Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2023-002092
UI-2023-002093
UI-2023-002094

FTT No: HU/57570/2022; IA/10735/2022
HU/57573/2022; IA/10739/2022
HU/57575/2022; IA/10738/2022

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 21 November 2023

Before

UPPER TRIBUNAL JUDGE BRUCE
UPPER TRIBUNAL JUDGE O’CALLAGHAN

Between

TA
KK
FA
(Anonymity order made)
Appellants
and

ENTRY CLEARANCE OFFICER, ISLAMABAD
Respondent

Representation:

For the Appellant: Mr D. Bazini and Ms S. Ferrin,
Counsel instructed by AA Immigration Lawyers
For the Respondent: Mr T. Lindsay, Senior Home Office Presenting Officer

Heard at Field House on 20 September 2023

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the Appellants are granted anonymity. No-one shall publish or reveal any information, including the name or address of the Appellants, likely to lead members of the public to identify the Appellants. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS

1. The Appellants, an elderly father, mother and their adult daughter, are all nationals of Afghanistan.

2. The six sons of this family long ago left Afghanistan. One lives in Denmark, another in France, the eldest in Germany. One was airlifted to safety by the government of the United States of America in recognition of the work he undertook for USAID. Two are in this country, and one is the Sponsor (S) in these appeals. He fled Afghanistan over 20 years ago after he received death threats because of his association with the Western alliance which ousted the first Taliban regime. He was granted refugee status and is now a British citizen.

3. Whilst their sons/brothers have sought sanctuary abroad the Appellants remained living in Afghanistan. However in August 2021 the Taliban returned to power, and the Appellants, like many others with family connections to the ‘West’, fled into Pakistan where they made applications for entry clearance to join S in the United Kingdom.

4. The ECO accepted that the First Appellant (then aged 76) suffered from various illnesses which meant that he requires long term personal care to perform everyday tasks, but his application fell to be refused under the provisions of the Immigration Rules relating to adult dependent relatives because he had not demonstrated that he was unable to obtain the required level of care in the country where he was living. His wife and daughter were refused on the grounds that they had not demonstrated that there were exceptional circumstances in their cases. They had raised a fear of the Taliban regime but had not provided evidence that they were under “immediate threat”.

5. The linked appeals against the ECO’s decisions came before the First-tier Tribunal (Judge Mace) on the 23rd March 2022. The ground of appeal in each case was that maintenance of the refusals would amount to a disproportionate interference with the Appellants’ Article 8 rights.

6. The First-tier Tribunal dismissed the appeals. It recognised “the well-known position that Afghanistan is experiencing a humanitarian crisis” [FTT §15] and that the situation in Afghanistan was “desperate” [§17]. It then went on:

“However, the appellants are not in Afghanistan, they are in Pakistan and I find that I must consider their circumstances as they are at present and not what they might be. The rule states that the appellant must demonstrate that they cannot obtain the required level of care “in the country where they are living”.

7. Following its own direction the First-tier Tribunal found that the Appellants had failed to prove that the First Appellant would be unable to pay for or receive care in Pakistan [§18]. It had been provided with insufficient evidence about their circumstances in Pakistan to enable it to conclude that there were exceptional circumstances warranting a grant of entry clearance on Article 8 grounds [§20]. The appeals were thereby dismissed.

8. The Appellants now have permission to appeal to this Tribunal to argue inter alia that the First-tier Tribunal erred in confining its analysis to the Appellants’ positions in Pakistan. They had entered the country on visit visas that had long ago expired. Their applications to renew those visas had been rejected and at the date of the ECO’s decision and the appeal, they had been living there illegally. In those circumstances could it be said that the Appellants were “living in” Pakistan?

9. We are grateful for the assistance we have received from the parties in addressing this question. Before we consider it, however, it is necessary for us to address one other matter raised by First-tier Tribunal Judge Mace: was Article 8 engaged at all in these cases?

Article 8 Family Life

10. Having dismissed these appeals on the grounds that the refusals were proportionate, the First-tier Tribunal added that it did not accept that the Appellants share an Article 8 family life with the Sponsor and his brother in the UK. Mr Bazini has two complaints about that.

