Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/00694/2013
THE IMMIGRATION ACTS
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Heard at Field House
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Determination Promulgated
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On 9 April 2014
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On 17th April 2014
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Before
UPPER TRIBUNAL JUDGE MOULDEN
IMMIGRATION JUDGE S CHANA
sitting as a DEPUTY
JUDGE OF THE UPPER TRIBUNAL
Between
MRS RAZIA BEGUM
(No Anonymity Direction Made)
Appellant
and
ENTRY CLEARANCE OFFICER - ISLAMABAD
Respondent
Representation:
For the
Appellant: Mr S Bhanji of Counsel instructed by Naseem & Co Solicitors
For the Respondent: Mr E Tufan a Senior Home Office Presenting Officer
DETERMINATION AND REASONS
- The
appellant is a citizen of Pakistan who was born on 1 January 1960. She has
been given permission to appeal the determination of First-Tier Tribunal
Judge Burnett (“the FTTJ”) who dismissed her appeal against the
respondent’s decision of 19 December 2012 to refuse her entry clearance to
the United Kingdom for settlement as a dependent parent under the provisions
of paragraph 317 of the Immigration Rules. Her sponsor is her son, Mr
Abdul Qayoom.
- The
respondent refused the application because the appellant had not shown firstly,
that she was related as claimed to her sponsor and therefore that she was
related to a person present and settled in the UK (paragraph 317 (i)).
Secondly, she had not shown that she was financially dependent on her
sponsor (paragraph 317 (iii)).
- The
appellant appealed and the FTTJ heard her appeal on 16 December 2013. The
appellant was not represented but the sponsor attended and gave evidence.
The respondent was represented by counsel. At the start of the hearing
counsel for the respondent raised a new issue; whether the appellant,
being under the age of 65, was “living alone outside the United Kingdom in the most exceptional compassionate circumstances” under the provisions of
paragraph 317 (i) (d). The judge offered to adjourn to enable the sponsor
to obtain further evidence but he elected to continue with the hearing
stating that he had said why there were exceptional compassionate
circumstances in the letter of application.
- During
the course of the hearing the respondent conceded that the appellant and
the sponsor were related as claimed and the FTTJ so found. The FTTJ
accepted that the sponsor sent money to the appellant on a regular basis
but concluded that she had not established that she was financially
dependent on him such that she needed this money. He also found that the
appellant had not established that she was living alone in the most
exceptional compassionate circumstances. The FTTJ went on to consider the
appeal on Article 8 human rights grounds concluding that the interference
with her private and family life would not be of sufficient severity to
cross the low threshold which would engage Article 8. Even if it had it
would not be disproportionate to refuse her leave to settle in the UK. The FTTJ dismissed the appeal under the Immigration Rules and on Article 8 human rights
grounds.
- The
FTTJ did not make an anonymity direction. We have not been asked to do so
and can see no good reason to make such a direction.
- The
appellant applied for permission to appeal which was refused by a judge in
the First-Tier Tribunal but granted on renewal to the Upper Tribunal. The
grounds argue that the FTTJ erred in law by failing properly to consider
the documentary evidence which showed the appellant’s living expenses and
established that she was wholly or mainly dependent on the sponsor. It was
an error of law to give very little weight to the medical report and on
the evidence the FTTJ should not have come to the conclusion that the
appellant had failed to establish that she was living alone in the most
exceptional compassionate circumstances.
- We
have been provided with the judgement and determination in Azza Mohamed
v SSHD [2012] EWCA Civ 331 and RM (Kwok On Tong: HC395 para 320) India [2006] UKAIT 00039
(18 April 2006). The respondent has submitted a Rule 24 response.
- Mr
Bhanji submitted that the respondent must have considered whether the
appellant was living in the most exceptional compassionate circumstances
and, not having mentioned the point, have accepted that she was. The
appellant had submitted all the documents which were needed to establish
financial dependency on the sponsor and these were listed in the letter
which the sponsor sent to the respondent on 30 July 2012 and his letter to
the First-Tier Tribunal of 8 January 2013. The FTTJ had accepted that the
sponsor was sending money to the appellant on a regular basis. The only
basis for the finding that she was not wholly or mainly dependent on him
was the alleged lack of evidence as to her needs. In addressing this the
FTTJ failed to consider what she had said in her interview.
