Upper Tribunal (Immigration and asylum chamber), 2023-01-03, HU/18467/2019
| Appeal Number | HU/18467/2019 |
| Hearing Date | 08 June 2022 |
| Published date | 18 January 2023 |
| Date | 03 January 2023 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
Appeal Number: HU/18467/2019
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/18467/2019
THE IMMIGRATION ACTS
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Heard at the Birmingham Civil Justice Centre |
Decision & Reasons Promulgated |
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On 8th June 2022 |
On the 3rd January 2023 |
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Before
UPPER TRIBUNAL JUDGE MANDALIA
and
DEPUTY UPPER TRIBUNAL JUDGE JUSS
Between
mRS AMRUTBEN HARJIBHAI TANK
(no anonymity direction made)
Appellant
and
the secretary of state for the home department
Respondent
Representation:
For the Appellant: Mr S Hingora, counsel, instructed by Primus Solicitors
For the Respondent: Mr C Williams, Senior Home Office Presenting Officer
DECISION AND REASONS
Background
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The appellant is a national of India. She was born on 1st March 1941 and is now 81 years old. She arrived in the United Kingdom on 7th June 2014 with entry clearance as a family visitor valid until 4th December 2014. On 2nd December 2014 she applied, in-time, for leave to remain in the UK outside the rules. That application was refused by the respondent and the appellant’s appeal against that decision was dismissed by First-tier Tribunal Judge Landes for reasons set out in a decision promulgated on 6th April 2017. On 5th October 2017, the appellant made a further application for leave to remain outside the immigration rules on Article 8 grounds. That application was refused by the respondent on 30th October 2019. The appellant’s appeal against that decision was dismissed by First-tier Tribunal Judge Young-Harry (“Judge Young-Harry”) for reasons set out in her decision promulgated on 21st January 2020.
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The appellant was granted permission to appeal to the Upper Tribunal and the decision of Judge Young-Harry was set aside by Upper Tribunal Judge Grubb (“Judge Grubb”) for reasons set out in his decision promulgated on 15th October 2021. It was common ground that the findings set out in paragraphs [20] to [23] of the decision of Judge Young -Harry (with the exception of the final sentence in paragraph [23]) should be preserved. There was disagreement between the parties as to whether findings adverse to the appellant should also be preserved. Having considered the submissions made by the parties, Judge Grubb directed that the findings made by Judge Young-Harry in paragraphs [23] to [26] and at paragraphs [20] to [22] are preserved. He directed:
“30. In remaking [the] decision, the judge will consider both the appellant’s claim under the Rules (para 276ADE(l)(vi)) and Art 8 outside the Rules including having regard to any argument concerning “historic injustice” and also any Chikwamba argument relying upon the Adult Dependent Relative rule in Appendix FM. “
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It is against that background that the appeal was listed for a resumed hearing before us to remake the decision. Although the appellant attended the hearing before us, we were informed at 12:30pm that she had attended in a wheelchair and felt uncomfortable. We were informed that neither the appellant nor any member of her family would be called to give oral evidence and that the hearing before us would proceed on submissions only.
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At the outset of the hearing, Mr Hingora identified the issues in the appeal as follows:
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Whether the requirements of paragraph 276ADE of the immigration rules are met;
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Whether the requirements of the ‘adult dependent’ route of the immigration rules are met
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Whether the decision to refuse leave to remain is disproportionate having particular regard to:
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Any historic injustice
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The decision of the Upper Tribunal in Chikwamba v SSHD [2008] UKHL 40
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The decision of First-tier Tribunal Judge Landes promulgated on 6th April 2017
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Because it forms the starting point to our decision, it is helpful for us to record the previous findings made by First-tier Tribunal Judge Landes (“Judge Landes”). We remind ourselves of the guidelines set out in Devaseelan v SSHD [2003] Imm AR 1. For present purposes it is sufficient to note that the decision of Judge Landes stands as an authoritative assessment of the claim that the appellant was making at the time (2017). We can consider and make our own assessment of facts that have occurred since the decision of Judge Landes.