11. First, he says that this was not a matter placed in issue by the Respondent, and that there is therefore a procedural unfairness in the point being taken, for the first time, in the Tribunal’s decision.

12. The ECO’s three refusal letters are all dated the 4th October 2022. None of them raises this matter. Mr Lindsay does point to the pre-hearing review of the 12th January 2023 in which the Respondent said this: “even if Article 8(1) is found to be engaged, the R maintains the refusal decision is proportionate, with reference to Article 8(2)”. He submits that this was an indication that the existence of family life was not a fact conceded by the ECO. He further points out that neither the Sponsor nor the Appellants have anywhere expressly asserted a family life to exist.

13. At the hearing in September we enquired of the parties whether this was a matter raised at the hearing before the First-tier Tribunal. Neither knew. After the hearing we obtained the recording of the proceedings. As we subsequently informed the parties, that recording established that neither party had made any reference to whether Article 8 was engaged, and Judge Mace had made no reference to it herself. Both parties then took the opportunity to address us on this matter in writing.

14. We are satisfied that there was a procedural unfairness in the Tribunal’s approach. These were applications that had all been considered under Appendix FM and the relationship requirements (then set out at E-ECDR 2.1) had all been accepted. Upon refusal the Appellants were each informed that they had the right to an appeal on human rights grounds. As Mr Lindsay acknowledges, no such right could accrue in the absence of an Article 8(1) family life: SD (British citizen children – entry clearance) Sri Lanka [2020] UKUT 43 (IAC) at [72]-[74]. It was implicit in the decisions, which methodically address the requirements in the rules, that Article 8(1) was accepted as being engaged. We are not satisfied that the subsequent, brief allusion in the review highlighted by Mr Lindsay constituted sufficient notice to the Appellants that this was a matter that they had to now engage with. No one said anything at all about it at the hearing. Specifically, the Sponsor was not cross-examined on the point and no submissions were made by the Presenting Officer. Each of the parties refer us to the decisions in Lata (FtT: principal controversial issues) [2023] UKUT 00163 and TC (PS compliance, “issues-based” reasoning) [2023] UKUT 00164. In fairness to the First-tier Tribunal, it should be noted that both of these decisions, which emphasise the need for clarity in respect of what is in issue, post-date its decision. They nevertheless underline important principles of practice and fairness, one of which is that matters in issue must be clearly identified for the judge, and another is that a party has a right to respond to forensic challenge. Neither of those things happened here.

15. Mr Bazini’s second complaint is that the Tribunal’s finding on Article 8(1) was irrational in light of the accepted evidence. Notwithstanding his forced migration the Sponsor has managed to stay in regular contact with the Appellants, whom he has been supporting financially for over 20 years. We agree. Although the Sponsor and Appellants are all adults, the question of whether there is a family life falling within the ambit of Article 8(1) is a fact-sensitive one. Here the Sponsor has been physically separated from his parents for over 20 years. He is a refugee in this country. He could simply have got on with his life and left Afghanistan, and them, behind him. He has done the very opposite. Although facing challenging social and economic circumstances himself, he has supported his parents and sister financially, and has maintained contact with them throughout those long years. He has scrimped and saved and managed to buy a home large enough to accommodate them all. We are satisfied that this demonstrates a level of real, effective and committed support of the kind envisaged by Sedley LJ in Kugathas [2003] EWCA Civ 31. They have been living separately – contrary to the cultural norm in Afghanistan - not through choice but through forced migration. He has made considerable sacrifices to try and keep his family secure, and they are entirely dependent upon him.

‘Living in’

16. Although each of these appeals was brought on human rights grounds, there was a distinction in the legal frameworks that had to be applied.

17. The First Appellant asserted that the refusal in his case was clearly disproportionate because he could meet all of the requirements of the rules, in particular paragraph E-ECDR 2.5:

E-ECDR.2.5. The applicant or, if the applicant and their partner are the sponsor's parents or grandparents, the applicant's partner, must be unable, even with the practical and financial help of the sponsor, to obtain the required level of care in the country where they are living, because-

(a) it is not available and there is no person in that country who can reasonably provide it; or

(b) it is not affordable.

