Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-003322
HU/59606/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On the 21 November 2024

Before

UPPER TRIBUNAL JUDGE BRUCE

Between

Nasib Kaur
(no anonymity order made)
Appellant
and

Secretary of State for the Home Department
Respondent

Representation:

For the Appellant: Ms Chaudhary, Counsel instructed by Batley Law
For the Respondent: Mr Diwnycz, Senior Home Office Presenting Officer

Heard at Phoenix House (Bradford) on 18 November 2024

DECISION AND REASONS

1. The Appellant is a national of the United States of America, born on the 30th June 1945. She appeals with permission against the decision of the First-tier Tribunal (Judge Curtis) to dismiss her appeal on human rights grounds.

The Facts

2. The Appellant was born in India. It is her account is that her marriage as a young woman in the 1960s broke down after only a couple of years, and that she was forced to return to live with her parents. She never had any children. There she remained until her mother, her last surviving parent, passed away when the Appellant was 51 years old.

3. At that point the Appellant was living alone in India, with no relatives to turn to. It was resolved that she would go to America to live with her brother and his family on the west coast. The Appellant travelled to America for the first time in 1997. Her sister-in-law did not however want her to remain living with them, and as she put it, she was “kicked out”. She left and returned to India.

4. A short time later she was able to return to the United States. Relatives of a friend were willing to offer her accommodation and support in New York, in return for her cooking, cleaning, helping round the house and with the children. The parents in that family were called Jaswant Kaur and Amritpal Singh. The Appellant lived in that house and worked for Jaswant and Amritpal for some 24 years. It was while living with this family that the Appellant naturalised as an American citizen.

5. Today the Appellant has multiple health issues including osteoporosis, hypertension and diabetes. She is registered blind. In 2022 she fell and fractured her hip; during the operation to repair it she suffered a heart attack. Her GP has assessed her as not being medically fit to travel. She lives with, and is cared for, by a niece in the UK, who is the Sponsor of this application: Ms Kiranjit Kaur.

6. None of that is contested.

7. It is further the Appellant’s evidence that her time working for Jaswant and Amritpal came to an end sometime in 2021. Amritpal’s parents were set to travel from India to live with him in the US as they were themselves now elderly and in need of care. The family therefore needed the room previously occupied by the Appellant. The children had grown up and so the Appellant’s help was no longer required. It is against this background that she now lives in the UK with her niece, and wishes to stay here.

The First-tier Tribunal Decision

8. The First-tier Tribunal dismissed the appeal on the grounds that the Appellant was unable to meet the requirements of any potentially relevant immigration rules, in particular what was then the provision for the protection of Article 8 ‘private life’, set out in paragraph 276ADE(1).

9. In respect of this rule the Tribunal found that the Appellant had failed to show that there were “very significant obstacles” to her integration in America for the following reasons:

i) Although the Appellant has “some physical ailments” these would not amount to a very significant obstacle to her integration in the USA, since she had lived in that country for some 24 years and they would not prevent her forming relationships with others;

ii) There was no evidence to support Counsel’s assertion (not Ms Chaudhary) that the Appellant had mental health problems;

iii) In respect of the Appellant’s evidence that she could not return to live with the family that she had lived with in New York, the Tribunal said this:

“Even if, as is suggested, the lady with whom she has been living for 24 years (Jaswant Kaur) no longer has room for her, it would be very surprising if the close arrangement they had for that long period (during which the Appellant helped raise Jaswant’s children, for instance) would count for nought on return in terms of emotional or other support”.

