Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-001446

First-tier Tribunal No: HU/55364/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

20th May 2025

Before

UPPER TRIBUNAL JUDGE LANDES

Between

MARIA ROSARIO BEATRIZ MARLETTA
(NO ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms K Reid (Counsel instructed by MPB Solicitors)
For the Respondent: Ms S Nwachuku (Senior Home Office Presenting Officer)

Heard at Field House on 27 February 2025

DECISION AND REASONS
1. This is the remaking, under section 12 (2) (b) (ii) of the Tribunals, Courts and Enforcement Act 2007 of the decision of the First-Tier Tribunal promulgated on 30 January 2024 insofar as it was set aside by Upper Tribunal Judge Meah by decision and reasons issued on 28 October 2024 (see annex below). Upper Tribunal Judge Meah preserved the findings in relation to the appellant not meeting the requirements of immigration rules, but set aside for error of law the judge’s findings on the appellant’s case under Article 8 ECHR outside the immigration rules, namely that the appellant had not shown that not to grant her leave would result in unjustifiably harsh consequences.
Background
2. The appellant is a national of Argentina born on 1 September 1939. On 7 January 2023 she applied for entry clearance to join her daughter (“Mrs Escobar”) and son-in-law (“Mr Liste”) in the UK. On the refusal of that application she appealed. The First-Tier Tribunal Judge’s found that she did not meet the requirements of immigration rules. His preserved findings were the following:
(i) That the appellant had not shown that she required assistance with everyday tasks. She had a medical condition but that combined with her age was not sufficient to raise a presumption that she required help with everyday tasks. Her son was not fulfilling any caring role in relation to her [22];
(ii) In any event, even if she did require assistance with everyday tasks, the appellant had not discharged the burden of proof on her to show that support services she required were not available [23] [24];
(iii) As there was no clear evidence as to the sponsor’s finances, the burden of proof that the financial requirement was met had not been discharged [25].
3. At the time of the remaking hearing, the appellant was in the UK, although she was not present at the hearing due to fears about the effect of the stress of the hearing on her. She had come to the UK for a visit on 5 November 2024 and she had a flight booked back to Argentina on 9 March 2025.
4. There had been an issue before the remaking hearing about whether the appeal had been abandoned by the appellant being given leave at the border to enter the UK as a visitor, but it was agreed at the start of the hearing that the appeal had not been abandoned as the appeal had been brought when the appellant was outside the UK.
The remaking hearing
5. I discussed the issues with the representatives. Ms Nwachuku accepted at the outset that there was family life between the appellant and Mrs Escobar and accepted that there would be appropriate accommodation for her in the UK.
6. The documents that were before me and on which I have relied were those in the error of law bundle, a supplementary bundle of thirty-nine pages, the details of the appellant’s flight and other documents relevant to the proposed preliminary issue. Ms Reid had also produced a skeleton argument on which she wished to rely apart from the section about the preliminary issue.
7. I heard evidence from Mrs Escobar and Mr Liste followed by submissions from both representatives which I summarise below and which I have taken into account when coming to my decision.
8. Ms Nwachuku relied on the refusal letter and the review. Her first submission was that Article 8 ECHR was not engaged because the refusal did not significantly impact family life. She submitted that despite the refusal the appellant was still able to enjoy family life; she came as a visitor and was allowed to enter as a visitor, the family could continue visits as they had done before. If I accepted that article 8 was engaged, then we were looking at whether there were exceptional circumstances such that leave outside the rules should be granted. It was accepted that the appellant had health conditions, and it was accepted that her preference was to be with her family, but Article 8 ECHR did not allow an individual to choose where family life took place; the appellant was still able to travel for 16 hours on a flight and was able to travel back; the sponsor’s evidence was that they assessed the risk and felt that would be a better option, that she did not stay with other family or that they did not go to visit itself showed that the appellant was able to visit. With the sponsor visiting once or twice a year, the appellant visiting the UK for up to 6 months and phone and video calls and sending friends to check on the appellant, the decision was perfectly proportionate. Article 8 was a qualified right and should not be used as a way round the immigration rules. The appellant and Mrs Escobar had made things work and there were provisions in place to make sure that friends could check in; the appellant had no aids in place at home and she had no falls within the house, she would be returning by herself; it might not be her preference but that was the reality. There was still the option of Mrs Escobar returning with her mother for as long as her mother needed and the evidence was that if she had to, she would. The appellant was able to travel a long distance about 32 hours travel in all and live by herself, her son lived about 30 minutes away, and in-laws about 40 minutes away, she was in communication with them. There were other options in Argentina and the decision was proportionate.
