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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Ribeli v Entry Clearance Officer, Pretoria [2018] EWCA Civ 611 (27 March 2018) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2018/611.html Cite as: [2018] EWCA Civ 611 |
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ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Strand, London, WC2A 2LL |
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B e f o r e :
and
LORD JUSTICE SINGH
____________________
Cheryl Ribeli |
Appellant |
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- and - |
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Entry Clearance Officer, Pretoria |
Respondent |
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Mr Neil Sheldon (instructed by Government Legal Department) for the Respondent
Hearing date: 13 March 2018
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Crown Copyright ©
Lord Justice Singh :
Introduction
Background
"You have applied to join your daughter, a British citizen resident in the United Kingdom. You have stated that you currently live alone in your personally owned home, and have a sister, uncle and aunt living in old age homes in Cape Town who you see every second month.
You have stated that you are incapable of performing everyday tasks, however at Question 1.9 state that you are not currently receiving care which would intimate that you are looking after yourself. You have stated that your condition has been deteriorating since approximately 2009. A letter enclosed with your application states that 'she needs assistance with tasks as basic as cooking, shopping and washing herself' which would indicate that you currently receive the care that it is claimed you need. You have not explained these conflicting statements.
Mention is made that you 'require the emotional support of a family member' which I note you already have with relatives living in your home city.
A letter enclosed with your application states that 'the availability of elderly care services is limited in the Table View area where Mrs Ribeli lives'. This would indicate that research has been restricted to an area close to your current residence. No evidence has been provided of the availability of care either within the city of Cape Town, or within South Africa generally.
Enclosed with your application is evidence of research into home care costings in tandem with the care afforded by the applicant's sponsor. There is no evidence that this specialist care is not available in South Africa.
The letter from Garden Court Chambers makes reference to her sponsor 'will have to leave the United Kingdom to care for her if the instant application is not approved'. This statement intimates that it is possible for her to do so. The reference to a change in the sponsor's private life is noted, however moving the applicant from her home environment would also cause an impact.
Your sponsor has researched assistance for a private nurse, supplements recommended by the applicant's doctor, cleaning, medical insurance and pain relief therapies including massage and acupuncture. There is no evidence that any of this care is not available in South Africa.
With no substantiated evidence that care cannot be provided locally, I am not satisfied that you are unable to obtain the required level of care in South Africa. I therefore refuse your application under paragraph EC-DR.1.1(d) of Appendix FM of the Immigration Rules. (E-ECDR.2.5)"
"Mrs Ribeli has been under my care as her GP for a number of years. Since her late twenties she has suffered from recurring pain due to degenerative disease of her lower and lumbar spine. In recent years she has also presented symptoms of osteoarthritis in her knees and hips. In 2011, she was diagnosed with Fibromyalgia, a condition that causes widespread chronic pain in the fibrous tissue of the body.
In the past 3-4 years Mrs Ribeli's musculoskeletal pain has become persistent and is now significantly impacting her daily life.
Her spinal condition makes even simple daily tasks involving bending and lifting objects almost impossible. She experiences neck and spinal pain from only mild physical exertion. Fibromyalgia causes her almost constant stabbing pain in her legs, preventing her from walking or standing for long periods. Like many sufferers of this condition, Mrs Ribeli has joint and muscle stiffness and muscle spasms – this severely disrupts her sleep resulting in fatigue and lack of energy.
Her mobility is further restricted by osteoarthritis in her knees and hips. Given the level of joint deterioration in her knees, Mrs Ribeli has been advised by her orthopaedic surgeon that she will need to undergo full knee replacements in coming years. Although this will improve her mobility to some extent, she is unlikely to have a full range of movement. Given the limited lifespan of replacement joints, further surgery may be necessary after 10-15 years.
As a result of Mrs Ribeli's medical condition, she suffers from anxiety and mild depression. There is medical evidence that this in turn makes the symptoms of her Fibromyalgia condition more severe. As she lives alone, she is currently struggling to cope with everyday life and it has reached the stage where she requires assistance to perform everyday tasks such as cooking, shopping & washing.
