The Secretary of State for the Home Department v RM (Pakistan)
| Jurisdiction | England & Wales |
| Judge | Baker LJ,Lady Justice Simler,Lewison LJ |
| Judgment Date | 23 November 2021 |
| Neutral Citation | [2021] EWCA Civ 1754 |
| Docket Number | Case No: C9/2020/1573 |
| Year | 2021 |
| Court | Court of Appeal (Civil Division) |
[2021] EWCA Civ 1754
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(Immigration and Asylum Chamber)
UTJ BRUCE
EA/01773/2019
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Lewison
Lord Justice Baker
and
Lady Justice Simler
Case No: C9/2020/1573
Nicholas Chapman (instructed by the Government Legal Department) for the Appellant
Craig Holmes (instructed by Latitude Law) for the Respondent
Hearing dates: 27 October 2021
Approved Judgment
Introduction
This appeal concerns a claim based on derivative rights to remain in the United Kingdom by RM, who is the adult brother and primary carer of A, an adult British citizen. The claim was made under Regulation 16(5)(c) of the Immigration (European Economic Area) Regulations 2016 (referred to below as “the Regulations”). The names of RM and A have been anonymised throughout the proceedings because of the confidential details of A's medical history that have had to be discussed and anonymity continues for that reason in this judgment.
RM, for whom Mr Craig Holmes appeared, is a national of Pakistan with no right to remain in the United Kingdom. He cares for A, who has a number of significant disabilities, on a more or less full-time basis. By a decision dated 1 April 2019, the Secretary of State for the Home Department (“the SSHD”) refused to grant RM's application for a residence card based on his asserted derivative right to remain in the United Kingdom to care for his British citizen brother. She concluded that if there was no family member in the United Kingdom able to provide the necessary support to A at night, and if A was unable to afford the requisite night time care, the local authority would provide it, and A would not be compelled to leave the United Kingdom (and therefore, the European Union, or “EU”).
The SSHD's decision was challenged on appeal. The First-tier Tribunal (“the FTT”) dismissed the appeal, holding that while it was A's preference that RM provide care for him, there were practical alternatives available and the evidence did not demonstrate that A required “constant care throughout the night”. RM challenged that decision on appeal on the basis that a number of the factual findings made by the FTT were not available on the evidence. The appeal was not resisted by the SSHD and by a decision promulgated on 4 February 2020, Upper Tribunal Judge Bruce (referred to below as “the judge”) allowed the appeal, remade the decision and held that A would leave the United Kingdom (and therefore the EU) if RM was required to do so, and in all the circumstances of this case a derivative right to reside had therefore been established by RM.
The SSHD now appeals against the decision of the judge with permission granted by this court on 13 April 2021. There are five grounds of appeal but her primary arguments, advanced by Mr Nicholas Chapman on her behalf, are that the judge misapplied the legal test in reaching her decision and took account of an irrelevant consideration in doing so. The appeal is resisted by RM. Mr Holmes who contended that the judge made no error of law and reached a decision that was amply open to her on the evidence. I am grateful to both counsel for the clarity and concision of their submissions.
At the conclusion of the hearing the court announced that the appeal would be allowed with reasons to follow; the decision of the judge would be set-aside; and the case would be remitted to the Upper Tribunal, with case management directions (including in relation to additional evidence if appropriate) left to the discretion of the Upper Tribunal. These are my reasons for agreeing that the appeal should be allowed with those consequences.
The factual background
As already indicated, RM is a national of Pakistan, born in 1988. He is the primary carer of his brother A, who is a British citizen.
A's significant and complex medical needs were summarised by the judge by reference to a series of reports and letters provided by treating clinicians (including letters from Mr S Patil, Consultant in spinal injuries and rehabilitation, Dr M Francis of Bingley Medical Practice, Dr Charlene Thwaites, and Professor R Skinner), and a social care and well-being assessment conducted by Bradford Social Services.
