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

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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER	Case No: UI-2024-000967
	First-tier Tribunal No: HU/55112/2023 LH/06883/2023

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 14 February 2025

 

Before

 

UPPER TRIBUNAL JUDGE KEITH

DEPUTY UPPER TRIBUNAL JUDGE JOSHI

 

Between

 

'SK' (India)

(ANONYMITY ORDER MADE)

Appellant

and

 

The Secretary of State for the Home Department

Respondent

Representation :

For the Appellant: Ms Imamovic, Counsel, instructed by Kewalion Solicitors

For the Respondent: Mrs R Arif, Senior Home Office Presenting Officer

 

Heard at Birmingham Civil Justice Centre on 3 February 2025

 

Order Regarding Anonymity

 

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant is granted anonymity. No-one shall publish or reveal any information, including the name or address of the appellant, likely to lead members of the public to identify the appellant. Failure to comply with this order could amount to a contempt of court. The reason for this order is that the appellant's appeal contains detailed personal medical information. The naming of the appellant's son and daughter-in law is unlikely to result in 'jigsaw' identification, so they have been named.

DECISION AND REASONS

 

1.              These written reasons reflect the full oral reasons which we gave to the parties at the end of the hearing.

2.              In this decision, we considered or 'remade' the appellant's appeal against the respondent's refusal of her application for leave to remain on human rights grounds. A Judge of this Tribunal had previously set aside the First-tier Tribunal's decision, which had allowed the appellant's appeal, on the basis that the FtT had erred in law. The previous Upper Tribunal judgment is annexed to these reasons.

3.              The Upper Tribunal had, at §§20 to 21, identified the starting point and the evidential issues as follows:

"20. The starting point of the resumed hearing would be as follows:

 

a. The Appellant suffers with diabetes and osteoarthritis in her knees and has suffered with hypertension, gallstones and shortness of breath.

 

b. The Appellant's son and daughter-in-law provide support.

 

c. The outcome of the appeal does not materially affect the Appellant's two grandchildren.

 

21. The issues the Tribunal would need further evidence on are as follows:

 

a. The Appellant should provide her complete medical records and such other medical evidence as she feels is necessary to support her appeal.

 

b. Details of who supported the Appellant in India post 1992 should be adduced along with evidence of what medical treatment she was receiving in India and whether she was financially supported in India and if so by whom.

 

c. What third party support would be available for the Appellant in India and why that would not be suitable.

 

d. Are there any compelling or exceptional circumstances that would lead to this appeal being allowed outside of the Immigration Rules."

The hearing before us

4.              We canvassed at the beginning of the hearing the extent to which there was factual dispute between the parties. The reason for this was that the appellant's son, Mr Singh, was tendered to give oral witness evidence and his spoken English was limited, although he was confident in answering limited questions on narrow topics. However, his wife, Mrs Thind had even more limited English and if there were a need to cross-examine her, then there would be a need for a Punjabi interpreter. The appellant's representatives had not requested an interpreter and none had been booked. Pragmatically and helpfully, Mrs Arif indicated that there was only a very limited issue of factual challenge on which Mr Singh had given witness evidence, namely his search for potential care homes in India. In fact, it transpired that there was not even a dispute on that. Mr Singh accepts that there are care homes in India, some of which provide a significantly high quality of care, but crucially not within the area or region in which the appellant had lived in India before 2015, since when she has lived in the UK. That evidence has not been disputed and Mrs Thind's evidence was not disputed.

 

5.              In addressing the evidential issues set out in § of the Upper Tribunal's directions, we have had what appeared to be complete disclosure of the appellant's medical records, including full GP records and reports from various doctors both in the UK and in India, regarding her physical conditions and also a psychological report in the UK, as well as the availability of care in India. Given the evidence which runs to well over 1,000 pages, we have not begun to recite all of that evidence and do no more than summarise the gist on the basis of appellant's current health, as for reasons we come on to discuss and which has not been disputed, there has been a serious decline in the appellant's health since October 2024. The respondent cannot be criticised for not having addressed this in the earlier decision refusing the appellant's human rights claim of 29 ^th March 2023 and we bear that in mind when we have considered the extent to which the appellant met the Immigration Rules at the time of her application, but her current health is relevant to the proportionality analysis in her human rights appeal.