- Mr
Bhanji accepted that as the appellant was under 65 years of age she had to
show that she was living outside the UK in the most exceptional
compassionate circumstances. The Immigration Rules had changed on 9 July
2012. Prior to that date paragraph 317 (i) (e) contained the requirement
for a parent or grandparent under the age of 65 that he or she must be
“living alone outside the United Kingdom in the most exceptional
compassionate circumstances and mainly dependent financially on relatives
settled in the United Kingdom”. After that date paragraph 317 (i) (d) set
out the requirement for a parent or grandparent under the age of 65 that
he or she must be “living alone outside the United Kingdom in the most
exceptional compassionate circumstances”. Both before and after the change
paragraph 317 (iii) contain the requirement that the individual concerned
“is financially wholly or mainly dependent on the relative present and
settled in the United Kingdom”.
- In
relation to the additional grounds relating to the most exceptional
compassionate circumstances raised by counsel for the respondent at the
hearing Mr Bhanji submitted that the sponsor had appeared without legal
representation. Whilst he was offered an adjournment there was no evidence
that he was properly advised as to the consequences of the decision he was
being asked to make. We were asked to find that there were errors of law
and to set aside the decision.
- Mr
Tufan submitted that paragraph 317 had seven requirements in subparagraphs
(i) to (vii). These were conjunctive and cumulative; all of them had to be
satisfied. The requirements under 317 (i) (a) to (f) were in the
alternative subject to the initial requirement that the appellant had to
be related to a person present and settled in the United Kingdom. If the
respondent was not satisfied that the appellant was related in this way
then there was no need to consider the requirements in 317 (i) (a) to (f)
one of which was the provision which applied in this case relating to
living in the most exceptional compassionate circumstances. Under Kwok on
Tong principles, having accepted that the appellant and the sponsor were
related as claimed, the respondent was entitled, indeed required to raise
the issue of the most exceptional compassionate circumstances. Mr Tufan
submitted that the evidence submitted by the appellant came nowhere near
satisfying the high threshold of this test. There was no evidence as to
what the FTTJ had said to the sponsor when asking him whether he wanted an
adjournment. We were asked to find that the FTTJ reached conclusions open
to him on all the evidence and that there was no error of law.
- In
his reply Mr Bhanji submitted that the appeal was not bound to fail if the
FTTJ had considered all the evidence particularly that on the visa
application form. In reply to our question as to what evidence showed that
the appellant was living in the most exceptional compassionate
circumstances, he pointed us to the evidence contained in the visa
application form and the fact that the appellant was a widowed mother
living alone in Pakistan. Whilst her daughters were married and living in Pakistan her three sons were living abroad.
- We
reserved our determination.
- Paragraph
317 of the Immigration Rules provide;
“317. The requirements to be met by
a person seeking indefinite leave to enter or remain in the United Kingdom as
the parent, grandparent or other dependent relative of a person present and settled
in the United Kingdom are that the person:
(i) is related to a person present
and settled in the United Kingdom in one of the following ways:
(a) parent or grandparent who is
divorced, widowed, single or separated aged 65 years or over; or
(b) parents or grandparents
travelling together of whom at least one is aged 65 or over; or
(c) a parent or grandparent aged 65
or over who has entered into a second relationship of marriage or civil
partnership but cannot look to the spouse, civil partner or children of that
second relationship for financial support; and where the person settled in the
United Kingdom is able and willing to maintain the parent or grandparent and
any spouse or civil partner or child of the second relationship who would be
admissible as a dependant; or
(d) parent or grandparent under the
age of 65 if living alone outside the United Kingdom in the most exceptional
compassionate circumstances; or
(e) parents or grandparents
travelling together who are both under the age of 65 if living in the most
exceptional compassionate circumstances; or
(f) the son, daughter, sister,
brother, uncle or aunt over the age of 18 if living alone outside the United Kingdom in the most exceptional compassionate circumstances; and
(ii) is joining or accompanying a
person who is present and settled in the United Kingdom or who is on the same
occasion being admitted for settlement; and
(iii) is financially wholly or
mainly dependent on the relative present and settled in the United Kingdom; and
(iv) can, and will, be accommodated
adequately, together with any dependants, without recourse to public funds, in
accommodation which the sponsor owns or occupies exclusively; and
(iv) can, and will, be maintained
adequately, together with any dependants, without recourse to public funds; and
(v) has no other close relatives in
his own country to whom he could turn for financial support; and
(vi) if seeking leave to enter,
holds a valid United Kingdom entry clearance for entry in this capacity; and
(vii) does not fall for refusal
under the general grounds for refusal.”
- We
find that it was not necessary for the respondent to consider whether the
appellant was a “parent or grandparent under the age of 65 if living alone
outside the United Kingdom in the most exceptional compassionate
circumstances” because the question did not arise where the respondent was
not satisfied that the appellant had not established that she was related
to a person present and settled in the United Kingdom. The provisions in
the alternative in subparagraphs (a) to (f) of 317 (i) did not fall to be
considered if the initial requirement in 317 (i) that the appellant was
related to a person present and settled in the United Kingdom was not met.
