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

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Upper Tribunal

(Immigration and Asylum Chamber) Appeal Number: UI-2024-004671

First-tier Tribunal Number: HU /59079/2023

LH/04822/2024

 

 

THE IMMIGRATION ACTS

Heard at Field House	Decision & Reasons Issued:
On 13 December 2024	On 26 February 2025

 

 

Before

 

UPPER TRIBUNAL JUDGE OWENS

DEPUTY UPPER TRIBUNAL JUDGE LOKE

 

 

Between

 

Amarjit Kaur

(Anonymity Direction Not Made)

Appellant

and

 

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation :

For the Appellant: Mr Raza, Counsel instructed by Charles Simmons Immigration Solicitors

For the Respondent: Mr Isherwood, Senior Presenting Officer

 

 

DECISION AND REASONS

1.              The appellant appeals with permission against a decision of a Judge of the First-tier Tribunal ("the judge") promulgated on 12 August 2024 dismissing her appeal against a decision dated 11 July 2023, to refuse her human rights claim.

Background

2.              The appellant is an Indian national born on 5 May 1963. She entered the UK as a visitor on 1 March 2022. On 26 July 2022, she made an application for leave to remain on the basis of her private and family life in the UK with her adult daughter and son-in-law and their children. She is a widow, her husband having died in 2021. At the date of the appeal hearing the appellant was 61 years old. Her case is that her health deteriorated after her arrival in the UK in March 2022. She submits that due to her physical and mental health problems, she has care needs which would amount to very significant obstacles to her integration to India and alternatively it would be a disproportionate breach of Article 8 ECHR to remove her from the UK because her right to family life outweighs the public interest in maintaining immigration control.

3.              The position of the respondent is that the appellant does not meet the requirements of the immigration rules. There are no very significant obstacles to her integration because she has resided in India all her life and has knowledge of the life, language and culture. The appellant can be supported in India by her family, medical treatment is available and there are no exceptional circumstances which would warrant a grant of leave outside of the rules.

The decision of the First-tier Tribunal

4.              At the hearing, the appellant did not give evidence on the basis of her health conditions although no medical evidence was produced in support of the submission that she was too unwell to give evidence. The appellant's daughter gave oral evidence which is recorded at [7]. The judge placed limited weight on the appellant's written testimony because she did not submit herself to cross examination. The judge found that the sponsor's evidence was not entirely credible, that the sponsor had embellished her evidence in respect of her mother receiving help in India prior to coming to the UK and that she had inflated the health issues and care needs of the appellant.

5.              The judge also had before him medical evidence. The judge noted that the appellant did not receive any urgent private care between her arrival in the UK in March 2022 and November 2022 when she was registered with a GP. Prior to her arrival in the UK the appellant was being treated in India for rheumatoid arthritis. The judge was satisfied from the GP records that the appellant has depression for which she takes sertraline 50mg once a day. The judge considered the expert reports of Dr Burhan, Dr Wali and a social circumstances report. The judge found that there was a conflict between the contents of the expert reports and the GP reports and concluded that the appellant was not as debilitated as the expert reports set out. The judge found that in addition to having depression, the appellant has arthritis which causes issues for her from time to time and that she was able to access treatment for this condition in India. The judge found that the appellant's care needs could be met in India by employing someone to go to her home and assist her and that the appellant had not demonstrated that care was unavailable or unaffordable in India.

6.              The judge found that the appellant did not meet the immigration rules and Article 8 ECHR does not allow a person to choose their country of residence. The appellant had attempted to circumvent the adult dependent relative rules by coming to the UK on a visit visa and trying to stay. The appellant did not meet the threshold under the adult dependent relative rules and for the same reasons there would not be very significant obstacles to the appellant being returned to India. Removing the appellant to India would not result in unjustifiably harsh consequences. The judge then carried out the Article 8 ECHR balancing exercise concluding that the balance falls in favour of the respondent.

Grounds of Appeal to the Upper Tribunal

7.              The grounds of appeal are as follows:

(1)          The judge failed to take into account material matters/ evidence and/or failed to provide adequate reasons for findings on material matters

The judge failed to take into account the emotional support needed by the appellant. This is referred to repeatedly in the expert evidence. The judge was required to address this aspect of the evidence. The fact that the appellant was previously assisted by a maid does not cover this aspect of the evidence. This evidence is material to the evaluation under the rules as well as the proportionality assessment.