9. Ms Reid submitted that the public interest in maintaining immigration control was met. The family had done the appropriate thing, and the evidence was really compelling that the sponsors had had respect for immigration laws. The appellant could be accommodated and the evidence that her financial needs could now be met in the UK was not challenged by cross-examination. There would be no greater impact on the public purse than there would be for any other person.
10. Ms Reid submitted it was not a question of maintaining the status quo; it would only become more difficult for the appellant to travel to the UK; the evidence of the sponsors as to why they had taken the decision for the appellant to come to the UK was compelling; it was very different for the appellant to come to the UK for almost six months to have the full quality of family life than for Mrs Escobar to spend a brief period with her mother. The appellant had taken advantage of the help on offer by travelling with family friends and on return she had an upgrade, and they had arranged for special assistance for her and for family friends to drive her back home. It was not an easy journey, but the appellant had the benefit of spending prolonged time with immediate and extended family as opposed to having one or two relatives visit in Argentina. The risk analysis was a reasonable one and it was not indicative of the fact that Mrs Escobar was not able to live independently without significant detriment. The appellant had been very weak, depressed, and overwhelmed by the journey; the report of Christian Pena was referred to as per paragraph 14 a of the skeleton argument. The appellant’s mental health improved with care of her daughter and the benefit of contact from her extended family. Care in Argentina was unaffordable, but it was not simply about the affordability of another person caring for the appellant, but also about the appellant’s psychological wellbeing. It was a source of significant distress to the appellant that she was living on her own in Argentina and it was disingenuous to suggest that her daughter’s in-laws could provide care.
11. Ms Reid submitted that the public interest in the exclusion of the appellant was very low and bearing in mind the difficulties that caused the appellant and the difficulties that caused the sponsor the balance fell in favour of the appellant and the appeal should be allowed so that she could enter the UK to spend the UK in the final years of her life with dignity and with her family.
Findings and reasons
The appellant’s ability to care for herself
12. My starting point is of course the preserved findings that the judge was not satisfied that the appellant required long-term personal care to perform everyday tasks. At the time of the application, the appellant was at level 2 of the ECOG scale, ambulatory and capable of self-care, but unable to carry out other work activities. A doctor’s letter stated that she could walk with difficulty and perform daily activities in everyday life ([5] of FTT decision).
13. A report again before the First-Tier Tribunal from Dr Carlucci of June 2023 described the appellant as having chronic arterial hypertension, chronic chest pain following shingles, cognitive impairment, hearing impairment, fine motor skills impairment and balance disorders. She had experienced falls. As a result, the doctor recommended that she be placed in a facility providing institutional medical care or failing that remain in the care of a responsible adult relative. It had been suggested by the respondent that there had been some inconsistency in the medical evidence, but the First-Tier Tribunal judge found that there was no inconsistency and clearly accepted that the appellant did have the medical conditions listed ([22] of his decision).