The judge found that having been a healthy, able-bodied man, A's health began deteriorating in 2008 when he began experiencing back pain and sudden onset weakness in his legs. He was diagnosed with spinal stenosis, a prolapsed disc and lumbar disc degeneration. His condition worsened and in 2013 he was involved in a road traffic accident which left him incontinent. The combined effects of his spinal and other problems are that he is confined to a wheelchair with severe mobility problems. A suffers, intermittently and unpredictably, from incontinence and a numbness in his body which leaves him unable to move unaided. When that happens he needs help: “ it is his brother who cleans him and manages his paralysis by moving his position and massaging the affected areas until sensation returns …”. He also needs help with personal care in washing and dressing himself. A has also suffered neurological damage to one side of his brain, together with depression and anxiety. He takes a number of strong medications which affect his diet and cause significant side effects, including drowsiness.
As a result of his complex needs, the judge found that A requires assistance with his “ daily activities including preparing food, dressing, toileting and bathing. He has a significant stutter and has some difficulty communicating. He also reports significant fatigue as a side-effect of his medication”. The unpredictable nature of his difficulties was noted both by his GP, Dr M Francis, and by Bradford Social Services. He is able to stand, but his legs can quickly become numb and “go” from under him. He has suffered a number of falls as a result and does not go out alone any longer.
In relation to his night-time needs, the judge recorded the following:
“16. Bradford Social Services record that A needs to go to the toilet five or six times during the night, and that he suffers unpredictable episodes of numbness where his body becomes “locked”. The report notes:
“[A] requested night care support and rang the access team last year to get support for night time carers but was told that our service is time specific and [A] is wanting to have someone there throughout the night in case he needs support and was advised to purchase this service privately. I reiterated this and [A] has said he understood but cannot afford to employ private care seven nights a week. [RM] has been providing this support in this remit since he has been in the UK.”
RM also provides support to A in managing his day-to-day affairs, including diary management, receiving correspondence and administrative affairs, and in discharging his duties and responsibilities as a local councillor in his neighbourhood in Yorkshire and as disability office for his constituency Labour Party, as the judge found. These roles give A a meaningful private life in the United Kingdom. In order to perform these community/political roles he is entirely dependent on his brother, who takes him to and from meetings and generally acts as his unpaid personal assistant. If RM was to return to Pakistan, A's evidence was that he would not be able to continue with this work: he could not afford to pay for a personal assistant/full-time carer to help in coping with these roles.
In addition to his “severe mobility” and other physical health problems, the judge recorded that Dr Francis confirmed A's evidence about his mental health issues and that his significant low mood had left him suicidal for a period. Evidence provided by Professor Skinner said that A was at risk of relapsing into a severe depression should he have to give up his current roles in local government and the Labour Party.
Apart from RM, A's family all live in Pakistan. His father is a retired civil servant and receives a pension. Whilst not wealthy, the family is comfortable. Both RM and A could be accommodated in the family home in Pakistan, where other family members could assist RM in caring for A.
Bradford Social Services' evidence was that a “relevant care package” would only be available during the day should RM depart. Their clear evidence as recorded by the judge was that the kind of night-time care A requires is simply not available in the person's own home, and night-time provision is limited to “time specific” appointments. This was no good to A, because he cannot predict when he is going to need someone there during the night. As the judge put it, “ the council would pay for a carer to come to the house between say 2am and 3am, but this is no good for A because he does not know when he might wet himself, or become unable to move.”
There was evidence available to the judge indicating that A had made enquiries about the possibility of obtaining night-time care. 22 private care providers gave reasons why they were unable to assist him at all. A quote for a live-in care package was provided by Alchita Care Ltd at £1250.00 per week or a night-time carer rate of £18.50 per hour. Care Dynamics offered care at £16.24 per hour, with a higher rate for bank holidays. Care Mark quoted £17.00 per hour for experienced night care workers. A also found a care home specialising in the care of under 65s with spinal injury, quoting a basic weekly rate of £1088.00, with a top up of £15.00 per hour for accompanying A on trips out of the home. Similar quotes were provided by the Hales Group who could also provide a night carer at £17.00 per hour.
A cannot afford to pay privately for this...
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