Upper Tribunal (Immigration and asylum chamber), 2023-11-08, UI-2023-001357 & Ors.
| Appeal Number | UI-2023-001357 & Ors. |
| Hearing Date | 25 October 2023 |
| Date | 08 November 2023 |
| Published date | 23 November 2023 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
Appeal Numbers: UI-2023-001359; UI-2023-001358; UI-2023-001357; UI-2023-001360
First-tier Tribunal Numbers: HU/57784/2021; HU/57785/2021; HU/57787/2021; HU/57788/2021
IN THE UPPER TRIBUNAL Case No: UI-2023-001359; UI-2023-001358;
IMMIGRATION AND ASYLUM CHAMBER UI-2023-001357; UI-2023-001360
[HU/57784/2021; HU/57785/2021;
HU/57787/2021; HU/57788/2021]
THE IMMIGRATION ACTS
Decision & Reasons Issued:
On 8 November 2023
Before
UPPER TRIBUNAL JUDGE L SMITH
DEPUTY UPPER TRIBUNAL JUDGE GRIMES
Between
(1) EAINAAS ALYOUNIS
(2) EA
(3) AZA
(4) AMA
(ANONYMITY ORDER MADE)
Appellants
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr A Grigg, Counsel instructed by Diplock Solicitors
For the Respondent: Mr D Clarke, Senior Home Office Presenting Officer
Heard at Field House on Wednesday 25 October 2023
DECISION AND REASONS
Order Regarding Anonymity
Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the second to fourth appellants are granted anonymity as minor children.
No-one shall publish or reveal any information, including the name or address of the second to fourth appellants likely to lead members of the public to identify those appellants. Failure to comply with this order could amount to a contempt of court.
-
The appellants are Eainaas Alyounis (the first appellant) and her three children (the second, third and fourth appellants), all are nationals of Syria. They appealed to the First-tier Tribunal against the decisions of the Entry Clearance Officer dated 4 November 2021 to refuse their applications for entry clearance to join the first appellant's brothers in the UK.
-
First-tier Tribunal Feeney dismissed the appeals in a decision dated 24 February 2023. The appellants appealed to the Upper Tribunal and the panel found that there was an error of law in the First-tier Tribunal’s decision and set the decision aside to be remade in the Upper Tribunal. Thus the appeal came before us.
Proceedings
-
The hearing took place in Field House. The appellants’ sponsor and both representatives attended in person. The appellants remain in Syria and did not attend.
-
We had the following documents before us:
-
First-tier Tribunal stitched hearing bundle in respect of each appellant;
-
Appellant’s bundle for the hearing before us (78 pages);
-
Error of law decision promulgated on 8 September 2023;
-
Screenshot of map of Khan Arnabeh;
-
Screenshot of map of Mosque of Omar Ibn al-Khattab map;
-
CPIN -Syria: Humanitarian situation June 2022;
-
Copy decision in Agyarko v SSHD [2017] UKSC 11.
-
The documents at (iv)-(vii) above were submitted by Mr Clarke on the day before the hearing. As Mr Grigg had no objection we admitted these documents.
-
At the outset of the hearing Mr Grigg accepted that the second, third and fourth appellants cannot meet the requirements of paragraph 319X of the Immigration Rules as the sponsor is a British citizen.
-
Following discussion it was agreed that the issues before the tribunal are as follows:
-
Whether the first appellant meets the requirements of E-ECDR of Appendix FM of the Immigration Rules;
-
Whether the refusal of entry clearance breaches the rights of the appellants and sponsors under Article 8 outside of the Immigration Rules.
-
The sponsor, Nouras Alyounis (one of the first appellant’s brothers), gave oral evidence through an interpreter. We heard submissions from Mr Clarke and Mr Grigg and we reserved our decision.
Legal framework
-
The question is whether the refusal breaches the appellants’ right to respect for private and family life under Article 8 ECHR. That right is qualified. The appellants must establish on the balance of probabilities the factual circumstances on which they rely, and that Article 8 (1) is engaged. If it is, then we have to decide whether the interference with the appellants’ rights is justified under Article 8 (2). If an appellant does not meet the Immigration Rules, the public interest is normally in refusing leave to enter or remain. The exception is where refusal results in unjustifiably harsh consequences for the appellant or a family member such that refusal is not proportionate. We take into account the factors set out in section 117B of the Nationality Immigration and Asylum Act 2002 and balance the public interest considerations against the factors relied upon by the appellants.
