Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case no: UI-2024-001023

First-tier Tribunal Nos: HU/01213/2023
LP/03117/2024

THE IMMIGRATION ACTS

Decision and Reasons Issued:
On the 07 April 2025

Before

DEPUTY UPPER TRIBUNAL JUDGE CHAPMAN

Between

MRS SAROJBEN AJAYKUMAR SAGAR
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr P Blackwood, counsel instructed on a direct access basis
For the Respondent: Ms Nwachuku, Senior Home Office Presenting Officer

Heard at Field House on 25 February 2025

DECISION AND REASONS

1. The Appellant is a national of India, born on 1.6.64. She is a widow, her husband having died of covid 19 in May 2021. The Appellant has two sons: Dr Viral Ajaybhai Sagar (DOB 31.7.86) and Lakhan Ajaybhai Sagar (DOB 17.6.89.) On 4.10.22 the Appellant arrived in the UK as a visitor. On 28.3.23 she made an application for leave to remain on the basis of her private life in the UK. This application was refused in a decision dated 25.5.23. She appealed against this decision and her appeal came before First tier Tribunal Judge O’Garro on 28.11.23 for a remote hearing via cvp, with no Presenting Officer in attendance. In a decision dated 12.12.23 the judge’s decision and reasons was promulgated, dismissing the appeal.

2. An application was made, in time, for permission to appeal to the Upper Tribunal on 22.12.23. The grounds, which were accompanied by a witness statement from counsel who represented the Appellant before the First tier Tribunal and a witness statement from the Appellant’s older son, Dr Sagar, asserted, in essence, that:

(i) The judge had acted in a manner which was procedurally unfair, in that she refused to treat the Appellant as lacking litigation capacity as she disagreed with the psychiatric assessment of Dr Junaid without providing any clear rationale for this and also stated she had misplaced her notes and that she stepped into the arena contrary to the Surendran guidelines: MNM [2000] UKIAT 00005 at [6];
(ii) The judge substituted her own view for those of the experts with regard to the treatment that the Appellant should receive on return to India;
(iii) The judge decided that the Appellant’s son should return to India with the Appellant to care for her, however, this was not a point taken by the Respondent and was not her case as set out in the refusal decision;
(iv) The judge failed to consider the Appellant’s case in the context of the expert evidence not only of Dr Junaid but also the social care report of Ms Davison, a former Director of Nursing contrary to the judgment in Mibanga [2005] EWCA Civ 367;
(v) The judge erred in failing to take into consideration evidence as to the best interests of the Appellant’s grandchild;
(vi) Article 3 was dismissed without analysis of Ainte [2021] UKUT 203 (IAC).

3. Permission to appeal was granted by UTJ Kamara in a decision dated 29 April 2024 on the basis that:

“The grounds and accompanying statements raise arguably serious concerns regarding procedural unfairness. The materiality of these matters must be addressed coherently at the error of law hearing.

Counsel before the First-tier Tribunal has provided a witness statement and accordingly fresh counsel must represent the appellant before the Upper Tribunal.”

Hearing

4. At the hearing before the Upper Tribunal, Mr Blackwood sought to rely on a speaking note dated 24 February 2025. He submitted in relation to Ground 1 that there was no Presenting Officer and the case was on the float list. He stated from the transcript of the hearing that it seemed counsel was keen for the judge to ask questions and the judge declined on the basis that that would be stepping into the arena. Over 30 questions were put to the eldest son and it is clear from the determination that the judge accepted that he could not go to India. There were a couple of questions for the daughter in law and 13 questions for the younger son. The issue of the younger son relocating to India and the questions from the judge in relation to the eldest son seemed to prompt counsel to pre-emptively ask those questions of the youngest son. Had those questions not been asked that leading may not have taken place and it was capable of impacting on the outcome. Most importantly, having asked those questions the judge stops counsel from asking a clarificatory question on the personal care that the Appellant requires [page 34 refers] and the Judge here stepped into the arena in stating, without any evidence: “with all due respect if he was in that environment looking after his mother I guess he would probably employ someone to assist him.”

5. Mr Blackwood submitted that there needs to be evidential support for findings of fact and the focus is on combination of factors to address the issue of whether there would be very significant obstacles to the Appellant’s integration in India. Firstly, whether is the youngest son would be available to care for her and secondly, that the sisters in India would be available and would actually come to support her and thirdly, whether the Appellant’s anxiety and depression would be abated by this. He submitted that the evidence was to contrary effect. The eldest’s son’s witness statement, the expert reports of Ms Davison and Dr Junaid and the oral evidence the judge heard on the day were all that the Appellant has never been left alone. It is not just a case of expecting the youngest son to return to India and that the Appellant would be alright at home while he is out earning money as the evidence is that this will not work. The evidence on the day is that the youngest son is not the primary carer but he is there in a supporting capacity and follows the instructions of his elder brother. The evidence in the reports indicates that one of the reasons the Appellant came here when she did is precisely because her care in India was not sufficient and she was very poorly when she arrived in the UK.

