Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-005920

First-tier Tribunal Nos: HU/63855/2023
LH/06343/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 24 March 2025

Before

UPPER TRIBUNAL JUDGE McWILLIAM

Between

Farzana Delawalla
(NO ANONYMITY ORDER MADE)
Appellant
and

The Secretary of State for the Home Department
Respondent

Representation:
For the Appellant: Mr Chohan, Counsel instructed by Expert Solicitors Ltd
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 Pakistan. Her date of birth is 8 March 1965.
2. On 18 December 2024, the Appellant was granted permission to appeal by the First-tier Tribunal (Judge Moon) against the decision of the First-tier Tribunal (Judge Cary) to dismiss her appeal on Article 8 grounds against the decision of the Respondent on 15 November 2023 to refuse her application under Article 8 ECHR. Permission was granted on grounds 4 and 5 only.

The Grounds
Ground 4
3. The judge made a material misdirection. The judge said that the Appellant has not had formal leave since her leave to remain as a visitor expired on 7 August 2022 and that her application was made at time when she was an overstayer. This is factually incorrect. The hearing before the First-Tier Tribunal was in October 2024. The Appellant had leave until 19 January 2024 and she made an application on 21 December 2022. The Appellant had leave under Section 3C of the Immigration Act 1971.
Ground 5
4. The judge’s assessment of proportionality is flawed on the basis that he misdirected himself in relation to the burden of proof: Miao v Secretary of State for the Home Department [2006] EWCA Civ 75.
The Decision of the First-tier Tribunal
5. The Appellant attended the hearing in a wheelchair. She did not give evidence. She was aged 60 at the date of the hearing before the First-tier Tribunal. She came to the UK on a visit visa on 7 February 2022 to visit her three adult children who reside in the UK with their families.. The judge heard evidence from the Appellant’s three adult children and submissions from the representatives.
6. The judge summarised the Appellant’s case at paragraph 21 of his decision. He said that the Appellant’s claim is essentially based on her health needs. The judge made findings of fact, having taken into account the evidence of the Appellant’s sons. The judge took into account the medical evidence that was before him. He noted that the Appellant was said to suffer from a range of medical issues. There was a psychiatric report from Dr Hussain. His report commented on the Appellant’s mental health and said that she suffers from osteoarthritis, severe haemorrhoids, high blood pressure and depression. Dr Hussain commented that the Appellant has experienced “many life threatening situations due to receiving constant threats from her in-laws relating to a property dispute in Pakistan”, in respect of which the judge said that the Appellant had been invited to attend an asylum interview but did not do so.
7. Gabriel Cantele, a chartered psychologist or psychotherapist described the Appellant’s deteriorating health documenting frequent episodes of panic attacks and stress related sematic symptoms. About this evidence, the judge said it consisted of two letters addressed to “to whom it may concern” and that they were not accompanied by a statement of truth. The judge said there was no indication that the author of the letters expected them to be used in evidence before the Tribunal. He also said that there was no evidence that Dr Cantele had seen or considered the evidence of Dr Hussain.
8. The judge took into account letters from Dr Kumar of DocTap Limited, the Appellant’s private GP. The evidence was that she had been registered at DocTap since June 2022. Dr Kumar documented a history of depression, hypertension, high cholesterol, bowel obstruction, cervical spine disc herniation, osteoarthritis in both knees and chronic left-shoulder pain. A macular hole in the right eye showed signs of aging and the formation of cataract. Dr Kumar said that the Appellant had been seeing her for anxiety and depression symptoms and has a follow up review every four to six weeks.
9. The judge also had before her a letter from Dr Sinha, a consultant in pain medicine, spinal intervention and surgical intervention from Pain Specialist UK, which supported that the Appellant has knee pain and left side neck and shoulder pain and that she is suffering from arthritis in her knees and degenerative changes in her cervical spine.
10. The judge accepted that the Appellant has mental health issues, principally anxiety and depression, that have not required any voluntary or compulsory inpatient treatment and for which the Appellant takes medication and receives some level of treatment (see paragraph 39). The Appellant’s son’s evidence was that the Appellant saw Dr Cantele once a month and that she was not receiving other treatment apart from medication. The judge said that she is not suffering from dementia or any significant cognitive deficit.
11. The judge took into account that two of the Appellant’s sons are British citizens and one has leave to remain as a Tier 2 Skilled Worker. The Appellant’s case was that should she return to Karachi, she would not have family support. Should she be allowed to stay her treatment would be privately funded.
12. The judge directed himself on the law at paragraphs 30 – 35.
13. In assessing proportionality the judge had regard to s.117A and s.117B of the 2002 Act. The judge said at paragraph 35:
“[The Appellant’s] immigration status was precarious when she arrived here as a short-term visitor on a multi entry visa valid until January 19 2024 she has never had leave to remain in a category leading to settlement. She has not had formal leave to be here since her leave to remain as a visit visa expired on August 7 2022 and her current application was made at a time when she was an overstayer.”
