Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-003645

First-tier Tribunal No: HU/62226/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On the 21 November 2024

Before

UPPER TRIBUNAL JUDGE RASTOGI

Between

JN
(ANONYMITY ORDER MADE)
Appellant
and

The Secretary of State for the Home Department
Respondent

Representation:
For the Appellant: Ms R. Akhter, Counsel instructed by Jeya & Co. Solicitors
For the Respondent: Ms Newton, Senior Home Office Presenting Officer

Heard at Field House on 29 October 2024

Order Regarding Anonymity

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

DECISION AND REASONS

1. The appellant appeals the decision of First-tier Tribunal Judge Row (“the judge”) who, by way of a decision dated 26 June 2024, dismissed the appellant’s appeal against the respondent’s refusal of her human rights claim.

2. The appellant made an application for entry clearance to the respondent on 19 June 2023 under Appendix Adult Dependent Relative (“ADR”) of the Immigration Rules. The appellant is the biological daughter of her father, a British citizen, resident in the UK since 1999. The appellant is deaf and non-verbal with some cognitive difficulties. At the date of application she was 28 years old.

3. On 1 August 2023, the respondent refused the application as the appellant was not able to satisfy the respondent that the level of care she required was not available to her in Sri Lanka or that it was not affordable. Accordingly, the respondent did not find the appellant to meet the requirements of paragraph ADR.5.3 of Appendix ADR. Neither did the respondent find there to be any exceptional circumstances justifying a grant of leave outside the Immigration Rules as, at that date, the appellant was living in Sri Lanka and getting the help she required from her mother.

4. The factual matrix had changed by the time the judge heard the appeal. The appellant’s mother’s application for entry clearance (made at the same time as the appellant’s) was successful and she had entered the UK to join her husband leaving the appellant in the care of neighbours in Sri Lanka. The judge found that she would not have done so had the care for the appellant not been appropriate. He was not satisfied that the care, or alternative suitable care, could not continue in Sri Lanka. Therefore he did not find the appellant able to meet the requirements of paragraph ADR 5.2. As he did not find there to be any reason the appellant’s mother and/or father could not return to Sri Lanka, neither did he find paragraph ADR 7.1 to apply nor that the respondent’s decision was disproportionate.

5. Following the judge’s dismissal of her appeal, the appellant applied for permission to appeal the decision to the Upper Tribunal on the basis that the judge had made an error on a point of law. First-tier Tribunal Judge Scott granted permission. The error of law hearing came before me as a hybrid hearing. The representatives both appeared over the Cloud Video Platform and I heard submissions from them both. I had sight of a 294 hearing bundle (“HB”). At the end of the hearing I reserved my decision.

The Grounds of Challenge

6. Although the grounds were not particularised they can be summarised as follows:

Ground 1: the judge failed to apply the correct legal test by applying the wrong version of the Rules; failed to make findings on the correct Rules; did not consider what care was ‘reasonable’; and applied the wrong legal test at [29] when he found the appellant’s care to be appropriate;
Ground 2: the judge made findings otherwise based on the evidence as he made assumptions which were not available to him such as at [29] when he found the existing care in Sri Lanka “must” be appropriate which in any case is not the correct test;
Ground 3: the judge failed to take into account material matters namely that the appellant’s mother has since returned to Sri Lanka to care for the appellant and that the father cannot continue to afford the care;
Ground 4: the judge failed to apply Britcits v Secretary of State for the Home Department [2017] EWCA Civ 368 particularly in terms of what is reasonable care for the appellant;
Ground 5: the judge erred in his assessment of Article 8 pursuant both to paragraph ADR 7.1 and the proportionality assessment.

7. Permission was granted on all grounds.

The Legal Framework

8. At the date the appellant made her application, the dependency requirements for an ADR were found at paragraphs ADR 5.1-5.3 of Appendix ADR as follows:

“ADR 5.1. The applicant must, as a result of age, illness or disability, require longterm personal care to perform everyday tasks.
ADR 5.2. If the applicant is the sponsor’s parent or grandparent, the applicant must not be in a subsisting relationship with a partner, unless that partner is also the sponsor’s parent or grandparent and is applying for entry clearance or permission to stay at the same time as the applicant.
ADR 5.3. Where the application is for entry clearance, the applicant 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.