6. With regard to the issue of support from the Appellant’s sisters the judge at [58] refers to them as close family members but the evidence was culturally they were not sufficiently close to take on that role and the responsibility culturally was with the eldest son. There was no judicial questioning on that central issue and no questions to address or override that evidence were asked. There is a high probability that her sisters could not provide support as one has mental health issues. Whilst the Appellant speaks to them on the phone that is very different from daily care and whether they would come and care for her.

7. Mr Blackwood submitted that there were also inadequate reasons for the judge relying on Dr Roy’s report and need for therapy as overriding or being more relevant than Dr Junaid and Ms Davison’s reports. He submitted that there were two elements to that: Dr Roy’s report and his recommendations for behavioural therapy were based in the absence of any cognitive impairment because at that point she was diagnosed with grief and depression and there was no evidence before the judge to assist her with the question of the efficacy of CBT and other forms of therapy for someone with moderately severe cognitive impairment.

8. Secondly, there was no evidence before the judge that therapy is more important that the familial support she receives, bearing in mind the Appellant would be taken away from her oldest son and her grandson. Both reports contain evidence as to the importance of familial bonds. Mr Blackwood submitted that there were also inadequate reasons for finding at [46] that Dr Junaid had not given any evidence as to why the Appellant’s condition would deteriorate without the care of her oldest son, but his report contains several reasons for that conclusion, including at [55] the immense importance and impact on mental health of her reliance on her family for her care; that depression in older age is linked to morbidity and his express agreement with contents of Ms Davison’s report at [69]-[71].

9. Thirdly, Mr Blackwood sought to rely on the judgment in Mibanga [2005] EWCA Civ 367 with regard to Ms Davison’s report. Whilst the judge says her solutions answer the points raised in Ms Davison’s report she failed to read it as part of the evidence as a whole before coming to any conclusions. Ms Davison has a professional qualification in nursing and social care and not in social work and this goes both to anxious scrutiny and the fact she was able to offer an expert opinion on the Appellant’s care. Ms Davison’s report expressly deals with the genuineness of the wish by her sons to improve the Appellant’s life in the UK. The Appellant is unable to undertake therapy, which is not unusual and when she is ready her eldest son will arrange for someone who speaks the language to treat her. This is dealt with in the report but not in the determination.

10. Mr Blackwood submitted that the Judge also does not deal with the cultural aspect and familial care, including the relationship with her grandchild. Following CAO [2024] UKSC 32 at [46] it is arguable the judge misdirected herself with regard to the best interests assessment and it is for the First tier Tribunal to decide for itself whether it has sufficient information to make a best interests assessment in light of the evidence in the form of the witness statements, oral evidence and also referenced in the Davison report.

11. No rule 24 response had been submitted by the Respondent. In her submissions, Ms Nwachuku submitted that the issue was one of materiality turning to [24] of the decision and [27] and it was within that lense that the judge was looking at capacity in relation to the report. She does accept the qualifications of the doctor but she had difficulties following what has been said. She submitted that it is clear from reading the transcript that the judge was concerned that if the Appellant lacked litigation capacity the hearing should be adjourned. Counsel then representing her was happy to proceed on the basis that the Appellant had capacity but was a vulnerable witness.

12. At [27] the judge does accept the Appellant has onset dementia and should be treated as a vulnerable witness but her finding here is confined to capacity assessment: [22]-[27]. It was not accepted the judge was stepping into the arena of a Presenting Officer. The judge apologised for the length of questions – see page 27 of the transcript - but gave an explanation as to why she had to ask so many questions. There were limited questions asked by counsel on the day and it would not be appropriate for the judge to go back and make a decision based on points that were not put to the witnesses.

13. It is also important that the judge referred to the case of NC [2023] EWCA Civ 1379 at [31] which requires a judge to carry out a broad evaluative judgment and the judge refers to this case to support the reasons as to why these questions were being asked. Counsel on the day did not have an issue with this and accepted it was part of the evaluative picture. It is difficult to see how the judge is stepping outside the Surendran guidelines and what happened on the day given there was no Presenting Officer and it was on the float list. The Judge would have to ask questions if the judge was putting points to the witnesses but if you read through the transcript all the questions were seeking clarification and the judge was making sure she understood the case and has taken a very practical approach and a necessary one.