14. The judge reminded himself that considerable weight should be given to Parliament’s statement in s.117B regarding the approach which should normally be adopted, and that in order to succeed, bearing in mind the Appellant could not meet the requirements of the Immigration Rules, there would have to be compelling reasons. The judge said that the Appellant’s immigration history counts against her because she only came to the United Kingdom for a temporary purpose and she should never have had any legitimate expectation that she would be allowed to remain (see paragraph 36). The judge said at paragraph 39 that the Appellant had not produced reliable evidence that the treatment and care she may to need is unlikely to be available in Pakistan. The judge had regard to the Country Policy and Information Note (CPIN) dated September 2022 and the current version Pakistan: Healthcare and Medical Treatment which was published in July 2024. The judge found that the Appellant’s family are in a position to fund treatment that she may need and identified a hospital in Karachi where the Appellant had previously received treatment. The judge said, at paragraph 39, that the Appellant had not produced reliable evidence that treatment and care she may need on return is unlikely to be available and gave reasons for this.
15. In paragraph 39, the judge found that although some of the medical evidence highlighted the desirability of the Appellant continuing to live in the UK and being supported by her family, there was a lack of evidence concerning arrangements that could be made for her wellbeing in Pakistan.
16. The judge took into account the evidence that Karachi is prone to cases of kidnapping and home robberies and without the support of the Appellant’s family the witnesses claim that she would be unsafe to be left alone with a carer in her home. The evidence was that the family had received “feedback” that home care in Karachi did not work without having a family member to supervise the service and that the quality of care may diminish without supervision. However, the judge said that this was supported by expert evidence (see paragraph 41). The judge considered BRITCITS, R (on the application of) v Secretary of State for the Home Department [2016] EWHC 956 and considered the current guidance published by the Home Office on 7 August 2023 (“Family Policy: Adult Dependent Relatives”).
17. The judge concluded that the evidence produced by the Appellant was not sufficient to establish on the balance of probabilities that the care and treatment which she needed are not available in Pakistan. The judge said that he needed to strike a fair balance between the competing interests. The judge took into account that there is was no evidence that the Appellant could speak English. The judge took into account the evidence that the Appellant will be economically self-sufficient should she be allowed to stay. He said that this does not give her a positive advantage in the proportionality assessment, but equally it does not count against her.
18. The judge said that he is required to attach little weight to the Appellant’s private life as it was established at a time when her immigration status was precarious or unlawful with respect to s.117B(4) and s.117(5). The judge said that although the Appellant will face problems in Pakistan due to a property dispute with her late husband’s family, the evidence suggests that the dispute has been resolved, albeit not in the Appellant’s favour. The judge said it was difficult to see why there should be any further issues considering this. The judge said there was no evidence that her house had been repossessed in 2022 and it was not suggested in the evidence that the Appellant’s family in the UK would not be able to fund and organise alternative accommodation.
19. The judge took into account that the Appellant had lived in Pakistan for 58 years and that she was able to manage on her own since her husband’s mother’s death in July 2020 until she came to the UK in February 2022. The judge said that there was no reason why the Appellant’s adult children could not visit their mother in Pakistan. The judge said that although the Appellant may prefer to receive treatment in the UK and to live with her family in the UK, that is not a factor that attracts much weight. The judge said that the Appellant always has the option of applying for entry clearance, if she requires medical treatment in the UK and the adult dependent relative route may also become available to her at some point in the future.
20. The judge found that there was no evidence that the Appellant is not fit to fly, and even if she was, that would not give her a right to remain under Article 8. The judge concluded, at paragraph 48, that there was nothing about the Appellant’s case to suggest that removal would be disproportionate. The judge found that there are no very significant obstacles to the Appellant’s integration in Pakistan where she has lived virtually all her life and where she will have the financial backing of her family in the UK. He found that there were no compelling or exceptional circumstances entitling her to remain here.
Submissions
21. Mr Chohan relied on the grounds to support that the judge erred in law because he considered proportionality on the basis that she was an overstayer. However, the Appellant had made an in time application. Mr Ojo submitted. He urged me to consider the decision as a whole. He said that the judge did not apply Miao.

