Upper Tribunal
(Immigration and Asylum Chamber)
Appeal Number: HU/20836/2016
THE IMMIGRATION ACTS
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Heard at Glasgow |
Decision and Reasons Promulgated |
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On 4 October 2017 |
On 20 November 2017 |
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Before
UPPER TRIBUNAL JUDGE CONWAY
Between
MRS JYOTSNA SINHA
(NO ANONYMITY ORDER MADE)
Appellant
and
ENTRY CLEARANCE OFFICER (NEW DELHI)
Respondent
Representation
:
For the Appellant: Mr Bryce
For the Respondent: Ms O'Brien
DECISION AND REASONS
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The appellant is a citizen of India born in 1939. She applied for entry clearance to join her daughter in the UK as an adult dependent relative. The application was refused by the respondent on 9 August 2016 under paragraph EC-DR1.1(d) of Appendix FM of the Immigration Rules. The paragraph states that to meet the eligibility requirements for entry clearance as an adult dependent relative all of the requirements in paragraphs EC-DR2.1 to 3.2 must be met.
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The respondent accepted that all the requirements of the paragraph were met except 2.5.
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Paragraph 2.5 reads:-
'The applicant ... must be unable, even with the practical and financial help of the sponsor, to obtain the required level of care in the country where they are living, because -
(a)
It is not available and there is no person in the country who can reasonably provide it, or
(b)
It is not affordable.'
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The basis for the refusal was that no research or enquiries had been made to support the claim that the level of care required is not available in India. It was also noted that she has a daughter in UAE and a son in USA who would be able to support her. It was considered that they are in a position to share the responsibility and assist her when the need arises.
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She appealed.
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Following a hearing at Glasgow on 31 March 2017, Judge of the First-Tier Bradshaw dismissed the appeal under the Immigration Rules and on human rights grounds. During the hearing it was accepted by the respondent that affordability of care was not at issue (2.5(b)). Thus the only matter in dispute was whether the required level of care is available and there is no person in India who can reasonably provide it (2.5(a)).
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The judge heard evidence from the appellant's daughter, Mrs Datta and son-in-law, Dr Datta.
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His findings are at para 65ff. In summary, he noted that Dr Datta, who had visited India in summer 2016 to investigate care homes, had looked at only two; also that the appellant although she requires long term personal care has not required to be taken to hospital for anything other than check-ups. The judge found that there are no family members other than Mrs and Dr Datta who have taken responsibility for the appellant who was widowed in 2014.
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The judge went on from [71] - [92] to comment on documentary evidence from several medical sources in India. The gist of their evidence was that there are no care homes in the appellant's home area, Howrah which is near Kolkata. Also, that India cannot offer the standard of care that Western societies offer and the appellant needs. Further, that the appellant has nobody available locally or in India who could help with her personal care needs. Evidence was also given that care homes are predominantly privately owned and require the presence of a next of kin to be available in the case of an emergency. One source indicated that residents of the few private care homes in Kolkata are referred back to their homes/relatives at times of medical emergencies.
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The judge's findings from the wealth of material before him were, in summary, that it had not been established that there were no care homes beyond Howrah. Also, that although care homes are mainly privately owned and may require a next of kin to be available in the case of an emergency, such could be available through Mrs Datta and her husband by telephone or other modern means of communication. They could also travel at short notice to India.
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The judge also found that home care packages including rehabilitation and care giving assistance could be arranged for the appellant in India particularly in Kolkata.
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The judge concluded (at [90]) that it had not be established that the appellant would be unable even with the practical and financial help of her sponsors, to obtain the required level of care in India because it is not available and there is no person in that country who can reasonably provide it.
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Having concluded that the case could not succeed under the Rules the judge in the final paragraph [98] considered that there were no compelling circumstances whereby the matter should be allowed under Article 8 outside the Rules.
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The appellant sought permission to appeal alleging that the judge erred in the assessment of the evidence concerning the non-availability of care in India and the mitigation afforded by electronic means of communication, and that for the purposes of leave outside the Rules the decision was not in accordance with the law in that she can meet the Rules and in any event there were sufficient grounds to allow the appeal.
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Permission to appeal was granted on 31 July 2017, a judge noting:
...
