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United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments


You are here: BAILII >> Databases >> United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments >> HU050062015 [2017] UKAITUR HU050062015 (1 December 2017)
URL: http://www.bailii.org/uk/cases/UKAITUR/2017/HU050062015.html
Cite as: [2017] UKAITUR HU50062015, [2017] UKAITUR HU050062015

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Upper Tribunal

(Immigration and Asylum Chamber) Appeal Number: HU/05006/2015

 

 

THE IMMIGRATION ACTS



Heard at Field House

Decision & Reasons Promulgated

On 21 November 2017

On 1 December 2017

 

 


Before

 

MR JUSTICE JULIAN KNOWLES

UPPER TRIBUNAL JUDGE CANAVAN

 

 

Between

 

KARIM AZIMI

Appellant

and

 

ENTRY CLEARANCE OFFICER

Respondent

 

 

Representation:

 

For the appellant: Mr T. Hodson, Elder Rahimi. Solicitors

For the respondent: Mr E. Tufan, Senior Home Office Presenting Officer

 

 

DECISION AND REASONS

 

1.                   This is an appeal with the permission of First Tier Judge Farrelly against the decision of First Tier Tribunal Judge Callow of 27 July 2017 by which he refused an appeal against a refusal of a human rights claim in terms of s 82(1) of the Nationality, Immigration and Asylum Act 2002 on the grounds stated in s 84(2) of the Act, that the decision to refuse him entry clearance as a returning resident to the UK was unlawful under s 6 of the Human Rights Act 1998 read with Article 8 of the European Convention on Human Rights ('the ECHR').

 

Background

 

2.                   The Appellant is a citizen of Iran. He was born on 25 December 1961. After his arrival in the UK in 2000 he was granted indefinite leave to remain in 2010. On 5 January 2011, he returned to Iran to look after his two sisters, one of whom died in 2011 and the other in 2015. After the death of his second sister he applied for entry clearance to return to the UK. However, as he had been away from the UK for more than two years and not lived in the UK for most of his life, his application was refused by the Respondent under Rules 18(ii) and 19 of the Immigration Rules. He had by that stage been out of the UK for around four years. The Appellant appealed to the First Tier Tribunal but his appeal was dismissed on 1 st September 2016. An appeal to the Upper Tribunal succeeded and the matter was remitted to the First Tier Tribunal for consideration of the Appellant's human rights grounds which, the Upper Tribunal held, the First Tier Tribunal had wrongly failed to consider. That remittal led to the decision of First Tier Tribunal Judge Callow which is now appealed to us.

 

3.                   The judge below set out the relevant factual background to the issue arising on this appeal at para 4 of his judgment, which we summarise. The Appellant has a son called Reza, who lives in the UK. He has indefinite leave to remain. Reza was born in 1986. The evidence established that Reza has the mental age of a 9 year old. He is schizophrenic, has a severe learning disability and is visually impaired. He is a vulnerable adult in need of care. Prior to his departure for Iran, that care was provided by the Appellant with the assistance of his two other adult two children Bob Brown (aka Pejman Azimi) and Parisa Azimi. They continued to care for Reza in the Appellant's absence.

 

4.                   The Appellant wishes to return to the UK to care for Reza in circumstances where his other two children are unable any longer to care for Reza. Mr Brown now has children of his own, who no doubt place great demands on him, and Ms Parisi was engaged to be married in September 2017. The judge below recorded that whilst her fiancĂ© is supportive of her caring role, she wishes to move on with her own life without the day to day responsibility of looking after Reza. He lives in council accommodation and receives public funds for everyday living. Without any carer, he would have to be provided with one, or be placed in sheltered accommodation. The judge noted that the costs to the state if the Appellant were allowed to return would be reduced if the Appellant cared for Reza, although he also noted that the Appellant would not be financially independent. The judge also said there was no evidence of the Appellant's command of English.

 

5.                   The Appellant's argument, in summary, was that a refusal of entry clearance was a disproportionate interference with his and Reza's private life in contravention of Article 8 of the ECHR.

 

6.                   The judge accepted that the decision to refuse entry clearance engaged Article 8 (paras 9 and 10). He also accepted that the Appellant was 'irreplaceable' as Reza's carer 'in the broader, more nuanced and emotional sense' in which that term was interpreted in Lama v Secretary of State for the Home Department [2017] UKUT 16 (IAC) (para 12). He also accepted (para 13) that there was no evidence from the Respondent about what, precisely, the state would provide for Reza by way of enhanced state-funded care if his father could not return to look after him.

 

7.                   The judge then turned to s 117B of the Immigration Act 2014. He said that the public interest in the maintenance of effective immigration controls was engaged (s 117B(1)); he said that it had not been shown the Appellant is a capable English speaker (s 117B(2)); he said that the Appellant was not financially independent (s 117B(3)); at the time of his departure for Iran he had indefinite leave to remain and so his position was not precarious (s 117B(4) and (5)). The judge's conclusion was at para 15:

 

"Balancing all facts identified in this appeal, I conclude that the respondent's refusal to grant entry clearance does not interfere disproportionately with the appellant's and Reza's rights guaranteed under Article 8. The public interest pitted against the appellant in circumstances where it has not been established that he able to speak English and that he is financially independent, outweighs all positive factors of weight showing the existence of family life. The circumstances are such that it cannot be said that the public interest bearing the imprimatur of parliamentary endorsement must yield on the facts established in this case."

 

8.                          Accordingly, he dismissed the appeal.

 

 

Grounds of challenge

 

 

9.                   On behalf of the Appellant, Mr Hodson submits that the judge's decision was erroneous on a point of law in that

 

a.              there were inadequate reasons given for the decision. He says that the paragraph we have quoted is conclusory in nature and does not begin adequately to set out why he reaches the conclusion he did. He says that in particular it is impossible to understand what weight or importance has been given to those factors surrounding the 'irreplaceable' nature of the Appellant to care for his severely disabled son.