14. A further report from Dr Carlucci of 20 February 2024 explains that she considers that since the last evaluation the appellant has experienced a significant advance in neurological disorders to the detriment of her cognitive and neuromotor abilities, difficulties in maintaining stability and balance, with slower movement and gait, finding it hard to keep her balance when moving around at home and whilst cooking, walking and bathing. She could not do errands outside the home or go shopping because of her difficulty in walking and because of muscular weakness would not benefit from the use of a walking stick. It was essential to have the help of an adult to assist her in avoiding falls, to help her with her memory when shopping or carrying out errands and to help her carry out daily household tasks such as cooking, cleaning and showering. She had been told that she could no longer live or walk around on her own due to her history and that she needed to be accompanied by a responsible adult or family member who could assist her with her everyday living needs.
15. The medical information from the UK as to the appellant’s physical health does not add much more to the picture. The GP’s letter of February 2025 describes the appellant being recently diagnosed with anaemia, and the family reporting her memory deteriorating in the past 4 – 5 years and needing assistance with taking medication, shopping and cooking, having received a diagnosis of memory impairment in Argentina. However one of the medical letters from Argentina which was before the respondent originally (Dr Ravioli’s letter of 28 November 2022) describes the appellant as having “chronic anemia” and the appellant’s own letter written to the respondent referred to having “an extreme form of anemia or a type of blood cancer” suggesting that this was an ongoing problem.
16. The picture painted is that rather than the appellant having suffered a recent dramatic deterioration, her conditions are just, understandably, worsening as she ages.
17. Despite Dr Carlucci’s report, the appellant was carrying out daily activities on her own in Argentina, including shopping, before she left to visit the UK in November. Mrs Escobar told me in evidence that the appellant was very independent, she loved to go outside, and she was managing her daily care activities herself albeit with a lot of difficulty. The appellant’s flat was very small, and the appellant was able to get around by holding on to the walls because it was so small. They did worry about her losing her balance and falling; she had fallen and ended up in hospital in the past, but Mrs Escobar agreed that it was right, as the GP records recorded, that her last fall had been about 1 ½ years previously. I observe that the serious fall in the street which is referred to in the medical documents was noted by Dr Carlucci in her report dated 5 June 2023 so it must have taken place before that date (indeed it may have been the fall referred to by Rosana Strieff in her December 2022 report, it is not entirely clear).
18. Mrs Escobar agreed in evidence that a carer could help with the physical aspects of her mother’s care, but not, she said, the emotional aspect. She said that there would be difficulty having a live-in carer because the flat was so tiny. Given the appellant’s desire for independence and her ability to manage on her own, it is not obvious that the appellant even now needs a live-in carer for the physical aspects of her care. I observe when Mrs Escobar visits she says she stays in her mother-in-law’s house because the flat is so tiny, which suggests that the appellant can manage on her own at night. Mrs Escobar works; whilst Mrs Escobar tries to take the appellant with her now the appellant is in the UK, this is obviously not always possible. Clearly it would be desirable to have someone do or assist with shopping and assist with or supervise cooking and bathing to avoid falls, and to give medication or check that it has been taken appropriately and check that meals have been eaten, but that does not require a carer to live-in, it does not even require someone continuously throughout the day, just some help for a few hours. Mrs Escobar is also able to monitor the appellant via video-calls. Whilst I agree it is not realistic to expect Mr Liste’s family to provide care for the appellant, Mr Liste’s evidence was that the appellant sometimes visits his mother, and his family (mother who herself needs care, and a sister who looks after her) live 40 minutes away from the appellant by bus. In those circumstances I consider it not unrealistic for Mr Liste’s family to keep an eye on the appellant as an additional safeguard and source of practical help.
The psychological evidence
19. The medical evidence before the respondent at the date of the application and before the First-Tier Tribunal included evidence from a psychologist in Argentina (Rosana Streiff) that it was essential for the appellant to reside in the same city as her daughter and family to guarantee she received the care, companionship and support that she needed and that residing near her daughter was a need for the appellant in her current condition and important to preserve her psychological and emotional health.
20. The updating evidence from Ayelen Arizmendi Santiago, a specialist in adult clinical psychology of October 2024 says that the appellant has had anxiety attacks co-morbid with depressive symptoms that hinder her functioning since 2020, in relation to the context of the pandemic. She writes that it is of subjective urgency that the appellant can live physically close to her relatives and significant ties and so improve her quality of life and that was essential to take care of her physical, mental and emotional health. She writes “diagnostic impression: Depression and anxiety symptoms.”