Findings
The Immigration Rules
First appellant - Appendix FM E-ECDR
-
In order to meet the requirements of the Rules the first appellant must demonstrate that:
-
as a result of age, illness or disability, she requires long-term personal care to perform everyday tasks (E-ECDR 2.4);
-
even with the practical and financial help of the sponsor, she is unable to obtain the required level of care in Syria because- (a) it is not available and there is no person in that country who can reasonably provide it; or (b) it is not affordable (E-ECDR 2.5);
-
she can be adequately maintained, accommodated and cared for in the UK by the sponsor without recourse to public funds (E-ECDR 3.1);
-
the sponsor has provided an undertaking confirming that the appellant will have no recourse to public funds, and that the sponsor will be responsible for her maintenance, accommodation and care, for a period of 5 years from the date she enters the UK if granted indefinite leave to enter (E-ECDR 3.2).
-
We have considered the medical evidence before us in relation to the first appellant. There is a letter from Dr Hassan al-Maleh, a consultant in psychiatry, dated 4 September 2022. The letter states that after several tests he found the appellant suffered from severe depression, crying, nervousness and tension. The report states that the first appellant is unable to undertake duties towards her children and needs her brothers to provide her daily care, pay for her medication and provide her with psychological support. However Dr Al Maleh does not refer to the first appellant’s medical records, he does not explain what diagnostic tests he conducted to assess the first appellant’s level of depression nor how long she has suffered from this condition. There is no reference to treatment or medications. He does not explain how he is aware that she is unable to undertake caring responsibilities for her children or how he is aware that she requires her brothers care for her daily tasks including medication and psychological support. There is no detail of his qualifications or experience. We attach limited weight to this letter and to the diagnosis.
-
We have considered the letter from Dr Hanna, a diabetic specialist, dated 1 September 2022. He states that the first appellant has type 1 diabetes and depends on insulin. He said that she also has acute anaemia caused by coeliac disease. He says she suffers from fatigue, dizziness and she falls to the ground. He says that she needs daily care in the absence of her husband who used to take care of her. It is not clear whether Dr Hanna is the first appellant’s treating physician or has just provided a report. He makes no reference to her medical records. He says that she needs daily care but does not say how he assessed her needs nor does he specify what care is required. Again, he does not provide detail of his qualifications or experience.
-
In the letter from Dr Hanna dated 4 July 2023 it is stated that the first appellant’s blood sugar levels fluctuate and that she is generally fatigued and has malnutrition and that he recommended that she has close follow up and care, abide to the prescribed insulin doses and that her blood sugar levels should be measured in case of a recurrence of a diabetic coma. Dr Hanna does not state that the first appellant requires any assistance to monitor her insulin doses or measure her blood sugar. He gives no detail about the diabetic coma referred to in the letter.
-
There is before us a letter from Dr al-Najjar dated 4 August 2022 which states that the first appellant suffers from occasional iron deficiency (in contrast to Dr Hanna who states that she has acute anaemia). He says that she has coeliac disease and requires a gluten-free diet and continual medical follow up. He does not mention any restriction on the first appellant's ability to care for herself as a result of these medical conditions.
-
Dr al-Najjar provided a further report dated 4 July 2023 stating that the first appellant is unable to afford gluten-free foods which has resulted in a deterioration in her condition including severe anaemia and severe digestive symptoms. Dr al-Najjar recommends that the first appellant should follow a strict gluten-free diet and compensate for iron and vitamin deficiency. It is unclear whether any supplements or medications have been prescribed. Dr al-Najjar does not say how he is aware that the first appellant cannot afford gluten-free foods.
There is a conflict between Dr al-Najjar’s report and the sponsor’s oral evidence. The sponsor said that gluten-free food is not available in Syria whereas Dr al-Najjar said that the first appellant cannot afford...
To continue reading
Request your trial