We note that since the decision, and appeal below, this rule has been transposed into a new appendix to the immigration rules, Appendix ADR: Adult Dependent Relative. It is not in issue that the new version is couched, for the purposes of this appeal, in identical terms:

ADR 5.2. Where the application is for entry clearance, the applicant, or if the applicant is applying as a parent or grandparent, the applicant’s partner, must be unable to obtain the required level of care in the country where they are living, even with the financial help of the sponsor because either:

(a) the care is not available and there is no person in that country who can reasonably provide it: or

(b) the care is not affordable.

18. All of the Appellants, but in particular the Second and Third, relied on what they submitted to be ‘exceptional circumstances’:

GEN.3.2.(1) Subject to sub-paragraph (4), where an application for entry clearance or leave to enter or remain made under this Appendix, or an application for leave to remain which has otherwise been considered under this Appendix, does not otherwise meet the requirements of this Appendix or Part 9 of the Rules, the decision-maker must consider whether the circumstances in sub-paragraph (2) apply.

(2) Where sub-paragraph (1) above applies, the decision-maker must consider, on the basis of the information provided by the applicant, whether there are exceptional circumstances which would render refusal of entry clearance, or leave to enter or remain, a breach of Article 8 of the European Convention on Human Rights, because such refusal would result in unjustifiably harsh consequences for the applicant, their partner, a relevant child or another family member whose Article 8 rights it is evident from that information would be affected by a decision to refuse the application.

19. It is clear to us that in both instances the First-tier Tribunal dismissed the appeal because it found the Appellants to be “living in” Pakistan, rather than Afghanistan, where it acknowledged the situation faced by a family such as this to be “desperate”. We are quite satisfied that had the appeals been considered on the basis that the family were still “living in” Kabul, the appeals would have been allowed. The First Appellant is suffering from diabetes, a prolapsed disc, hypertension and osteoarthritis so severe that he is immobile. He is effectively bed-bound. It was not in issue that the healthcare system in Afghanistan had collapsed and the population there was facing a humanitarian crisis. There would, in effect, be no medical care to buy, so the Sponsor’s remittances would not be of much help. The First Appellant would be entirely reliant on the care provided by his wife and daughter. The difficulty then arises that as unchaperoned women they would face significant obstacles in being able to leave the house to source medicines, food and other household supplies. These practical difficulties would be overlaid by the pervasive fear that they have been identified as family members of six sons living abroad, at least two of whom have been recognised as refugees because of their work with the western alliance: the last of the sons to leave was so prominently involved, and faced such an immediate risk to his life, that the American government considered it necessary to airlift him out of Kabul in August 2021. The Sponsor has further articulated the family’s fear that the Third Appellant, who is an unmarried young woman, will come to the unwanted attention of local Taliban fighters looking to marry. We are satisfied that on these facts, the First Appellant would be able to demonstrate that he meets the requirements of E-ECDR 2.5, and the Second and Third Appellants could show that there would be “unjustifiably harsh” consequences in refusing them leave.

20. As we know, however, that was not the approach taken by the First-tier Tribunal, which in each of the appeals proceeded on the basis that the country where the Appellants are “living” is Pakistan. It found insufficient information had been provided about the circumstances there to conclude that either of the relevant tests were met, and therefore dismissed the appeals.

21. For the Appellants Mr Bazini submits that this was, on the facts, an irrational approach to take. The forms on which these applications for entry clearance were made gave an address in Kabul as the applicants’ place of residence. It was not in issue that the only way that this family could have made their applications was by presenting for biometrics at a British post somewhere outside of Afghanistan, since there is no longer one there. They had entered Pakistan on visit visas which had expired in April 2022, and their attempt to extend that stay had failed: they had produced the refusal letter from the Pakistani authorities. Whilst it was true that they had been in Pakistan for approximately eight months before the applications were made, the reasons for this delay had to be considered. The family had been forced from their home with no notice. The seriously unwell First Appellant had to be transported by land across the mountainous border. The Sponsor would, again without notice, have to gather the funds to pay the visa fees. The relevant documents had to be gathered. The country background material indicated that the Pakistani authorities are clamping down on Afghans living illegally in the country, arresting and deporting those without leave. As a result the Appellants had to keep a low profile, existing but not living in Peshawar. They were terrified of discovery. The Sponsor described them as living under “severe mental distress” as a result. The Appellants have put down no roots in Pakistan. They have no work; they have built no friendships; they are, on the evidence of their refugee Sponsor, keeping out of sight as much as possible. They are there for no settled purpose; they have no social foundations there. Their sole purpose is to move on, and come to the UK. As a matter of fact, Mr Bazini submits, the most that could be said about the Appellants presence in Pakistan was that it was temporary, of necessity, and illegal.

