Upper Tribunal (Immigration and asylum chamber), 2017-08-14, PA/00631/2017
| Jurisdiction | UK Non-devolved |
| Date | 14 August 2017 |
| Published date | 15 September 2017 |
| Hearing Date | 10 August 2017 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Unreported |
| Appeal Number | PA/00631/2017 |
Appeal Number: PA/00631/2017
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/00631/2017
THE IMMIGRATION ACTS
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Heard at Glasgow |
Determination issued |
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on 10 August 2017 |
On 14 August 2017 |
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Before
UPPER TRIBUNAL JUDGE MACLEMAN
Between
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and
MADI [K]
Respondent
For the Appellant: Mr M Matthews, Senior Home Office Presenting Officer
For the Respondent: Mrs F Farrell, of P G Farrell, Solicitors
DETERMINATION AND REASONS
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The parties are as described above, but the rest of this decision refers to them as they were in the FtT.
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By a decision dated 5 January 2017 the SSHD refused the appellant’s claims on all available grounds.
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By a decision promulgated on 12 May 2017 First-tier Tribunal Judge P A Grant-Hutchison allowed the appellant’s appeal “on human rights grounds under article 8 only”.
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The SSHD’s grounds of appeal to the UT, in summary, are as follows:
At ¶19 and 22, unclear against what threshold the judge considered proportionality.
At ¶24, implied test of reasonableness of being expected to return applied to the core issue of the medical condition of the oldest child of the appellant’s partner (Benny) but neither he nor the other children living with the appellant were qualifying children under s.117B(6) of the 2002 Act, so that was not the test.
The test outside the rules was compelling circumstances, which must amount to more than “mere hardship, mere hurdles, mere upheaval and mere inconvenience, even where multiplied”: Treebhawon [2017] UKUT 00013.
The countervailing public interest in removal outweighs consequences for the health of an appellant because of a disparity of health care facilities “in all but a very few rare cases”; “when weighed against the public interest in ensuring that the limited resources of the country’s health services are used to the best effect for the benefit of those for whom they are intended, those consequences do not weigh heavily in [an appellant’s] favour but speak cogently in support of the public interest in removal”: Akhalu (health claim: ECHR article 8) [2013] UKUT 400.
The judge refers at ¶24 to a letter from Dr O’Regan, but not to submissions for the SSHD that there was no basis for the statement that treatment would not be available in the DRC.
The judge noted that the appellant’s partner and children could return with him to their country of nationality, so it was not apparent why this would be one of the “very rare cases” envisaged above, or that receipt of DLA benefit would be sufficient to justify the decision. The proportionality reasoning was inadequate.
The judge’s consideration of the appellant’s relationship with a UK citizen child whom he had rarely seen was inadequate, given the challenges made by the SSHD to the genuineness of the relationship, and absence of a statement from the child’s mother about contact. No reason was given for saying that communication would be exceptionally difficult, or why modern communications would be an inadequate substitute for infrequent contact.
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The appellant filed a response, dated 6 July 2017, to the notice of appeal, which in summary is on these lines:
The judge correctly applied the Razgar test.
(The eldest child arrived in the UK not in January 2011 but in January 2012.) The judge did not apply a wrong test of reasonableness. He made it clear at ¶19 that he was to consider whether the circumstances were “relevant, weighty and not fully provided for within the rules. In practice, they are likely to be both compelling and exceptional, but this is not a legal requirement.”
The appellant’s partner and her three children [after various procedure] were all given discretionary leave. The SSHD had therefore accepted that the eldest child could not be successfully treated in the DRC. This submission was unchallenged by the presenting officer.
The judge was referring to the comments by the doctor rather than making a specific finding about treatment in the DRC.
The article 8 findings are sound and in accordance with the law.
Contact from overseas by modern communications is not a relevant consideration: Hussini [2017] CSOH 80.
Since the hearing the appellant’s partner and children have had their [discretionary] leave extended until 13 December 2019. Permission is sought to admit evidence thereof.
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Mrs Farrell indicated that the further evidence was tendered only if error of law was found and the decision required to be remade. Mr Matthews said that there would be no objection to its admission, and confirmed that the respondent had granted further leave.
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The family situation is not entirely clear from the decisions of the respondent and the FtT. Mrs Farrell said that the appellant lives with his partner and three children. The oldest, Benny, is not his biological child. The two younger ones are the children of the appellant and his partner. The appellant, his partner and those three children are all citizens of the DRC, and of no other country. The appellant has another child, residing in England, who is a UK citizen. Mr Matthews did not dissent from that summary of the essential background facts.
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Mr Matthews submitted thus. The case should have been decided according to principles well established for cases where family life is carried on by persons with only precarious status, now confirmed by Agyarko. Even at ¶19 the judge did not state the law quite correctly. More importantly, at ¶24 he effectively decided the case by the question whether it was reasonable to expect the appellant’s partner to leave, by reference to the health of her child. That was a significantly lower standard than the correct one. It would be bizarre if the case could succeed outside the rules by criteria lower than those which would apply if the case came within the rules (that is, by reasonableness rather than insurmountable obstacles). This was not just poorly chosen or loose language, but failure to recognise the correct legal parameters. The high point of the appellant’s case was Benny’s heath condition. That was a “very difficult epilepsy” as disclosed by the report of the consultant neurologist, Dr O’Regan, but it fell short of the standard for a case to succeed only on health grounds. It was accepted that health care might not be available to the child in DRC to UK standards, but the SSHD had cited evidence that treatment for epilepsy was available at ¶107 – 121 of the refusal decision, to which the judge did not refer. The judge appeared to adopt uncritically Dr O’Regan’s assertion that treatment was unlikely in the DRC, but she was an expert in neurology, not on medical standards in the DRC. She had no more standing in that respect than any other witness. The Judge took the receipt of Disability Living Allowance as an indication of the seriousness of the condition, which was an unjustified inference. Recipients of DLA even at its highest rates may carry on normal working lives. The child was not born in the UK but came here after his mother did, when aged 6. Her evidence was silent as to how his condition had been treated while he lived in DRC. The judge was not referred to Akhalu, but that was a statement of well-established law which he was bound to apply. This was a case where none of the family members living with the appellant had more than precarious status. The judge had taken the appellant’s relationship with his UK citizen child as a factor, when there was no evidence of meaningful contact. The case was capable of decision either way, but the present decision could not survive excision of its errors. It should be remade, based on all the evidence and submissions, applying the considerations under art 5A of the 2002 Act, and the principles of precarious cases. The appellant made no claim to financial independence. He had given evidence through an interpreter, so ability to speak English was not in his favour either. The outcome should be reversed.
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Mrs Farrell relied upon the reply above, and submitted further as follows. The judge at ¶19 articulated the correct test, which could be confirmed by reference for...
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