22. Mr Ojo submitted that the Appellant’s immigration status is precarious. In any event, the Appellant was in breach of immigration laws because she had been granted a multi-visa which allowed her to stay for 180 days and she had exceeded this. Furthermore he relied on Ribeli v Entry Clearance Officer, Pretoria [2018] EWCA Civ 611 with reference to paragraphs 43. He said the tests for ADR was rigorous and demanding.
Error of Law
23. The issue that I must consider is whether the judge was mistaken in relation to the Appellant having overstayed and whether he applied the correct burden of proof.

24. I accept that the judge erred in law. While he made reference to her precarious status, he assessed proportionality on the basis that the Appellant was an overstayer and in the UK unlawfully. The Appellant was not an overstayer. She had made an intime application and had leave under s3C of the 1971 Act. It cannot be determined what weight he attached to this in the balancing exercise. The error identified is material. I set aside the decision of the judge to dismiss the appeal. The Appellant did not rely on any further evidence. No evidence had been served in accordance with the directions of the Upper Tribunal pursuant to Rule 15 (A) of the Tribunal (Upper Tribunal) Procedure Rules 2008. The issue is very narrow and the parties agreed that the matter could be re-determined in the Upper Tribunal following submissions.

25. In respect of the burden of proof. The judge properly assessed Article 8 in accordance with recent authorities In relation to the burden of proof I note what the judge at paragraph 21, “[a]lthough the Appellant’s claim is essentially based on her health needs as it is said that she is unwell and so cannot return to Pakistan and the burden of proof under Article 8 is on her on the balance of probabilities ….”. The judge said at paragraph 34, “The burden of proof remains on the Appellant throughout on the balance of probabilities to produce all material on which she relies upon to suggest that the refusal of leave to remain would breach Article 8.”In Miao and Secretary of State for the Home Department [2006] EWCA Civ 75, Sedley LJ delivering the judgment of the court stated as follows:-
“12. The latter question [proportionality] was described by the immigration judge as involving ‘the balancing exercise which is the essence of an assessment of proportionality’, requiring him to ‘accord due weight to the competing interests’. This may be right as far as it goes, but it is not all. The assessment of proportionality is not a simple weighing of two cases against each other. It arises only when the claimant has established that he enjoys a protected right which is threatened with violation: at that point the burden shifts to the state to prove that the violation is nevertheless justified. To do this the state must show not only that the proposed step is lawful but that its objective is sufficiently important to justify limiting a basic right; that it is sensibly directed to that objective; and that it does not impair the right more than is necessary. The last of these criteria commonly requires an appraisal of the relative importance of the state's objective and the impact of the measure on the individual. When you have answered such questions you have struck the balance.”