 

6.              The appellant is an Indian national, was born on 10 ^th March 1953 and she is 71 years old. She applied for, and was granted entry clearance to visit her family in the UK in 2010, visited, then returned to India and visited the UK again, entering on 15 ^th May 2015, since when she has never returned. She applied for leave to remain outside the Rules, which was refused in February 2016 and made a subsequent application on 15 ^th June 2022 for leave to remain, which was refused in the impugned decision dated 29 ^th March 2023 and which is the subject of this appeal.

 

The appellant's case

 

7.              The appellant accepted that the evidence of her health at the time of her application remained relevant as to whether she met the Immigration Rules, but that upon remaking this appeal on human rights grounds, this Tribunal must consider her current health in the proportionality assessment. Mrs Arif, for the respondent, accepted this.

 

8.              The appellant said that even if she did not meet the Immigration Rules at the time of her application (and for the avoidance of doubt she said she did), at the time of the hearing now, there were very significant obstacles to her integration in India, for the purposes of Appendix Private Life, and there were exceptional circumstances which would render refusal of leave to remain a breach of Article 8 ECHR, because such refusal would result in unjustifiably harsh consequences for the appellant and her UK family. The appellant argued that there is no way, on a broad evaluative assessment, that she would, in the sense of SSHD v Kamara [2016] EWCA Civ 813 ever be enough of an 'insider' to participate in, operate on a day to day basis or build up human relationships, so as to integrate in India. This was because of the extreme nature of her current ill-health. She has had a period of worsening health from 2015, set out at length in the appellant's skeleton argument drafted by Ms Imamovic, which we have read, none of which is disputed, and which ranged from cataracts in 2015, accident and emergency attendances from 2015 until the present date, gall bladder issues in 2018, a fall, consequential fracture and issues with her spine in 2018, heart disease, diabetes and arthritis and the decline in her mobility, from initially being able to walk using a stick, to moving with a walking frame, then being a wheelchair user and now entirely bedbound for the last 2 to 3 years and partially paralysed. That much is evidenced from the letter of a GP based in the UK, Dr Sahay of 21 ^st November 2024, which refers to the decline in her health, becoming bedbound, entirely dependent on her family for mobilisation and requiring their physical support or being carried for any movement, needing constant 24 hour care, and not being able to be left alone. The appellant was reliant on her family members for all aspects of her care including mobility, personal hygiene, and communication. We emphasise that was all before the time when she subsequently was admitted to hospital and remains in a respite home because of her two strokes, the first in October, the second in November 2024. She was only discharged from hospital for a brief period, according to her son who gave evidence, for perhaps four or five days before the second stroke which resulted in her being readmitted to hospital and thereafter still in a respite home. This is all consistent with the report of a psychologist Dr Sura, in their report of 31 ^st October 2024, which assessed the appellant as withdrawn, speaking in a confused way or speaking nonsense, with impaired (slurred) speech and with an increasingly erratic mental state, irregular sleep patterns, failing memory, anger, and a total physical dependency. She remains, following her strokes, entirely bedbound, not able to be discharged currently from the respite home to her son's home where she had previously lived, because of her high dependency needs, which require a team of four carers. Her son, Mr Singh, gave evidence and is, we find, a witness of candour and honesty which has not been disputed. He accepted that there are care homes which may cater for high dependency needs in India but relied upon evidence from the local family doctor, Dr Bhatia, which refers to the absence of such care homes in the appellant's home district or the wider region in which the appellant had lived until 2015, in the context of the cultural assumptions that those elderly patients in need of care would be cared for by immediate family members. None of this evidence was disputed.

 

The respondent's case

 

9.              Mrs Arif's primary argument was that on the basis that there were care homes available and affordable in India, even if she had been outside the UK, the appellant could not and cannot meet the adult dependency provisions of the Immigration Rules (currently Appendix Adult Dependent Relative) and that was relevant in the proportionality assessment. The appellant had developed private and family life at a time when she had no expectation of being able to remain in the UK either because any leave that she had initially had as a visitor was precarious, or she was an overstayer with no leave. By reference to the well-known factors in Section 117B of the Nationality, Immigration and Asylum Act 2002, little weight, albeit not no weight should be attached to the appellant's private life (see: Rhuppiah v SSHD [2018] UKSC 58). Moreover, it was clear from the appellant's medical record that the appellant had accessed a substantial amount of non-emergency NHS treatment for which she had not paid, so was not financially independent. She spoke limited English and had never contributed financially to the UK. All of this, notwithstanding the appellant's predicament, ultimately meant that refusal of leave to remain was proportionate.

