Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-003484

First-tier Tribunal Nos: HU/63965/2023
LH/03384/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 18 March 2025

Before

UPPER TRIBUNAL JUDGE McWILLIAM

Between

Manana Salimova
(ANONYMITY ORDER not MADE)
Appellant
and

Entry Clearance Officer
Respondent

Representation:
For the Appellant: Ms A Jones, Counsel instructed by Terence Ray Solicitors
For the Respondent: Mr K Ojo, Home Office Presenting Officer

Heard at Field House on 6 March 2025

DECISION AND REASONS

1. The Appellant is a citizen of Azerbaijan. Her date of birth is 17 April 1957.
2. The issue before is whether the First-tier Tribunal erred in law when dismissing the Appellant’s appeal against the decision of the Respondent on 22 November 2023 to refuse her application for entry clearance as an adult dependent relative (ADR).
3. The appeal came me in October 2024. On that occasion it was apparent that there was confusion over the relevant Home Office guidance. I made directions which were issued by the Upper Tribunal on 10 December 2024. However, this is not now an issue as the parties now agree the relevant guidance.
4. The Appellant was granted permission to appeal by the First-tier Tribunal on 26 July 2024 on two grounds:
Ground 1
5. The judge did not appreciate that day-to-day care involves more that using the toilet, washing and dressing.
Ground 2
6. The judge did not apply Ribeli and ECO, Pretoria [2018] EWCA Civ 611 and R (BRITCITS) v Secretary of State for the Home Department [2017] EWCA Civ 360, in respect of the availability of care.
7. The judge did not take into account the Sponsor’s evidence that he had attempted to engage several nurses and all of those attempts had failed and that there is no system of agency or social care in Azerbaijan. The judge did not consider the objective evidence relied on by the Appellant.
The Findings of the First-tier Tribunal
8. The judge accepted that the Appellant suffers from a variety of medical conditions including insulin dependent type 2 diabetes, hypertension, coronary heart disease, chronic gastritis, diabetic encephalopathy, diabetic polyneuropathy, osteoarthritis, degenerative myopia and depression with cognitive impairment. The judge said that he had no doubt about the credibility of the Sponsor and his brother ( the Appellant’s sons). However, he did not consider that the medical or oral evidence was entirely clear on the point of whether the Appellant required long-term personal care as a result of her age, illness or disability (see [14]).
9. The judge took into account the medical letters of 17 July 2023 of 15 December 2023 (see [17]). The judge found at [18] that the “difficulty with this information” is that (sic) does not appear to me to clearly state that at the date of hearing the Appellant is right now in need of close personal care to perform such tasks as washing herself, dressing, eating or similar matters”. The judge said that the doctors state that she is going to require care when “life becomes more complicated”.
10. The judge found at [19] that the evidence of the Appellant’s sons was not entirely clear relating to the current needs of the Appellant. The judge found that it appears from the evidence that the Appellant lives alone and she does not have daily help from any formal organization, medical body, caring body, nurse or similar. She does not have a daily carer and that there was no suggestion that her neighbours carry out intimate care, help her to dress, help her to wash herself, go to the toilet or assist her with similar matters. The judge said that it seems that the Appellant’s sons have tried nurses in the past but without success.
11. The judge found that the evidence supported that the Appellant’s sons visit their mother regularly in Azerbaijan and that she also comes to the UK often to see them.
12. The judge concluded:
“21. In my judgement, therefore, the documentary evidence does not establish the appellant probably does require personal care to perform everyday tasks at the moment. She cannot fulfil the requirements of ADR 5.1.”
13. The judge considered ADR 5.2 ,in the event that he was wrong about the Appellant’s need for personal care.
14. The judge noted at [23] that the Sponsor’s evidence was that he had tried to employ nurses however, the judge said that he referred to only a small number that he had attempted to engage and that he had not provided any documentary evidence about this beyond letters from the Appellant’s neighbour.
15. The judge said that he did not have evidence from a central government authority, any local authority or medical organisation, nursing authority or similar body to explain what steps have been taken to attempt to provide the necessary level of care in Azerbaijan. The judge said that the medical letters relied on do not engage with this and that letters from the building manager, who appears to have no expertise in personal care of the elderly, does not take the matter any further (see [23]). The judge referred to what he said was the unchallenged “Country of Origin Information” about the situation of the elderly in Azerbaijan. He said that the reports speak of serious deficiencies and that family care was the cultural norm; however, the judge said that this evidence did not support that there was an absence of state care.
16. The judge said that the evidence was that the Appellant’s sons are highly paid professionals with a joint income in excess of £250,000 per annum and he concluded that, “in the absence of any real information about efforts made to obtain local care or of the complete unavailability of local care, the appellant cannot satisfy the requirements of ADR 5.2.”
17. The judge conducted a wider Article 8 assessment and concluded that there were no exceptional or compelling circumstances or unjustifiably harsh consequences. The judge found that there was family life between the Appellant and her sons in the UK, in the Kugathas sense (Kugathas v SSHD [2003] EWCA 338), and that the decision of the Respondent interferes with family life. However, the judge found, for the reasons given at [30], that the decision was proportionate. The judge said that Article 8 does not give the Appellant the right to chose where to exercise family life. The judge said that he understood the desire of the Appellant and her sons to be together and accepted the cultural context. However, the judge said that the “current situation is a result of choices the sons have made and they could make different choices without unjustifiably harsh consequences.” The judge said that they could continue with the current arrangement of regular visits, make better and more detailed enquires and arrangements for care in Azerbaijan or they could relocate to Azerbaijan.