26. More recent case law has set out how a decision maker must determine whether a decision of the Respondent breaches a person’s rights under Article 8. Section 117(1)(B) tells decision makers that the maintenance of immigration control is in the public interest. It is necessary to approach the public interest flexibly, recognizing that there will be cases where the person's circumstances in the individual case reduce the legitimate and strong public interest in removal: Akinyemi v Secretary of State for the Home Department [2019] EWCA Civ 2098 (4 December 2019) [2020] 1 WLR 1843. The Tribunal is to carry out a balancing exercise to decide whether the proposed interference is proportionate, with due weight given to the strength of public interest in removal: R (Agyarko) v. Secretary of State for the Home Department [2017] UKSC 11 (22 February 2017) [2017] Imm AR 76. In TZ (Pakistan) and PG (India) v. Secretary of State for the Home Department [2018] EWCA Civ 1109 (17 May 2018) [2018] Imm. A.R. 1301, the Court of Appeal said as follows:

“The principles to be applied where an Article 8 claim such as the Appellant's is made outside the Immigration Rules are well established and are essentially common ground. The relevant policy is set out in section 9 of the document entitled ‘Immigration Directorate Instruction Family Migration: Appendix FM Section 1.0b/ Family Life (as a Partner or Parent) and Private Life: 10-Year Routes’ dated August 2015. The decision maker must in every case consider whether there are exceptional circumstances which warrant a grant of leave outside the Rules on Article 8 grounds. In doing so, the decision maker must consider all relevant factors raised by the applicant. ‘Exceptional’ does not mean that the circumstances must be ‘unusual’ or ‘unique’. It means circumstances in which refusal would result in unjustifiably harsh consequences for the individual or their family such that refusal of the application would not be proportionate under Article 8.”

27. I do not find that the judge erred in the assessment under Article 8 in respect of the burden of proof. While in Miao the Court of Appeal described this as a shifting burden in reality this refers to the Secretary of State for the Home Department having to establish that the interference is justified. Parliament has decided that the starting point is that the maintenance of effective immigration controls is in the public interest (s.117B(1)). There is no support for the assertion that the judge did not approach the assessment correctly.

Re-Making

28. There is no error in the primary findings of fact made by the judge. Proportionality needs to be reassessed on the correct footing in respect of the Appellant’s status. The judge found that she has family life in the UK with her adult children. I heard further submissions from the representatives. Mr Chohan relied on the medical evidence. He submitted that the Appellant cannot relocate outside Karachi where she has lived all her life.

29. The following factors weigh in favour of the Appellant:

(1) The Appellant suffers from various ailments including osteoarthritis, severe haemorrhoids, high blood pressure and depression as found by the judge.

(2) The Appellant’s principal health problems are anxiety and depression.

(3) The Appellant is on medication and sees Dr Cantele once a month.

(4) Treatment is being privately funded. I remind myself that Appellant can obtain no positive right from the strength of his financial resources’ AM (s117B) Malawi [2015] UKUT 260 (IAC) (17 April 2015) [2015] Imm. A.R. 1019 ; however, I accept that the funding of treatment supports family life in this case.

(5) Two of the Appellant’s adult children are British citizens.

(6) The Appellant enjoys family life with her adult children in the UK.

30. The following factors weigh in favour of the Respondent:

(1) The maintenance of effective immigration controls is in the public interest: s. 117B (1) of the public interest.

(2) Little weight should be given to a private life established by a person at a time when the person's immigration status is precarious (Section 117B (4)). The Appellant’s status is precarious.

(3) There is treatment available in Pakistan which could be funded by the Appellant’s adult children.

(4) The findings of the judge indicate that the circumstances of the Appellant are far from meeting the requirements of the Rules (ADR) which is a rigorous test.

(5) The Appellant cannot meet the requirement of the Immigration Rules in respect of private life. The judge found that there are no very significant obstacles to her integration.

(6) The Appellant has a home in Pakistan or accommodation could be funded by her adult children.

(7) The Appellant cannot speak English.

(8) One of her adult children is in the UK as Tier 2 skilled worker. It is reasonable to expect that he would be able to return to Pakistan.

(9) The judge did not accept that the evidence was sufficient to establish that Karachi would be a dangerous place the Appellant. The judge did not expect that the Appellant would have to relocate.

31. The factors in the Respondent’s favour weigh heavily against the Appellant in this case. I have no hesitation in concluding that the factors in favour of the Appellant do not amount to exceptional or compelling circumstances and that they would not lead to unjustifiably harsh consequences for the Appellant.

32. The appeal is dismissed under Article 8 ECHR.

Joanna McWilliam
Judge of the Upper Tribunal
Immigration and Asylum Chamber

17 March 2025