21. Cristian Pena, a chartered clinical psychologist, assessed the appellant over Zoom in January 2025 and was also sent her medical records for review (although the records available to him were very limited - Dr Carlucci’s report of February 2024 and a report of February 2024 from Mrs Arizmendi Santiago which is not in the bundle). He diagnosed the appellant as experiencing an adjustment disorder with anxiety, reporting severe anxiety about the possibility of being “sent back” to a country where she feared isolation, lacked family support, and had concerns regarding her safety, health and overall functioning [70]. He concludes that “this assessment confirms that the uncertainty surrounding Mrs Marletta’s immigration status is causing severe anxiety. However it also highlights a positive aspect: thanks to her daughter’s support and care, as well as the reassurance she receives, Mrs Marletta’s depression has decreased significantly. This reinforces their plea for her to remain in England, with her daughter, where she feels safe, supported and valued.” [76].
22. It is evident from that report that the appellant very much enjoys being with Mrs Escobar and Mr Liste, seeing her grandchildren and great-grandchildren and I am sure being with her extended family (whom it was not reported visited Argentina or at least did not visit frequently) has made her feel better. It is also understandable that not only the appellant, but also Mrs Escobar and Mr Liste are very anxious about the outcome of the appeal.
23. Again, when looking at the evidence as a whole I conclude that there has been no dramatic change since the appeal came before the First-Tier Tribunal judge. There was psychological evidence at that time suggesting that the appellant needed to reside near her daughter for her health; the medical evidence shows that the appellant had anxiety attacks co-morbid with depressive symptoms since 2020 and now during the appellant’s visit, although her depression has improved, her anxiety has become severe.
Financial evidence and evidence about the availability of care
24. There was no challenge to the evidence that Mrs Escobar and Mr Liste could financially support the appellant. They have established and worked for a charity Youth with a Mission Urban Key London, part of the Christian international global charity Youth with a Mission. The charity are prepared to cover the appellant’s expenses if she were to come to the UK as part of their remuneration for Mr Escobar and Mr Liste.
25. I also now have evidence that a single room in a private care home in Argentina would cost $6,751.80 but it is not clear for what period although it would seem more likely to be monthly rather than weekly or yearly. There is also a newspaper article about the lack of coverage of nursing homes in Argentina, particularly those covered by public-funding, only about 15% of the total, and the article also explains the lack of regulation of those homes. Dr Carlucci also writes that to be admitted to an old people’s home, or be assigned a therapeutic carer, it is an essential requirement to have a close family member responsible for the appellant. Again, no further detail is given, and it is not clear whether that also applies to private homes and carers and entirely unclear how that could work for an elderly person without a family. In addition whilst the appellant’s son is disabled himself and not able to look after the appellant’s physical needs and has a mental health condition, the appellant is in contact with him and although Mrs Escobar said in evidence that the appellant could not spend another Christmas with her brother as he was not in a position to take care of her emotionally and they were fighting each other, that does not of itself mean that he could not be the necessary assigned local close family member.
26. It is not clear what Mr Liste and Mrs Escobar’s income is. Mr Liste says his income is around £30,000 a year, but his tax calculation for 2023/4 shows a profit from self-employment and pensions and state benefits of less than half that, only £14,713. I have no evidence of Mrs Escobar’s income. I accept that the appellant has only her pension to rely on. I can infer that it would not be possible for the family to fund the cost of a private care home, but as I have no evidence about the cost of carers and unclear evidence about Mr Liste and Mrs Escobar’s income, I cannot be satisfied that care to assist or supervise the appellant with activities of daily living as I have set out at paragraph 18 above is unaffordable in Argentina. Of course, as I discuss below, whilst care would provide her with some companionship when the carer was present, it would not meet her understandable desire to be with family.

