United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments

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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER	Case No: UI-2023-005346
	First-tier Tribunal No: HU/ 55709/2021

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 7 ^th of March 2025

 

Before

 

DEPUTY UPPER TRIBUNAL JUDGE STERNBERG

 

Between

 

Rashida BEGUM

(NO ANONYMITY ORDER MADE)

Appellant

and

 

Secretary of State for the Home Department

Respondent

Representation :

For the Appellant: Ms J Smeaton, counsel, instructed by Solicitors' Inn Leyton

For the Respondent: Mr S Walker, Senior Home Office Presenting Officer

 

Heard at Field House on 27 February 2025

DECISION AND REASONS

 

Introduction

1.               The appellant was granted permission to appeal the decision of First-tier Tribunal Judge Munonyedi who dismissed the appellant's appeal by a determination promulgated on 21 August 2023, following a hearing on 28 July 2023. That appeal challenged the Respondent's decision of 31 August 2021 to refuse the Appellant's human rights claim on the basis that she is an adult dependent relative dependent on her sons.

2.               Upper Tribunal Judge Perkins granted permission to appeal on 9 January 2024.

Anonymity

3.               No anonymity direction was made previously and no such application was made.

Factual Background

4.               The appellant is a national of Pakistan who is now 77. She entered the United Kingdom on 8 March 2020 with a visit visa to visit her two sons who live in Scotland. Due to the Coronavirus Pandemic she was unable to return home. On 27 August 2020, a little over 5 months after she had entered the UK she applied for leave to remain under Appendix FM of the Immigration Rules on the basis that she was an adult dependent relative, being dependent on her two sons who are her sponsors.

5.               The Respondent refused the Appellant's application on 31 August 2021. The Respondent found that the Appellant had not provided evidence that she was related to her sons as she claimed, nor that she was divorced from her husband. The Respondent further found that the Appellant had not provided evidence of her long standing health conditions including diabetes, high blood pressure and needing support to walk. There was no current evidence of a deterioration in her conditions nor that she could not perform everyday tasks. Nor, said the Respondent, had the Appellant provided evidence that as a result of age, illness or disability that she required long-term personal care to perform everyday tasks or that the level of care she requires could not be provided in Pakistan and that there is no person in that country can reasonably provide it or that it is not affordable. The appellant appealed against that decision to the First-tier tribunal.

6.               Meanwhile, the Appellant's ex-husband came to visit their sons in Glasgow. Unfortunately he was diagnosed with cancer and he died in Glasgow on 10 September 2022.

The decision of the First-tier Tribunal

7.               The First-tier Tribunal Judge heard oral evidence from the Appellant and from both sponsors. The Judge dismissed the Appellant's appeal in a written decision of 21 August 2023. The Judge accepted the Appellant's age and that she was related to the sponsors as she claimed. The Judge found that the appellant had lived in self-contained accommodation upstairs from her husband when she was living in Pakistan and that she had had the assistance of a maid for approximately 40 years since the birth of her first child. The Judge accepted that the medical evidence showed that the Appellant suffers from diabetes, high blood pressure and joint problems in her knee. However, the Judge found that the Appellant had failed to provide any up to date medical evidence to show that her condition had deteriorated such that she is unable to perform necessary day to day tasks for herself.

8.               The Judge considered the evidence of Alison Mckinnon, a physiotherapist who had assessed the Appellant. The Judge noted that Ms. Mckinnon had not set out her qualifications or experience but did not reject her report on that basis. Ms. Mckinnon had found that the appellant required light support when walking and taking tests. Her opinion was that with exercise and rehabilitation the Appellant's balance would improve. The Judge accepted this evidence. The Judge rejected Ms. Mckinnon's evidence that the Appellant would be unable to care for herself because she had not considered the possibility that the appellant was feigning or exaggerating her medical condition. The Judge found that the Appellant had greatly exaggerated her physical ailments and that there was a lack of medical evidence to show a deterioration in her condition since she came to the UK. The Judge found that the Appellant is able to move with the assistance of a walking stick or walking frame. The Judge concluded that the appellant did not require long term personal care. As to care available in Pakistan, the Judge found that there may be an ancestral home in her village where she could live. In the alternative her sons are in a position to purchase or rent a property for her and that she could engage a maid to help her at home if she required one. The Judge rejected the Appellant's appeal under the Immigration Rules and under Article 8 ECHR.