Mrs Ribeli's only daughter lives overseas, and I believe that this has caused significant distress to her particularly given her deteriorating medical condition over the past 4 years. It is important that patients who suffer from conditions resulting in chronic pain receive encouragement and emotional support from family members in order to develop a coping mechanism for daily life. This support also serves to relieve stress and anxiety which are known to amplify symptoms. In Mrs Ribeli's case, I believe her anxiety is primarily as a result of being separated from her daughter.
The availability of elderly care services is limited in the Table View area where Mrs Ribeli lives. Local nursing homes are currently operating at full capacity and have waiting lists of between 5 and 10 years.
Having observed Mrs Ribeli's mental state and the impact of her lack of mobility on her lifestyle, it is my opinion that she would only be able to obtain the level of care she requires for an adequate quality of life from a close family member. The support she requires is not only physical but also emotional and given her level of pain, I believe that this would not be achieved by a nursing home or hired help."
"Mrs Ribeli is on a significant amount of analgesics which help with the pain control, but do cause sedation. If she over exerts herself she suffers from an exacerbation of her pain the same day and into the following day. As a result of this she has had to restrict her activities significantly. She currently lives alone and is struggling to cope with everyday activities. This has led to a degree of anxiety and depression which have heightened her muscle tension and this is making her fibromyalgia worse."
"Ms Steenkamp is a British citizen. If the application is not granted she will have to leave the country to go and care for her mother in South Africa. That will have a significant impact on her private life, built up over many years in the United Kingdom."
Relevant Provisions of the Immigration Rules
"The requirements to be met for entry clearance as an adult dependent relative are that –
(a) the applicant must be outside the UK;
(b) the applicant must have made a valid application for entry clearance as an adult dependent relative;
(c) the applicant must not fall for refusal under any of the grounds under Section S-EC: Suitability for entry clearance; and
(d) the applicant must meet all of the requirements of section E-ECDR: Eligibility for entry clearance as an adult dependent relative."
"The applicant must be the –
(a) parent aged 18 years or over; … of a person ('the sponsor') who is in the UK."
"(a) aged 18 years or over and
(b) [so far as relevant to the present case]
(i) a British citizen in the UK."
"The applicant or, if the applicant and their partner are the sponsor's parents or grandparents, the applicant's partner, must as a result of age, illness or disability require long-term personal care to perform everyday tasks."
"The applicant or, if the applicant and their partner are the sponsor's parents or grandparents, the applicant's partner, must be unable, even with the practical and financial help of the sponsor, to obtain the required level of care in the country where they are living, 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."
"Evidence that, as a result of age, illness or disability, the applicant required long-term personal care should take the form of:
(a) Independent medical evidence that the applicant's physical or mental condition means that they cannot perform everyday tasks; and
(b) This must be from a doctor or other health professional."
"Independent evidence that the applicant is unable, even with the practical and financial help of the sponsor in the UK, to obtain the required level of care in the country where they are living should be from:
(a) a central or local health authority;
(b) a local authority; or
(c) a doctor or other health professional."
The Determination of the FTT
The Determination of the UT
The Appellant's Submissions
The Respondent's Submissions
Analysis
(1) Was the UT correct to find that the FTT had erred in law and so set its decision aside? If the answer is No, that is the end of the matter and the other issues do not arise, since the UT should not have interfered with the decision of the FTT, which was in favour of the Appellant.
(2) If the answer to Issue (1) is Yes, then did the UT itself make an error of law when re-considering the appeal?
(3) Was the UT's approach to Article 8 flawed?
The Decision of this Court in BritCits
"… It is twofold: firstly, to reduce the burden on the taxpayer for the provision of health and social care services to those ADRs whose needs can reasonably and adequately be met in their own country; and, secondly, to ensure that those ADRs whose needs can only be reasonably and adequately met in the UK are granted fully settled status and full access to the NHS and social care provided by local authorities. The latter is intended to avoid disparity between ADRs depending on their wealth and to avoid precariousness of status occasioned by changes in the financial circumstances of ADRs once settled here."