22. Mr Bazini further submits that as a matter of law, the Tribunal has given the text in paragraph E-ECDR 2.5 an impermissibly narrow reading. The rules do not define the term “in the country where they are living” but it is clear that this is intended to mean either the home country of the applicant, or at least a place where there has been a degree of permanence to their residence. That is how that phrase has always been interpreted. In for instance Britcits v Secretary of State for the Home Department [2017] EWCA Civ 368 the court, in considering the rules relating to adult dependent relatives, said this [at §58]:

First, the policy intended to be implemented by the new ADR Rules, as appears from the evidence, the new ADR Rules themselves and the Guidance, and confirmed in the oral submissions of Mr Neil Sheldon, counsel for the SoS, is clear enough. It is twofold: firstly, to reduce the burden on the taxpayer for the provision of health and social care services to those ADRs whose needs can reasonably and adequately be met in their home country; and, secondly, to ensure that those ADRs whose needs can only be reasonably and adequately met in the UK are granted fully settled status and full access to the NHS and social care provided by local authorities. The latter is intended to avoid disparity between ADRs depending on their wealth and to avoid precariousness of status occasioned by changes in the financial circumstances of ADRs once settled here…

(emphasis added).

23. The Home Office guidance uses the same terminology. The ‘Family Policy Adult dependent relatives’ (Version 5.0) of 7 August 2023 confirms at page 5 that the

The policy intention behind the ADR Rules is, firstly, to reduce the burden on the taxpayer for the provision of NHS and local authority social care services to ADRs whose needs can reasonably and adequately be met in their home country…

(emphasis added).

24. Mr Bazini submits that this interpretation of what is required by the adult dependent relative rules must be right. Both the Court and Home Office have there used a gloss which reflects the ordinary meaning of the term ‘living in’: the rule is plainly concerned with the position in the applicant’s home. It would be irrational, and defeat the purpose of the rule, if an applicant who would have met the test, but for the fact they had to flee their home for fear of their life, was excluded. It would also lead to irrational and unintended consequences: the cynical applicant could move on a temporary basis to a country where the relevant medical provision was unavailable so as to circumvent the rule.

25. Mr Bazini further asks us to consider whether the Appellants can be regarded as living in Pakistan when they have no lawful leave to be there. In Re Abdul Manan [1971] 1 W.L.R. 859, a Pakistani seaman had spent two years working in Bradford after he had deserted his ship. He asserted that this made him ‘ordinarily resident’ for the purpose of s2 of the Commonwealth Immigrants Act 1968. Lord Denning did not doubt the asserted facts, but thought it plain that in the context of an immigration case the term “lawfully” had to be read into the statute. Mr Manan could not have the benefit of the provision because his stay had been illegal. This was followed by R v Barnet LBC ex parte Shah [1983] 1 All ER 226, in which the question arose in the context of s1 Education Act 1962 which placed an obligation on local authorities to provide grants for the tertiary education of those who were inter alia “ordinarily resident in the area”. Having reviewed the caselaw Lord Scarman set out those factors that would tend to support a claim of ordinary residence (to which we return below) but then said this:

“Unless, therefore, it can be shown that the statutory framework or the legal context in which the words are used requires a different meaning, I unhesitatingly subscribe to the view that "ordinarily resident" refers to a man's abode in a particular place or country which he has adopted voluntarily and for settled purposes as part of the regular order of his life for the time being, whether of short or long duration.

There is, of course, one important exception. If a man's presence in a particular place or country is unlawful, e.g. in breach of the immigration laws, he cannot rely on his unlawful residence as constituting ordinary residence…

26. Although Shah was an education case, it continues to be recognised as the lead case on the term ‘ordinarily resident’ for the purpose of nationality law.