The appeal to the Upper Tribunal

9.               The appellant sought permission to appeal on the basis that, although the Judge had accepted the Appellant's medical conditions, their assessment of whether the Appellant could improve her balance with exercise was erroneous. The report of Ms. Mckinnon had stated that her balance could improve, not that it would, as the judge found. She uses a walking frame and needs assistance on stairs. The Judge failed to place appropriate weigh on the Appellant's need for support and erred in assessing the Appellant's ability to care for herself. The grounds also submitted that the First-tier Tribunal Judge erred in their approach to article 8 ECHR and Immigration rule 276ADE.

10.           Upper Tribunal Judge Perkins granted permission to appeal by a decision dated 18 January 2024.

The error of law hearing

11.           The matter comes before the Upper Tribunal to determine whether the decision contains an error of law and, if it does, to either re-make the decision or to remit the appeal to the First-tier Tribunal to do so. I was provided with a bundle running to 448 pages.

12.           The hearing took place by Cloud Video Platform. It was attended by representatives from both parties and by Ms. Begum and one of her sons. At the outset of the hearing I confirmed with the parties and participants that they could all see and hear each other and the Tribunal.

13.           Ms. Smeaton confirmed that although there was some further medical evidence put before the Tribunal under rule 15 of the Upper Tribunal Procedure Rules to show that the Appellant has been diagnosed with Alzheimer's and dementia, that material was only relied on if the Tribunal found an error of law.

14.           Ms. Smeaton made succinct submissions in line with her skeleton argument. First, she submitted that it was incumbent on the Judge to address the medical evidence which went to the heart of the issue the Appellant raised. The Judge failed to look at the position at the date of the hearing, focussing instead on what the Appellant's position might be if she had a more robust personality. The Judge ought to have considered on whether the Appellant required long term personal care, not whether she might improve in the future. Further, the Judge impermissibly cherry picked parts of the medical evidence to find that the Appellant did not require assistance in daily life. That finding was inconsistent with the medical evidence showing that the Appellant required light assistance when moving around. The Judge found that the Appellant had feigned or exaggerated her difficulties, but that was not consistent with the evidence that the Judge did accept. Second, she submitted that the Judge's findings on the ability of the sponsors to provide support was speculative. While there was not much evidence on this issue, the Judge speculated as to the availability of property, what the family could afford and what accommodation and support might cost in Pakistan. She submitted that the case should be examined afresh by the First-tier Tribunal, in particular in light of the Appellant's diagnoses of Dementia and Alzheimer's.

15.           Mr. Walker for the Respondent accepted in his submissions that the First-tier Tribunal Judge had 'cherry picked' details from the report of Ms. Mckinnon which was before him. The Judge had not been provided with any more substantial medical evidence other than the report that he had, that is a difficulty that the Judge was struggling with. He accepted that the Judge had looked at the situation before the Appellant came to the UK and not the deterioration that has happened in the past 5 years. The Secretary of State conceded that the Judge has made a material error in how he considered the scant medical evidence before him. As to the second ground, if the Appellant were to return to Pakistan, as Judge Perkins found when granting permission to appeal, these were speculative findings by the Judge, it does not appear that there was much investigation with the Appellant's family, as to their income. The Judge did not put to the parties what the Appellant's care needs were, the cost and what should happen in the event of her return to Pakistan.

Discussion

16.           In light of the agreement between the parties that the Frist-tier Tribunal Judge's decision contains material errors of law, I can set out my conclusions briefly.