10. The Tribunal went on to dismiss the appeal in respect of the Article 8 claim ‘outside of the rules’. It accepted that the Appellant shared a family life with her niece and other family members living in the UK, but found that any interference with that family life would be proportionate, giving the following reasons:

iv) The Appellant had deliberately contrived to come to the UK to stay here;

v) The evidence did not support the contention that the application for leave to remain had been prompted by a significant deterioration in the Appellant’s health;

vi) There were discrepancies in the evidence about why the Appellant had left her previous place of residence in New York;

vii) Her evidence that her brother in California would not take her in was rejected on the grounds that this would be “culturally unusual”;

viii) The GP’s opinion that the Appellant was not medically fit to travel was unparticularised and in the view of the Tribunal the Appellant could travel to the USA by boat in the event that she was unable to travel by air;

ix) Scarce NHS resources are being diverted for her benefit;

x) The Appellant had not demonstrated that appropriate care would not be available to her in the USA, or that her niece and family would be unable to pay for it;

xi) The Tribunal was “uncomfortable” with opinion offered by an independent social worker about the extent to which the Appellant was ever socially integrated in the USA, or her ability to access care there in the future;

xii) There was no evidence to support Counsel’s assertion (not Ms Chaudhary) that the Appellant had mental health problems;

xiii) The Appellant had naturalised as an American citizen, which must indicate some degree of integration there;

xiv) The Appellant has only lived in the UK for 3 years, and any private life established in that time, when her status has been precarious/unlawful attracts minimal weight;

xv) It is in the public interest that people who wish to settle in the UK speak English, and there is no evidence that the Appellant can do so.

The Challenge: Discussion and Findings

11. The Appellant sought to appeal to the Upper Tribunal on four grounds. On the 16th July 2024 Designated Judge Shaerf granted permission in respect of the first three; on the 16th August 2024 Upper Tribunal Judge Rimington ordered, in light of the decision in Safi and others (permission to appeal decision) [2018] UKUT 388 (IAC), that his grant of permission be treated as unrestricted.

12. On the 23rd September 2024 the appeal came before myself and Deputy Upper Tribunal Judge Saffer. Having heard the oral submissions of Ms Chaudhary, who appeared that day for the Appellant, and Mr Diwnycz who appeared for the Respondent, we indicated that we found the decision of Judge Curtis to be flawed for errors of law such that it must be set aside, for reasons that we set out in our written decision of the 24th September 2024:

“Ground (i) concerns the Tribunal’s conclusion that it would be “culturally unusual” for the Appellant’s brother to turn her away if she were to return to his home in California. Ms Chaudhary submits that this finding was speculative, and not one reasonably open to the Tribunal on the evidence before it, which was that the Appellant had been “kicked out” of this man’s house some three decades ago, and that in the entire time that she had lived in the United States she had lived with another family on the other side of that country. Ms Chaudhary submits that it was improper for the Tribunal to set against that evidence its own speculation that the Appellant could return to live with her brother.

Obviously there is a degree to which the judges of this specialist jurisdiction become familiar with cultural norms other than our own, and indeed we have been actively encouraged to do so1. We must however be cautious about deploying our own knowledge or beliefs where they may be contested, and where, as here, there is a complete absence of evidence to underpin our assumptions. Here the Tribunal thought it “culturally unusual” that the Appellant’s brother would refuse to take her in, without considering any of the following. First, the cultural norm in Sikh tradition, and in South Asia generally, is actually that a woman who marries is considered to have left her natal family for that of her husband. Her brother might help her, but there is certainly no norm or expectation that he would do so. Second, and more importantly, the evidence here was that the Appellant had left her brother’s home in 1997 and had never returned. The Tribunal nowhere considered why that might be. We are satisfied that the First-tier Tribunal failed to take these material factors into account, and that its assumption that this situation is “culturally unusual” is not one based on any evidence before it. This finding underpinned the Tribunal’s findings on 276ADE(1)(vi) to a material extent: it follows that those findings must be set aside to be remade.

Ground (ii) is that the Tribunal engaged in impermissible speculation when it suggested that the Appellant might return to America by sea, and that it went behind expert medical evidence that had not been challenged by the Respondent.