 

Discussion and conclusions

 

10.          We do not recite the law in detail. We bear in mind the statutory provisions to which we have referred in Section 117B of the 2002 Act and the relevant Immigration Rules. In relation to family life, we have considered whether there is real, effective or committed support between the appellant and her son and daughter in law. We reminded ourselves that in respect of private life and adult dependency, whilst any standard of care in India did not need to be to the same level in the UK, it had to be care, the provision of which was objectively reasonable for the appellant in particular, bearing in mind her emotional and psychological requirements (see: BRITCITS v SSHD [2017] EWCA Civ 368). We also bear in mind the authority of Kamara, to which we have already referred.

 

11.          In our conclusion, it may well be that as at 15 ^th June 2022, the date of her application, the appellant's conditions were not such that she met the Adult Dependency Rules or that there were very significant obstacles to her integration in India. By that stage, she had not had the two strokes, albeit she had significant issues and that was no doubt in the mind of the Judge in the remaking directions when they made directions as to precisely how the appellant had lived in India before entering the UK in 2015, the financial support for her and searches for available care homes in India. We also bear in mind other factors counting against her in the proportionality assessment, namely the lack of expectation to be able to remain in the UK, her initial, brief precarious leave and lengthy overstaying and her apparent access, to no doubt extremely expensive non-emergency NHS treatment for which she has not paid, over many years, and the availability, at least in principle, of care homes in India, many, no doubt, to a high standard.

 

12.          However, in the appellant's favour, we take into account the unchallenged evidence that such care homes are not available in the appellant's home region so that the appellant would be returning to India even if with, and benefitting from, professional carers when she arrives, knowing no-one. The respondent has accepted that it is in the best interests for the appellant's grandchildren to remain with their parents (the appellant's son and daughter in law, both British citizens, albeit of Indian heritage) in the UK. Refusal of leave to remain would separate the appellant from the only family she has. The fact of return alone to India does not begin to be exceptional, all else being equal, but all else is not equal. Her disabilities are perhaps as extreme as one may have, without being life-threatening. She is partially paralysed, has been bedridden for years, has impaired cognitive function, including slurred and non-sensical speech, confusion and dysregulation, and requires four carers to look after every aspect of her care needs. In contrast, if the refusal of leave to remain were maintained, she would be returning to strangers. Any suggestion that merely by virtue of the fact of the existence of physical care homes in India means that there would not be very significant obstacles ignores the mental aspect of the appellant's decline. There is, in that context, no sense in which she could integrate as an insider. There is also the obvious existence of family life with emotional care and dependency upon her relatives, most important being the solace that they can provide. We have no doubt that despite the high test, the effect of refusal of leave to remain on the appellant would not be merely harsh or even bleak but in that context, would be unjustifiably harsh. On that basis, refusal of leave to remain is disproportionate and in breach of the appellant's right to respect for her family and private life, even noting the little weight which the statutory provision mandates. The circumstances of this case are truly exceptional.

 

Notice of Decision

 

13.          For the above reasons, the appellant's appeal on human rights grounds succeeds. The respondent's decision to refuse leave to remain is not upheld.

 

J Keith

 

J Keith

Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

5 ^th February 2025

ANNEX - ERROR OF LAW DECISION

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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER	Case No: UI- 2024-000967
	First-tier Tribunal No: HU/55112/2023

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

 

.......................................

 

Before

 

DEPUTY UPPER TRIBUNAL JUDGE ALIS

 

Between

 

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Appellant

and

 

S K

(ANONYMITY ORDER MADE)

Respondent

Representation :

 

For the Appellant: Ms Everett, Senior Home Office Presenting Officer

For the Respondent: Mr Singh, Solicitor

Heard at Field House on 10 June 2024

 

DECISION AND REASONS

 

Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (512008 /269) an Anonymity Order is made. Unless the Upper Tribunal or Court orders otherwise, no report of any proceedings or any form of publication thereof shall directly or indirectly identify the original appellant. This prohibition applies to, amongst others, all parties.