Engagement of Article 8 ECHR
27. Family life is accepted. Despite Ms Nwachuku’s submissions, I find the decision does interfere with family and private life. I appreciate it is becoming more difficult as the appellant ages for her to come to the UK for extended visits, but I find it is something which she still could do. Inevitably the flight will be tiring for her, and I appreciate Mrs Escobar described the flight as risky, but I have no medical evidence to the effect that the appellant should not be flying, and she is physically able to be on a flight on her own with the assistance provided by the airline. However the psychological evidence shows that the appellant’s mental health is impacted by separation from her family, and this is a time when naturally as the appellant’s age and needs increase, she wants to be with her family more than before and her family want to be with her. Mrs Escobar’s evidence was that because of her work and leave, she could only stay for a month in Argentina and that was not enough.
28. As the appellant would be only able to stay less than half the year in the UK, the month Mrs Escobar could relatively easily stay in Argentina would mean that the appellant would be likely to be without a family member staying with her or near her for around half the time. Whilst I have found that the appellant could have physical help from a carer (see paragraph 18 above) and it has not been shown that such help would be unavailable or unaffordable (see paragraph 26 above) that would not fully meet her emotional need to be with her family more often. I agree that Mrs Escobar could continue to contact the appellant through daily video calls, but that is not the same as the two living together; whilst a separation of a couple or even a few months would have an end and might well be reasonable for the appellant, a separation for the best part of half a year would be quite different. If the appellant could not come to the UK to live, then the appellant and Mrs Escobar could only spend significantly more time together if Mrs Escobar spends more time in Argentina and that is a meaningful interference with her own family and private life in the UK. It is for that reason that I find Article 8 ECHR is engaged.
The proportionality balance
29. When considering the public interest question, I have regard to the considerations listed in section 117B of the Nationality, Immigration and Asylum Act 2002.
30. As far as the public interest is concerned, the most important feature is that the maintenance of effective immigration controls is in the public interest. There is a preserved finding as set out above that the requirements of immigration rules are not met in this case.
31. I consider that there is nothing to add to that public interest. Despite the way Mr Pena’s report is written, suggesting that the appellant should not be removed from the UK, I accept Mrs Escobar and Mr Liste’s clear evidence that their intention was always that the appellant only come to the UK for an extended visit before, during and after the Christmas period and they had no intention of breaking immigration rules.
32. When considering the factors in section 117B (2) and (3) although I have no evidence that the appellant speaks English, whilst giving consideration to that factor, I do not give weight to it; the appellant is of an age where the rules do not require that she pass an English test. As explained above, I have been satisfied that the appellant is financially independent through the support of Mrs Escobar and Mr Liste.
33. I have considered whether I should, on the public interest side of the balance, take into account that the admission of an appellant with health needs such as this appellant will inevitably be a cost to the public through the provision of free medical care. Of course, the appellant will have paid the health charge with her visa but that is unlikely to cover the cost of services for an elderly woman with medical needs. On reflection, I have decided that would be double counting, in the sense that the immigration rules are strict and the public interest in their enforcement is strong. At least part of the reason that the immigration rules are difficult to satisfy in the case of adult dependent relatives is that, as people who by definition are not fit and healthy but rely on others, they are likely to take out of the economy rather than be contributors to it.
34. On the appellant’s side of the balance, are her need for care and that her mental well-being understandably improves when she is with family. Mrs Escobar and her adult children and grandchildren are in the UK so that if the appellant comes to the UK she would be with them. The alternative, that the appellant stay in Argentina, does not necessarily mean separation from Mrs Escobar, but it would mean Mrs Escobar if not living in Argentina, spending extended periods in Argentina so the two can be together. Mrs Escobar and Mr Liste, although at or approaching a usual retirement age, are understandably devoted to their religious and charity work. Spending extended periods in Argentina would necessarily mean stepping back from that work or that level of commitment, and less time spent with their adult children and grandchildren. Of course, if the couple decide that Mrs Escobar were to go to Argentina on her own, then they would be apart from each other. Both Mrs Escobar and Mr Liste have dual Argentinian/British nationality, having lived in the UK for around 23 years. They have two surviving daughters who came to the UK a few years after their parents, and those daughters now have their own families, so that the couple have five grandchildren, two of whom are married and one is expecting a child. All are British citizens.
35. The test to apply when weighing the public and private interests is striking a fair balance between the interests of the individual and of the community. In striking that balance as the Supreme Court said in Agyarko [2017] UKSC 11 courts must bear in mind that the immigration rules reflect the responsible Minister’s assessment at a general level of the relative weight of the competing factors when striking a fair balance under Article 8 ECHR. When considering how the balance is struck in individual cases, they must attach considerable weight to the respondent’s policy at a general level, as well as considering all the factors which are relevant to the particular case [47].
36. I bear in mind that Mrs Escobar and Mr Liste now have strong ties to the UK through the length of time they have lived in the UK, their work, their children and grandchildren and are British citizens as well as Argentinian citizens. I take into account that everyone involved would prefer the appellant to come to the UK rather than Mrs Escobar to spend more time in Argentina and the appellant coming to live in the UK would be the minimum interference with family and private life and the most desirable outcome for all concerned. However the family life involved has been lived at a distance and through visits for many years; Mrs Escobar and Mr Liste came to the UK in middle age when they already had their own family and when the appellant was in her early sixties, and everyone would have been aware of the implications of migration across the world for ageing relatives when their need for support increases and of the implications of migration for contact with adult children and grandchildren. I attach considerable weight to the fact that the appellant has been found not to meet the requirements of immigration rules and in those circumstances, I consider that it is reasonable to expect family life between the appellant and Mrs Escobar to be developed and extended by Mrs Escobar spending more time in Argentina rather than the appellant coming to live permanently in the UK. Although I acknowledge the decision is harsh on all involved, I do not find it to be unjustifiably harsh bearing in mind the weight of the public interest I have described in the maintenance of effective immigration controls.
37. I find the decision is proportionate and does not breach Article 8 ECHR.

