Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-000641

First-tier Tribunal No: HU/62005/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

20th June 2025

Before

UPPER TRIBUNAL JUDGE FRANCES
DEPUTY UPPER TRIBUNAL JUDGE BURNETT

Between

JIAN SUN
(NO ANONYMITY ORDER MADE)
Appellant
and

ENTRY CLEARANCE OFFICER (ECO)
Respondent

Representation:
For the Appellant: Mr Papasotiriou, instructed by Richmond Chambers LLP.
For the Respondent: Ms Tarique, Senior Home Office Presenting Officer

Heard at Field House on 25 April 2025

DECISION AND REASONS
Introduction
1. The appellant appeals against the decision of First-tier Tribunal Judge J.C. Hamilton (“the judge”) dated 11 November 2024 dismissing the appellant’s appeal against the refusal of entry clearance as the adult dependent relative of a British citizen.
Preliminary issue
2. The judge made an anonymity order in this case. Mr Papasotiriou submitted the appellant does not oppose the lifting of the order in accordance with the principles of open justice. The appellant did not make an application for an anonymity direction in the First-tier Tribunal. The judge made one of his own motion.
3. In the circumstances, and bearing in mind the principles of open justice, we lift the anonymity order.
Background
4. The appellant is a citizen of China born on 11 September 1953. On 14 July 2023, he applied for entry clearance as an adult dependent relative (ADR) of his daughter (the sponsor) under Appendix ADR of the immigration rules. The respondent refused the application in a decision dated 11 September 2023. The appellant appealed on human rights grounds pursuant to s82 and s84 of the Nationality Immigration and Asylum Act 2002.
5. The appellant has visited his family in the UK on a number of occasions. In December 2022, the appellant’s wife died. In January 2023, the son in law of the appellant travelled to China to care for the appellant. The sponsor and grandson joined them in March 2023. In April 2023, the sponsor, son in law and grandson returned to the UK.
6. The appellant was diagnosed with lung cancer in 1991. He has had operations upon his lungs with lobes being removed from his lungs, both left and right. The appellant suffers from congestive heart failure, dilated cardiomyopathy, atrial fibrillation with rapid ventricular rate, cardiac function class II-III and ground glass nodules in the left lung. The appellant requires monitoring for cancer.
7. The appellant’s health conditions affect his ability to perform everyday tasks independently. It is stated the appellant suffers from shortness of breath, dizziness, paralytic legs, short periods of unconsciousness, back pain and insomnia.
8. The appellant had a period of hospitalisation in 2023. Both before admission and after, and until May 2023, he was cared for by the sponsor’s cousins. In May 2023, one of these individuals returned to work. The sponsor’s aunt also provides meals for the appellant.
The refusal of entry clearance.
9. The appellant was refused entry clearance in a decision dated 11 September 2023. The entry clearance officer (ECO) was satisfied that the appellant met the suitability, relationship, entry, financial, and partner requirements of the ADR rules. The ECO was not satisfied that the appellant met ADR 5.1 and ADR 5.2.
10. Those provisions provide:
ADR 5.1: The applicant 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 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.
11. The refusal noted that the appellant had provided a hospital certificate dated 6 April 2023 regarding his health conditions. It was asserted that the appellant had not provided any further documents to demonstrate his treatment plans and how the conditions would affect the appellant long term. The ECO was not satisfied that the appellant required long term care to perform everyday tasks. It was also noted that the appellant was seeing a medical practitioner and so it was concluded that the necessary care and treatment was available to the appellant.
12. The ECO was not satisfied that the appellant was reliant upon the sponsor as claimed. A letter from a social welfare institution was provided dated April 2023 stating that one to one care was not available at their nursing home. The ECO concluded that this document was not sufficient to demonstrate that the required level of care was not available.
Judge’s Decision
13. The judge made a number of self directions at [21] to [33]. The judge identified the issues in dispute as set out in the appellant’s skeleton argument at [15] and summarised at [35]. There was no argument that the judge did not properly identify the issues in dispute. The judge stated the questions which needed to be resolved were:

“1) Has the appellant shown he has an established article 8 family life with the sponsor, her husband and her son?
2) If the refusal decision interferes with the article 8 family life of the appellant and the sponsor’s family, is that interference disproportionate because the appellant can meet the requirements of the ADR provisions in Appendix AR to the Immigration Rules?
3) If the appellant cannot meet the requirements of the ADR provisions in Appendix AR, is the refusal decision a disproportionate interference with the article 8 family life of the appellant and the sponsor’s family?”
14. The judge considered the appellant’s physical health from [37] to [44]. The judge was satisfied that the appellant met ADR 5.1 and that his health meant that he required long term assistance to perform everyday tasks. In that assessment the judge considered whether the appellant required to be monitored overnight. The judge concluded that this was not a medical necessity at [42]. He found that it was not likely that the sponsor and her husband monitored the appellant throughout the night. The judge concluded that the appellant had not shown that his physical care needs could not be met in China at [44].
15. The judge considered the appellant’s mental health condition at [45] to [53] and analysed the report of the psychiatrist. The judge noted that the psychiatrist concluded that the current arrangements for the emotional needs of the appellant was not adequate and that the appellant did not want to be looked after by strangers at [48]. The judge did not attach significant weight to the expert’s opinion of the consequences for the appellant if he was not cared for by his family at [51]. The judge concluded that the evidence did not demonstrate that the appellant’s desire to be cared for by members of his family was an insurmountable obstacle to him being cared for by people who were not his family members.
16. The judge considered the availability of care and support at [54] to [75]. At [64] the judge made an inference that private psychological support would be available to the appellant as financing such support was not an issue. At [72] the judge concluded that the evidence made clear that good quality nursing homes were available for those who can pay. The judge also found many aspects of Professor Agular’s report to be unsatisfactory [70].
17. At [76] to [85] the judge considered the evidence regarding the availability of care homes and the treatment they could offer. The judge found that the appellant had not provided sufficient evidence to show he could not be cared for in China at [82]. In respect of paid carers, the judge concluded that the appellant had not provided adequate evidence to demonstrate what was available or that which was available was inadequate or inappropriate at [83]. The judge found that there was a lack of cogent evidence showing real efforts had been made to identify what care was available to the appellant in China at [84]. The judge concluded that ADR 5.2 was not met at [85] to [90].
18. At [91] to [97] the judge considered the proportionality of the decision of the respondent repeating a number of his earlier findings and conclusions. The judge concluded that the decision of the ECO was proportionate.
Grounds of appeal
19. The grounds of appeal are summarised by the appellant as:

“Ground 1: The FtTJ made inferences and findings of fact that were not reasonably open to him on the evidence;
Ground 2: The FtTJ misapplied the principles set out in BritCits v Secretary of State for the Home Department [2017] EWCA Civ 368; and
Ground 3: The FtTJ erred with regard to the proportionality assessment under Article 8 ECHR.”
20. Permission to appeal was granted by Upper Tribunal Judge Hoffman (sitting as a First-tier Tribunal judge) on all grounds. In respect of ground 2, Judge Hoffman stated it was arguable that:
“the judge may have focused too much on whether the appellant suffers from a mental disorder or will probably develop a mental disorder if he cannot come to the UK at the expense of whether he has an emotional dependency on his sponsor”.
21. Judge Hoffman considered that ground 1 may amount to nothing more than a disagreement with the judge’s findings of fact and considered that ground 3 was parasitic on ground 2.
Submissions
22. In summary, Mr Papasotiriou relied upon the grounds of appeal and his skeleton argument (SA) prepared for the error of law hearing. He submitted that the emotional needs of the appellant were relevant and there was a lack of a nuanced approach to the appellant’s emotional needs. The finding that the appellant did not have a mental disorder was considered determinative by the judge. The judge erroneously reduced the emotional needs of the appellant to a choice or preference and misapplied BritCits. Mr Papasotiriou referred to [51], [52] and [87] of the decision which highlighted the error made by the judge. The judge concluded that it was speculative to proceed on the basis that the appellant would develop some sort of mental disorder if the appellant could not come to the UK. At [85] the judge concluded that the appellant did not have a mental disorder and there was no cogent evidence to show the appellant was likely to develop a mental disorder.
23. Mr Papasotiriou took the Tribunal to the expert report of Dr Shepherd at paragraphs 7.4.2.1 and 7.5.6.1. He acknowledged that the judge had set out paragraph 7.5.6.1 in his decision at [15(4)]. In these paragraphs the expert opined that the appellant’s emotional needs could not be met by strangers. Although the provision of regular staff could overcome some of these needs, the expert anticipated that some difficulties would be insurmountable. The judge had erred in the assessment of this evidence because the judge had narrowly focused upon whether the appellant had a mental disorder.
24. Mr Papasotiriou made very brief submissions regarding ground 1 and did not press the grounds when questioned by the Tribunal. He added little to his SA and the grounds of appeal. The grounds argue that the judge failed to have regard to letters from the grandson’s school and letters from the sponsor’s colleagues. The grounds also assert that the judge’s assessment of the appellant’s night time care, and whether the sponsor monitored him, was erroneous. Mr Papasotiriou submitted the judge’s failures in the assessment of the evidence rendered the proportionality assessment erroneous.
25. Ms Tarique took the grounds of appeal in order. She made reference to the grant of permission and submitted that ground 1 was a disagreement with the findings made. At [93] the judge acknowledged the sponsor monitored the appellant remotely by webcam. The judge had not disregarded Dr Shepherd’s report. The judge made a finding at [42] that the hospital certificate dated 6 April 2023 did not state that over night care was needed. At [46] to [49] the judge actively engaged with the expert report and gave adequate reasons for the weight he attached to it.
26. In respect of ground 2, Ms Tarique submitted that the judge had made a holistic assessment. The grounds narrowly focused upon a few sentences of the decision. When the decision was read as a whole, the judge had analysed each and every aspect which had been put forward. Ms Tarique submitted that the judge had not closed his mind and had considered the best interest of the appellant’s grandson and other family members.
27. In respect of ground 3, Ms Tarique stated that this was linked to ground 2 and was a disagreement with the findings made. She accepted that Article 8 was engaged and submitted the judge gave adequate reasons at [96] for why the appellant’s Article 8 rights did not outweigh the public interest.
Analysis and Conclusions
28. We begin by reminding ourselves of the approach to be adopted by the Upper Tribunal in considering whether there is an error of law in the decision of the First-tier Tribunal. The following two short extracts emphasise the need for the Upper Tribunal to show appropriate restraint before interfering with a decision of the First-tier Tribunal.
29. In A E (Iraq) v Secretary of State for the Home Department [2021] EWCA Civ 948 at [32] Warby LJ said –
“But it is not an error of law to make a finding of fact which the appellate tribunal might not make, or to draw an inference or reach a conclusion with which the UT disagrees. The temptation to dress up or re-package disagreement as a finding that there has been an error of law must be resisted.”
30. In Volpi v Volpi [2022] EWCA Civ 464 at [2] Lewison LJ said –
“Reasons for judgment will always be capable of having been better expressed. An appeal 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.”
31. We turn to a consideration of ground 2 as this was the main focus of submissions. The judge was required to consider and make findings regarding the appellant’s care needs and whether the appellant had demonstrated that his needs could not be met in China (ADR 5.2).
32. Mr Papasotiriou submitted that the judge had “closed his mind” to the consideration of the emotional needs of the appellant and his reliance upon the sponsor. He stated that the judge had reduced the emotional need to a preference after finding that the appellant did not have a mental health condition. Mr Papasotiriou stated that this diminished a proper consideration of the appellant’s emotional needs and the care he required. Mr Papasotiriou acknowledged that the judge had regard to the expert report of Dr Shepherd and had made findings.
33. The appellant does not argue that he does have a mental health condition. The argument is put forward on a nuanced basis that the judge erred by equating the appellant’s emotional needs with a preference. The judge made numerous references to the appellant’s emotional needs and his desire to be looked after by his family (see [53], [87], [88], [89] and [96]). The judge analysed and had regard to the evidence and arguments put forward. The judge concluded that the appellant’s wishes to be looked after by family members had not been demonstrated to be an insurmountable obstacle.
34. The judge inferred that the appellant’s emotional needs and psychological support were being provided for by his sister and his nephews at [89]. The judge considered it likely that emotional support would be provided by the sponsor in speaking to the appellant regularly at [93]. The judge found that the evidence about the available medical care in China was inadequate and did not demonstrate that the appellant’s needs could not be met there (see [72], [82] and [83]). We note that there was no criticism of the findings made by the judge regarding the expert report of Professor Aguilar.