27. For the Entry Clearance Officer Mr Lindsay did not take issue with any of that, but submitted that none of it is of much assistance in determining what might be meant by ‘living in’. Neither the rules nor the published guidance on Adult Dependent Relatives sought to define the term because its meaning was obvious. It simply means a place where someone is living and the Tribunal should resist the invitation to read into the provision words which are not there. Here the Sponsor himself refers to his family members “living in Pakistan” in his witness statement. It was open to the Tribunal to conclude that they were indeed living in Peshawar, and to dismiss the appeals on the grounds that little information had been provided about their circumstances there. The evidence was that this family had left Afghanistan with no intention of ever returning: it would be absurd to treat them as still ‘living there’ for the purpose of the rule. Mr Lindsay was not concerned about Mr Bazini’s notional cynical applicant. As he pointed out, it was a hypothetical situation extremely unlikely to arise in practice, since it was difficult to imagine that someone with long term care needs would deliberately move somewhere that such care was not available.

28. If the Tribunal did consider that some guidance on the term were needed, the ECO’s position was it was a matter to be decided on the facts, with reference to the length of residence (although this would not be a factor that would be determinative) and the intention of the individual in moving there. As for lawful status in that place, Mr Lindsay agreed it would be difficult to say that it could never be relevant, but it was a matter to be decided on the facts. He reminded us that in principle, facts relating to foreign law are for the party asserting them to prove.

29. For a phrase too obvious to define, ‘living in’ has proved difficult to interpret.

30. We agree with Mr Lindsay that in the vast majority of cases, the meaning of the rule is going to be uncontroversial. Most applicants apply from their own country, and that is no doubt why the Supreme Court in Britcits, and the Home Office in its own guidance, use the term ‘home country’ as shorthand for “the country where they are living”. Afghans are however, for the moment at least, not able to pursue such applications from their home country, since there is no visa post there1. It is in this context that the present appeals arise.

31. During the hearing we posited the notion that ‘living in’ denoted some degree of permanence or stability. Someone who is staying in a place in transit, or only visiting, would not ordinarily be said to be living there. On the other hand that you are “living in” your new house the day you move in; in a more apposite example you are ‘living in’ the UK the day you arrive with a settlement visa. The length of residence might therefore be relevant, but it cannot be determinative.

32. Intention too must play a part. Crucial in terms of art such as ‘habitual residence’, we accept that the settled intention of an individual to stay in a particular place would be a relevant consideration. On the other hand it could never be determinative, since millions of people live in places that they would much rather not, including refugees who long one day to return home but nevertheless incontrovertibly ‘live’, albeit reluctantly, in their host states for decades.

33. Much of the argument before us was taken up by the question of legal status. We were taken to country background evidence about the mass deportation of Afghans from Pakistan, and invited by Mr Lindsay to recognise that some Afghans, albeit a minority proportion, have managed to gain legal status in Pakistan. Again, we conclude that legal status is a factor which could be relevant, but only inasmuch as it impacted on the individual’s ability or willingness to make a home in the place in question. We have not found assistance in this regard from the Shah line of authorities. In his admirably brief reasoning in Re Abdul Manan Lord Denning considered it obvious that the word ‘lawfully’ should be read into the term ‘ordinarily resident’ because to do otherwise would confer a significant benefit to overstayers, an outcome that he could not contemplate being the intention of the statute. The key was the context in which the term was used. As Lord Denning observed, had it been an income tax case, Mr Manan would probably have been considered ‘ordinarily resident’ in Bradford; in an immigration case, where the statute specifically sought to control the entry of colonial subjects, it was otherwise. Here the purpose of the rule is to permit the reunification of families where Article 8 compels it; where the situation of the applicant is such that a refusal would constitute a breach. Whether the legal status of the applicant is relevant to that enquiry is always going to be a question of fact. If the applicant has lived illegally, but nonetheless securely, in some third country for 20 years without danger of interference by the state, it is difficult to see that status (or lack of it) becoming a factor of any significance.