What the GP surgery actually said was the Appellant:

“suffers from Type 2 Diabetes, Hypertension, Hyperlipidaemia, Paroxysmal atrial fibrillation, Osteoporosis, Glaucoma and Osteoarthritis. In 2022 she sustained a fall due to her poor mobility and fractured her right hip. Due to her poor general health, she suffered a cardiac arrest during the operation. She struggles with multiple severe joint pains due to her osteoarthritis and osteoporosis. She has been assessed by the orthopaedic team as they identified her left hip as an impending fracture risk due to her osteoporosis - however they are concerned about any further orthopaedic surgery due to her previous complications with a general anaesthetic and her frailty/ poor performance status. They have mentioned in the last clinic letter that her hip could easily break with minimal trauma at any time - so they are keeping her under regular follow ups for now as she may need further surgery if she sustains a fracture. She is dependent on strong pain relief for the pains in her leg and hip. Until recently she used to mobilise short distances with a walking stick/frame and seldom leaves her residence. She reports that she spends most of her time sat down in a chair due to her fear of falling and sustaining further fractures. She is also on blood thinning medication due to her heart condition of atrial fibrillation, and this further increases her risk of significant bleeding with any falls or trauma. Her mobility is further affected from her poor vision for which she is under an ophthalmologist. She is currently waiting for further assessments and tests for possible early dementia as there has been concerns regarding her memory and cognition for several months now…..Clearly with her complex health issues and the physical impact on her mobility - she is not medically fit to travel”.

As Mr Diwnycz agreed, Ms Chaudhary was right to say that this evidence had not been challenged by the Respondent. The GP’s conclusion that the Appellant was not fit to travel is prefaced by a detailed explanation of why not: she has multiple significant health issues, suffers from severe pain which has rendered her largely immobile and she is at significant risk should she suffer another fall. We accept Ms Chaudhary’s submission that on the face of it, these risk factors pertained to any travel. We would observe that being unsteady on her feet, and at increased risk should she fall, would seem to be of particular pertinence to long distance travel by boat. That does not appear to have been taken into account by the Tribunal. Nor has the Tribunal considered other practicalities such as whether the Appellant could, in her condition, obtain insurance to cover such a journey, and whether she would be permitted to board if not. The question of how she could get back to America was not of course confined to how she was reach the border: consideration also had to be given to the practicalities of how she would get to wherever she was going once she disembarked. Finally we are satisfied that even if travel by sea was possible, the Tribunal does not appear to have considered whether it would be proportionate to expect the Appellant to undertake such a journey in her condition. That was of course an important part of the overall exercise it had to conduct. It follows that the findings on Article 8 ‘outside of the rules’, to which this issue had particular relevance, also fall to be set aside.

We would add that we also have some concerns about the approach that the Tribunal took to the evidence about Jaswant and Amritpal, the Appellant’s former employers in New York. The decision contains a lengthy dissection of this evidence, leading it to the conclusion that the evidence about Jaswant and Amritpal was not reliable, and that in fact it has been contrived in an attempt to support the Appellant in circumventing the rules, something which was plainly capable of increasing the public interest in her being refused leave. It is not clear to us that in reaching that decision the Tribunal understood who these people were. For instance at its paragraph 28 the Tribunal appears to conclude that she could in some way turn to them for support; at its paragraph 36 the Tribunal then rejects, and draws adverse inference from, Kiranjit Kaur’s evidence that she did not know anything about this family’s plans before her aunt’s arrival in the UK. These findings seem to suggest that the Tribunal may have been under the impression that Jaswant and Amritpal were members of the Appellant’s, and Kiranjit’s, family. They are not. They are her former employers, for whom she was a housekeeper-cum-nanny. Whilst this was obviously a relationship of long standing, we are not satisfied that there was any evidential basis for the suggestion that the Appellant could return to their home now that the employment has ended, or that her niece here could be criticised for not knowing their business.