9. By the time of the judge’s decision, the Rules had been amended and the relevant section was contained within paragraph ADR 5.1-5.2 which says as follows:

“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.

ADR 5.3. DELETED”

10. In the Rules in force at the date of the appellant’s application, paragraph ADR 7.1 said:

“Eligibility under Article 8 ECHR for an Adult Dependent Relative

ADR 7.1. If the applicant does not meet all the suitability requirements (subject to ADR 7.2) or does not meet all of the eligibility requirements in ADR 3.1. to ADR 6.4., but the decision maker is satisfied that refusal of the application would breach Article 8 of the Human Rights Convention, because it would result in unjustifiably harsh consequences for the applicant or their family, the applicant will meet the Article 8 ECHR eligibility requirement”.

11. In Britcits, the Court of Appeal clarified what was meant by “reasonably provided” and the “required level of care” and at [59] said:

“ as is apparent from the Rules and the Guidance, the focus is on whether the care required by the ADR applicant can be "reasonably" provided and to "the required level" in their home country. As Mr Sheldon confirmed in his oral submissions, the provision of care in the home country must be reasonable both from the perspective of the provider and the perspective of the applicant, and the standard of such care must be what is required for that particular applicant. It is possible that insufficient attention has been paid in the past to these considerations, which focus on what care is both necessary and reasonable for the applicant to receive in their home country. Those considerations include issues as to the accessibility and geographical location of the provision of care and the standard of care. They are capable of embracing emotional and psychological requirements verified by expert medical evidence. What is reasonable is, of course, to be objectively assessed”.

12. In Ribili v Entry Clearance Officer [2018] EWCA Civ 611, the Court of Appeal confirmed at [56] that the Rules, amended in 2012 to include the present test for dependency are “rigorous and demanding”.

13. When looking at this type of situation under Article 8, the Court of Appeal reiterated that the test under Article 8 is objective “whatever the subjective feelings of a person may be” [67] and that the “crucial point” in Ribili was that “the Appellant’s daughter could reasonably be expected to go back to South Africa to provide the emotional support her mother needs as well as to provide practical support”.

Discussion

14. It was agreed that the judge should have applied the Rules in force at the date of application; the dispute between the parties was materiality. In my judgement, given that the appellant is not the sponsor’s parent or grandparent, the differences between the dependency requirements within Appendix ADR at the date of application and the date of the judge’s decision are immaterial. For someone in the appellant’s position, the dependency requirements are the same and so, contrary to the challenge in Ground 1, I am not satisfied the judge made a material error of law in applying the wrong legal test when he referred to paragraph ADR 5.2 rather than ADR 5.1-5.3.

15. In light of the accepted position that the applicable Rules were those in force at date of application, from now onwards, it is to those I shall refer (unless citing the judge).

16. Under the umbrella of Ground 1, the appellant also argued that the judge erred in applying a structured approach as required by the Rules because he failed to deal with the test in paragraph ADR 5.1 and then failed to identify the level of care the appellant reasonably required.

17. Ms Akther submitted that the answer to the second part of that assessment is that the appellant’s mother is the only person who can provide the appellant with the required level of care and, as she is not in Sri Lanka, it follows that the level of care the appellant reasonably requires is not available to her in Sri Lanka. Ms Akhter further submitted that the dependency requirements in the Rules do not include consideration of whether or not someone not in Sri Lanka could return there for the purposes of providing the care, so the judge erred when he arrived at that finding when considering the dependency requirement in the Rules.

18. Ms Newton’s primary submission was that the judge was quite correct in finding that the level of care the appellant required in Sri Lanka was available to her as otherwise her mother would not have left the appellant in that care. Ms Newton also submitted that the judge did make findings in relation to the appellant’s long term need for care at [25] when he set out the medical evidence showing that the appellant could meet her personal needs.

19. I agree with Ms Akhter that a structured approach is required. The first question for the judge to answer is whether the appellant requires “long-term personal care to perform everyday tasks” (ADR 5.1).

20. The judge set out the relevant medical evidence, dated 25 May 2023, at [21]-[25] as follows:

21. ….Dr Sivayakan recorded that the appellant had been deaf and non-speaking since birth. She had a history of developmental delays and deficit in intellectual development.