The Immigration Rules
18. “Dependency requirements for an adult dependent relative:
ADR 5.1:
The applicant, or if the applicant is applying as a parent or grandparent, the applicant’s partner, must as a result of age, illness or disability require long term personal care to perform everyday tasks.
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.”
The Respondents’ Guidance
“Family Policy
Adult dependent relatives
Version 5.0, Published for Home Office staff on 07 August 2023
Require long-term personal care as a result of age, illness or disability
As a result of age, illness or disability, the applicant must require long-term personal care to perform everyday tasks, for example washing, dressing and cooking. This means that they must be incapable of performing such everyday tasks for themselves.
This situation may have been arrived at recently – such as the result of a serious accident resulting in long-term incapacity – or it could be the result of deterioration in the applicant’s condition over several years. The evidence required to show this is set out below.”
Findings and Reasons
19. I myself of the following principles that the law says must apply when considering. I summarise those, having considered: KM v Secretary of State for the Home Department [2021] EWCA Civ 693 AH (Sudan) v SSHD [2007] UKHL 49, AA (Nigeria) v SSHD [2020] EWCA Civ 1296, MA (Somalia) v SSHD [2010] UKSC 49 and Volpi & Anor v Volpi [2022] EWCA Civ 464:
1. The First-tier Tribunal is an expert tribunal, and an appellate court should not rush to find a misdirection an error of law merely because it might have reached a different conclusion on the facts or expressed themselves differently
2. The UT should not interfere with the trial judge's conclusions on primary facts unless it is satisfied that he was plainly wrong.
3. The UT should not be astute to characterise as an error of law what, in truth, is no more than a disagreement with the UT's assessment of the facts.
4. Where a relevant point is not expressly mentioned by the First-tier Tribunal, the court should be slow to infer that it has not been taken into account.
5. The UT is an appellate court, and it is bound, unless there is compelling reason to the contrary, to assume that the First-tier Tribunal judge has taken the whole of the evidence into his consideration. The mere fact that the First-tier Tribunal does not mention a specific piece of evidence does not mean that he overlooked it.
6. Experienced judges in this specialised tribunal are to be taken to be aware of the relevant authorities and to be seeking to apply them without needing to refer to them specifically.
7. Reasons for judgment will always be capable of having been better expressed. An appellate court should not subject a judgment to narrow textual analysis. Nor should it be picked over or construed as though it was a piece of legislation or a contract.
8. Decisions should be respected unless it is quite clear that the First-tier Tribunal has misdirected itself in law.
9. The focus should be on the way the First-tier Tribunal performed the essence of the task required
20. I have taken into account the submissions made by both parties at the hearing in October 2024, the grounds of appeal and the recent skeleton arguments prepared by both parties in response to my directions. I have engaged with the submissions in my findings.
21. In respect of ground one, the test is whether the Appellant “requires long term personal care to perform everyday tasks”. The relevant guidance by the parties gives examples of everyday tasks as; washing, dressing and cooking. The guidance says applicants must be incapable of performing such everyday tasks for themselves. There were two letters (“the medical letters”) from the “Republic Endocrinology Centre” dated 17 July and 12 December 2024. The Respondent submitted they did not demonstrate the level of care to meet the requirements of the Immigration Rules.