 

b.              Linked to the first ground of appeal, he also says that there was a failure by the judge in assessing proportionality to consider the impact on other family members besides the Appellant.

 

c.               He also says that s 117B was misapplied. For example, he says that as someone who had lived in the UK for 11 years prior to his departure the Appellant was already integrated into society (see s 117B(2)).

 

Discussion

 

10.               We allowed the appeal essentially for the reasons advanced by Mr Hodson.

 

11.               The judge rightly recognised that the question which arose on the appeal was whether the refusal of entry clearance was a disproportionate interference with the right to a private and family life under Article 8 of the ECHR of, first and foremost, the Appellant and Reza. The question for us is whether the judge correctly and lawfully carried out that proportionality assessment. Having heard oral submissions we were quite clear that the judge fell into error and that the decision had to be set aside and remade.

 

12.               The judge was under a duty to give a judgment. Where there is a duty to give reasons, the reasons must be adequate. As noted in de Smith, Judicial Review (7 th Edn), at para 7-102, it is difficult to state precisely the standard of reasoning the court will demand when asked to scrutinize the adequacy of reasons given. The reasons must be intelligible and must meet the substance of the arguments advanced. In a passage which is often cited (see eg Ogango v. Nursing and Midwifery Council [2008] EWHC 3115 (Admin), para 23), the editors of de Smith say at para 7 - 102:

 

"In short, the reasons must show that the decision-maker successfully came to grips with the main contentions advanced by the parties, and must tell the parties in broad terms why they have lost or, as the case may be, won."

 

13.               Furthermore, reasons must not disclose errors of reasoning. As de Smith says at para 7-107 (citations omitted):

 

"Where reasons are required ... They must therefore both rationally relate to the evidence in the case, and be comprehensible in themselves ... a decision may be struck down where an applicant can show substantial prejudice resulting from a failure on the part of the decision - maker to demonstrate how an issue of law had been resolved or a disputed issue of fact decided, or by 'demonstrating some other lack of reasoning which raised substantial doubts over the decision-making process' or by indicating 'the tribunal had never properly considered the matter ... and that the proper thought processes have not been gone through.'"

 

14.          In our judgment Mr Hodson was right when he said no, or no legally adequate, reasons were given for the judge's ruling. We respectfully take the view that para 15, which we have quoted above, was conclusory and not reasoned, and that it did not articulate in a proper way how the judge reached the decision that he did. We would have expected a checklist of factors for and against allowing entry clearance to have been identified, together with an assessment of what weight the judge was ascribing to each having regard to the overall facts of the case, and then an explanation of why the judge was reaching the conclusion that he was. Simply saying, as the judge did, that the factors against return "outweigh[ed] all positive factors of weight showing the existence of family life" was, in our respectful judgment, not good enough. The judge needed specifically to identify and weigh those positive factors individually. There were, in our view, particularly strong grounds in this case weighing in favour of allowing return outside the Rules, given the Appellant's status as the 'irreplaceable' carer of a severely disabled and vulnerable man with no other family members able to care for him in the manner they would wish. Whilst the judge did identify this factor earlier in his judgment, it did not specifically feature in the weighing calculus, and it should have done.

 

15.          Furthermore, it was not the correct approach simply to treat the factors in s 117B as factors of great weight, without considering how that weight might be affected by the particular facts of the case. Take the question of English language ability. The rationale given by Parliament in s 117B(2) for the inclusion of that factor in the public interest assessment is that those who speak English are better able to integrate into society. But whatever the Appellant's knowledge of English (and given he lived here for 11 years we expect he would know some at least) he is or was already integrated into English society. It was for the judge to recognise and take account of this fact, but he did not do so. Similarly with regard to financial independence. If the Appellant were allowed to return then there would, in part, be less of a burden on the state because otherwise the state would have to replace the care which Reza's brother and sister are no longer able to provide. Hence this factor did not have as much purchase in this case as it might otherwise do. Again, the judge failed to recognise or take account of this in his reasons.

 

16.          We are bound to say that the judge's conclusion at the end came as something of a surprise given the findings that he made earlier in the judgment.

 

17.          It was for these reasons that we set aside the judge's decision. The parties invited us to remake the decision which we did. We are satisfied that the compassionate circumstances of this case show that there are additional elements of dependency between the appellant and his adult child that engage the operation of Article 8. Although the appellant failed to meet the strict requirements of the immigration rules we give weight to the fact that previously he was settled in the UK and that there were compassionate circumstances to explain why he was unable to return to the UK within the two-year period required by the rules. Paragraph 19 of the rules allows for discretion to be exercised in appropriate cases. The First-tier Tribunal judge found that the nature and the level of care provided by the appellant was irreplaceable. We take into account the fact that the appellant is Reza's primary carer and that his continued absence is likely to have an adverse impact on a vulnerable adult with severe disabilities. We have also had regard to the impact that the decision has had on the appellant's other adult children, who have had to place their lives on hold to care for Reza in his absence. We have already explained why the general public interest considerations such as English language and financial independence are not weighty factors on the facts of this case. Having weighed all the circumstances we have no hesitation in concluding that the decision to refuse entry clearance as a returning resident does not strike a fair balance and amounts to a disproportionate interference with appellant's rights under Article 8.

 

DECISION

 

The First-tier Tribunal decision involved the making of an error on a point of law

 

The decision is remade and the appeal ALLOWED on human rights grounds

 

 

 

Signed: Mr Justice Julian Knowles Date: 30 November 2017

 

 

 

 

 

 


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URL: http://www.bailii.org/uk/cases/UKAITUR/2017/HU050062015.html