However, after the respondent’s representative accepted that the appellant
and the sponsor were related as claimed then it became necessary to
consider whether one of the provisions of subparagraphs (a) to (f) was
satisfied. It is common ground that the relevant provision is that in
subparagraph (d) namely whether the appellant had shown that she was a
“parent or grandparent under the age of 65 if living alone outside the United Kingdom in the most exceptional compassionate circumstances”.
- We
find no merit in the submission that in the absence of any indication that
the respondent considered the question of whether the appellant was living
alone outside the United Kingdom in the most exceptional compassionate
circumstances we should imply that the respondent must have or did in fact
consider this and even less whether, having done so, the respondent
accepted that the appellant was living in these circumstances.
- Kwok
on Tong makes it clear that a judge cannot allow an appeal unless
satisfied that all the requirements of the relevant Immigration Rule are
met. The provisions of subparagraph 317 (i) (d) are such a requirement.
Had the point not been raised by counsel for the respondent the FTTJ would
have been under an obligation to do so.
- The
FTTJ had a duty of fairness to the appellant, represented by the sponsor,
to give him a proper opportunity to address a new point such as this. The
FTTJ did so, by offering an adjournment, as recorded in paragraph 11.
There is no witness statement from the sponsor as to exactly what was said
or what explanation he was given. However, we find that there is a
sufficient summary in paragraph 11 in which the FTTJ said; “There was no
request for an adjournment by either party. I should note though that
during the course of the hearing Mr Roberts raised an issue under
paragraph 317 (i) of whether the appellant met the rules in respect of
“living alone in the most exceptional compassionate circumstances”. The
sponsor was asked if he wished to continue with the appeal or adjourn to
try to obtain any further evidence. He elected to continue with the
appeal. He stated that he had written why there were compassionate
circumstances in the letter of application.” We find that the FTTJ acted
properly in all the circumstances. The sponsor chose to proceed with the
appeal hearing and even now no evidence has been produced which might have
made a difference. We find that there was no unfairness or error of law.
- We
can find no indication that the FTTJ failed to take into account and
properly assess the oral and documentary evidence before him. Mr Bhanji
submitted that the FTTJ failed to take into account the evidence contained
in the appellant’s interview record. We conclude that the reference to an
interview record was a mistake because we can find no indication that
there was an oral interview with the appellant and the paragraph numbers
to which Mr Bhanji referred are those in the lengthy application form
completed by her. We find that the FTTJ did take this into account the
information in the application form. There is reference to this in
paragraph 24 and the FTTJ’s findings in this paragraph are clearly drawn
from the application form including paragraphs 40, 48, 51 and 52 on which
Mr Bhanji relied. Whilst the appellant referred to RS 15,000 per month and
said that this was spent on “everyday life needs, food, medical” it was
open to the FTTJ to conclude that there was no breakdown of her day-to-day
living expenses. He was also entitled to rely on the lack of explanation
for continuing cash withdrawals after the appellant had been robbed or how
she coped after her husband died and before the sponsor started sending
money. The fact that the sponsor had been registered with a money transfer
agency since November 2004 did not establish what funds had been sent to
his mother and father before his father’s death and after his father’s
death up to 2011. There was no witness statement from the appellant
providing this information or other information about her circumstances
which might have assisted.
- The
letter submitted from the medical centre stated “not valid for court”. In
the absence of any explanation for this the FTTJ was entitled to give the
letter little weight.
- In
reply to our question as to what evidence established that the appellant
was living in the most exceptional compassionate circumstances Mr Bhanji
pointed us to the evidence contained in the visa application form, the
fact that the appellant was a widowed mother living alone in Pakistan, her
daughters were married and living in Pakistan her three sons were living
abroad. We find that looking at this evidence with all the other evidence
in the round it was open to the FTTJ to conclude that the appellant had not
established that she met the difficult but not impossible test of
establishing that she was living alone outside the United Kingdom in the most exceptional compassionate circumstances. In our judgement the
same conclusion would inevitably have been reached even if full weight had
been given to the evidence contained in the medical report.
- We
can find nothing in in the Immigration Rules themselves or in Mohamed to
indicate that the different provisions of paragraph 317 which were in
force at the time of the application and at the time of the decision
should have made any material difference to consideration of the facts in
this appeal.
- We
find that there are no errors of law and that the decision does not fall
to be set aside. We uphold the determination.
………………………………………
Signed Date
13 April 2014
Upper Tribunal Judge Moulden
