Upper Tribunal (Immigration and asylum chamber), 2018-02-21, IA/04937/2015 & IA/32622/2014
| Jurisdiction | UK Non-devolved |
| Date | 21 February 2018 |
| Published date | 12 March 2018 |
| Hearing Date | 08 June 2017 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Unreported |
| Appeal Number | IA/04937/2015 & IA/32622/2014 |
Appeal Numbers: IA/04937/2015
IA/32622/2014
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/04937/2015
IA/32622/2014
THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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On 8 June 2017 |
On 21 February 2018 |
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Before
UPPER TRIBUNAL JUDGE KOPIECZEK
Between
BS (FIRST appellant)
OS (SECOND appellant)
(ANONYMITY DIRECTION MADE)
Appellants
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellants: Ms R Popal, Counsel
For the Respondent: Ms A Holmes, Senior Home Office Presenting Officer
DECISION AND REASONS
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T his appeal comes back before me after a hearing on 5 December 2016 whereby I set aside the decision of the First-tier Tribunal (“FtT”) in respect of each appellant for error of law.
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The appeal was originally re-listed for hearing on 5 April 2017, but was not able to proceed on that day. After the hearing on 8 June 2017 I consented to the respondent’s request for the opportunity to provide closing submissions in writing, after the oral submissions made on behalf of the appellants. Written submissions on behalf of the respondent were received but, through error, not provided to the appellants’ representatives. I gave further directions in that respect on 25 October 2017, allowing a period of 21 days for any reply to the respondent’s submissions. In the event, no reply was received on behalf of the appellants, but as I had made clear, such a reply was not mandatory because I had already heard oral submissions on behalf of the appellants at the hearing on 8 June 2017 and had been provided with a skeleton argument on their behalf.
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In order to put my decision on these appeals into context, it is convenient to reproduce certain parts of the error of law decision (entitled Decision and Reasons) which followed from the hearing on 5 December 2016. In that decision I said as follows:
“2. The first appellant arrived in the UK on 13 March 2011 with entry clearance as a Tier 4 student until 26 September 2014. During his period of leave he contracted Tuberculosis Meningoencephalitis on 26 June 2013. This has resulted, to summarise, in significant mental and physical disabilities.
3. The second appellant arrived in the UK on 20 August 2013 with entry clearance as a visitor, with leave until 16 February 2014. He was granted a period of further leave outside the Immigration Rules from 20 April 2014 until 8 May 2014.
4. On 26 September 2014 the first appellant applied for indefinite leave to remain (“ILR”) on the grounds of his medical condition. That application was refused in a decision dated 26 January 2015. The second appellant applied for further leave to remain on 7 May 2014, again outside the Rules, in order to care for the first appellant. His application was also refused, the decision being dated 24 July 2014, although there is another decision which is dated 25 May 2014. Nothing turns on the precise date and if there are two decisions in respect of the second appellant, the appeal to the FtT will have included both decisions, in the light of section 85(1) of the Nationality, Immigration and Asylum Act 2002. Neither party raised any issue before me, and none was raised before the FtT, in relation to the precise date of the decision.
5. The appeals of both appellants came before First-tier Tribunal Judge Bart-Stewart (“the FtJ”) at the same time on 10 June 2016. She allowed the appeal of the first appellant, seemingly with reference to Article 8 of the ECHR, and dismissed the appeal of the second appellant on the same basis.
6. The Secretary of State has been granted permission to appeal against the FtJ’s decision allowing the appeal of the first appellant, and the second appellant has been granted permission to appeal in respect of the FtJ’s decision to dismiss his appeal.
…
The First-tier Tribunal’s decision
23. The FtJ heard evidence from the second appellant and from one Gareth Hankin of the Richardson Partnership for Care in relation to the assistance that the first appellant needs. The second appellant’s evidence was that the family would not be able to care for the first appellant in India as they live in a village which is close to the border. There is no hospital in the vicinity. The only relation is an uncle, and their father had died. Their mother was old. The uncle had taken over their land by fraud. The second appellant also said that there was no toilet in the house and that they had to use the fields for that purpose. Their house had just two rooms. He gave evidence as to the difficulties that the family had in India in terms of the ill-health of their mother and their grandmother. There is a sister who helps but only supports their mother and the grandmother’s necessities. He said that she would not be able to support the first appellant.
24. The second appellant said that he attends all meetings and tries to fulfil “all his requirements”. He said that he supported the first appellant emotionally and stayed with him during the night to look after him.
25. His evidence was that the first appellant’s flight to the UK and course fees (in computers) were paid for by their father. The first appellant was able to work and pay his rent. Their father had not needed to provide much by way of funds for maintenance. The flight to the UK was paid for by his sister and relatives. The second appellant himself does not pay anything towards utilities and he is given clothing and financial help.
26. The nearest hospital was 20 to 30 miles away from the local village. There are dispensaries two or three miles away. Although the care plan did not mention the second appellant’s input, he gives additional family support to his brother. That could not be provided where they live in India because they needed money to live. Their father passed away on 24 November 2014.
27. His sister lives in the same state in India as their mother. She is a housewife and her husband is a farmer. She is aged 33 to 34 years old. Both his mother and grandmother live in the family home which is where he and the first appellant lived before they came to the UK. It is four or five kilometres from the nearest town.
28. Gareth Hankin said in evidence that if left without prompting the first appellant would spend all day in bed and not eat or drink for long periods. Because of his cognitive difficulties he needs prompting to shower, brush his teeth, change into clean, appropriate clothes and to leave his room to eat meals. He requires picture prompt cards as well as verbal prompts. He is not confident walking on his own and tends only to walk around the house with staff over any distance. It is further recorded that he said that due to communication difficulties and cognitive deficit there are many barriers to his being in a different environment. He had an unrealistic view of his condition and limitations and could become frustrated and aggressive when challenged over his opinions or welfare choices. He believed that the first appellant would struggle to integrate well with others due to his “low initiation” and fluctuating moods. He is stubborn and lacks the ability to reason. He had at times neglected his health and cleanliness, refusing to shower for more than two days in a row and without staff support would not take his medication.
29. In relation to the involvement of the second appellant, he said that the second appellant visited regularly and brought regional food, as the first appellant is rigid about the food he likes. He provided money for the first appellant when he went out, as well as a mobile phone and other belongings. On occasion he would stay overnight and assist with the morning routine, although does not do so regularly every week. He said that this happens multiple times a month. The first appellant speaks to his family in India using a mobile and laptop provided by his brother.
30. In her findings, at [17] the FtJ referred to what she described as a six-weekly review from East London NHS Foundation Trust. That is an assessment dated 13 April 2016, which is in effect a care plan. She summarised the evidence in that document to the effect that the appellant continued to demonstrate severe cognitive deficits, lack of insight into his abilities and care needs, very challenging behavioural difficulties and speech impairments. Those placed the first appellant at a high risk in a number of areas and he continued to require close supervision. He required 24 hour care to minimise risks associated with his current circumstances and is said to require long-term supervision. He required 24 hour support in a residential home for persons with a brain injury, and the weekly cost of the package was £2,783.
31. With reference to a report from a consultant psychiatrist, Mr Richard Seamark, dated 9 July 2015, he had stated that the first appellant’s behaviour can escalate to the requirement of...
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