1.             Whilst it is the respondent who is seeking leave to appeal today, we have hereinafter referred to the parties as they were identified in the First-tier Tribunal. S K will be referred to as the appellant and the Secretary of State for Home Department will be referred to as the respondent.

2.             Both the appellant and respondent's representatives appeared via CVP.

3.             The appellant is a national of India, born on 10 ^th March 1953. She entered the United Kingdom on a six month visit visa on 15 ^th May 2015 which expired on 5 ^th November 2015. On 15 ^th June 2022 she applied for leave to remain based on family and private life. The respondent refused her application in a decision sent out on 29 ^th March 2013.

 

4.             The appellant appealed to the First-tier Tribunal and her appeal was listed before Judge of the First-tier Tribunal Reed (hereinafter referred to as the FTTJ Judge on 15 January 2024 and in a decision promulgated on 30 ^th January 2024 the FTT Judge allowed her appeal.

 

5.             Permission to appeal was granted to the respondent by Judge of the First-tier Tribunal Saffer on 11 ^th March 2024 who found:

 

"It is arguable that the Judge has failed to apply the s117 public interest considerations within the proportionality balancing exercise. Whilst the weight to be attached to the individual factors is a matter for the Judge, it is arguable that even taken at its highest, the relevant threshold for reintegration is not met. All grounds may be argued."

 

6.             The matter was listed for an error of law hearing before me on 10 ^th June 2024.

 

SUBMISSIONS

 

7.             Ms Everett adopted the grounds of appeal and submitted the FTT Judge erred by failing to give adequate reasons for finding there were very significant obstacles. The FTT Judge did not provide adequate reasons for lack of support in § [55] of the decision. The FTT Judge should have looked at adult dependency Rules when considering the appeal. There was no real consideration about the level of support available.

 

8.             Mr Singh submitted that the FTT Judge had carried out fact finding from § [39] onwards. The FTT Judge asked a number of questions about the level of care available and the FTT Judge was aware the appellant stated there was no one available to look after her. In § [36] to [38] the FTT Judge addressed the "very significant obstacles" test and there was no error in law. Reliance was placed on medical evidence from 15 December 2021 and the medical evidence was unchallenged and was dealt with by the FTT Judge from § [45] onwards.

 

9.             Ms Everett reiterated that the requirements of any adult dependency required the appellant to demonstrate no support was available. Ms Everett submitted the fact there was no family did not mean support could not have been provided from other sources.

 

DISCUSSION AND FINDINGS

 

10.         Having heard the submissions from both representatives I reserved my decision and now give my reasons for why I have found an error in law.

 

11.         The FTT Judge was dealing with an application that had been made on private/family life grounds albeit both parties at the First-tier Tribunal hearing acknowledged that in considering the appeal on private life grounds the Tribunal would have to take into account factors that an applicant seeking entry clearance as an adult dependant would have to meet. The reasoning behind this approach was these factors would be relevant to whether there were very significant obstacles to the appellant re-integrating.

 

12.         Ms Everett had submitted the FTT Judge materially erred by failing to consider what support, over and above that provided by family, would be available to the appellant were she to be returned to India. Mr Singh countered this argument arguing the FTT Judge had properly considered all the facts and evidence and the grounds of appeal amounted to a mere disagreement with the FTT Judge's conclusion. Ms Everett conceded that arguments over section 117B of the 2002 Act were not relevant when considering paragraph 276ADE HC 395.

 

13.         The FTT Judge had before him documentary evidence and he also had the opportunity to consider the oral evidence adduced by the parties. In allowing the appeal under paragraph 276ADE HC 395 the FTT Judge took into account the following factors:

 

a.       The appellant suffered with arthritis in her knees which made even small movements excruciating painful and this interfered with her ability to mobilise independently as there was medical evidence of her condition and photos of the appellant using a mobility assistance frame. No weight was placed on her demeanour at the court hearing, but the Sponsor's evidence and that of P T was consistent with the medical evidence.

 

b.       No weight placed on Dr Mahay's statement that there would be no one to look after the appellant and she would not have the necessary care and support in India because she required someone to provide personal care as well as someone to do the shopping and cooking.