14. In relation to Ground 2, Ms Nwachuku submitted that the questions occurred during the evidence and the judge needed to address those points and there is nothing wrong with this finding. The younger son is in a different position from his older brother who is a British citizen and the judge said she could not expect him to go back but the younger son does not have British citizenship or ILR and his leave is somewhat precarious as it is limited. It was open to the judge to find that the younger son may follow the Appellant back to India or that she could be assisted by other relatives. The judge also refers to care arrangements being put into place to support the Appellant. Ms Nwachuku submitted that the judge had provided reasons for her findings.

15. Ms Nwachuku submitted that the judge addressed section 55 BCIA 2009 at [70] and it was difficult to see how the judge could be criticised for not saying more. Even accepting it is not very lengthy [70] does deal with the best interests of the grandson and adequately deals with section 55.

16. In reply, Mr Blackwood submitted that a lack of capacity to conduct litigation could not be anything other than material to an assessment of very significant obstacles to integration. Whilst it is not the only factor if someone is judged not to have capacity it is going to be a very significant obstacle and cannot be ringfenced as to whether or not the person is able to give evidence. The judge has substituted her own opinion for that of the expert and has made her own decision. The alternative finding must be the very significant obstacles test: see NC (op cit). It is a broad evaluative judgment. It would not be sufficient on its own but it is a very strong indicator but in combination with all the others: the Appellant’s moderately severe cognitive impairment and difficulty attending counselling at present and the fact that the eldest son and primary carer would remain in the UK. There was evidence that the Appellant’s sisters were not able or willing to provide assistance. Mr Blackwood submitted that absolute evidence was needed to counter this and the ability of younger son to care for her as a solution cannot just be a guess. All of this needed to be tied together and this was not done because the error at the beginning was material.

17. Mr Blackwood submitted that, whilst the judge accepted the onset of dementia at [49] she did not incorporate that into her assessment of very significant difficulties but instead focused on the report of a psychiatrist in India that the Appellant could have therapy and has not taken into consideration her cognitive impairment. He submitted that it is such a large jump to say counselling can cure all of that and this is not supported by the evidence and therefore there is inadequate reasoning.

18. Mr Blackwood submitted that if I was to find an error of law the appeal would need remittal back to the First tier Tribunal.

Decision and reasons

19. With regard to the first ground of appeal, it is the case that the judge went behind Dr Junaid’s opinion that the Appellant lacked litigation capacity, however, contrary to the assertion on behalf of the Appellant, the judge did give clear and sustainable reasons for her decision in this respect at [23]-[26]. Dr Junaid assessed the Appellant has having “moderately severe cognitive impairment” but noted that she was able to understand and consent to the interview and was able to give him a full history of her life in India and her health conditions. It is not clear why at [52] he concluded that it was more likely than not that the Appellant does not have capacity to make decisions about her immigration application. The judge found that the report did not demonstrate that the Appellant was unable to take decisions; there was no evidence that the Appellant had formal thought disorder; she was fully alert during her interview with him and had some insight into her health condition.

20. Moreover, there was no request in the skeleton argument or prior application made to the First tier Tribunal for a litigation friend to be appointed to represent the Appellant’s interest. Whilst this appeal pre-dated the Presidential guidance dated 2 December 2024 representatives should have regard to this guidance in particular, the fact that where it is identified that a party may lack capacity this should be raised with the Tribunal as soon as possible [22]. I find no material error of law in this respect.

21. There is, however, a second element to ground 1 which is the assertion that the judge stepped into the arena contrary to the Surendran guidelines appended to the decision by Mr Justice Collins in MNM [2000] UKIAT 00005 at [6]. It is clear from the transcript obtained by the Appellant’s son that the judge asked a number of questions of him and his younger brother. No questions were asked of the Appellant as she did not give evidence.

