Upper Tribunal (Immigration and asylum chamber), 2016-01-07, IA/23581/2014
| Jurisdiction | UK Non-devolved |
| Date | 07 January 2016 |
| Published date | 25 August 2016 |
| Hearing Date | 21 December 2015 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Unreported |
| Appeal Number | IA/23581/2014 |
Appeal Number: IA/23581/2014
IAC-FH-AR-V1
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/23581/2014
THE IMMIGRATION ACTS
|
Heard at Field House |
Decision & Reasons Promulgated |
|
On 19 November 2015 |
On 7 January 2016 |
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21 December 2015 |
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Before
UPPER TRIBUNAL JUDGE GLEESON
Between
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and
SHAMSUL FARHANA AHMED
(no anonymity order)
Respondent
Representation:
For the Appellant: Mr E Tufan and Mr J Parkinson, Senior Home Office Presenting Officers
For the Respondent: Mr M Burnett, Counsel, instructed by Hunter Stone Law
DECISION AND DIRECTIONS
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The Secretary of State appeals with permission against the decision of the First-tier Tribunal allowing the claimant’s appeal against her decision to refuse leave to remain on family and private life grounds either under the Immigration Rules HC 395 (as amended) or outside the Rules.
First-tier Tribunal decision
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The First-tier Tribunal heard the appeal in January 2014 and found, so far as material, that the claimant was a Bangladeshi citizen born in 1980 who came to the United Kingdom as a student in December 2006. That visa expired on 31 August 2008. An application to remain under the Tier 1 Post-Study scheme was unsuccessful, appeal rights being exhausted in January 2012.
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On 8 January 2012, the claimant and her partner, a British citizen of Bangladeshi origin, contracted an Islamic marriage at the East London Mosque. On 20 August 2012, the claimant lodged an application for leave to remain on family and private life grounds, based on her relationship with her husband. On 5 October 2012, the couple married in a registry office. The August 2012 application was refused with no right of appeal on 22 August 2013.
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On 13 May 2014, following judicial review proceedings, the Secretary of State made a further, appealable, decision refusing leave to remain on Article 8 grounds, both under Appendix FM and paragraph 276ADE and outside the Rules on exceptionality grounds. The basis of the exceptionality element of the claim was the care provided by the claimant and her husband to his elderly parents living in the United Kingdom.
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The Judge found that there were no insurmountable obstacles to the couple relocating to Bangladesh, save for their role in caring for the claimant’s father-in-law. The First-tier Tribunal Judge found that the claimant’s parents-in-law were supportive of the marriage. Her father-in-law is registered disabled. The claimant and her husband – but principally the claimant – looked after both her parents-in-law, cooking, cleaning, and helping with mobility in and outside the home. A same-sex carer was considered important for Islamic reasons.
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The claimant was taking anti-depressants because she was stressed and depressed by her lack of lawful status in the United Kingdom. She had suffered blackouts, suicidal ideation and memory difficulties, and was referred for counselling by her GP. She had seen a psychotherapist to assist her. There is no up to date evidence about her mental health.
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The claimant’s evidence was that her father disapproved of her marriage: her husband was from a village in Sylhet, whereas the claimant was a city girl from Dhaka. There were cultural and language difficulties. Her own mother, and her maternal aunt and uncle in the United Kingdom, supported the marriage, but her father continued to oppose it. She feared that if she were removed to Bangladesh, her father would prevent her getting entry clearance to return, and might try to make her marry elsewhere. Her understanding was that her husband would not accompany her because he needed to care for her parents-in-law. The couple would try for children of their own once her status was resolved.
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The claimant’s husband has lived in the United Kingdom all his life and all his friends are here. The husband had a good job in IT in the United Kingdom, with a salary of £30,000, and had held that job for 8 years: he did not think he would get such a good one in Bangladesh. He stated that although he was able to speak some Sylheti and Bengali, he did not feel he spoke them well enough to live in Bangladesh.
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He had travelled to Bangladesh on 5 occasions in his lifetime, the last time in 2014 when he accompanied his father on a visit to their home village. The husband’s family had a property in Sylhet, an unoccupied flat in his home village, which was looked after there by a caretaker. His evidence was that he might be entitled to inherit the family property in Bangladesh when his father died, but that he was not interested in doing so.
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The husband had shoulder and knee problems, and blepharitis, for which treatment in Bangladesh would not be free. He had 3 brothers and 2 sisters in the United Kingdom and Germany, but the claimant’s husband was the only one living in London. The couple had moved out of his parents’ home because they needed additional space: they went to live with the claimant’s aunt for a time, and now had their own rented home.
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The First-tier Tribunal’s findings concerning the claimant’s parents are set out at paragraphs 38-40:
“38. [The claimant’s father-in-law’] says in his letter…that the [claimant] is part of his family following her marriage to his son. He says that the [claimant] visits them every day and does cooking, cleaning and household jobs. He and his wife are both unwell. He had a traffic accident with a serious injury to his right leg and now permanently uses crutches to get around and his wife is due to have an operation on her right hand shortly. He says there is no one else to provide support except the [claimant and her husband]. The GP notes for [the claimant’s father-in-law] …corroborate that he had a fracture of the femur and also set out that he has had a number of heart attacks and other heart problems, chronic kidney disease, hypertension, type 2 diabetes and epilepsy. [The claimant’s father-in-law] is 68 years old. …[the claimant’s husband] supports his father’s day to day needs; helps him with his appointments and to manage his finances. There is also a letter from the DWP in the [Secretary of State’s] bundle, confirming [that the claimant’s father-in-law] receives Disability Living Allowance including elements for personal care and getting around.
29. I find that [the claimant’s father-in-law] is an extremely unwell elderly gentleman with multiple care needs, which are currently provided for on a daily basis by [the claimant and her husband]. I accept that his wife is also elderly and not able to meet her husband’s care needs. I find the evidence of [the claimant and her husband] that his siblings are not able to meet these needs as they do not live in London and have family commitments credible. I accept that [the claimant’s parents-in-law] would be distressed if these needs were met in their own home by non-family members, particularly if the carers were of the opposite sex. Whilst social services would no doubt make sure that medications were taken and make brief visits to ensure that [the claimant’s father-in-law] was safe, they would not offer the complete service performed by [the claimant and her husband], for instance including the managing of finances. Social services could not provide the same level of individualised care – for instance buying the precise shopping and making the precise meals [the claimant’s parents-in-law] like. Social services carers certainly could not offer the level of companionship which [the claimant and her husband] provide through their family relationship and by virtue of understanding and speaking Sylheti/Bengali and the time they are able to give.
40. I find that given the long-term, daily commitment to the personal care for [the claimant’s parents-in-law] in the context of [the claimant’s father-in-law’s] very serious ill health it is right to conclude that this is an exceptional case where the relationship of both [the claimant and her husband] to these elderly parents and the role they perform in their lives means that there would be insurmountable obstacles to their family life continuing outside the United Kingdom. ”
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The Judge allowed the appeal within the Rules, holding that the care given to the claimant’s parents-in-law amounted to an insurmountable obstacle to her removal to Bangladesh and that she met the requirements of Appendix FM. At paragraph 41 of her decision, she noted the factors under section 117B of the 2002 Act, prefacing her remarks with ‘for completeness’ but it is plain from that language and from the context that she did not take into account the part VA factors before reaching her conclusion on Appendix FM and Article 8 within the Rules.
Permission to appeal
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The Secretary of State was granted permission to appeal on the basis that the First-tier Tribunal Judge had...
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