We would further add, although nothing turns on it now, that we find another reason to be uneasy about the reasoning on this matter. The First-tier Tribunal finds there to be “a material discrepancy in the core of the narrative” because in a letter Jaswant Kaur refers to her “parents” coming from India when in fact, on the Appellant’s evidence, they are this lady’s parents in-law. Had it been our decision to make, we would not have found any discrepancy here. It is commonplace across many cultures that a married woman would refer to her husband’s parents as being “her parents”, and that is particularly so where, as here, she has been a member of that family for decades. We are not satisfied that without more, this could reasonably be described as a “material discrepancy”.

13. For those reasons myself and Judge Saffer directed that the decision of the First-tier Tribunal must be set aside. The parties had invited us to remit the matter to the First-tier Tribunal to be heard de novo by a Judge other than Judge Curtis, given the extent of fact finding required. It was our preliminary view that this would be an appropriate outcome, but on reflection were conscious that there are preserved findings that are undisturbed, namely the finding that the Appellant does in fact share a family life with her family in the UK. In view of the Appellant’s frailty it would obviously be preferable if any live evidence from her is kept to a minimum, and we see no reason why this finding, unchallenged by the Secretary of State, should be set aside. In light of that, we determined that this matter should be retained for remaking in the Upper Tribunal, subject to any representations from the parties to be received within 5 working days of this decision being received. No such representation was received, and the matter was set down for listing. Unfortunately it was not possible to reconvene the original panel and so Principal Resident Judge Blum has made a transfer order enabling me to hear the appeal on my own.

The Decision Re-made

The Evidence

14. For the remaking the Appellant has submitted an up to date letter from her GP. It is dated the 8th November 2024 and in material part it reads:

“I can confirm that Nasib Kaur suffers from Type 2 Diabetes, Hypertension, Hyperlipidaemia, Paroxysmal atrial fibrillation, Osteoporosis, Glaucoma, Osteoarthritis and Hip fracture. In 2022 she sustained a fall due to her poor mobility and fractured her right hip. This has further made her mobility severely impaired. Due to her poor general health, she suffered a cardiac arrest during the operation. She struggles with multiple severe joint pains due to her osteoarthritis and osteoporosis. She has been assessed by the orthopaedic team as they identified her left hip as an impending fracture risk due to her osteoporosis - however they are concerned about any further orthopaedic surgery due to her previous complications with a general anaesthetic and her frailty/poor performance status. They have mentioned in the last clinic letter that her hip could easily break with minimal trauma at any time - so they are keeping her under regular follow ups for now as she may need further surgery if she sustains a fracture. She is dependent on strong pain relief for the pains in her leg and hip. Her mobility is severely impaired despite using a walking stick/frame and she seldom leaves her residence. She reports that she spends most of her time sat down in a chair due to her fear of falling and sustaining further fractures.

She is also on blood thinning medication due to her heart condition of atrial fibrillation, and this further increases her risk of significant bleeding with any falls or trauma. Her mobility is further affected from her poor vision for which she is under an ophthalmologist and recently was registered as severely sight impaired (Blind)

She is currently waiting for further assessments and tests for possible dementia as there has been concerns regarding her memory and cognition. She currently resides with her sister and brother-in-law who provide care for her. She has no professional carers or any other family support.

Clearly with her complex health issues and the physical impact on her mobility - she is not medically fit to travel by any means - Plane/Boat etc. I support her application on the basis of her very poor physical health and significant medical problems severely limiting her quality of life.”.

15. The Appellant further relies on a series of screenshots which indicate that the Appellant has tried to apply online for travel insurance from three different companies. The upshot of these screenshots is that if an applicant ticks ‘yes’ to the question “is anyone travelling against medical advice” the company refuse to offer cover.

My Findings

16. It is a preserved finding, made by Judge Curtis, that the Appellant shares a family life with her sister’s family in the UK, in particular her niece who cares for her.

