Upper Tribunal (Immigration and asylum chamber), 2017-05-16, IA/31626/2015 & IA/31628/2015
| Jurisdiction | UK Non-devolved |
| Date | 16 May 2017 |
| Published date | 11 July 2017 |
| Hearing Date | 11 May 2017 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Unreported |
| Appeal Number | IA/31626/2015 & IA/31628/2015 |
Appeal Number: IA/31626/2015
IA/31628/2015
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/31626/2015
IA/31268/2015
THE IMMIGRATION ACTS
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Heard at: Manchester |
Decision & Reasons Promulgated |
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On: 11 May 2017 |
On: 16 May 2017 |
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Before
UPPER TRIBUNAL JUDGE PLIMMER
Between
SAEED RAJPUT
ABIDA SAEED
Appellants
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation
For the Appellants: Mr Read (Counsel)
For the Respondent: Mr McVeety (Senior Home Office Presenting Officer)
DECISION AND REASONS
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The appellants are both citizens of Pakistan. The first appellant is the husband of the second appellant. The appellants are the parents of two British citizen daughters working in the United Kingdom (‘UK’) as doctors. The couple also have two sons said to be residing in the UK and Dubai respectively.
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The appellants have appealed against a decision of the First-tier Tribunal dated 28 September 2016 in which it dismissed their appeals under the Immigration Rules and on human rights grounds.
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In a decision dated 20 February 2017 Upper Tribunal Judge Lindsley granted the appellants permission to appeal against the First-tier Tribunal decision on the basis that it is arguable that: (i) there was a failure to determine the family life relationship between the appellants and their daughters under Article 8 of the ECHR, and; (ii) the assessment of medical evidence relating to the first appellant’s ability to fly is irrational.
Error of law
Agreed approach
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At the beginning of the hearing I indicated a provisional view to the representatives: as observed in the decision granting permission, the First-tier Tribunal failed to make any findings on family life and this aspect of the appeal needs to be remade but there has been no appeal against the factual findings (save for the letter from the first appellant’s GP, Dr Morais), and these findings should form the basis of the family life Article 8 assessment together with any updated evidence and submissions. Both representatives agreed with this approach.
GP letter
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As far as the error of law stage of the hearing was concerned, I heard brief submissions from Mr Read to the effect that the findings at [15(i)] were not open to the First-tier Tribunal. I did not need to hear from Mr McVeety.
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In my judgment, the First-tier Tribunal was entitled to attach little weight to the evidence of the first appellant’s GP, Dr Morais, contained in a letter dated 16 June 2016, that the first appellant is not fit to fly “due to his deteriorating physical and mental health”. In my judgment, the reasons provided for this at [15(i)] are not irrational. The First-tier Tribunal was entitled to regard the evidence as being relevant to the first appellant’s circumstances in June 2016, as opposed to the date of hearing some three months later. The assessment of fitness to fly for illness worsened by stress is not a fixed concept, but likely to be fluctuating and the First-tier Tribunal was entitled to note that the GP letter did not address the circumstances nearer in time to the date of hearing. The First-tier Tribunal was also entitled to note that the GP did not consider whether there are ways in which the adverse impact of flying could be reduced, such as one of the daughters accompanying the appellants on the journey. Importantly, the First-tier Tribunal drew attention to the absence of support for the GP’s assessment regarding fitness to fly, from any of the specialist consultants treating the first appellant. It was argued on the appellant’s behalf that the GP was better placed to assess fitness to fly. I entirely accept that a GP is in principle able to assess fitness to fly, however in this particular case it was not irrational to take into account a complete absence of any indication of concerns with flying from the appellant’s treating cardiologist, Dr Jenkins, when he had offered his opinion on the first appellant’s health in a letter dated 29 February 2016. Dr Jenkins was aware that the first appellant was going through an appeals process but did not address the appellant’s ability to fly in the event his appeal was unsuccessful.
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I therefore ruled that the First-tier Tribunal’s findings of fact, including the assessment of the GP letter, were not infected by any error of law. It followed that my assessment of family life for the purposes of Article 8(1) and proportionality for the purposes of Article 8(2), should be made in light of those factual findings. Both representatives agreed with this approach.
Remaking the decision
Hearing
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Mr Read asked for more time to prepare for the ‘substantive’ hearing. I therefore stood the matter down until 11.45, when Mr Read indicated he was ready to proceed. At the beginning of the ‘substantive’ hearing, Mr Read invited me to take into account three items of documentary evidence not available to the First-tier Tribunal: (i) correspondence demonstrating the initial hearing listed to be heard in June 2016 was adjourned at the appellants’ request, and relisted for September 2016, when it was heard; (ii) a letter dated 28 August 2015 from Dr Jenkins, which describes the first appellant’s history of coronary artery bypass graft surgery and stroke. He concluded that it is difficult to predict his long-term prognosis and that whilst the current medication regime reduces the risk of a further stroke substantially, he is still at risk; (iii) a letter dated 3 September 2015 from Dr Morais, to which I return later. Mr Read confirmed that he did not wish to rely upon any updated evidence (documentary or oral), post-dating the First-tier Tribunal hearing.
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Mr McVeety invited me to find that although the appellants live with one of their daughters at present, there is no family life for the purposes of Article 8(1). In any event, he submitted the appellants’ immigration history is such that there is a strong public interest in removal and this greatly outweighs the family life in question.
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In his submissions Mr Read pointed out that both daughters are now British citizens. He invited me to find that there is family life between the daughters and their parents, in light of the nature and extent of the links and contacts, the ages and health of the appellants, and the living arrangements.
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Mr Read invited me to revisit the findings relating to the assessment of whether the first appellant is fit to fly, in light of all the evidence available. He however accepted there was no updated medical evidence beyond that available to the First-tier Tribunal and the additional three documents referred to above (which all pre-date the First-tier Tribunal hearing).
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Mr Read confirmed that he placed no reliance upon Article 3 and only relied upon Article 8 in so far as it concerns respect for the appellants’ family life. He clarified that the relevance of the medical evidence generally, and the proposition that the first appellant is unable to fly specifically, is solely in relation to explaining the nature and depth of the dependence of the first appellant upon his daughters.
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At the end of submissions, I reserved my decision, which I now give with reasons.
Approach to Article 8
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This is a case that potentially involves the family and private life of two people, who are not foreign national offenders, but in relation to whom it is now accepted cannot meet the requirements of the Immigration Rules. As such the test to be applied is that of compelling circumstances – see Treebhawon and Others (NIAA 2002 Part 5A - compelling circumstances test) [2017] UKUT 13 (IAC) at [44]. In so doing I must apply the five stage Razgar v SSHD [2004] 2 AC 368 questions. Of particular importance in this case are the following: identifying the relevant family and private life to be respected, determining the weight to be attached to these in accordance with Article 8 jurisprudence and Part 5A of Nationality, Immigration and Asylum Act 2002 (‘the 2002 Act’); taking into account the public interest considerations; conducting the relevant balancing exercise.
Family and private life
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It is now uncontroversial that in Article 8 jurisprudence, the meaning of ‘family life’ can extend in certain circumstances to include, inter alia, relationships between adults: see AA v UK [2012] INLR 1, R (Gurung) v SSHD [2013] 1 WLR 2546 and Singh v SSHD [2015] EWCA Civ 630 in which Sir Stanley Burnton said this at [24]:
“I do not think that the judgments to which I have referred lead to any difficulty in determining the correct approach to Article 8 in cases...
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