17.           At the close of Mr. Walker's submissions it was apparent that he did not dispute the thrust of Ms. Smeaton's arguments on ground 1. I accept that there is merit in those submissions. As a matter of law it is well established that an error of fact is capable of amounting to an error of law, see E and R v SSHD [2004] EWCA Civ 49 per Carnwath LJ at [36]-[67]. It is apparent from the First-tier Tribunal Judge's judgment that they focussed on the appellant's choice to become dependent on her sons and erroneously concluded at [18] that the appellant would improve her balance with exercise, whereas Ms. Mckinnnon's report stated: ' her balance could improve with exercises and further rehabilitation' (emphasis added). That erroneous conclusion was plainly material to the Appellant's ability to move around her house and to care for herself. The Judge discounted the evidence of Ms. Mckinnon because she had not considered the possibility that the Appellant was malingering or exaggerating her condition. However, while the Judge found that the Appellant was able to care for herself but did not deal with Ms. Mckinnon's evidence that the Appellant because required light support to move around. While the Judge was entitled to comment on the lack of other medical evidence, the overall assessment regarding the ability of the Appellant to care for herself was infected by material mistake of fact, error of law and was inconsistent with the evidence.

18.           As to ground 2, I accept Ms. Smeaton's submissions that the Judge speculated as to the support that the Appellant might have in Pakistan. It is correct that the burden was on the Appellant and the sponsors to provide evidence of how the Appellant met the requirements of the Immigration Rules. However, the Judge impermissibly engaged in speculation that the Appellant may have an ancestral home in which to live in Pakistan, without any evidence on this issue. Further, the Judge concluded that the Appellant's sponsors would be able to provide financial support to ensure she had accommodation and care. It may be that that is so, but the Judge did not set out the evidence on which they relied to reach that conclusion. Nor is it clear from the determination that the Judge took into account the deterioration in the Appellant's condition of health since 2020 to the time of the appeal hearing, which was apparent on the evidence including the report of Ms. Mckinnon.

19.           It follows that each of the two grounds raised by the Appellant are made out.

Conclusion

20.           For the reasons set out above, I am satisfied that the decision of the First-tier Tribunal did involve the making of an error on a point of law.

21.           The parties were agreed that in the event that the Tribunal accepted their joint position that the matter should be remitted to the First-tier Tribunal with findings preserved as set out below.

Notice of Decision

 

1.        The decision of First-tier Tribunal Judge Munonyedi did involve the making of an error on a point of law.

 

2.        The decision of Judge Munonyedi is set aside, with the following findings preserved:

 

a.        As at July 2023, the Appellant suffered from diabetes, leg pain and knee joint issues;

b.       As at July 2023, the Appellant required light assistance when undergoing tests in respect of her balance;

c.        As at July 2023, the Appellant had become very reliant on her family and had become deconditioned but with exercise and rehabilitation her balance could improve;

d.       The Appellant used to live in her ex-husband's home in Pakistan and had a maid to help her.

 

3.        The matter is remitted to the First-tier Tribunal to be heard afresh at Taylor House (or such other hearing centre as the First-tier Tribunal may direct) by a Judge other than Judge Munonyedi.

 

 

D Sternberg

 

Deputy Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

 

28 February 2025

 

 

 

 

NOTIFICATION OF APPEAL RIGHTS

 

1. A person seeking permission to appeal against this decision must make a written application to the Upper Tribunal. Any such application must be received by the Upper Tribunal within the appropriate period after this decision was sent to the person making the application. The appropriate period varies, as follows, according to the location of the individual and the way in which the Upper Tribunal's decision was sent:

 

2. Where the person who appealed to the First-tier Tribunal is in the United Kingdom at the time that the application for permission to appeal is made, and is not in detention under the Immigration Acts, the appropriate period is 12 working days (10 working days, if the notice of decision is sent electronically).

 

3. Where the person making the application is in detention under the Immigration Acts , the appropriate period is 7 working days (5 working days, if the notice of decision is sent electronically).

 

4. Where the person who appealed to the First-tier Tribunal is outside the United Kingdom at the time that the application for permission to appeal is made, the appropriate period is 38 days (10 working days, if the notice of decision is sent electronically).

 

5. A "working day" means any day except a Saturday or a Sunday, Christmas Day, Good Friday or a bank holiday.

 

6. The date when the decision is "sent' is that appearing on the covering letter or covering email