Notice of Decision
I dismiss the appeal.

A-R Landes

Judge of the Upper Tribunal
Immigration and Asylum Chamber

16 May 2025

(Annex – error of law decision)

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-001446

First-tier Tribunal No: HU/55364/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

28 October 2024

Before

UPPER TRIBUNAL JUDGE MEAH

Between

MARIA ROSARIO BEATRIZ MARLETTA
(ANONYMITY ORDER NOT MADE)
Appellant
and

Secretary of State for the Home Department
Respondent

Representation:
For the Appellant: Ms K Reid, Counsel instructed by MPB Solicitors
For the Respondent: Mr M Parvar, Senior Home Office Presenting Officer

Heard at Field House on 21 October 2024

DECISION AND REASONS

Introduction and Background

1. The appellant, an Argentinian national, appeals against the decision of First-tier Tribunal Judge Hussain (FtTJ) promulgated on 30 January 2024 (“the decision”). By the decision, the FtTJ dismissed the appellant’s appeal against the respondent’s decision dated 06 March 2023, refusing her application for entry clearance to the UK as an adult dependent relative. The appellant applied to join her daughter in the UK for settlement. The application was considered under (the now defunct) rule E-ECDR.1.1. of the Immigration Rules. The application was refused under E-ECDR.2.4., 2.5. 3.1. and 3.2.

The Grounds

2. In summary, the grounds raised challenging the decision were that the FtTJ had erred in his assessment of the appellant’s case under Article 8 ECHR outside the Immigration Rules. It was also averred that the FtTJ had erred in his assessment under the Immigration Rules when considering whether the appellant required assistance with everyday tasks and on the availability of care in the appellant’s home country.

3. Permission to appeal was granted by Upper Tribunal Judge Sheridan on 13 August 2024, in the following terms:

“1. It is arguable that the judge erred by failing to undertake a proportionality assessment under article 8(2) ECHR that took into consideration all material factors (including those not covered by the
Immigration Rules). It is also arguable that reasons were not given to explain the finding in paragraph 27 that there would not be unjustifiably harsh consequences. For these reasons, I consider
the first ground of appeal arguable.

