Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2022-005048

First Tier Tribunal: IA/00213/2021
HU/50951/2020

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 24 March 2025

Before

UPPER TRIBUNAL JUDGE BRUCE
DEPUTY UPPER TRIBUNAL JUDGE P. LEWIS

Between

Priyanka Govind Sawant
Appellant
AND

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Ms Rutherford, Counsel
For the Respondent: Ms Newton Senior Home Office Presenting Officer

Heard at Manchester Civil Justice Centre on 28 January 2025

DECISION AND REASONS

1. The Appellant is an Indian national born on the 29th December 1985. She seeks leave to remain in the United Kingdom on human rights grounds.

Case History and Matters in Issue

2. The Appellant arrived in the United Kingdom in 2017 as the dependent partner of a Points Based System Migrant. Not long after her arrival in the UK she informed the Home Office that her marriage had broken down as a result of domestic violence, and she made an application for leave to remain ‘outside of the rules’. She asserted that she was unable to return to India as a lone woman; she had been shunned by her own family as a result of her decision to leave her husband, and suffered the mental health consequences of having been exposed to domestic violence in both her marriage and her natal family.

3. The Home Office rejected that account, and on appeal, so did two successive Tribunals. First-tier Tribunal Judge Alis dismissed her appeal on the 14th May 2019, and although his reasoning was set aside by Deputy Upper Tribunal Judge Chapman, she too subsequently dismissed the appeal for a lack of credibility. In her decision of the 5th September 2019 Judge Chapman expressly found the Appellant to have lied. She did not accept her account of intra-familial violence and estrangement.

4. On the 8th November 2019 the Appellant made a “an application for leave to remain on compassionate grounds”. For reasons that are not entirely clear this was processed as a human rights claim without the Respondent having considered whether the evidence adduced met the threshold for it to be considered a ‘fresh claim’. The application was refused, but the Appellant given a right of appeal which she duly exercised.

5. The matter came before First-tier Tribunal Judge Ficklin, who by his written decision of the 8th May 2022 dismissed the appeal on the grounds that nothing in the ‘fresh claim’ caused him to take a different view of the facts than Judge Chapman.

6. The Appellant successfully sought permission to appeal to this Tribunal and on the 19th July 2023 the matter came before Judge Bruce, sitting alone at Manchester Civil Justice Centre. The resulting judgment is appended, but for the purpose of this summary it suffices to say that the appeal was dismissed on all grounds save one, which was settled by consent. That was that Judge Ficklin had failed to conduct an Article 8 balancing exercise ‘outside of the rules’. Judge Bruce ordered that the matter be brought back before her to enable further evidence and submissions on this matter. The Appellant sought, and was granted, permission to adduce further evidence, in particular evidence of a ‘new matter’, that being her marriage to an Indian national living in the UK, Mr Vasanth Kumar Kannuchamy. The Secretary of State gave permission for this new matter to be considered by the Tribunal in its final Razgar determination of the issues in this appeal.

7. Unfortunately there followed an administrative error which resulted in a lengthy delay to the appeal hearing being resumed. At the hearing before us we apologised to the parties for this delay; an apology we reiterate here.

8. Appearing for the Appellant before us, Ms Rutherford indicated that the Appellant no longer relied on her relationship with Mr Kannuchamy. Ms Rutherford’s instructions were that the marriage had broken down. The appeal before us would proceed solely on the ground that the refusal of leave amounted to a disproportionate interference with the appellant’s private life in the United Kingdom.

9. We reserved our decision, which we now give.

Our Findings

10. We accept and find as fact that the Appellant has a private life in the United Kingdom. She has now lived in this country for over seven years, and although there was no supporting evidence to this effect, we are prepared to accept that in that time she has formed relationships with others and has become accustomed to life in this country.

11. The decision to refuse to grant leave was certainly one lawfully open to the Respondent to take.

12. We are satisfied that the decision, if maintained, will result in the Appellant being required to leave the United Kingdom. It will therefore lead to an interference with the private life that she has established here.

13. The central question before us was whether the Secretary of State can demonstrate that this interference would be a proportionate response to the legitimate Article 8(2) aim of ‘protecting the economy’, through the maintenance of proper immigration control.

14. Section 117B of the Nationality Immigration and Asylum Act 2002 sets out the ‘public interest considerations’ which must be taken into account in any Article 8 appeal. Insofar as they are relevant to the Appellant’s case we begin our deliberations by recognising these matters.

15. First, we recognise that the maintenance of immigration control is in the public interest: s117B(1) applied. It is therefore in the public interest that persons who are unable to comply with the terms of the immigration rules be refused leave to remain. It is common ground that the Appellant is unable to meet any of the immigration rules. Although she entered the United Kingdom with leave, she has been an overstayer since approximately October 2019 when, following the decision of Judge Chapman, she exhausted her appeal rights. It is right to note that successive tribunals have rejected as untrue the facts advanced by the Appellant as a means of attempting to secure an immigration advantage.