34. That said, we have found the decisions to which Mr Bazini referred to be helpful in another respect. We say at the outset that we recognise that ‘ordinarily resident’ is not the same as ‘living in’. Whilst in many contexts the terms would be interchangeable, that is not always the case. Someone who is temporarily ‘living in’ their parents’ house whilst their own undergoes a renovation would not be said to be ‘ordinarily resident’ there. Nevertheless the decisions offer significant support to our own conclusions about the natural and ordinary meaning of ‘the country where they are living’. It seems to us that this phrase is concerned with whether someone has put, or intends to put, roots down in a place, and created the practical and social foundations to enable a normal life to exist. This may involve lengthy residence, it may involve a settled intention to remain there, and it may involve lawful permission to so reside, but more than that it is simply a reflection of what Lord Sumner considered in C.I.R. v. Lysaght [1928] A.C, a decision cited with approval in Shah, to be the “regular order of a man’s life” (see above at §25). Identifying the reasons underpinning a choice of regular abode Lord Scarman suggested that “education, business or profession, employment, health, family, or merely love of the place” might all be relevant. This rounded analysis is, we find, what is also required here.

35. We return to the facts. The Appellants had been in Pakistan for eight months at the date that they made their applications but for the reasons summarised by Mr Bazini, we do not think that period to be of any particular relevance. We accept on the facts before us that the Appellants do not have any lawful stay in Pakistan, and we do not think we require expert evidence on Pakistani immigration law to do so. The Appellants are in possession of a letter refusing them further leave, and it is clear from the background information that the vast majority of Afghans are living in Pakistan illegally. There is no reason to doubt the evidence of the Sponsor in this regard. Their fear of discovery and deportation appears to be wholly justified. We accept, given the entry clearance applications they have made, that it is clearly the intention of the Applicants to come here to settle with their Sponsor. We find that they have never regarded their stay in Pakistan as anything other than transitory. It is no doubt for these reasons that they have not sought to put down roots there. There is no evidence that they have built any kind of social foundation in Peshawar. On the contrary, they are living in hiding, in a state of limbo. They are existing in Pakistan, but not living there.

36. Taking all of that into account we accept that the Appellants’ grounds are made out and that the First-Tier Tribunal erred in proceeding on the basis that Pakistan was the ‘country where they are living’ simply because they are physically present in that country. That error infected its approach to the rule, and to the overall proportionality balancing exercise. We therefore set the decision aside.

37. We now remake the decision.

38. We begin with the First Appellant. For the reasons we have given, we are not satisfied that the Appellant was ‘living’ in Pakistan at the date of the First-tier Tribunal decision. Other than the passage of time, we have no reason to believe that there has been any material change in his circumstances since then. The difficulty that the First Appellant faces in meeting the requirement of the rule (now ADR 5.2) today is that it cannot sensibly be said that he is ‘living in’ Afghanistan either. Whilst that was once a country in which the Appellants had a legal status, a strong social foundation and in which they had spent their entire lives, that is no longer be the case: as Mr Lindsay says, they left their home over two years ago with no intention of ever going back. The First Appellant is, in effect, in limbo. It cannot be said that he is ‘living’ anywhere. He therefore cannot meet the requirements of the rule.

39. Paragraph GEN 3.2 provides that where an applicant is unable to meet a non-financial requirement of the rule, the decision maker must consider whether there are exceptional circumstances that would render the refusal of entry clearance a breach of Article 8, because such a refusal would result in unjustifiably harsh consequences for the applicant. Given the circumstances, we are quite satisfied that this test is met. This is a family who find themselves in the predicament that they do because at least two of their number chose to work with the western alliance that ousted the original Taliban regime. As a result of that allegiance they have endured the threat of persecution, forced migration and separation from each other. They have lost their home and everything they ever knew. The First Appellant is, it is accepted, elderly and very unwell. He, his wife and daughter are living under the “severe mental distress” of knowing that they could be returned to Afghanistan any day now. They are in Pakistan, but in a state of limbo, and we accept that the precarity of their situation must be very frightening. If they are removed to Afghanistan their situation will become immeasurably worse. To permit that to continue indefinitely would be harsh, and even having regard to the public interest in refusing leave to those who cannot speak English, who are not financially independent and who do not meet the requirements of the rules, we find it to be unjustifiably so.

Decision

40. The decision of the First-tier Tribunal is set aside.

41. We remake the decisions in the appeals as follows: the appeals are allowed on human rights grounds.

42. There is an order for anonymity.

Upper Tribunal Judge Bruce
Immigration and Asylum Chamber

21st November 2023