'(ii) ... combining the potential vulnerability of the appellant aged 77, and the Judge's analysis of her evidence entirely within the boundaries of the adult dependent relative provisions in the Rules save for one very brief closing paragraph stating that she had failed to show good grounds for leave to remain outside the Rules, and thereby an Article 8 assessment was not necessary, given the appeal was only on human rights grounds the absence of a
Razgar thorough family life assessment, not only with reference to the Rules but also ECHR jurisprudence and statutory provisions,
Robinson applied there was disclosed arguable error of law.'
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At the error of law hearing before me Mr Bryce, who lodged written submissions, acknowledged that appropriate Article 8 analysis had not been followed. However, it was evident he had proceeded on the basis of the existence of family life. The judge's main error was not to give consideration to the appellant's psychological and emotional needs (
per
BritCits v SSHD [2017] EWCA Civ 368) and not just medical needs. Had he done so there was ample evidence before him to conclude that there was not in India any person who could reasonably provide the required level of care. The decision should be set aside and remade in the appellant's favour.
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Ms O'Brien said that if the appeal succeeded under the Rules such would disclose a breach of Article 8. However, whilst the judge had not followed the
Razgar structured family life assessment his analysis, which carefully considered all the evidence before him, was sustainable for the reasons given by him.
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In considering this matter, the only right of appeal was against the refusal of a human rights application (section 82(i)(b) of the Nationality, Immigration and Asylum Act 2002), namely that the decision was unlawful under section 6 of the Human Rights Act 1998.
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The respondent's decision is deemed to be a refusal of a human rights claim. In such a case the reasons for refusal focus on the Immigration Rules even though the appeal is in relation to Article 8 only.
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As Ms O'Brien accepted, if the appellant meets the requirements of the Rules, then the public interest in excluding her must be very low because UK immigration policy permits those who meet the requirements of the Rules to be admitted.
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Unfortunately, in this case the judge failed to appreciate that this was solely a human rights appeal. By treating it as an appeal under the Immigration Rules with only the briefest reference to Article 8 in the final paragraph where he said there was no need to go on and consider it, the judge erred in law.
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Such was a material error because of, as the judge who granted permission pointed out, the absence of a
Razgar thorough structured family life assessment not only with reference to the Rules but also ECHR jurisprudence and statutory provisions (section 117A and B of 2002 Act).
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The result is that the decision must be set aside to be remade.
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In deciding how the decision should be remade I noted Ms O'Brien's comment that the respondent did not accept that there was family life between the appellant and her daughter and son-in-law.
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It is also notable from the judge's decision that he concluded that the approach to paragraph ECDR was limited to medical needs. That appears now to have been in error, given what was stated in
BritCits at [76]:-
'76.
Thirdly, for the reasons I have given the appellant has not established that the conditions for entry and right to remain for ADR's under the new ADR Rules are incapable of practical fulfilment in virtually all cases for parents, let alone for all the categories of ADR's entitled to apply, whose
family life engages Article 8. In
particular, rejection on the basis of the availability of adequate care in the ADR's home country turns upon whether the care which is available is reasonable for the ADR to receive and of the level required for that applicant. Contrary to the submission of the appellant those considerations are capable, with appropriate evidence, of embracing the psychological and emotional needs of elderly parents.'
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Also, at [59]:-
'59.
Second, as is apparent from the Rules and Guidance, the focus is on whether the care required by the ADR applicant 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 the perspective of the applicant, and the standard of 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. These 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, to be objectively assessed.'
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Mr Bryce stated that in light of Ms O'Brien's comment that family life was not accepted, he would wish to lead evidence on the matter. Further, additional evidence relating to the situation of the appellant such as any medical reports or other reports commenting on her psychological and emotional needs, may now be necessary.
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Whilst I am aware of the difficulties that there may be given the restrictions of what can and cannot be taken into account in an appeal against entry clearance to which section 85 of the 2002 Act applies, I nonetheless consider that the matter needs to be remitted to the First-Tier for fresh consideration.
Notice of Decision
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The decision of the First-Tier Tribunal involved the making of an error of law and I set it aside. No findings of fact are preserved.
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The case is remitted to a judge other than Judge Bradshaw for a further consideration on human rights grounds.
No anonymity order made.
Signed Date
Upper Tribunal Judge Conway