The judge also fails to take into account the country evidence set out in the report of Dr Wali about the appellant's mental health and societal circumstances. The importance of the sponsor's support is addressed in detail in the report. This is relevant to the broad evaluative judgement required and whether the care could reasonably be provided to a the required level in the home country and the standard of care for the particular applicant which is capable of embracing the psychological and emotional needs of elderly parents

(2)          Inadequate reasons for finding a violation of Article 8 ECHR

The judge failed to carry out the balancing exercise. The judge did not determine whether family life was engaged between the appellant and sponsor. The judge did not adequately find what the required level of care was because of ground 1; that is the failure of the judge to evaluate the appellant's emotional needs.

Permission to appeal

8.              Permission was granted by Upper Tribunal Judge Jackson in a decision dated 16 October 2024 as follows;

"It is arguable that the First-tier Tribunal has not directly considered the Appellant's claimed emotional needs nor factored these in to the assessment of whether she would have access to available care in India. It is arguable that the adverse credibility findings do not entirely address this point, or at least do not do so expressly.

It is clear that the First-tier Tribunal found Article 8 to be engaged given that a proportionality assessment was undertaken with reference to the relevant statutory factors in paragraph 30. It is however arguable that these have not been expressly balanced or reasoned against any factors in the Appellant's favour for the Appellant to understand the reasons for the overall conclusion".

New ground - Mistake of fact

9.              In oral submissions Mr Raza sought permission to raise an additional ground which he submitted was material to the outcome of the appeal. He submitted that there was also a mistake of fact at [26]. The judge referred to the failure of the sponsor and experts to previously mention that the family had employed a neighbour to assist the appellant when assessing the level of care needed by the appellant, however this was referred to in an expert report which referred to the appellant having home help. This error of fact influenced the judge's view of the sponsor's credibility.

10.          Miss Isherwood submitted that permission should not be granted for the appellant to rely on this new ground of appeal because it had not been raised in writing and was raised for at the first time at the date of the hearing.

11.          Having heard submissions for both parties we took into account that the error was obvious, was potentially material to the judge's assessment of the credibility of the witness and that there was no unfairness or prejudice to the respondent because the respondent had chosen not to prepare a rule 24 response. The issue was fairly straightforward and could be dealt with by the respondent at the hearing. On this basis we gave permission for the appellant to rely on this ground of appeal as Ground 3.

12.          Both parties made submissions which will be addressed below when we come onto consider the grounds of appeal.

Discussion

13.          We firstly take note that the grounds do not take issue with the judge's findings on the appellant's physical health problems which can be found at [24]. In summary, these are that the appellant is in her early 60's and has occasional trouble with arthritis which from time to time causes issues for her. She received treatment for arthritis in India and would be able to receive the same treatment were she returned.

14.          In the same paragraph, the judge finds that the appellant has depression for which she takes 50mg of sertraline. The judge records that this is understandable because the appellant has lost both her husband and a son.

15.          The judge goes onto say:

"However, suffering from depression as a result of the death of family members does not mean that a grant of leave to remain in the United Kingdom is automatically granted. I have been provided with no evidence to suggest that her medication for depression, or a suitable alternative, is unavailable or unaffordable in India."

16.          Mr Raza submitted that the way the judge dealt with this evidence was by concluding that the appellant could obtain treatment for depression in India. He submitted that what the judge did not go onto do was assess the appellant's need for emotional support which was relevant to the issue of very significant obstacles and the wider Article 8 ECHR proportionality assessment.

17.          We accept Mr Raza's submission that there is clear guidance in Britcits v SSHD [2017] EWCA Civ 368 at [59] and [76] that the focus on the immigration rules in respect of adult dependent relatives:

"is on whether the care required by the adult dependent appellant can be "reasonably" provided and to the "required" level in their home country. As Mr Sheldon confirmed in his oral submissions, the provision of care in the home country must be reasonable both from the perspective of the provider and perspective of the applicant, and the standard of such care must be what is required for that particular applicant. It is possible that insufficient attention has been paid in the past to these considerations, which focus on what care is both necessary and reasonable for the applicant to receive in their home country. Those considerations include issues as to the accessibility and geographical location of the provision of care and the standard of care. They are capable of embracing emotional and psychological requirements verified by expert medical evidence. What is reasonable is, of course is to be objectively assessed."

18.          Mr Raza pointed to the evidence before the judge that the appellant felt isolated and lonely in India because she was separated from her family in the UK. In India, she has no support from her wider family. The appellant is very reliant on her daughter for emotional support. He submitted that the judge did not make express findings on the applicant's need for emotional support and whether this care could reasonably be provided in India. Ms Isherwood argued that the decision was sustainable and adequately reasoned and reminded us that the Upper Tribunal should be slow to interfere with decisions of the lower courts, made by experienced judges.

