Upper Tribunal (Immigration and asylum chamber), 2023-04-17, HU/04205/2021 & HU/04206/2021
| Appeal Number | HU/04205/2021 & HU/04206/2021 |
| Hearing Date | 31 March 2023 |
| Published date | 02 May 2023 |
| Date | 17 April 2023 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
Appeal Number: UI-2022-004766 & UI-2022-004766
|
IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER |
Case No: UI-2022-004766 UI-2022-004767 |
|
|
First-tier Tribunal No: HU/04205/2021 HU/04206/2021 |
THE IMMIGRATION ACTS
Decision & Reasons Issued:
On 17 April 2023
Before
UPPER TRIBUNAL JUDGE HANSON
Between
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and
IA
AI
(ANONYMITY ORDER MADE)
Respondent
Representation:
For the Appellant: Ms Young, a Senior Home Office Presenting Officer.
For the Respondent: Mr R Ahmed instructed by Fawad Law Associates.
Heard at Phoenix House (Bradford) on 31 March 2023
Order Regarding Anonymity
Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the respondents are granted anonymity.
No-one shall publish or reveal any information, including the name or address of the respondents, likely to lead members of the public to identify them. Failure to comply with this order could amount to a contempt of court.
DECISION AND REASONS
-
The Secretary of State appeals with permission a decision of First-tier Tribunal Judge Rose (‘the Judge’), promulgated on 19 July 2022, in which the Judge allowed their appeals against the refusal of their applications for leave to remain on human rights grounds; made on the basis they claim they will face very significant obstacles if returned to Pakistan, having lived in the UK unlawfully with their three children for at least 15 years, such that they should be granted leave pursuant to paragraph 276 ADE(1) of the Immigration Rules. The appellants, a husband and wife born on 6 July 1965 and 28 June 1970 respectively, also claim to suffer from age-related illnesses which could not be adequately cared for in Pakistan.
-
The appellants did not seek to argue that the first appellant’s health is such that removal from the United Kingdom will breach his Article 3 ECHR rights.
-
The Judge’s findings are set out from [15] of the decision under challenge. Within those paragraphs the Judge notes the first appellant has provided evidence showing he suffered a stroke, has Type 2 diabetes, muscular problems which include sciatica, chronic pain in his right leg, obesity, hypertension and asthma, and that the second appellant also has a number of medical conditions which include a diagnosis of fibromyalgia which causes widespread pain [17]. The Judge notes that neither appellant works and the first appellant stated he is dependent on charitable donations from members of the community with the appellant’s daughter giving evidence of the financial support she provides for her parents, at [18].
-
At [19] the Judge accepts that if the family relocate to Pakistan the first appellant will not receive those donations and that it was highly unlikely he could not sustain such an income without being present amongst the people who make the donations or that they would be willing to make the effort to transfer such donations electronically. At [20] the Judge accepted the appellant’s daughter’s evidence that without the extensive childcare her parents provide she would not be able to maintain her current employment, and that any reduction would mean she is unlikely to be able to provide her parents with any financial support.
-
The Judge finds neither has any family in Pakistan from whom they are not estranged nor accommodation. Their medical conditions prevent them from working which will result in conditions described as bleak, including living in extreme poverty, whilst trying to manage their various health needs without the assistance of their daughter [21].
-
The Judge finds at [22] that the appellants case falls within the provision of the Rules namely that both would encounter very significant obstacles to their reintegration into Pakistan pursuant to paragraph 276ADE(1)(vi) of Appendix FM.
-
In relation to Article 8 ECHR, the Judge finds the appellants and their daughter and granddaughter form a close family unit within which they provide significant and essential emotional support to the daughter in the aftermath of an abusive relationship and resultant estrangement from her siblings, and that she provides them with financial and practical support. The Judge also finds the appellants will suffer the emotional impact of estrangement from their two sons as well as from the first appellant’s wider family in Pakistan [23].
-
The Judge refers to the Razgar principles from [25], finding the appellants have a family life which engages Article 8 based upon the relationship with their daughter and granddaughter. The Judge notes the question in the appeal relates to proportionality [26], makes reference to section 117 of the 2002 Act, makes findings that were considered relevant, finds the decision would not be proportionate, and allows the appeal on that basis.
-
The Secretary of State sought permission to appeal asserting:
Failure to give adequate reasoning
1. The Appellants are both citizens of Pakistan, born on the 6th July 1965 and 28th June 1970, and are husband and wife. Both entered the UK lawfully – the First Appellant on the 14th July 2003 and the Second Appellant on the 1st September 2006 – but both have overstayed, without leave to remain. In short, they have now been living unlawfully in the UK with their three children for at least 15 years. Their children are now adults and each has leave to remain in the UK. Both Appellants seek leave to remain on the grounds that they would experience very significant obstacles were they to return to Pakistan, after such a long time away, such that they should be granted leave pursuant to paragraph 276 ADE (1) of the Rules. In addition, both Appellants suffer from a number of age-related illnesses, which could not be adequately cared for in Pakistan.
2. The Tribunal found : “ I have concluded that the particularly strong and close relationships that exist between the Appellants, their daughter and their granddaughter combined with the length of time that each Appellant has spent in the UK means that, notwithstanding the provisions of s117B, it would be disproportionate to remove them at this point in their lives. I would therefore allow these appeals on the basis that either Appellants’ removal would amount to a breach of their Article 8 ECHR rights(28)”.
3. The respondent notes that there has been no evidence adduced to suggest that financial support from within the community would not continue if the A’s were to be returned. The determination speculates on that point. There is no reason why this could not continue on return to Pakistan.
4. Further, the respondent notes that whilst the A have been here illegally for 15 years they have sought use of the NHS and other services to which they were not entitled. In addition whilst accepting that the A have been supported by their daughter (26) Clearly that is not the case.
5. The A’s can return and use financial support from the UK to access healthcare on return.
6. The A’s do not speak English and they would be returning to their home country where they have spent the majority of their lives and the respondent submits there are no significant obstacle to face on return. There are no more than normal ties in this case, the relationship with their grandchildren has developed whilst the A’s remained here illegally.
7. On the facts of this case the respondent seeks PTA.
Permission to appeal was granted by Upper Tribunal Judge MacLeman on 21 November 2022 on the basis is said to be arguable whether the tribunal gave adequate reasons for holding that support could not or would not be provided to the appellants in Pakistan; that there were very significant obstacles to their...
To continue reading
Request your trial