22. He recorded that there was no evidence of any behavioural problems or psychotic
experiences. Her mother had reported recent poor sleep, less appetite, and a functional deterioration over the last few months There was no evidence of suicidal or self-harming ideas. Her intelligence levels were obviously poor.

23. Physical examination was unremarkable.

24. An occupational therapist report had been prepared. It was not annexed to the letter. Dr Sivayokan said that it recorded that the appellant was not proficient in sign language. She expressed her needs and thoughts through her body language. This was interpreted by her mother.

25. Her ability to do activities of daily living were satisfactory. Her ability to do instrumental activities of daily living was poor. These are specific terms. They would indicate that the appellant was physically able to meet her basic care needs such as feeding, dressing, toileting, washing and bathing herself. She would not be capable of managing a household or finances independently. She had a dependent relationship with her mother”.

21. The judge continued at [28]-[30]:

“28. the appellant has significant disabilities. Being deaf and non-speaking would not mean she is incapable of living independently Many people with those conditions do live independently and have responsible jobs. She has a cognitive impairment with affects her ability to care for herself. She is not able to live independently. This is not disputed by the respondent.

29. Appropriate care has been arranged. The appellant’s mother made the decision to leave her in Sri Lanka almost as soon as she was granted leave to enter the United Kingdom. She must have considered the care arrangements were satisfactory. Otherwise she would not have left her daughter there.

30. whilst I accept the appellant has a particular dependency of her mother little has been put before me to show that the family is not able to arrange the required level of care with the financial assistance of the sponsor. It is being arranged now.”

22. His last sentence at [28] is borne out by the refusal letter in which the respondent noted some of the supporting evidence the appellant provided, noted that appellant is deaf and non-verbal and then moved immediately to conclude that the appellant had not shown that care is not available in her country of origin [HB297]. This mirrors the judge’s approach. Had the judge not found ADR 5.1 met, there would be no need for him to progress to the assessment of whether the care was available to the appellant in Sri Lanka. Considering what the judge said at [28] it appears that, whilst not expressed in the terms used in ADR 5.1, the judge proceeded on the basis that the appellant did require “long term personal care to provide everyday tasks”.

23. Where the judge appears to have fallen down is that he has not identified the nature of level of care the appellant requires or in respect of what personal tasks. That is particularly relevant given the distinction drawn in the medical evidence as to what the appellant is able to do and what she is not [25]. Significantly, in addition to what is said at [25], the medical evidence confirms that the appellant’s communication is “interpreted” by her mother [24]. There was no assessment of whether or not, in the judge’s opinion, communication amounted to a “personal task” and therefore whether the appellant’s required care involved any degree of communication assistance.

24. The failure to identify the nature of the long-term care, for what purpose and the required level of care is brought into sharp focus when considering whether the required level care is available (or not) to the appellant in Sri Lanka (ADR 5.3). It is difficult to see how the judge was able to assess whether or not such care was available without identifying what was required.

25. The judge’s answer to that was fairly straightforward. He said it must have been or the appellant’s mother would not have left the appellant [29]. I have some sympathy with that approach. The appellant’s position appeared to be that the care of the friends and neighbours was not sufficient (or at least not in the long term) but, yet, her mother left her in that care in Sri Lanka.

26. The reality is of course that, as the judge states at [18], the appellant and her mother applied together, and presumably hoped they would both succeed in their applications, but in fact, only the mother did. The appellant’s mother’s evidence at paragraph 4 of her witness statement was that she reluctantly decided to leave the appellant to join her husband who had been living alone in the UK since 1999 working and providing for the family. She therefore left her daughter in the temporary care of a friend. Contrast that with what the judge said at [29] (see [21] above) in which he did not address expressly the mother’s evidence at paragraph 4 of her witness statement, although the inference is that he did not accept the care was anything less than adequate.

27. Notwithstanding that, the judge went on to consider the alternative position if the friends and neighbours were unable to continue to care for the appellant. In so doing, it appears that he overlooked the evidence contained at paragraph 5 of the mother’s witness statement that she had to return to Sri Lanka after 5 months of being in the UK as the appellant was threatening to take her own life and that she only returned “to finish this appeal”. I say the judge overlooked that evidence because at [19] he said the appellant’s mother had remained in the UK since her arrival.