17. It is not in issue that the decision to refuse her leave to remain will result in an interference with that family life. Nor is it in issue that the decision is one that the Respondent is lawfully entitled to take. The only issue is whether or not the decision is proportionate.

18. There is a public interest in refusing those who are unable to meet the requirements of the rules. I bear in mind that the Appellant has not applied from abroad, as she arguably should have done, and cannot meet the requirements of the adult dependent relatives rules. There is a further public interest in refusing leave to those who are unable to speak English and who are likely to costs the taxpayer money. Given her health conditions it is almost inevitable that the Appellant is going to have recourse to the NHS. Where someone’s private life has been established at a time when their leave to remain is precarious, it can only attract little weight in the balancing exercise.

19. Before me Mr Thompson confirmed that the Respondent did not seek to challenge any of the medical evidence presented.

20. The uncontested facts, then, are that the Appellant has multiple health issues. She is registered blind. Her osteoarthritis and osteoporosis have “severely impaired” her mobility. She suffers from severe pain in her joints, uses a frame to walk and now rarely leaves the house. She spends most of her time sat in a chair because she is too afraid to move around. A recent fall resulted in a fracture to her hip. The assessment of the orthopaedic surgery team is that it would only take “minimal trauma” to result in further breakage. This concern is exacerbated by the fact that the Appellant is on blood thinners, so a fall could result in significant bleeding. It is this, as well as other health issues, that leads Doctor Singh to conclude that the Appellant is not fit to travel by any means of transportation.

21. She is not going to get any better. It is of course not possible to say with certainty, but it seems more than likely that her conditions will only further deteriorate with age. Mr Thompson had no instructions to the effect that the Respondent intends or hopes to ameliorate the difficulties that Dr Singh identifies by, for instance, booking the Appellant passage on a boat with a full time carer to get her back to the USA. That being the case I am satisfied that the Appellant is not fit to make the journey from the United Kingdom to the USA. That certainly amounts to a very significant obstacle to her integration in America, because if she cannot get to America, she cannot integrate there.

22. I am satisfied that being blind, suffering severe pain that impacts on her mobility and having already survived a serious fall will mean that the Appellant would be extremely distressed and frightened at the prospect of having to make a journey back to the USA, even if she were to be accompanied by a family member and/or medical staff. Such fear and distress would, in all the circumstances, plainly be disproportionate. This lady is elderly and extremely unwell. I am satisfied that compelling her to undertake that journey would be “unjustifiably harsh”.

23. If I am wrong to place the weight that I have on the demands of the journey, then I am further satisfied that the demands of expecting the Appellant to overcome her serious health issues and make a life for herself in the USA would also be disproportionate. It seems to me to be unlikely in the extreme that her former employers would take her back in, given her conditions, regardless of whether or not they are now caring for their own elderly parents. Why would they assume that responsibility? Likewise on the facts I find it to be unlikely that the Appellant’s brother, who has not had anything to do with her for decades, would now welcome her into his home, at a time in her life when private health care costs are likely to be substantial and she would be looking to him – and his wife – to meet them. Having had regard to the facts and evidence I am satisfied that the reality for the Appellant, if she returned to the USA, would be that she would be living on her own, at the most supported by occasional visits from her former employers, their children and possibly old friends. The contrast between this and her present arrangements, where she is living in an extended family system with a wide range of family members to help her, take her to medical appointments, make her food, and generally keep her company, would be bleak indeed. I am satisfied that she will be isolated, afraid and lonely. She would be at constant risk of falling. The prospects of her forming meaningful relationships with others are minimal. Although she has lived in America for a long time, that was in another time and in other circumstances. Her life today would be very different. I am satisfied that there would be very significant obstacles to her integration, and in the alternative that it would be disproportionate.

Decisions

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

25. The decision in the appeal is remade as follows: the appeal is allowed on human rights grounds.

26. There is no order for anonymity.

Upper Tribunal Judge Bruce
Immigration and Asylum Chamber
18th November 2024