2. Although I do not restrict the grounds that can be pursued, I make the observation that I do not consider there to be arguable merit to the other grounds. This is because in paragraph 22 the judge gave cogent reasons explaining why the evidence before her did not establish that the appellant needs long-term personal care to perform everyday tasks. Given these findings, there does not seem to be any basis to challenge the judge’s assessment of whether appellant satisfied the requirements of the Immigration Rules..”

4. The respondent provided a Rule 24 response dated 19 September 2024.

5. A skeleton argument was received dated 14 October 2024.

6. That is the basis on which this appeal came before the Upper Tribunal.

The hearing and submissions

7. Both representatives made submissions which I have taken into account and these are set out in the Record of Proceedings and need not be repeated here.

Discussion and conclusions

8. Following preliminary discussions at the outset of the hearing, Mr Parvar stated that the respondent conceded the grounds of challenge under Ground 1. Namely, that the FtTJ had provided insufficient reasons to support his finding at [27] that the appellant had not shown that the decision not to grant her entry clearance would result in unjustifiably harsh consequences in terms of the assessment under Article 8 ECHR outside the Immigration Rules.

9. Mr Parvar stated, however, that the grounds against the FtTJ’s assessment of the appellant’s case under the Immigration Rules were not conceded and he relied on the Rule 24 response in this regard.

10. In dealing with the grounds under the Rules, Ms Reid contended that the FtTJ had incorrectly approached the question of ‘everyday tasks’ in his decision where he confined these to cooking, cleaning, ironing and going to the bathroom. Ms Reid argued that this, for example, excluded shopping and other such similar tasks. Therefore, the FtTJ materially erred by assessing the claim against his own definition which was too narrow. It was also averred the FtTJ had failed to consider properly the evidence before him in relation to the availability of care as there was evidence from a Dr Carlucci alongside a further psychological report which the FtTJ failed to consider.

11. I, however, do not accept that the Judge erred in his assessment of the appellant’s case under the applicable Immigration Rules. The FtTJ at [19] self-directs on the relevant Immigration Rules under consideration. At [21] the FtTJ refers to the medical evidence which he considers at [21] finding that the appellant had not shown that she needed care to perform everyday tasks. The FtTJ then finds at [22]-[23] that even if he were to find in the appellant’s favour on this, it had not been shown that such care was either not available, or affordable if it was available, in the appellant's home country.

12. Firstly, I do not accept the contention that the FtTJ defined everyday tasks too narrowly. The examples he gave were exactly that, namely some examples of what everyday tasks might consist of or include. This was not meant to be an exhaustive list and it is not apparent that this is how the FtTJ interpreted the meaning of everyday tasks. What the FtTJ did was to assess the claim against the evidence presented to him and he cannot be criticised for his findings on what was clearly a dearth of evidence that was not capable of showing the appellant could meet the requirements of Rules under consideration. The findings he made here were reasonably open to him and there is no error disclosed.

13. Secondly, on the point that the FtTJ missed entirely the psychologist’s evidence, I do not accept this either. The FtTJ was not required to list every piece of evidence. This is trite. This does not mean he did not consider it, and I accept that this did feature in his consideration, however, he decided not to place weight on this or the evidence from Dr Carlucci as they were laconic in terms of their substance, hence these were incapable of availing the appellant in terms of her claim under Immigration Rules. The findings made by the FtTJ were again, open to him and there is no error identified here.

14. I have noted the Rule 15(2A) application made on 09 October 2024, seeking to adduce post decision evidence from Dr Carlucci dated 20 February 2024, together with another letter from a Ayelen Arizmendi Santiago, dated 7 October 2024. It is stated that these are provided in connection with the issue of whether the FtTJ made an error of law, requiring it to be set aside, as well as to support any remaking if error was to be found. This late evidence is impermissible and I find that this amounts to an attempt to essentially reargue the appellant’s case and to make good the deficiencies in the appellant’s case that was before the FtTJ. Further, this does not detract from the fact that I have nonetheless found that the FtTJ made findings that were reasonably open to him on the evidence he was presented with in his consideration of the appellant’s case under the Immigration Rules.