19.          We turn to the evidence before the judge in respect of the appellant's need for emotional support.

20.          In her own witness statement the appellant explains that she has had a major depression and anxiety since the death of her husband and son and that her emotional struggle has escalated further after she found herself living alone in India with no family support after their passing. She says that this eroded her confidence and made her extremely worried about her welfare and safety and intensified her anxiety. She speaks of how her daughter's emotional support is important to her overall wellbeing.

21.          The judge gave little weight to the appellant's evidence because she elected not to give evidence and there was no medical evidence that she was unfit to give evidence. She was not therefore cross examined. Nevertheless it can be seen from the judge's finding at [24] that the judge does accept from the GP notes that the appellant has depression and as a matter of common sense he finds that she is understandably depressed following her two bereavements.

22.          The sponsor referred inter alia to her mother's emotional dependency on her and at paragraph 9 goes into some detail about the profound impact that the death of the appellant's son and husband had on her mother and her mental health problems. She talks about the distress her mother would suffer in India and her worries and lack of confidence.

23.          The judge gives various reasons for finding that the sponsor has exaggerated her mother's poor physical health and has also exaggerated her need for assistance with her everyday living needs, primarily on the basis of conflicts between the expert evidence and the GP records. The judge also makes a negative credibility finding as a result of a failure to mention paid help in India (see below). The judge does not however deal with the evidence in respect of emotional support.

24.          The report of Salma Burhan dated 3 July 2023 also states that the appellant has anxiety which started after her son passed away. It is said that from that time she loses concentration, has low mood, does not enjoy doing anything and cries for no reason. The expert states that she needs the emotional support of her family. Dr Simmi Sachdeva-Mohan's opinion is that the emotional support provided by the appellant's daughter is immensely valuable and if she can continue living with her daughter this would help to alleviate her psychological distress.

25.          Although the judge clearly makes sustainable findings that the appellant's physical ill health and need for assistance with her activities of daily living on this basis have been exaggerated (and we emphasise that these findings are not challenged) we are satisfied that the judge does not make any express findings based on the evidence set out above on whether the appellant requires emotional support from her daughter and whether this was reasonably available to her in India. We are not persuaded by Ms Isherwood that this has been taken into account by the reference to depression at [24] or that it can be inferred that the judge had regard to this, from reading the decision as a whole. We are satisfied that this was an important aspect of the appeal to consider in accordance with Britcits and that this is a material error of law in that it impacted on the assessment of whether there were very significant obstacles to integration and the wider Article 8 proportionality exercise.

26.          We also note that there was evidence before the judge in relation to cultural norms in India from Dr Wali. This is that only 2.4 % of the Indian population live on their own because of the cultural embeddedness of the extended family system, that there is a lack of services for the elderly and lack of provision of care homes and that the appellant would be culturally heavily dependent on her daughter for care. We are also satisfied that the judge has failed to consider this evidence when assessing whether the appellant can be reasonably be provided with care that meets her needs to the required level.

27.          In summary, we find that there is a lacuna in the judge's findings which are relevant to the outcome of the appeal.

28.          We are however satisfied that ground 2 is not made out because from a fair reading of the decision it is apparent that the judge found that family life is engaged between the appellant and her daughter, the sponsor.

29.          However we have found above that the failure to make express findings on the emotional needs of the appellant (ground 1) fed into the proportionality exercise because this may have been a factor which fell on the positive side of the balance. It may well be that another judge would have found the decision to be proportionate notwithstanding any emotional needs of the appellant, however we cannot say with certainty that this would have inevitably been the case.

30.          We are also satisfied that ground 3 is made out. There is a clear reference in the expert evidence to the appellant receiving assistance from a home help in India and the judge's erroneous reliance on the failure of the sponsor and expert to mention this assistance at [26] to undermine the sponsor's credibility is therefore flawed and material to the factual findings made by the judge because it infected his view of credibility of the sponsor and therefore the evidence as a whole.

Disposal

31.          Mr Raza submitted that the appeal should be remitted to the First-tier Tribunal because of the credibility issue, new findings of fact need to be made and because there has been a delay since the appeal has been heard and the circumstances of the appellant may have changed. Ms Isherwood was neutral on this issue. We are in agreement that in this appeal it is appropriate to deviate from the normal course of action and remit the appeal to the First-tier Tribunal, not least because there are very few factual findings that can be preserved, and extensive findings of fact need to be made.

Decision

32.          The decision of the First-tier Tribunal involves the making of an error of law.

33.          The decision is set aside in its entirety with no findings preserved.

34.          The appeal is remitted to the First-tier Tribunal to be heard de novo by a judge other than First-tier Tribunal Judge Davison.

 

 

Signed Date

 

UTJ Owens

Upper Tribunal Judge Owens 25 February 2025