16. Second, we recognise that when we conduct our balancing exercise, we must only attach a “little weight” to any private life that the Appellant has developed in the United Kingdom whilst she has been living here unlawfully or her status has been precarious: s117B(4) and (5). The Appellant’s status as the dependent of a Points Based System migrant was precarious. Her status thereafter was unlawful. We have therefore only attached little weight to the evidence that we have pertaining to her private life.

17. We accept that the Appellant is able to speak fluent English. This is not therefore a matter that weighs against her in the balancing exercise. As to finances, Ms Rutherford told us that the Appellant is still working, her permission to do so having never been revoked. Miss Newton made no submissions to the contrary, and on that basis we are prepared to accept that the Appellant is financially independent and that this too is a neutral factor.

18. Against those matters weighing in the public interest Ms Rutherford pointed to the following matters.

19. The first was that the Appellant is receiving medical treatment in the United Kingdom for ongoing mental health issues, principally depressive disorder. She was referred for talking therapies in 2019 and prescribed Mirtazapine in 2020 and her medical records show that the problem has nevertheless persisted. Ms Rutherford took us to country background evidence, in particular the Country Policy and Information Note (‘CPIN’) on India Medical and Healthcare Provision published in April 2023 which confirms that there are limited resources for the treatment of depression in India. We do not doubt that in a developing country with an ever increasing population there is a huge pressure on scant resources in this area. See for instance at [15.1.2] of the CPIN which cites the DFAT 2020 Country Information Report:

‘Access to mental health care is not uniform across the country, with availability of services significantly more limited in rural areas than in urban cities and large towns. Across the country, an estimated 150 million people (12.5 per cent of the population) are in need of active interventions for mental illnesses, including nearly 12 million who are living with serious mental disorders. Given the shortfall of specialist and health services for mental illness, treatment is often unavailable or inaccessible even for those who actively seek health care.’

20. We are not however satisfied that this evidence lends any particular weight to the Appellant’s side of the scales. That is because the only treatment that she is currently receiving for her depression is Mirtazapine, and that has been the case for some time. She is not currently engaged in any kind of talking therapy. She does not require in-patient treatment, and there is no evidence before us to suggest that she would, for instance, require consultation with a psychiatrist. The difficulties outlined in the CPIN would not, therefore, have much of an impact on her, if at all. As Ms Rutherford concedes, there is no evidence to suggest that Mirtazapine, a widely prescribed generic anti-depressant, would not be available for her to buy over the counter in a pharmacy in India. This means that this aspect of her private life would not be materially impacted by her return to India.

21. Ms Rutherford next sought to contrast the quality of the private life enjoyed by the Appellant in this country with that she might hope to establish in India. She submitted that the Appellant has a good support network of friends in the UK, and she would be returning to India with no comparable network. She would, Ms Rutherford submitted, face “very real difficulties” because she is estranged from her family and obviously has been out of that country for some time.

22. As we have said, are prepared to accept that the Appellant has a private life in this country, and we are prepared to accept that this may include friendships. The difficulty we have in attaching any significant weight to that is twofold. First, we are constrained by the terms of s117B NIAA 2002. Second, there was no evidence before us about the quality and extent of any such relationships. Such friendships that may exist could be maintained by telephone/videocall etc. As for the submission that the Appellant will – in effect – be isolated and alone in India, this too is problematic. Judge Chapman expressly found that the Appellant had lied about her family circumstances: she rejected her claim that her mother had committed suicide as a result of domestic abuse, and that the Appellant was estranged from the wider family, in particular an aunt and uncle whom the Appellant claims to have lived with prior to her marriage. In any event we note that the Appellant is university educated and is working in the UK; there is nothing before us to suggest that she would not be able to do the same in India and support herself. She spent 31 years of her life in India, and is familiar with the culture and society. Nothing in what we have heard satisfies us that she would face any significant obstacles in re-establishing herself there and making a new private life for herself.

23. Drawing all of those matters together, and giving due weight to the public interest, we are satisfied that the decision to refuse leave on human rights grounds is wholly proportionate and we dismiss the appeal.