22. I set out the relevant extracts from the guidelines:

‘6. It is our view that it is not the function of a special adjudicator to adopt an inquisitorial role in cases of this nature. The system pertaining at present is essentially an adversarial system and the special adjudicator is an impartial judge and assessor of the evidence before him. Where the Home Office does not appear the Home Office's argument and basis of refusal, as contained in the letter of refusal, is the Home Office's case purely and simply, subject to any other representations which the Home Office may make to the special adjudicator. It is not the function of the special adjudicator to expand upon that document, nor is it his function to raise matters which are not raised in it, unless these are matters which are apparent to him from a reading of the papers, in which case these matters should be drawn to the attention of the appellant's representative who should then be invited to make submissions or call evidence in relation thereto. We would add that this is not necessarily the same function which has to be performed by a special adjudicator where he has refused to adjourn a case in the absence of a representative for the appellant, and the appellant is virtually conducting his own appeal. In such event, it is the duty of the special adjudicator to give every assistance, which he can give, to the appellant.
7. Where, having received the evidence or submissions in relation to matters which he has drawn to the attention of the representatives, the special adjudicator considers clarification is necessary, then he should be at liberty to ask questions for the purposes of seeking clarification. We would emphasise, however, that it is not his function to raise matters which a Presenting Officer might have raised in cross-examination had he been present.
8. There might well be matters which are not raised in the letter of refusal which the special adjudicator considers to be relevant and of importance… Where these are matters which clearly the special adjudicator considers he may well wish to deal with in his determination, then he should raise these with the representative and invite submissions to be made in relation thereto.” (emphasis added)
23. The issues raised in refusal decision are that it was not accepted: the Appellant had established family life in the UK; there were very significant obstacles to her integration in India and that removal would not be contrary to article 8 of ECHR. The refusal decision did not assert that the Appellant’s son relocate to India but suggested that her eldest son might escort her on her return to India for a period of time and explore care options available there. It was not accepted that the threshold for Article 3 (medical) was met and that treatment for the Appellant’s medical conditions would be available to her in India. There was no Respondent’s review.

24. At the outset of the hearing Ms Sood agreed with the judge that the issues she was required to determine were whether there were very significant obstacles to the Appellant’s integration; article 8 outside the Rules, whether family life was engaged and the best interests of the Appellant’s grandson and article 3 (medical).

25. I have carefully reviewed the transcript of the hearing and the judge’s consequential findings. Whilst I fully acknowledge that the judge was in a difficult position as she did not have the assistance of a Presenting Officer, I consider that she did overstep her remit in light of the guidance set out in the Surendran guidelines set out at [22] above in that the judge proceeded to ask 30 questions herself of Dr Sagar and 13 of his younger brother, in a manner which was clearly considered to be inquisitorial by both Dr Sagar, the Appellant’s older son who has provided a statement and Ms Sood, who was the representative at the hearing before the First tier Tribunal, who has also provided a statement. It is clear from the guidelines that the correct course of action would have been for the judge to have asked Ms Sood to explore in questioning the witnesses any matters which concerned her and only if further clarification is needed should the judge ask any questions at all.

26. Moreover, it is clear from the nature of the questions and the judge’s consequent findings that she considered that, having explored in some detail whether the Appellant could obtain support from her siblings in India, that the Appellant could be returned to India accompanied by one of her sons. This was not an issue that had been raised previously by the Respondent and I find it was not properly open to the judge to raise it for the first time in the course of the hearing, not by asking Ms Sood to put questions but by asking 30/13 questions herself of the two sons. It is clear from the statements accompanying the transcript of the hearing that this created a perception of unfairness on the part of Dr Sagar and Ms Sood.

27. For these reasons I find that the decision cannot stand and must be set aside. For the avoidance of doubt, I find that ground 3 is also made out. Even though it was Ms Sood who asked the Appellant’s younger son as to his ability to return to India to care for his mother I find this was a response to the judge’s detailed investigation of the ability of his older brother to return but the same principle applies given that no reference was made to the younger brother in the refusal decision, let alone any suggestion that he might care for his mother in India. I further find the judge erred in respect of her findings at [57]-[61]regarding the treatment that the Appellant could access on return to India which do appear to be based on speculation and assumption, predicated upon the Appellant living with her younger son which, for the reasons I have set out above, is not a sustainable finding.

28. I do not find ground 4 is made out, given that credibility was not in issue and the judge did give consideration to all the medical evidence and the report of Ms Davison. I do not consider that ground 5 has arguable merit, given that there was no clear evidence that the Appellant’s grandson’s best interests would be adversely impacted by his grandmother’s departure to India, given his very young age and the presence of both parents in his life. I do not find ground 6 has arguable merit given that the medical evidence did not meet the high threshold set out in AM (Zimbabwe) [2020] UKSC 17 ie that her removal to India would lead to a “serious, rapid and irreversible decline” in her state of health “resulting in intense suffering or a significant reduction in life expectancy.”

29. However, in light of my finding that the decision is unsustainable as a consequence of procedural unfairness, the decision is set aside in its entirety.

Notice of Decision

30. The decision and reasons of First tier Tribunal Judge O’Garro contains material errors of law. I set the decision aside and remit the appeal for a hearing de novo before a different Judge of the First tier Tribunal.

Rebecca Chapman

Deputy Upper Tribunal Judge Chapman
Immigration & Asylum Chamber

2 April 2024