28. The mother’s evidence was corroborated by the witness statement of the neighbour in Sri Lanka who has been looking after the appellant. He described the appellant’s behaviour and presentation before and after her mother returned compared with when her mother was there, and the difficulties they have in managing her.

29. The judge evaluated the evidence as to what steps, if any, the family had taken to research alternative care and their reasoning for saying none was available [31]. It was clear from the judge’s decision that he rejected that evidence. Insofar as that decision related to the availability of commercial care, the appellant does not seem to challenge the judge’s reasoning.

30. The appellant’s position was that, irrespective of what commercial care may be available to the appellant in Sri Lanka, the only person able to meet her care needs is her mother. Reliance was placed on [59] of Britcits (ASA para. 14). The appellant relied on the fact her mother had to return to Sri Lanka to resume that care as evidence that the care in which she had been left was not reasonable. By not considering that evidence, the appellant argues the judge made an error in law which was material to the issues for him to decide in the appeal.

31. Notwithstanding that this represented the appellant’s position, the fact was by the time of the hearing before the judge, the appellant’s mother was again back in the UK and the appellant again in the care of others in Sri Lanka. The neighbour gave evidence about the appellant’s presentation and behaviour since, namely that she started to act strangely. The carer said they live with their two young children and it is hard for them to look after the appellant even with the funds the appellant’s father sends. The judge made only passing reference to this evidence [27] but concluded at [34] “the appellant has in any event not satisfied me that even if the current people providing care could not do so in the future that appropriate care could not be obtained elsewhere”. However, the judge appeared not to have expressly addressed his mind to whether, in light of the evidence of how the appellant has behaved and presented since her mother left compared with when in her mother’s care, the present care arrangements are in fact reasonable.

32. The judge reiterated his view when he considered the appeal under paragraph ADR7.1. He said “satisfactory care arrangements have been made in Sri Lanka” and “there is no reason why that arrangement cannot continue” or “why other arrangements cannot be made”.

33. Thereafter in the decision the judge found at [39] there is a particular bond between the appellant and her mother and applying his findings under the Rules, the judge found either that the current or alternative care in Sri Lanka could continue [40] or that the appellant’s mother could return to care for her in Sri Lanka as she did before [41] and that there was no evidence to show her father could not do so as well [42]. Accordingly the judge did not find the appellant to meet the requirements of paragraph ADR 7.1.

34. Finally, the judge also found the respondent’s decision to be proportionate despite finding family life to exist between the appellant and her parents [44]. He did so on the basis that the appellant does not meet the requirements of the Rules, would be a significant financial burden to the economy here [49] and as family life can continue in Sri Lanka [46]. The only factor the judge placed on the appellant’s side of the balance sheet was “the appellant has a family life in the United Kingdom which will be interfered with by the decision under appeal”. He then proceeded immediately to decide that the decision is legitimate, necessary and proportionate [52].

35. I am satisfied there was no real engagement with the choices available to this family. The choices appeared to be that the appellant remain in some form of non-familial care in Sri Lanka without her mother with whom she has lived and depended throughout her life; the family to continue to be fractured as it has been since 1999 if her mother returns to care for the appellant in Sri Lanka; or the family reunite in Sri Lanka which means her father leaving the UK, his home since 1999 and where he is a citizen and earns a livelihood with which he supports his family.

36. Whilst there is a strong public interest in protecting the economic well-being of the country through the operation of a rigorous regime such as that found in Appendix ADR and, whilst the decision in the Court of Appeal in Ribili reiterates that it is an objective not subjective assessment and matters of choice and preference do not dictate the result, that does not mean to say that the outcome of an Article 8 assessment is a foregone conclusion.

Errors of Law

37. Notwithstanding the superficially attractive approach of concluding that the appellant’s mother would not have left the appellant if the care she had arranged for her was not reasonable, I am nevertheless satisfied the judge’s approach revealed the following errors in law.

38. Firstly, I am satisfied the judge misdirected himself in law by failing to address the correct test and failed to make findings on material matters (Grounds 4 and 1) for the following reasons.