Decisions

24. The appeal is dismissed.

25. There is no anonymity order in this case.

Upper Tribunal Judge Bruce
Immigration and Asylum Chamber
13th March 2025

Annex

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2022-005048
(HU/50951/20)

THE IMMIGRATION ACTS

Decision & Reasons Issued:

…………………………………

Before

UPPER TRIBUNAL JUDGE BRUCE

Between

Priyanka Govind Sawant
Appellant
and

Secretary of State for the Home Department
Respondent

Representation:

For the Appellant: Ms Rutherford, Counsel instructed by K & A Solicitors
For the Respondent: Mr Bates, Senior Home Office Presenting Officer

Heard at Manchester Civil Justice Centre on 19 July 2023

DECISION ON ‘ERROR OF LAW’
DECISION TO ADJOURN

1. The Appellant is a national of India born on the 29th December 1985. She appeals with permission against the decision of the First-tier Tribunal (Judge Ficklin) to dismiss her human rights appeal.

2. It is important to begin by setting out the background to this appeal. The Appellant came to the United Kingdom in 2017 as the dependent partner of a Points Based System Migrant. Not long after her arrival in the UK she informed the Home Office that her marriage had broken down as a result of domestic violence, and she made an application for leave to remain ‘outside of the rules’. She asserted that she was unable to return to India as a lone woman; she had been shunned by her own family as a result of her decision to leave her husband, and suffered the mental health consequences of having been exposed to domestic violence in both her marriage and her natal family. She claimed, inter alia, that her own mother had been driven to suicide by violence perpetrated against her.

3. The Home Office rejected that account, and on appeal, so did two successive Tribunals. First-tier Tribunal Judge Alis dismissed her appeal on the 14th May 2019, and although his reasoning was set aside by Deputy Upper Tribunal Judge Chapman, she too subsequently dismissed the appeal for a lack of credibility. In her decision of the 5th September 2019 Judge Chapman expressly found the Appellant to have lied. She did not accept her account of violence, or estrangement from her family.

4. On the 8th November 2019 the Appellant made a “an application for leave to remain on compassionate grounds”. For reasons that are not entirely clear this was processed as a human rights claim without the Respondent having considered whether the evidence adduced met the threshold for it to be considered a ‘fresh claim’. The application was refused, but the Appellant given a right of appeal which she duly exercised.

The First-tier Tribunal Decision

5. The matter came before Judge Ficklin on the 1st April 2022. The basic facts presented by the Appellant were the same facts that had already been rejected, in robust terms, by Deputy Upper Tribunal Judge Chapman: that the Appellant was a survivor of domestic abuse, and that she was unable to return to India alone because her family there had rejected and ostracised her. The only facts that appear to have been accepted were that the Appellant is an Indian woman who is now divorced from her Points Based System Migrant husband. There was however new evidence relating to the contested matters, which the Appellant submitted could properly lead Judge Ficklin to reach a decision in her favour. That new evidence consisted of further medical evidence going to the Appellant’s mental health, and an assessment of her needs made by social workers. The Appellant further relied on Home Office guidance to caseowners explaining how best to assess claims of domestic violence, and up to date country background material about divorced women in India.

6. Judge Ficklin properly directed himself to the principles in Devaseelan (Second appeals – ECHR- extra territorial effect) Sri Lanka* UKIAT 00702. In doing so he noted the “strongly- worded negative credibility findings against this Appellant” must be his starting point. He then addresses the new material produced by the Appellant on appeal. As I note above, this consisted of social-medical evidence of her interactions with various professionals, and the Respondent’s published guidance on the weight to be attached to such evidence. Judge Ficklin states that he intends to apply that guidance, and before me there is no dispute that he was entitled to do so.

7. He notes that there is a letter from a social worker dated the 2nd November 2020 which records that the Appellant was signposted to services supporting victims of domestic violence. It records the Appellant’s reported conversations with her Aunt in India as abusive. The letter records that it followed an assessment by the Home Based Treatment Team. Of that letter Judge Ficklin concludes:

“This is arguably an independent assessment of her claims that was accepted by the social worker and clearly as well by the Home Based Treatment Team. While such evidence may in normal circumstances be sufficient, especially in conjunction with the evidence she has previously submitted, the difficulty is that the Upper Tribunal judge rejected the previous evidence. It seems to me that the Appellant has not submitted evidence of a different enough nature or quality to overcome the Upper Tribunal’s findings. The other evidence including the GP letters referring to HARK+ etc are not detailed enough to be clear that they are based on assessments rather than the Appellant’s own claims.

In the context of the Upper Tribunal’s findings I am unable to find that the new evidence, even in conjunction with the previous evidence, meets the balance of probabilities that she would face very serious obstacles to re-integration in India…”

8. The appeal was thereby dismissed.

Grounds of Challenge

9. There are four grounds of appeal. The first three are framed in terms of insufficient reasons, irrationality and misdirection but in reality they are all concerned with the same thing: the First-tier Tribunal’s application of the Devaseelan principles. I return to these arguments below.