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The appellant did not attend the hearing before Judge Landes. Judge Landes accepted the medical evidence before her that the appellant was not in a position to give evidence coherently or follow the proceedings. She did however hear evidence from the appellant’s daughter and son-in-law, Mr and Mrs Ladva, with whom the appellant lives.
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Judge Landes said, at [24]:
“24. … given that both Dr Ganapathy and the community mental health team have referred to the appellant as suffering from PTSD or PTSD like symptoms with depression and cognitive impairment and that Dr Ganapathy’s report is clearly based on his own examination rather than simply what was reported to him by others I am satisfied on the balance of probabilities that the appellant is suffering from those mental health problems. I am satisfied that her mental health problems mean that she needs supervision to ensure that she takes her medication regularly, and that she is unable to cook or clean for herself and now needs some supervision more generally because of her cognitive impairment… I am satisfied therefore that the appellant is now unable to live on her own in the sense that she now needs someone to look after her”
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Judge Landes said that it was more difficult to obtain a reliable picture of the appellant’s physical problems or indeed how the appellant’s problems have changed since she came to the UK. At paragraph [29], she said:
“Although I am satisfied that the appellant is not in a position to be able to care for herself for the reasons I have set out at paragraph 24 above, and also has some mobility problems and needs help with washing and dressing, I consider that there has been some exaggeration by the witnesses of the severity of the appellant’s condition. I say that because of the lack of consistency between the witnesses as to the condition of the appellant when she arrived in the UK, that the aids reported in evidence by Mr Ladva as being suggested by the occupational therapist indicate that the appellant is able to walk with the help of a stick rather than not be able to walk at all without support from a family member and that the psychiatrists’ reports do not suggest that the appellant’s condition has deteriorated to such an extent that she often needs to be spoon-fed”
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At paragraphs [30] to [43] of her decision, Judge Landes considered the availability of the required level of care in India. She noted the family’s evidence to be vague and unclear, particular regarding the treatment the appellant was subjected to by her son and daughter-in-law. Having considered the evidence before her, Judge Landes found, at [35], that the appellant cannot return to the family home where her son lives, or be looked after by her son. She did not however find it credible that the appellant’s family knew nothing about the problems the appellant had faced in India, until the appellant came to the UK. She considered it much more likely that the appellant’s problems with her son were at least part of the reason for her coming to the UK and the family wanted to hide that.
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Judge Landes considered the claim made by the family that the appellant’s daughter, Rasila, is unable to help the appellant in India. At paragraph [37], Judge Landes said:
“The witness statements sworn in November 2014 all say the appellant’s daughter Rasila is not able to help the appellant as she does not have enough money or room in her house to accommodate the appellant. However the appellant stayed with her daughter Rasila after she had been thrown out by her son. Rasila looked after her and took her to hospital when it proved necessary. Rasila may not have much money or space in her home but the appellant’s family in the UK were supporting her to some degree even when she was living in India (see p 141). The family in the UK have explained in their statements that they are well off…. In those circumstances I see no reason why the family in the UK would not be able to provide additional financial support so that Rasila was able to look after the appellant in sufficient comfort and space, providing additional or alternative accommodation as necessary. Rasila is described as very old with grandchildren but the family were vague as to Rasila’s age other than saying that she must be over 60. Mrs Tank said that Rasila was looked after by her family but this contradicts the evidence that Rasila looked after the appellant when she was thrown out by her son. If Rasila’s family (her son and her son’s wife who are described along with Rasila’s husband as the people living with Rasila) were looking after Rasila they could also look after the appellant.”
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Judge Landes considered the more general problems that it was claimed the appellant would face if she returned to her home village. At paragraph [41], she said:
“Bearing in mind what I have said in the above paragraph and that I have found that the witnesses have not...
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