35. It is clear to us that the judge had regard to the expert medical report of Dr Shepherd and analysed it. The judge set out extracts of the report at [15] and the argument the appellant advanced that his emotional needs and stated desires could not be met by care from strangers. The judge referred to parts of the report in his analysis at [47] to [50]. He found that he could not attach significant weight to the stated opinion regarding the consequences for the appellant by not being cared for by his family and he gave adequate reasons for coming to this conclusion at [51] to [53].
36. In the circumstances we find that the judge's assessment of the requirements of the relevant immigration rules took full account of all the evidence and that his consideration of the medical evidence was consistent with the principles and guidance in BritCits. The judge gave clear and cogent reasons for drawing the conclusions that he did from the medical evidence and for according it the weight that he did. It was open to the judge to conclude that the requirements of ADR 5.2 were not met on the evidence before him.
37. We are not satisfied that there is a material error of law in the decision of the judge in respect of the consideration of the emotional and psychological needs of the appellant. When considered as a whole, we are satisfied that the judge has considered all the arguments presented by the appellant, considered the evidence provided and reached conclusions open to him.
38. In respect of ground 1, we start by reiterating that a judge does not need to set out every piece of evidence. The judge set out the documents which were before the judge and to which the judge had regard. Mr Papasotiriou acknowledged that the judge had regard to the expert reports.
39. The grounds assert that the judge failed to take into account letters from the grandson’s school and letters from colleagues of the sponsor when assessing the proportionality of the respondent’s decision. The letters from the grandson’s school were relevant to the assessment of the grandson’s best interests. The letters from the sponsor’s colleagues were relevant to the support given to the appellant and the impact this was having upon the sponsor and her husband.
40. In considering the best interests of the appellant’s grandson, the judge found at [94] that there was no family life between the appellant and his grandson. This was not challenged by the appellant. The judge found that the refusal decision would have an adverse emotional impact upon the appellant’s grandson [96 (3)] but this did not show it would have a significant adverse impact upon his best interests. The judge noted he was doing well at school and his best interests were well met by his parents. The email from school refers to the family’s recent bereavement and the inability to travel to the funeral. The letter states that there would be support at the school for the grandson. Mr Papasotiriou did not further explain how the letter showed an impermissible finding or showed a material error in the finding which had been made. We are not satisfied that there was a material error in the decision in this regard.
41. The judge found that there was real, effective and committed support from the sponsor to her father. The judge accepted that the sponsor’s family had involvement with the appellant’s care at [93]. The judge had regard to the sponsor’s claim regarding the impact upon her and her husband’s wellbeing at [96(4)]. The judge accepted that it was likely to be stressful and upsetting. The judge set out that there was no adequate medical or other independent evidence to show that there was a substantial adverse impact on the sponsor or her husband’s mental health. Mr Papasotiriou acknowledged that there was no medical evidence in respect of the sponsor or her husband. The judge did not specifically mention the letters from the sponsor’s colleagues, however we are satisfied that the judge evaluated all the evidence. We conclude that the findings made were open to the judge and we are not satisfied that that there was a material error in the decision in this regard.
42. The judge also considered the evidence regarding night time monitoring and came to clear conclusions at [42], [86] and [93]. At [42] the judge commented that the medical certificate did not state that the appellant must be monitored during the night. The judge concluded that it was not likely that the family would allow the appellant to be alone at night if this had serious health consequences for him. At [86] the judge found that the appellant had not provided sufficiently cogent evidence to show he could not be provided night time monitoring in China, if this was required. The judge also found he could not rely upon the evidence of the sponsor and her husband. At [93] the judge accepted that the sponsor monitored the appellant’s home at night by Webcam and was involved in the appellant’s care. Mr Papasotiriou argues that due to the time difference between the UK and China and that the sponsor was working from home on projects, the findings made were not open to the judge.
43. We are satisfied that these conclusions were open to the judge. The judge was mindful of the expert evidence and analysed the oral evidence of the sponsor and her husband. We conclude that the challenge is no more than a disagreement with the findings made.
44. Mr Papasotiriou argued that it was not put to the appellant (or sponsor) that there would be recourse to public funds. However, we note that this is addressed in the witness statement of the sponsor at paragraph 86. We conclude that the finding at [96] is an assessment from the evidence provided to the judge. We note that the hope by the sponsor to meet health care needs by private insurance has in the words of the judge “not come to anything”. We are not persuaded that this is a material error of law.
45. Mr Papasotiriou did not elaborate further upon paragraph 4 and 5 of ground 1. It is argued that there was no reasonable basis to give limited weight to the sponsor’s evidence. The judge summarised the evidence of the sponsor and her husband at [19] and [20]. At [40], the judge gave limited weight to the sponsor’s evidence regarding the deterioration of the appellant’s eyesight and hearing. This was because there was not an up to date medical report or other evidence to support that particular claim. The judge accepted at [41] the medical evidence relating to the appellant’s other medical issues as it was not actively challenged by the respondent and was broadly consistent with the evidence of what the appellant can and cannot do. We conclude that the judge gave adequate reasons for the conclusions reached and was mindful of the evidence provided. We are not satisfied that there was a material error of law in this respect.
46. Given the conclusions we have reached above we are not satisfied that the judge made a material error of law in the proportionality assessment as alleged in ground 3.
47. We find the decision of the First-tier Tribunal does not contain a material error of law and shall stand. We dismiss the appeal.

Notice of Decision
The appeal is dismissed.

Iain Burnett

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

18 June 2025