"… The focus in on whether the care required by the ADR applicant can be 'reasonably' provided and to 'the required level' in their home country. As Mr Sheldon [counsel for the Secretary of State] confirmed in his oral submissions, the provision of care in the home country must be reasonable both from the perspective of the provider and the perspective of the applicant, and the standard of such care must be what is required for that particular applicant. It is possible that insufficient attention has been paid in the past to these considerations, which focus on what care is both necessary and reasonable for the applicant to receive in their home country. Those considerations include issues as to the accessibility and geographical location of the provision of care and the standard of care. They are capable of embracing emotional and psychological requirements verified by expert medical evidence. What is reasonable is, of course, to be objectively assessed." (Emphasis added)
Issue 1: Was the UT right to say that the FTT had erred in law?
"One can have unmet needs. A person could struggle to survive against the odds and manage to survive but still have their needs unmet. They may be ill-fed, inadequately washed and dressed, lacking care and attention to the extent that their life is nothing more than physical existence in circumstances of pain and discomfort."
Issue 2: The UT decision to dismiss the appeal under the Immigration Rules
"In the circumstances, I have set aside the decision of the First-tier Tribunal and I now remake the decision. For the reasons which I have given above, I do not find that the appellant meets the requirements of the Immigration Rules. The care requirements of the appellant as at the date of the application remain unclear, as noted by the ECO. In order to succeed in her appeal against the ECO's decision, the appellant is required to satisfy all the requirements of the Immigration Rules including those set out in Appendix FM-SE. I find that there is no independent evidence that the appellant is unable, even with the practical and financial help of the United Kingdom sponsor, to obtain the required level of care in South Africa. If the appellant has been receiving care, then there was no evidence to satisfy paragraph 37 of the Appendix FM-SE. I agree with Mr Jarvis that the admission of adult dependent relatives under the Immigration Rules is intended to be subject to a rigorous and demanding test both as regards the care requirements themselves but also the evidence which must be provided to establish those requirements. It may well be the case in future that the appellant may meet the requirements of the Immigration Rules but I am not satisfied that she has addressed the concerns of the ECO regarding inconsistencies in her application nor has she provided, in the current application, sufficient evidence of the type required by the Immigration Rules to establish that she has care needs. In the circumstances, I dismiss the appellant's appeal against the ECO's decision."
Issue 3: The UT decision on Article 8
"… Insofar as the appeal is pursued on Article 8 grounds, I am satisfied that no evidence has been produced which would lead the Upper Tribunal to allow the appeal on those grounds where it has decided to dismiss it under the Immigration Rules. Some mention is made in the evidence of the appellant's isolation in South Africa and a need for emotional support of the United Kingdom sponsor but I note (as did the ECO) that the evidence submitted with the application for entry clearance indicated that the United Kingdom sponsor 'will have to leave the United Kingdom to care for [the appellant] if the instant application is not approved.' That statement indicates a willingness on the part of the United Kingdom sponsor to travel to South Africa to care for her mother if necessary. I find it would be reasonable for her to do so. In those circumstances, there would be no disproportionate breach of the rights of the appellant protected under Article 8 ECHR. … ."
"I have tried to get into few old age homes in Cape Town so that I can have some help, but this is almost impossible because of such high demand and very long waiting lists. I have no relatives or friends who can offer me any help – they all have their own families and some also have health problems that they are dealing with. As I have grown older, I have become more and more reliant on Carmen for emotional support and I feel that she helps me to stay positive in spite of having to live with daily pain in my body."
"Carmen is now a British citizen and is very happy in the UK – she does not want to move to South Africa. It would be a big adjustment for me to leave South Africa but I just do not see another option as I am desperate to be re-united with my child and need her help and support in my life."
"… Given the exceptionally high crime rates in South Africa, getting a private care for my mother in her own home is not an option that either of us feel comfortable with."
"From my perspective, the prospect of potentially having to leave the UK to care for my mother is extremely distressing. I have built a career here, made a home, formed friendships and relationships that I value greatly. I have a good life and I am happy and privileged to now call myself a citizen of this country. This country is my home."
Conclusion
Lady Justice Hallett :