Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: VA/02192/2015

THE IMMIGRATION ACTS

At Field House
on 28th February 2017
Decision and Reasons Promulgated on 12th April 2017

Before

DEPUTY JUDGE OF THE UPPER TRIBUNAL FARRELLY

Between

MRS.BIBI AISHA NIAZI
(NO ANONYMITY DIRECTION MADE)
Appellant
And

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the appellant: Mr.Z.Kahn of Universal Solicitors.
For the Respondent: Mr P.Nath, Home Office Presenting Officer.

DECISION AND REASONS
Introduction
1. The appellant is a national of Afghanistan born on 3 April 1945. She is a widow. She applied for a visit visa which was refused on 3 April 2015. She indicated that she wanted to visit her two sons in the United Kingdom. One son is Mr Masud Safraz, hereinafter referred to as her sponsor. The other is Mr.Mahmood Safraz. Both came here illegally in 1980 and subsequently have been granted indefinite leave to remain.
2. In support of her application she indicated that she owned land in Afghanistan and had US$3895 in the bank. She indicated she was supported by friends and family. She has two married daughters in Afghanistan. She has another son in Germany. She also has three brothers in Afghanistan.
3. Her application was refused on 3 March 2015. The refusal was maintained by the entry clearance manager. The entry clearance officer felt the appellant’s circumstances in Afghanistan, particularly as to how she was supported, were unclear. It was felt she had limited ties to that country and the credibility of the application was questioned: in particular, whether her intention truly was to come to the United Kingdom as a visitor intending to leave at the end. The adequacy of the accommodation for the appellant in the United Kingdom was also an issue.
The First tier Tribunal.
4. Her appeal was heard by First-tier Judge Beg on 20 June 2016. The judge referred to a medical report from a Dr Alikhan dated 16 June 2016.It stated that the appellant’s son Mr.Mahmood Safraz had suffered a brain injury in 2001 and had developed psychiatric problems.
5. The sponsor gave evidence, stating that he worked as a minicab driver and last saw his mother in 2008. He said that his brother last met their mother for two weeks in 2002.This was in Pakistan where she was living at the time. His brother in Germany visited their mother in 2005. He referred to sending money to his mother as did his brother in Germany and their married sisters helped.
6. The right to appeal was limited to human rights considerations. The judge accepted that article 8 was engaged. The judge did not accept that the sponsor could not travel to Afghanistan to see his mother because of security concerns. The judge pointed out that his brother in Germany had been able to do so in 2005. The judge also did not accept that he was a full-time carer of his brother but accepted when he was not working he cared for him.
7. At paragraph 10 of the decision the judge referred to the visit by Mr. Mahmood Safraz to Pakistan in 2002 and stated:
There is no evidence that the visit adversely affected him. I find that there is no medical evidence before me to confirm that Masud Safraz is unable to travel to Afghanistan to see his mother.
At paragraph 13 the judge said:
… I find that whilst there is no credible evidence before me that the sponsor and his brother are unable to visit their mother in Afghanistan, it is the appellant who wishes to visit them in the United Kingdom.
8. The judge accepted that the appellant wanted to see how her sons were living in the United Kingdom. The judge concluded that the appellant was reliant upon her children supporting her. The judge was satisfied she had sufficient funds to pay for the journey. Maintenance was not an issue. The judge accepted the appellant was a genuine visitor intending to leave the United Kingdom at the end of the visit.
9. The judge was not satisfied that there was adequate accommodation given there was no documentary evidence about the size of the sponsor's property. There was evidence by way of a tenancy agreement he lived in a one-bedroom studio flat which he occupies exclusively.
10. The judge concluded by stating that whilst family life existed in relation to her son with a disability, they had not live together since 2000 and any interference would be proportionate.
The Upper Tribunal
11. Permission to appeal was granted on the basis it was arguable the judge did not give adequate consideration to the letter from Dr Alikhan.It stated that her son, Mr.Mahmood Safraz, was a hospital in patient and required an escort for treatment. This impacted upon his ability to visit his mother in Afghanistan, a relevant factor in the proportionality assessment.
12. A second basis for the grant of leave was in relation to how the judge dealt with the adequacy of accommodation. There was evidence that the sponsor rented a studio flat and it was arguable the judge failed to go on to consider whether such accommodation would be adequate within the Housing Act 1985.
13. At hearing I heard from the sponsor to the effect that he had been living in an open plan studio flat but had since moved to a one-bedroom flat. A copy of the new tenancy agreement has been provided which commenced on the 1st December 2016. I was provided with an extract from the respondent’s instructions dated August 2015 on accommodation. This provides that rooms of less than 50 ft.² are not counted. The decision maker is required to count the number of rooms and bedrooms or living rooms which could be used as a bedroom and, subject to age and gender and whether the parties are a couple, if there is one room available for sleeping then 2 people can be accommodated or if there are two rooms, then 3.
Conclusions
14. The medical report from Dr Alikhan indicates that Mr.Mahmood Safraz is a patient in a secure neuropsychiatry facility under the Mental Health Act. The doctor refers to him requiring escorted leave for supervised therapeutic activities within the secure unit. He has not had community leave. The letter records that he does speak to his mother on the telephone.
15. It is clear from the medical evidence provided that currently it would be impracticable for Mr.Mahmood Safraz to visit his mother either in Afghanistan or a third country. He clearly has significant mental health issues. It is not apparent how when faced with this medical evidence the judge concluded there was no medical evidence to the effect that he could not travel to Afghanistan. Given the medical evidence presented the judge placed undue weight on the fact he visited her in Pakistan in 2002. He had only been in the United Kingdom since 2000 and apparently did not have status. There is a possibility his medical condition was not fully monitored because of this. Given the acceptance of the existence of family life then his present inability to travel renders the respondent's decision disproportionate.
16. Her ability to meet the rules is relevant as article 8 is being looked at through the prism of the rules. I am satisfied that there is adequate accommodation available to the appellant. The size of the accommodation is only relevant insofar as rooms of less than 50 ft.² are discounted. At the original hearing there was evidence of a tenancy agreement for a studio flat which notwithstanding evidence of the size of the flat could have provided adequate accommodation. In any event the sponsor has now changed to accommodation which clearly is adequate.
17. It is my conclusion that the judge did not appreciate fully the medical evidence submitted about Mr.Mahmood Safraz and his ability to travel. This was a significant feature in the proportionality assessment as the judge took the view he could travel. The view he could travel does not fit with the medical evidence provide and constituted a material error of law in the proportionality assessment. Furthermore, the judge did not deal properly with the question of accommodation. I see no countervailing public interest considerations of sufficient force to render the decision proportionate.
18. Given the other findings made by the judge I am able to remake the decision and allow the appeal. The findings include that this was a genuine visit; family life was engaged; there were adequate funds to pay for the journey; and the absence of strong public interest factors. To refuse entry clearance in the circumstance, particularly where Mr.Mahmood Safraz cannot travel, is disproportionate.
Decision.
The decision of First-tier Judge Beg, dismissing the appeal materially erred in law and cannot stand. I remake the decision and allow the appeal.

Deputy Upper Tribunal Judge Farrelly.

28th February 2017