Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/06900/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 17th March 2017
On 11th April 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE D N HARRIS

Between

the Secretary of State for the Home Department
Appellant

and

mrs SsS
(ANONYMITY DIRECTION made)
Respondent

Representation:
For the Appellant: Mr L Tarlow, Home Office Presenting Officer
For the Respondent: Mr A Sesay, Solicitor

DECISION AND REASONS
1. The Appellant, Mrs SSS, was born on 5th March 1985 and is a citizen of Pakistan. She has four dependants whose appeals also are dependent upon the outcome of this appeal. They are respectively her husband and three minor children.
2. The Appellant first entered the UK on 23rd January 2011 as a Tier 4 (General) Student with a visa valid until 1st January 2012. That application was extended until 18th October 2014. On 18th October 2014 the Appellant made a further application based on her private and family life and that was rejected on 28th August 2015. The Appellant was served with papers as an immigration overstayer on 3rd November 2015 which informed her of her liability for removal. Her dependants were similarly served. On 6th January 2016 the Appellant claimed asylum at ASU Croydon, along with her husband and three children as dependants. On 19th June 2016 the Appellant’s application was refused by the Secretary of State.
3. The Appellant appealed and the appeal came before Judge of the First-tier Tribunal Cameron sitting at Taylor House on 21st December 2016. The First-tier Tribunal Judge made an anonymity direction. No application is made to vary that direction and it will remain in force. On 12th January 2017 the Appellant’s appeal in relation to her claims for asylum and humanitarian protection were dismissed, but the Appellant’s appeal was allowed under paragraph 276ADE(1)(vi) of the Immigration Rules and under Article 8 of the European Convention of Human Rights.
4. The Secretary of State lodged Grounds of Appeal to the Upper Tribunal on 21st January 2017. On 3rd February 2017 Judge of the First-tier Tribunal Page granted permission to appeal. In granting permission the judge noted that the Respondent had identified arguable errors of law that merited full consideration arguing that the judge was not entitled to find that there were “very significant obstacles” to the Appellant’s reintegration into Pakistan. Judge Page noted that the sole reason for finding this appeared to stem from the practicalities arising from the Appellant’s child’s complex medical and surgical needs which would be expensive to obtain in Pakistan. The Respondent’s Grounds of Appeal argued that the judge had failed to provide adequate reasons for making these findings and it was of note that the judge found that the threshold of Article 3 ECHR could not be met on the basis of the medical claim.
5. 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. I note that this is an appeal by the Secretary of State. However, for the purpose of continuity throughout the appeal process the Secretary of State is referred to herein as “the Respondent” and Mrs SSS as “the Appellant”. The Appellant appears by her instructed solicitor Mr Sesay. The Secretary of State appears by her Home Office Presenting Officer Mr Tarlow.
Preliminary Issue
6. A request is made by Mr Sesay to admit in evidence two additional pieces of information. The first is a medical report relating to the child of the family, Miss ZFS (born 13th August 2013) and the second is a letter from a Government Girl’s Primary School in Pakistan dated 21st February 2017. For reasons unclear to me the letter from the school actually is not in the file, but as it is not further relied upon there is no need to make any reference to it. Mr Tarlow does not object to my reading the letter from Great Ormond Street Hospital relating to the child ZFS. That letter sets out the complex medical conditions with which the child suffers and the treatment that will be forthcoming in the upcoming months providing the appeal today allows her to remain in the country.
Submissions/Discussions
7. I note as a starting point before the submissions are formally made to me that the basis upon which the First-tier Tribunal Judge allowed this appeal related solely to the difficulties which the family would face as a result of the medical problems Miss ZFS faces, which are ongoing and are likely to be lifelong, when considering all the factors to be taken into account in an Appellant’s specific circumstances relating to the ability to reintegrate into Pakistani life. The judge held that there were very significant obstacles to such reintegration and for her family which went beyond mere convenience. Thereafter he went on to consider the position generally under Article 8 outside the Rules.
8. Mr Tarlow takes me to the quite lengthy Grounds of Appeal prepared by the Secretary of State and reminds me that in order to succeed under the test for very significant obstacles that that test is noted to be a stringent one and go beyond mere inconvenience. He relies on the authority of Agyarko & Ors, (on the application of R) v The Secretary of State for the Home Department [2015] EWCA Civ 440. Both legal representatives acknowledge that Agyarko has been revisited in the Supreme Court within the last month and that the decision of the Court of Appeal was upheld and remains good law. Consequently, the test set out therein remains the test to be followed and it is the submission of Mr Tarlow that that high threshold test is not met. That apart he does no more than rely on the grounds that are before me and I have given due and proper consideration to them. He asked me to note that the Secretary of State does not challenge the facts of this case and merely asked me to find that there are material errors of law and to remake the decision allowing the Secretary of State’s appeal.
9. Mr Sesay submits that the findings of the judge are correct and that the child’s medical condition was accepted and that the judge has focused on the best interests of the child. He submits that the findings made were open to the judge and asked me merely to find that the submissions made by the Secretary of State amount to mere disagreement and to dismiss the appeal.
The Law
