had erred in finding that it would be proportionate to refuse the application and that the judge had failed to consider the principles of Beoku-Betts and had failed to consider the proportionality exercise following Huang.
Does the determination of the First-tier Tribunal involve the making of an error of law?
6. As a preliminary matter Mr Lee sought to persuade us that we should permit him to amend the grounds of appeal to include a challenge to the judge’s finding that the appellant was not living alone in the most compelling compassionate circumstances. Mr Melvin opposed this application.
7. We were not satisfied that it would be in the interests of justice to permit the grounds of appeal to be amended in such a fundamental way at this late stage. As Mr Lee accepted, there had been no prior notice of this to the Tribunal or to the respondent. Further, the application for permission to appeal had been pending before the Tribunal for a substantial period and the matter had been listed for hearing by a notice issued 16 May 2013. We have no reason to doubt that Mr Lee was only instructed relatively recently but the point regarding the most compelling compassionate circumstances could and should have been evident to the appellant’s solicitors. It should have been obvious to them that, absent any challenge to that finding, any submission that the judge had erred materially with respect to the finding of wholly and financially responsible could not succeed.
8. We do not accept that the grant of permission by First-tier Tribunal Judge Macdonald [4] could properly be construed as a grant of permission expanded to include a challenge to a finding with regards the most compelling compassionate circumstances.
9. Further, we consider that there is in practice little merit in this proposed additional ground of appeal. The judge sets out in specific detail why he had difficulties in accepting the medical evidence put before him and gave adequate reasons for finding that the appellant would not be living alone in the most compelling compassionate circumstances, noting in particular the difficulties with the medical evidence, and that the appellant had lived for six years on his own [19] given that the parents had not lived with him for the six months each year as claimed until May 2011. Having announced our decision on that matter, we heard further submissions.
10. We do not accept, as Mr Lee submitted, that Ground 3 of the grounds of appeal can be construed as making a challenge to the finding that the appellant was not living alone in the most compelling compassionate circumstances. We do not consider that it is properly arguable that the judge erred by requiring each limb or element of paragraph 317 to be established. On the contrary, it was for the appellant to show (i) that he was living alone; (ii) that he would be living in the most compelling compassionate circumstances; and, (iii) that he was wholly or mainly financially dependent on the sponsor.
11. We do not consider that in referring at [18(d) and (e)] to verifiable evidence that the judge was imposing or could be seen as imposing any higher standard of proof. Further, given the unchallenged finding that the appellant was not living alone in the most compelling compassionate circumstances, any error made in assessing whether the appellant was wholly or mainly financial dependent on the sponsor in the United Kingdom could not be a material error. Accordingly, we are not satisfied that the judge’s decision to refuse the application under the Immigration Rules was in error.
12. Turning to the issue of Article 8, we consider that the judge approached this correctly, having directed himself properly as to the relevant law. The respondent has not challenged the finding that there exists family life between the appellant and his family in the United Kingdom and the judge has considered carefully why he considered that the interference with the appellant’s right to respect for his family life was proportionate. He took into account the appellant’s ill health and the fact that he is lonely and depressed and feels at times not wanted by the rest of his family and, for reasons open to him. He undertook the balancing exercise and found that the interests in maintaining immigration control outweighed the interests of the appellant in this case and gave adequate reasons for so finding. This was a conclusion open to him.
13. Accordingly, for the reasons set out above, we do not consider that the determination of the First-tier Tribunal Judge involved the making of an error of law and we uphold it.

Signed Date: 21 June 2013

Upper Tribunal Judge Rintoul