22. I will summarise the contents of the two medical letters. The first letter says that the Appellant is undergoing insulin therapy and taking anti diabetic pills. It says that according to the Appellant’s son, her general condition has recently worsened. The author says that the Appellant was diagnosed with osteoarthritis in both knee joints in 2020 and that there is no improvement and that she continues to have pain. The Appellant is described as being in a state of apathy, answering questions slowly and reluctantly. The Appellant complained of a decrease in mood, rapid heartbeat, breathlessness, weakness, fatigue, pain, weight loss and sleep disturbance. She has no interest in the environment. She has no desire to communicate with other people other than family members. She is forgetful and does not take her medication on time which leads to her blood sugar levels fluctuating and blood pressure rising. The Appellant’s son reported that she leaves on utilities. The Appellant’s mobility, according to the doctor seems limited and she uses a cane. The second medical letter reports that there has been no improvement and that the Appellant needs long-term care to manage day to day tasks. It says that as daily life becomes more complicated there is a need for observation and assistance from an outsider when performing hygiene procedures, taking care of oneself, doing household chores, monitoring the timely intake of medicines. The second letter says that it is crucial that the Appellant receives continuous long term care provided by her immediate family. And if she does not do so her condition will deteriorate. The second letter recommends that the Appellant needs: “accompanied mandatory walks in the fresh air, physical activity, constant supervision and mental health support by the patient’s close family members”.
23. The ASA that was before the First-tier Tribunal does not specify what everyday tasks the Appellant requires long term personal care to perform. It says that, “the illnesses that the appellant is suffering from compounded by her age would suggest that the appellant will struggle to perform her day-to-day activities alone without any help...”. (The Appellant was aged 68 at the hearing before the First-tier Tribunal). The statement of issues before the First-tier Tribunal says that the medical reports provide a prognosis of illnesses with characteristics which would prevent the Appellant from performing day-to-day tasks on her own without help. There is no expansion of what kind of tasks cannot be performed.
24. From the medical evidence the judge was entitled to conclude that the evidence was unclear on whether the Appellant requires long-term personal care. The medical evidence does not specify what personal care the Appellant requires or the tasks which that she needs personal care to perform at the date of the hearing. The only reference to specific tasks is in the second medical letter where it is stated that the Appellant will need observation and assistance from an outsider “as daily life becomes more complicated… “ . The judge was entitled to consider this concerns future needs and does not represent the situation at the date of hearing. The judge was entitled to take into account that the Appellant lives alone and the help she receives from neighbours is not personal care. In respect of the guidance, the judge did not consider the examples to be exhaustive. In the light of the limited evidence concerning everyday tasks the Appellant needs long-term care to perform, the judge took into account all material matters. The evidence of the Appellant’s sons referred to in the medical letters is that she is forgetful and is not taking medication and leaving on appliances. There was no evidence before the judge that these are tasks that the Appellant needed long term personal care to perform. (I note that it is not clear from the medical evidence that forgetfulness is related to cognitive decline or any of the Appellant’s illnesses or disabilities and the extent and cause of cognitive decline is not explained). The medical evidence is unclear about the connection between the Appellant’s various illness and how they prevent her from performing everyday tasks. The need for accompanied walks in the fresh air cannot reasonably be described as an everyday task. The other recommendations are physical exercise, constant supervision and mental health support by the patient’s close family members. However, the recommendations do not identify everyday tasks that the Appellant cannot perform without long-term personal care. It is not explained why the Appellant needs constant supervision and mental health support. It is not clear what physical exercise the Appellant is capable of, in the light of her medical conditions.
25. The judge’s finding at [18] was open to him on the evidence. The judge did not focus on “intimate care” as being required in order to meet the test. What he said at [20] was an observation that the neighbours were not helping the Appellant to dress, wash herself, go to the toilet or assist with similar matters, which the judge was entitled to take into account when considering the Appellant’s care needs. The judge was entitled to conclude that the medical evidence was insufficient to discharge the burden of proof.