 

c.        No material weight placed on the affidavit from I K who was the village leader because the circumstances of how the affidavit was provided were unclear.

 

d.      The outcome of the appeal did not materially affect the appellant's two children.

 

e.       There was an inconsistency between the application form and oral evidence of the witnesses in so far as who was available to look after the appellant in India. The FTT Judge accepted the oral evidence in this regard.

 

14.         The appellant had provided a witness statement in which she stated her husband had passed away in 1992 and that since then she had lived alone in India with a little help from her extended family. Her children lived in this country albeit she was estranged from her daughter. The appellant referred to the fact her health had started to deteriorate and was not physically or emotionally able to carry out daily tasks. Since being in this country her health had further deteriorated and she was now bed bound and required assistance to use the toilet. Her main ailments were diabetes, hypertension, osteoarthritis, gallstones and shortness of breath. She would have no family to assist her in India (see § [20] of her statement). In addition to this statement there were statements from the appellant's son and daughter-in-law and a statement from I S.

 

15.         None of these statements or on the face of it the oral evidence at the hearing touched on third party support. Dr Mahay's medical report identified the appellant's medical history albeit it seemed he was providing a supporting statement for a claim for Personal Independence Payment. His report also detailed the appellant's medication taken as at the date of the report and her current support network, but provided no insight on what support, outside the family network, would be available to the appellant or whether there would be financial support available.

 

16.         The FTT Judge, when allowing the appeal, only considered the availability of family support even though it was established she had been living alone in India since her husband passed away in 1992. The actual medical records (pages 138-141) provided limited information to the FTT Judge as it only provided details of her previous three consultations on 24 ^th and 25 ^th November 2021 (the notes were from 3 ^rd December 2021).

 

17.         Having considered the respective submissions I am satisfied that the argument advanced by Ms Everett in respect of the paragraph 276ADE HC 395 is made out. I am satisfied that in allowing the appellant's appeal the FTT Judge failed to have regard to (a) what long-term care was needed by the appellant to enable her to perform everyday tasks and (b) why the appellant could not access the required level of care in India given all her issues were long-term issues which suggested she had them before she came to the United Kingdom.

 

18.         In considering whether there were very significant obstacles I am satisfied the FTT Judge should have had further evidence of (a) what care could be accessed in India; (b) what care had she been accessing prior to coming to the United Kingdom and (c) medical records from her doctors in India to provide more information about her circumstances prior to coming to this country.

 

19.         In the circumstances, I find there is an error of law and it will be necessary for further evidence to be taken to address the issues highlighted above and in the event the appellant cannot demonstrate she satisfied paragraph 276ADE HC 395 then it would be necessary to consider whether there were compelling or exceptional circumstances to allow the appeal outside of the Immigration Rules.

 

20.         The starting point of the resumed hearing would be as follows:

 

a.       The appellant suffers with diabetes and osteoarthritis in her knees and has suffered with hypertension, gallstones and shortness of breath.

 

b.       The appellant's son and daughter-in-law provide support.

 

c.        The outcome of the appeal does not materially affect the appellant's two grandchildren.

 

21.         The issues the Tribunal would need further evidence on are as follows:

 

a.       The appellant should provide her complete medical records and such other medical evidence as she feels is necessary to support her appeal..

 

b.       Details of who supported the appellant in India post 1992 should be adduced along with evidence of what medical treatment she was receiving in India and whether she was financially supported in India and if so by whom.

 

c.        What third party support would be available for the appellant in India and why that would not be suitable.

 

d.      Are there any compelling or exceptional circumstances that would lead to this appeal being allowed outside of the Immigration Rules.

 

22.         I therefore make the following directions:

 

a.       The case be relisted for a final hearing, preferably before myself unless transferred to another Judge. The matter should be listed after 1 ^st August 2024 with a time estimate of two hours.

 

b.       Any additional evidence to be served in accordance with the standard directions applicable.

 

c.        If an interpreter is required then the appellant's Representatives must notify the Tribunal.

 

Notice of Decision

 

There was an error in law. I set aside the Tribunal's decision and directed the mater be listed, as above, for a resumed hearing.

 

 

Deputy Judge of the Upper Tribunal Alis

Immigration and Asylum Chamber

 

21 ^st June 2024