Upper Tribunal (Immigration and asylum chamber), 2020-12-08, HU/01418/2020
| Jurisdiction | UK Non-devolved |
| Date | 08 December 2020 |
| Published date | 05 January 2021 |
| Hearing Date | 20 November 2020 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | HU/01418/2020 |
Appeal Number: HU/01418/2020
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/01418/2020
THE IMMIGRATION ACTS
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Heard at Field House (via Skype) |
Decision & Reasons Promulgated |
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On 20 November 2020 |
On 08 December 2020 |
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Before
UPPER TRIBUNAL JUDGE BLUNDELL
Between
Florence [O]
(ANONYMITY DIRECTION not made)
Appellant
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr Mian, instructed by Mondair Solicitors
For the Respondent: Mr Tufan, Senior Presenting Officer
DECISION AND REASONS
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The appellant is a Kenyan national who was born on 20 May 1969. She appeals, with permission granted by Judge Scott Baker, against a decision which was issued by Judge Barker (“the judge”) on 17 March 2020. By that decision, the judge dismissed the appellant’s appeal against the respondent’s refusal of her human rights claim.
Background
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The appellant arrived in the United Kingdom in January 2003. She held entry clearance as a work permit holder until 31 August 2004. She sought leave to remain as a student before the expiry of her leave to enter but that application was refused in 2004 and the decision was maintained on reconsideration. There was no right of appeal. The appellant decided to overstay. A decade or so later, the respondent issued her with a notice as an overstayer. This prompted her to make an application to regularise her position in October 2015. That was refused but the decision attracted no right of appeal. In February 2016, she made a further application, which was refused in May 2016, this time with an in-country right of appeal.
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The appellant appealed against this refusal. Her appeal was heard by Judge Asjad, sitting in Birmingham, on 14 June 2019. Judge Asjad heard evidence from the appellant and her partner, Mr H, and submissions from the representatives on each side. It was contended, in substance, that the appellant enjoyed a family life with Mr H and that there were insurmountable obstacles to that relationship continuing in Kenya. It was submitted that Mr H’s mental health had been poor for many years, largely due to violent and sexual abuse he had suffered as a child.
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Judge Asjad accepted that the appellant and Mr H were in a committed relationship. She reviewed the medical evidence with some care and although she accepted what she had been told about Mr H’s past, she did not consider that his mental health condition was particularly severe, or that he would be unable to access appropriate treatment in Kenya. Nor did she consider there to be any reasons disclosed by the appellant herself which would prevent the couple living together in her country of nationality. Having considered the provisions of s117B of the Nationality, Immigration and Asylum Act 2002, Judge Asjad concluded that the public interest outweighed the Article 8 rights at issue and dismissed the appeal.
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The appellant sought permission to appeal against Judge Asjad’s decision, but permission was refused by the FtT (Judge Martins) and the Upper Tribunal (Judge McWilliam). The appellant became appeal rights exhausted in March 2018. Efforts to have the underlying decision reconsidered failed in 2018 and, on 10 April 2019, the appellant made further submissions under paragraph 353 of the Immigration Rules. She relied, as she had before Judge Asjad, on her relationship with Mr H and the central submission that his condition had deteriorated to the point that he could not live with her in Kenya. The respondent was not persuaded. The appellant appealed again.
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Judge Barker concluded that Mr H’s condition had not reached the point at which family life could not continue in Kenya. The central question before me is whether that conclusion is vitiated by legal error. For the reasons which follow, I have come to the clear conclusion that it is, and that the decision of the FtT falls to be set aside. In order to explain that conclusion, it is necessary to examine the decision reached by the judge in some detail.
The Decision of the First-tier Tribunal
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At [2], the judge described the appellant’s immigration history. At [3]-[16], she set out relevant legal principles from statute and authority. At [17]-[20], she listed the documentary and oral evidence before her. At [21], she set out the judicial headnote from Budathoki [2014] UKUT 341 (IAC), so as to frame the task she was to undertake in the remainder of the decision. At [24], the judge listed the agreed facts about the appellant and her relationship with Mr H and the extent to which it was agreed that the requirements of the Immigration Rules were met. At [25], she stated that the remaining issues centred on paragraph EX1 of Appendix FM and paragraph 276ADE(1)(vi) of the Immigration Rules and whether there was a proper claim for leave outside the Immigration Rules with reference to Article 8 ECHR.
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At [26]-[34], the judge mentioned a number of further authorities which related to her assessment of the evidence and to credibility in particular. She recalled the guidance given in Tanveer Ahmed [2002] Imm AR 318 and Devaseelan [2003] Imm AR 1. At [33]-[34], she mentioned Article 4 of the Qualification Directive and KB & AH (Pakistan) [2017] UKUT 491 (IAC) (neither of which were relevant in this non-protection context). At [35], the judge found that Article 8 was engaged in its family life aspect between the appellant and Mr H, and that the respondent’s decision represented a ‘significant interference’ with that protected right.
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At [36]-[59], the judge turned to the main question in the appeal: paragraph EX1 of Appendix FM. She recalled that there was a genuine and subsisting relationship but that the respondent did not accept there to be insurmountable obstacles to its continuation in Kenya: [36]-[38]. For the appellant, it was submitted that there had been a significant deterioration in Mr H’s condition. For the respondent, it was submitted that nothing had changed since Judge Asjad’s decision and that her decision should be regarded as determinative.
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The judge noted that the appellant was a qualified teacher who had spent much of her life in Kenya and that she was familiar with the culture: [43]. In the following paragraph, she noted that the crux of the case was the appellant’s contention that Mr H required her full time care and that she would not be able to work and care for him in Kenya. She had no property in Kenya and no family who could offer support. Nor would he be able to receive free medical care there. At [47], the judge said this:
“It is a compelling argument that the Mr [H] would lose his right, as a British citizen to free health services, if he were to follow the appellant to Kenya, but I remind myself that whether he does that would be his choice. I am also conscious of the fact that the appellant can return to Kenya alone and apply for entry clearance to return as a spouse in the normal way.”
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The judge then analysed the medical evidence before her. She noted that there was a report from a Consultant Psychiatrist, Dr Singh. She considered that report – dated 14 September 2018 – to paint a different picture to that claimed by the appellant and her husband. She was also concerned by the age of the report and the fact that it was based on a single meeting: [48]. Dr Singh had stated that Mr H suffered from a moderate depressive disorder and from ‘fleeting thoughts of suicide but denies any active intent or plans’. This contrasted, the judge held, with the account given by the appellant and her partner, in which they described suicide attempts, one of which pre-dated the meeting with Dr Singh: [49]. The judge did not go behind the assessment of Judge Asjad, which was that Mr H had mental health problems as a result of his abusive childhood, but she considered the extent of the illness to be an important factor in her deliberations.
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The judge was aware that there might be innocent reasons why differing accounts emerged from the report of Dr Singh and the witness statements but she felt that the purpose of Dr Singh’s assessment would have been clear and that ‘there has been a significant history of immigration applications’: [51]. Whilst the judge accepted Dr Singh’s analysis that it would be difficult and stressful for Mr H if the appellant was removed, she did not accept that the difficulty crossed the threshold into paragraph EX1: [52].
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Mr H told the judge that he did not agree with Dr Singh’s analysis. Mr Mian suggested that the GP was better placed to make an assessment but that the judge should nevertheless bear Dr Singh’s opinion in mind insofar as it bore on the consequences of separating the appellant from Mr H. The judge stated,...
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