15. It is also noted that the appellant’s claim was refused under the Financial Eligibility requirements. The FtTJ found at [25] that the appellant had not shown that the maintenance requirement had been met despite this being stated as a ground of refusal in the respondent’s original refusal decision under E-ECDR. 3.1. and 3.2. Mr Parvar contended that no grounds had been raised against the FtTJ’s findings on the appellant’s inability to satisfy the Financial Eligibility Requirements. It was therefore, to this extent, academic whether or not there was error in the FtTJ’s findings against which complaints had been raised, as her appeal would still have been dismissed under the Immigration Rules based on her inability to satisfy the maintenance provisions alone. I accept Mr Parvar’s contention on this as he is correct in that no complaint is raised on this in either the renewed grounds to the Upper Tribunal or in the recent Skeleton Argument relied upon.

16. In any event, I remain satisfied Mr Parvar’s concession was fairly and sensibly made in relation to the FtTJ’s consideration of the appellant’s case under Article 8 ECHR outside the Immigration Rules. I informed the parties that I did not seek to go behind the respondent’s concession on this, and I accept that there was a material error of law in the Judge’s decision on his assessment of this where what he stated at [27], as also observed by Upper Tribunal Judge Sheridan in granting permission to appeal, was inadequate as he provided no reasoning for his conclusion and he omitted to conduct a proper proportionality assessment here.

17. I therefore set aside the decision of the Judge on his assessment of Article 8 ECHR outside the Immigration Rules only. His findings in relation to the appellant not meeting the requirements within the Rules are preserved as follows (with paragraph numbers of the FtTJ’s decision in brackets):

a. E-ECDR.2.4. not met in relation to everyday tasks [22]
b. E-ECDR.2.5. not met in relation to availability of care in home country [23]
c. E-ECDR.3.1 & E-ECDR.3.2 Financial Requirement in relation
to adequacy of maintenance not met [25]

18. Accordingly, in applying AEB [2022] EWCA Civ 1512 and Begum (Remaking or remittal) Bangladesh [2023] UKUT 46 (IAC) , I have considered whether to retain the matter for remaking in the Upper Tribunal, in line with the general principle set out in statement 7 of the Senior President's Practice Statement. I consider, however, given that the appellant has succeeded on one ground and my decision to preserve the FtTJ’s findings made under the Immigration Rules, that the decision should be remade in the Upper Tribunal.

Directions

19. The parties are to have careful regard to the following directions.

(a) Any further evidence relied on by either party is to be filed and served no later than seven days before the next hearing.

(b) In respect of any person whom it is proposed to call to give oral evidence, there must be a witness statement drawn in sufficient detail to stand as evidence-in-chief such that there is no need for any further examination-in-chief. Any such witness statement must be filed and served no later than seven days before the next hearing.

(c) The appellant’ representative is to inform the Tribunal at the earliest opportunity whether an interpreter will be required for the remaking hearing, and if so, which language (and dialect if applicable).

(d) All further evidence relied on by either party must be contained within a composite paginated and indexed bundle.

(e) There must be a skeleton argument on behalf of the appellant, filed and served no later than seven days before the next hearing.

Notice of Decision

20. The decision of the FtTJ sent to the parties on 30 January 2024, involved the making of a material error of law. It is set aside with preserved findings in relation to those made by the FtTJ under Immigration Rules (see above at [17]). The finding at [27] and the FtTJ’s finding on the appellant’s case under Article 8 ECHR outside the Immigration Rules is set aside to be remade in the Upper Tribunal.

S Meah
Judge of the Upper Tribunal
Immigration and Asylum Chamber

22 October 2024