Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025 000027, UI-2025-000028

First-tier Tribunal No: HU/63559/2023, HU/635561/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 19th of March 2025

Before

UPPER TRIBUNAL JUDGE RUDDICK
DEPUTY UPPER TRIBUNAL JUDGE L MURRAY

Between

LAILUMA BAHADRI
MIAN RAHIM SHAH BAHADRI
(ANONYMITY ORDER NOT MADE)
Appellants
and

ENTRY CLEARANCE OFFICER
Respondent

Representation:
For the Appellant: Mr Bazini, Counsel instructed by AA Immigration Lawyers Ltd
For the Respondent: Mr S Walker, Senior Home Office Presenting Officer

Heard at Field House on 7 March 2025

DECISION AND REASONS
Introduction
1. The Appellants are nationals of Afghanistan and are husband and wife. The first Appellant was born on 24 October 1961 and the second Appellant was born on 5 October 1960. They appealed against the Respondent’s decisions dated 14 November 2023 refusing their application for entry clearance as adult dependent relatives of their British Citizen son. Their appeals were dismissed by First-tier Tribunal Judge Spicer in a decision promulgated on 10 October 2024.
2. Permission to appeal was granted by First-tier Tribunal Judge Mills on 1 January 2025 on all grounds but in particular, on the grounds that it was arguable that the Judge had given inadequate consideration to the evidence regarding the deterioration in the availability of suitable care and treatment in Afghanistan, following the take over of the country by the Taliban in August 2021.
3. The matter came before us to determine whether the First-tier Tribunal (FTT) had erred in law, and if so whether any such error was material such that the decision should be set aside.
Error of Law – Grounds of Appeal
4. The grounds seeking permission to appeal to the First-tier Tribunal note that, in respect of the first Appellant, the FTTJ found that the medical evidence was unchallenged and that she consequently met the requirements of ADR 5.1. It is argued that:
(i) the FTTJ erred in finding that the first Appellant did not meet ADR 5.2, as the medical evidence clearly stated that due to the effects of Taliban rule her medication was not available and this in turn was causing a further decline in her health.
(ii) the findings in relation to the sponsor’s evidence were also incorrect because his evidence was that he had been informed by his parents’ doctor that their medication was not available due to the Taliban regime.
(iii) the FTTJ erred with regard to the test in ADR 5.2 as the second Appellant was, on the medical evidence, unable to provide sufficient care and the FTTJ failed to make findings in respect of this evidence.
(iv) the FTTJ failed to take account of background evidence in relation to the availability of female carers which had to be considered in the context of their lack of availability (consequent to a lack of resources and/or religious and cultural restrictions/diktat) and was plainly material to the decision in respect of the Rule.
5. The grounds argue that if the first Appellant succeeds, the second Appellant would, according to the Rules, be granted leave as the partner and this was conceded by the Respondent at the hearing and in her review.
6. The findings under Article 8 ECHR are also impugned on the grounds that there was complete financial dependency on the sponsor and it followed that there was evidence of genuine and effective support. Further, there was no legal principle that financial dependency on its own could not meet the test in Kugathas v Secretary of State for the Home Department [2003] EWCA Civ 31. Further, the Appellants were helpless and it was unreasonable for the FTTJ to conclude that Article 8 was not engaged. It is also argued that the FTTJ erred in finding that the Appellants were not financially independent when applying the statutorily mandated factors under section 117 B (3) of the Nationality, Immigration and Asylum Act 2002 Act as the Respondent had conceded that the financial requirements of Appendix ADR were met.
The hearing
7. It was apparent in our preparation of the case that there was medical evidence before the FTTJ that had not been included in the Upper Tribunal bundle in the form of two letters from the Appellants’ doctors dated 3 October 2024 and 7 October 2024. We provided a copy these letters to the representatives. It had been Mr Walker’s position before having sight of these letters that the Respondent conceded that there was a material error of law in the decision of the FTT as the findings in relation to the first Appellant were not consistent with the medical evidence. Having seen the updated medical evidence that was referred to in the FTTJ’s decision, he confirmed that the Respondent’s position remained unchanged.
8. We found that the concession was properly made and that the decision of the FTT should be set aside for the reasons provided below. We then canvassed the position as to disposal of the appeal, giving the representatives time to consider their respective views. Mr Barzini argued that the appeals should be allowed on the evidence. The medical evidence was unchallenged before the FTT and showed that the second Appellant was unable to provide the required level of care. The evidence showed that the required level of care was unavailable from a third party.
9. Mr Walker then conceded the appeal on the basis that the Appellants had demonstrated that the requirements of ADR 5.2 were met as, on the medical and background evidence, there was no third party who could reasonably provide the required level of care to the first Appellant. It followed that both appeals should be allowed. We agreed.
Conclusions – Error of Law
10. The FTTJ noted at paragraph 28 that the medical evidence was unchallenged and accepted that the first Appellant had depression, diabetes type 2, hypertension and lower back pain. These are all longstanding conditions. She concluded, however, that:
“Dr Akbari reported a recent ligament tear in his letter dated August 2023. This would be expected to improve with time. I find that there is no medical evidence of any other significant deterioration. I take into account that the 2020 CT scan showed only mild degenerative changes.”
11. On the basis of this summary of the medical evidence she consequently concluded at para 29 that:
“I accept on balance that the first appellant has some mobility problems because of her lower back pain and I accept that she is not able to stand for long, and reasonably needs help with washing and dressing because of her back pain. I find on all the evidence that the second appellant has been providing this care since the departure of their remaining child, “M”, in May 2023.”
12. She accepted that the second Appellant had stable angina, hypertension and diabetes type 2 and that he had been advised not to lift heavy weights. However, she found that there was no indication in the medical evidence that the first Appellant required lifting. She found that the second Appellant helped the first Appellant to dress, helped her wash and that as the second Appellant had no musculoskeletal problems he was physically capable of providing the required care for the first Appellant. She found that both Appellants had access to medical treatment in Kabul and saw their doctors every two to three weeks, had supportive neighbours, access to shops and suitable accommodation. She found that the second Appellant was able to meet her current care needs.
13. It was conceded and we find, however, that those findings are inconsistent with the unchallenged medical evidence and that the decision is inadequately reasoned in light of the medical evidence for the following reasons.
14. The FTTJ had two letters before her from Dr Akbari who is an orthopaedic specialist with over 20 years of experience who had been treating the Appellant regularly. His most recent letter dated 3 October 2024 states, contrary to the FTTJ’s finding that there was no evidence of significant deterioration, that the first Appellant’s condition had progressively worsened, particularly in recent months and that she faced “severe limitations on her ability to perform even the most basic daily activities”. She was unable to walk or stand without experiencing intense pain and her mobility was severely compromised. Due to her lower back condition, she could no longer maintain her independence and was in constant need of care and support. Further, her diabetes and hypertension remained poorly controlled, further complicating her condition and increasing her health risks. Additionally, her longstanding depressive disorder exacerbated her physical suffering. He also stated that due to regime change and the current situation, there was a shortage of medications necessary to manage her multiple health issues, without which, her condition would continue to worsen.
15. Dr Akbari also states that the second Appellant is “unable to provide her with the level of care she requires due to his own limitations”. Those limitations were set out in the letter of Dr Govind Goyal, Consultant cardiologist dated 7 October 2024 and were uncontested.
16. The uncontested medical evidence therefore showed that the first Appellant’s personal care needs were high and her condition was deteriorating and likely to worsen in view of the shortage of medication. We find that the FTTJ fails to adequately explain, why, in light of the medical evidence that the second Appellant was unable to provide the required level of care, she came to the opposite conclusion. It does not follow from the fact that she found that the second Appellant had been providing care with washing and dressing since May 2023 that the required level of personal care was met. We therefore find that there was a material error of law such that the decision must be set aside.
17. In light of the Respondent’s concession we concluded, taking account of paragraph 7.2 (b) of the Practice Statements of the Immigration and Asylum Chambers of the First-tier Tribunal and the Upper Tribunal and the principles in Begum (Remaking or remittal) Bangladesh [2023] UKUT 46 (IAC), that the decision should be remade in the Upper Tribunal on the evidence before us.
Re-making
18. Mr Walker conceded that in light of the medical and background evidence the first Appellant was unable to obtain the required level of care because it was not available and there was no person who could reasonably provide it (ADR 5.2).
19. As stated above, the medical evidence shows that the first Appellant requires a high level of personal care and that there is a shortage of medication to manage her multiple health issues. The second Appellant is unable, on the uncontested medical evidence, to provide the required level of care. We take account of the background evidence on the healthcare collapse and deepening humanitarian crisis in Afghanistan. We also take account of the unchallenged evidence of the Appellant’s son that a female stranger is not allowed to enter someone’s house to provide care facilities when a man is living there to whom they are not related. We accept on the witness evidence that there are no family members in Afghanistan and that the first Appellant would not accept personal care by a male stranger for cultural reasons (even if it were legally or socially permissible, which the background evidence suggests it would not be). The strict cultural mores under Taliban control are well documented and supported by evidence in the Appellant’s bundle.
20. We find that the Respondent’s concession is properly made on the facts and that the Appellants meet the requirements of the Immigration Rules. Consequently the appeals are allowed under Article 8 ECHR (TZ (Pakistan) v The Secretary of State for the Home Department [2018] EWCA Civ 1109).
Notice of Decision
The making of the decision of the First-tier Tribunal did involve the making of a material error of law.
We set the decision aside and allow the Appellants appeals.

L Murray

Deputy Upper Tribunal Judge
Immigration and Asylum Chamber

12 March 2025