39. In order to properly apply the test set out in paragraph ADR 5.1-5.3, I am satisfied it was incumbent on the judge to identify and make findings about what “long term personal care” the appellant required to perform everyday tasks. This is unarguably an appellant with complex needs. As the judge recognised at [33] those needs are not purely medical in nature, and in fact the medical needs are less severe. The issue is her cognitive and communication needs which even on the judge’s findings mean she cannot live independently. The medical evidence from the psychiatrist, to which the judge does not refer, was also that the appellant “is totally dependent on her caregiver, her mother”.

40. Whether or not those care needs bring the appellant within the ambit of paragraph ADR5.1 is a matter about which there are no express findings notwithstanding that the judge appears to have proceeded on that basis.

41. It is important that such a finding is made because that informs whether or not there need be any continued consideration of paragraph ADR 5.3. If there does, then the judge failed to make a finding on what level of care the appellant requires. It is only be carrying out that assessment, that a proper finding can be made as to whether or not the required level of care is available in Sri Lanka (and/or whether it is affordable). Furthermore, it is at this stage of the analysis that findings are to be made in accordance with the decision in Britcits, to which the judge did not direct himself expressly. In my judgement, there is no evidence even when the decision is read as a whole, that the judge had in mind that decision.

42. Evidently, the judge’s failings to direct himself appropriately and to make these findings are material as they inform the outcome of whether or not the appellant is able to meet the dependency requirements of the Rules. It is no argument here to claim that is immaterial on the basis that the judge made an alternative finding, namely that the appellant had failed to show a lack of alternative care. Without knowing what the required level of care is within the Britcits context, an assessment cannot be made as to whether that care is available and affordable to the appellant in Sri Lanka.

43. Secondly I am satisfied the judge failed to have regard to material factors, namely the evidence of the appellant’s mother and the neighbour that her mother returned to Sri Lanka to care for the appellant and what, if anything, that says about what the required level of care is and whether or not the current care provides that level of care (Ground 3).

44. Finally, I am satisfied the judge failed to take into account material factors within the Article 8 proportionality decision as he failed to have regard to the extent of factors on the appellant’s side of the balance sheet in order that a proper evaluation could be made of where the balance should be struck between those factors on the respondent’s side of the balance sheet compared with all those on the appellant’s side (Ground 5). Even if I am wrong about that, the Article 8 assessment is infected by the errors in Grounds 1 and 4 as the true picture of the appellant’s needs has not been identified which impacts the Article 8 evaluation.

45. Given the extent of material errors of law, I set aside the decision pursuant to section 12 (1) and (2)(a) of the Tribunal, Courts and Enforcement Act 2007 (“the Act”).

Disposal

46. I have given consideration to where the remaking should take place in light of the Court of Appeal’s decision in AEB v SSHD [2022] EWCA Civ 1512, the decision in Begum (Remaking or remittal) Bangladesh [2023] UKUT 00046 (IAC) and para. 7.2 of the Senior President’s Practice Statements.

47. The position of both parties at the hearing before me was that, if there were errors of law such that fact-finding was required, remittal to the First-tier Tribunal was appropriate.

48. I have regard to the fact that this is not a case where the appellant was deprived of a procedurally fair hearing before the judge. None of the grounds of challenge amount to a fairness challenge. However, I have regard to the nature and extent of fact-finding that will be necessary. The errors identified above reveal that it was the absence of material findings which is the problem and therefore, on the vast majority of issues, findings of fact need to be made prior to the application of those facts to the law.

49. I find the appropriate course is for the appeal to be remitted to the First-tier Tribunal pursuant to section 12(2)(b)(i) of the 2007 Act with no preserved findings of fact.

50. Updating evidence is likely to be required before the hearing in the First-tier Tribunal.

51. As a final matter, there appears to be an anonymity order in place. I do not know why and I do not see why one is required. It is appropriate for the parties be given the opportunity to make representations before a decision about it continuing is made. If no representations are received in accordance with the directions set out below, I shall discharge it.

Notice of Decision

1. The decision of the First-tier Tribunal involved the making of an error of law.

2. The appeal is to be remitted to the First-tier Tribunal to be re-made by any judge other than Judge Row.

Directions

1. The parties are to submit any representations in accordance with paragraph 51 of this decision within 14 days of the date this decision is sent to them. Thereafter the Tribunal will decide if the anonymity order will continue, and if not, an amended decision will be sent.

SJ Rastogi
Judge of the Upper Tribunal
Immigration and Asylum Chamber

21 November 2024