10. Areas of legislative interpretation, failure to follow binding authority or to distinguish it with adequate reasons, ignoring material considerations by taking into account immaterial considerations, reaching irrational conclusions on fact or evaluation or to give legally inadequate reasons for the decision and procedural unfairness, constitute errors of law.
11. 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
12. This case turns on whether or not the judge has followed the legal test to be found for noting very significant obstacles as set out in Agyarko, whether or not proportionality requires the removal of the Appellant and her family and whether the judge has gone on to properly consider Article 8 outside the Rules.
13. I emphasise that this is not a rehearing of this matter. The First-tier Tribunal Judge heard the evidence and I am satisfied that he made findings that he was entitled to. It is important that I give my reasons. He has started by noting the medical problems faced by the Appellant’s daughter Miss Z, and noting that it was accepted by the Appellant’s legal representatives that there were medical facilities available in Pakistan, albeit it was pointed out that the Appellant and her family would be unable to afford these. It was consequently acknowledged from the start that there were benefits to the child in being able to be treated under the NHS. The judge gave consideration to these factors and made a finding at paragraph 71 that the high threshold necessary to show that there would be a breach of Article 3 had not been reached and it was on this basis that he went on to give further and due consideration under paragraph 276ADE.
14. That paragraph turns very much on whether or not the Appellant would be able to show that there were very significant obstacles to her reintegration into Pakistani society. He acknowledged that the Appellant was a woman of intelligence with a BA and that she clearly speaks the language, as does her husband. He noted that the Appellant would not be returning as a lone female and that the educational qualifications of both the Appellant and her husband were such that it was not unreasonable therefore for her to obtain employment.
15. It was against that background, which made findings which so far as an appeal by the Appellant is concerned would probably be considered negative, that the judge then went on to consider the position of Miss Z. He noted that there had been a considerable amount of documentation provided to her, that she had been born eight weeks premature, was one of twins and that she had suffered a number of medical issues as set out in a letter from Great Ormond Street Hospital for Children dated 26th September 2016. Her medical condition was re-emphasised and the prospective treatment further set out in the letter of 17th February 2017. I acknowledge that that letter is not a letter that was before the First-tier Tribunal. I have merely read it as an update of the present position and that is accepted by Mr Tarlow on behalf of the Secretary of State.
16. At paragraphs 77 to 81 the judge has set out the very severe medical conditions with which Miss Z suffers. He has gone on to take note of the oral testimony of the Appellant and of the special diets required by Miss Z and gone on to consider Miss Z’s multiple medical needs, these all being set out and duly considered at paragraphs 82 to 86. He thereafter made findings that he was entitled to, that there were significant obstacles to reintegration into Pakistan for the Appellant and her family which went beyond mere inconvenience. It is difficult to fault the analysis of the judge. I reiterate that it is not the role of the Upper Tribunal to re-try a matter. All the facts were before the First-tier Tribunal and unless a decision is so perverse, challenges on the factual basis and the findings of the judge amount to little more than disagreement. In reaching that decision I take into account the principles set out in Agyarko, albeit that Agyarko is not specifically referred to by the First-tier Tribunal Judge. It is clear however that he has carried out a very thorough analysis and made findings of fact which he was entitled to. He has made those findings expressing himself in terms of law and not in terms of sympathy.
17. However, the judge has not only done that, he has then at paragraphs 88 to 93 gone on to consider the position of the Appellant outside the Immigration Rules and he has found that there are good grounds for giving them due consideration and has thereafter also gone on to consider the best interests of the children, in particular the best interests of Miss Z, namely that in view of her specific medical needs and the general lack of facilities for her treatment which would need to be specialised in Pakistan, that it would be in her best interests to remain in this country and to continue to receive treatment here. Finally, at paragraph 93 he has considered the position of the family as a whole. He has come to what is clearly the correct decision, that it would be inappropriate for the family to be split up and separated from one another, and whilst noting quite properly within that paragraph that a child’s best interests are not a trump card, and notwithstanding that the family’s position is clearly precarious (for he has given due consideration to Section 117 of the 2002 Act), he reached the decision that the public interest did not require the removal of the family and that in all the circumstances the Respondent’s decision would be disproportionate to their legitimate aim of the maintenance of immigration control.
18. Against that analysis it is clear that the judge has given due and proper consideration to all aspects of the claim outside the Immigration Rules pursuant to Article 8 and he has made findings that he was entitled to. The decision consequently discloses no material error of law and on that basis the appeal of the Secretary of State is dismissed and the decision of the First-tier Tribunal Judge is maintained.

Notice of Decision
19. The appeal of the Secretary of State is dismissed and the decision of the First-tier Tribunal Judge is maintained.
20. No application is made to vary the anonymity direction made pursuant to Rule 13 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 and none is made.

Signed Date 30th March 2017

Deputy Upper Tribunal Judge D N Harris

TO THE RESPONDENT
FEE AWARD
No application is made for a fee award and none is made.

Signed Date 30th March 2017

Deputy Upper Tribunal Judge D N Harris