26. Bearing in mind that the judge did not err in respect of ground one, it is not necessary to determine ground two. In any event, without determining what care is needed, availability and affordability cannot be determined.
27. However, I will make the following observations about ground two. It is submitted that the judge did not consider the objective evidence. It is submitted that there are elderly people abandoned and lonely in and not being shown respect. The conditions in the government run shelters are dreadful and there are very few nursing homes in Azerbaijan. It is said that the judge did not ask himself the correct question as set out in Britcits. The Appellant says that the objective evidence and the witness evidence before the judge established that the level of care that the Appellant reasonably requires was not available in Azerbaijan.
28. The judge said that he did not have any letters or reports from “a central government authority, any local authority, any medical organisation, nursing authority or similar body to explain what steps have been taken to attempt to provide the necessary level of care in Azerbaijan”. The judge said that the medical evidence before him does not deal with the question and, in relation to a letter from the building manager he said he has no expertise in personal care of the elderly in his evidence does not take the matter any further. The judge at [25] said that the evidence supports the Sponsor and his brother are highly paid professionals. He noted their joint income is in excess of £250,000 per annum. The judge concluded that in those circumstances and in the absence of any “real information about efforts made to obtain local care or of the complete unavailability of local care, the Appellant cannot satisfy the requirements of ADR 5.2”
29. The thrust of the judge’s findings is that there was insufficient evidence to establish that care is not available and there is no person in that country who can reasonably provide it. He did not say that it is reasonable to expect the Appellant to go into a state care home. The judge was entitled to conclude that the Sponsor’s evidence supported that he had employed a small number of nurse only and that the evidence was insufficient. It is not the case as the Appellant says that this evidence was not taken into account (see [23] of the decision). The judge was entitled to take into account that there was no independent evidence from a central or local health authority, a local authority, or a doctor or other health professional. The judge found that the evidence of the Appellant’s sons was credible, but the evidence as a whole was not sufficient to discharge the burden of proof. The findings are grounded in the evidence and adequately reasoned.
30. The judge considered the background evidence. At [24] he referred to the unchallenged “country of origin information” concerning the situation of the elderly in Azerbaijan. He said that the reports “speak of serious deficiencies in elderly care and the cultural context of family care being the norm.. ,”. He noted that this evidence was supported by the Sponsor but concluded that the reports do not state that” no care is available”. The background evidence is not in the composite bundle. I have considered the bundle before the First-tier Tribunal. The background evidence refers, in the main, to elderly people who are homeless and or do not have family who can support them physically or financially. The Appellant is not in that category. There is an article called “elderly in Azerbaijan: venerated yet lonely” dated 15 December 2017. There is another document entitled WW11 veterans. There is an article entitled “the elderly in Azerbaijan: care and welfare” of 6 May 2021, which talks briefly of the private sector’s role in the care for the elderly and says that it is possible to achieve the development of this sector.
31. The background evidence did not assist the Appellant. Her care would be funded by her sons. She was not at risk of homelessness or having to seek care from the state.
32. There was no need for the judge to consider the reasonableness of the provision of care because the evidence did not establish what would be available to the Appellant. In the event that ground one was made out the appeal could not succeed.
33. For the above reasons, I find that there is no material error of law and that the decision of the judge should stand.

Judge of the Upper Tribunal
Immigration and Asylum Chamber

Joanna McWilliam
12 March 2025