10. I begin with the final ground, since the Respondent agrees that this is made out. It is that the Tribunal failed to undertake a holistic Razgar Article 8 assessment. The primary case advanced by the Appellant was that there were very significant obstacles to her integration in India and that the test under paragraph 276ADE(1)(vi) of the rules could therefore be met. Her case did not therefore end there. She also relied on medical evidence to the effect that she was suffering from depression and anxiety, and had an important network of friends and support in this country. She had reported feeling suicidal. She further averred that as a divorced woman in India she would face societal discrimination, and had relied on country background material to that effect. As Mr Bates accepts, the Tribunal squarely dealt with the first limb of the Appellant’s case, but said nothing at all about the second. That omission was, he accepts, material. That part of the Appellant’s case will need to be considered at a further hearing.

11. In respect of the Devaseelan aspect of her appeal it comes to this. Did Judge Ficklin take an impermissibly restrictive approach to the new material?

12. Ms Rutherford wisely focused her submissions on the letter from Thomas Cashin, a social worker with the Home Based Treatment Team (Central division) of Greater Manchester Mental Health Trust. I say wisely because this was, applying the Respondent’s guidance, evidence that Judge Ficklin could properly categorise as ‘strong’. Ms Rutherford submits that having attached weight to this independent assessment, Judge Ficklin then simply dismisses it because of all that had gone before. Was independent assessment by a specialist not the very evidence that would justify a departure from the Devaseelan findings?

13. I was initially troubled by paragraph 33 of the decision, where the Judge says this: “While such evidence may in normal circumstances be sufficient, especially in conjunction with the evidence she has previously submitted, the difficulty is that the Upper Tribunal judge rejected the previous evidence”. Here was evidence by a professional, who knowing what he does about the Appellant’s long-term interaction with the service, and with her GP, has reached the view that she has indeed been subject to violence in the home, so that it is necessary to provide her with all of the psycho-social and medical support that she now receives for her poor mental health. This was relevant to whether, for instance, the discrepancies in the Appellant’s evidence that led to the negative credibility findings against her might now be interpreted in a different way: rather than her being a liar, perhaps she is too traumatised to remember matters clearly?

14. The difficulty, as Mr Bates identifies, is that there was already evidence before Judge Chapman going to the Appellant’s mental health issues, and she had clearly taken that into account when assessing the Appellant’s credibility. The new letter from the GP that was before Judge Ficklin in effect reported the same issues as the old one that Judge Chapman had read, albeit reflecting an amplification of the Appellant’s symptoms. The social worker’s assessment was entirely new1 but Judge Chapman had expressly concluded that similar witnesses in the appeal before her – including a representative from a domestic violence support group and the Appellant’s GP – had been deceived by the Appellant. Further evidence of this type could be therefore be in effect discounted because it was simply based on the Appellant’s own reporting. There was nothing on the face of the social worker’s report, nor any of the evidence from the GP, to indicate that any of these professionals had subjected the Appellant’s account to a critical examination in the way that a court had. There was nothing to say that the social worker or GP were even aware of Judge Chapman’s decision, nor that they had factored into their assessments the fact that the police had long ago dropped the investigation into the Appellant’s former husband. Had the Home Assessment Team been made aware of these decisions, but reached the same conclusion that they did notwithstanding those negative views, then Mr Cashin’s letter would have been considerably strengthened. As it was, Judge Ficklin did not find his strong evidence to be strong enough. I can find no error in that assessment. I therefore find that grounds (i)-(iii), all of which are concerned with the Devaseelan findings, are not made out.

Decisions and Directions

15. The matter will be relisted at a date to be notified in order that the Razgar Article 8 assessment can be undertaken.

16. The First-tier Tribunal’s findings of fact are undisturbed.

17. The Appellant has made an application under Rule 15 (2A) of the Tribunal Procedure (Upper Tribunal) Rules 2008 to admit further evidence. This evidence relates to a claimed relationship in the UK and as such is, it is agreed, a ‘new matter’ in the appeal. This evidence is admitted to the extent that the Respondent is to consider whether to give consent under s85(5) Nationality, Immigration and Asylum Act 2002 to the new matter being considered in the final determination of the appeal. The Respondent has until the 16th August 2023 on to indicate whether she consents.

18. The evidence relating to the Appellant’s mental health is now over a year old. She has leave to adduce further, up to date medical evidence. Any such evidence must be filed and served no later than the 16th August 2023, in a new bundle with all of the evidence pertinent to the Razgar assessment, even if such evidence has been produced before. The medical evidence should appear in the bundle in chronological order, ending with the most recent. If the Appellant wishes to adduce further country background material relating to the position of divorced women in India, this should be included in the same bundle, in a separate section.

19. There is at present an order for anonymity in this unpublished decision, but the parties are on notice that the Tribunal will wish to hear submissions on whether the final, published version should be subject to such an order.

Upper Tribunal Judge Bruce
19th July 2023