THE IMMIGRATION ACTS. Heard at Birmingham Sheldon Court Decision & Reasons Promulgated On 21 st April 2016 On 14 th June 2016.

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1 Upper Tribunal (Immigration and Asylum Chamber) THE IMMIGRATION ACTS Heard at Birmingham Sheldon Court Decision & Reasons Promulgated On 21 st April 2016 On 14 th June 2016 Before DEPUTY UPPER TRIBUNAL JUDGE JUSS Between [S M] (ANONYMITY DIRECTION NOT MADE) Appellant and THE SECRETARY OF STATE FOR THE HOME DEPARTMENT Respondent Representation: For the Appellant: Mr C Lane (Counsel) For the Respondent: Mr D Mills (HOPO) DECISION AND REASONS 1. This is an appeal against the determination of First-tier Tribunal Judge Kainth, promulgated on 18 th November 2014, following a hearing at Richmond on 10 th November In the determination, the judge dismissed the appeal of the Appellant, whereby the Appellant applied for, CROWN COPYRIGHT 2016

2 and was granted, permission to appeal to the Upper Tribunal, and thus the matter comes before me. The Appellant 2. The Appellant is a male, a citizen of Kenya, who was born on [ ] He appealed against the decision of the Respondent dated 18 th July 2013, to refuse his application for leave to remain in the UK on the basis of his medical condition which includes, diabetes, HIV, dementia, hypertension and kidney problems. The Appellant s Claim 3. The Appellant s claim is that he is unsteady on his feet, unable to talk for himself, has difficulty in understanding people, has severe medical problems, and has not lived in Kenya for over twenty years and was unaware with regards to what medical treatment would be available for him if he were to be forced to return there. He is married to [RM] and she has indefinite leave to remain in the UK. The Judge s Findings 4. At the hearing before Judge Kainth, the Appellant did not attend to give evidence. His wife and Sponsor, [RM] did attend and she gave evidencein-chief and was cross-examined. She confirmed that the Appellant had come to the UK on a visitors visa valid from 14 th August 2012 to 14 th February 2013, and that it had never been his intention to overstay but he was admitted in January 2013 for five months at the Queen Elizabeth hospital with kidney problems. In Kenya he had three sisters, a cousin and prior to come to the UK was living with his adult son aged 25. He now attends the hospital three times per week for dialysis and there is no private health care in place for him to use and he is reliant upon the National Health Service entirely. 5. The judge held that the Appellant had come to the UK in 2012 as a visitor. He was aware of his pre-existing medical conditions. He had the benefit of services provided by the National Health Service. There could be violation of his right to private life. No evidence had been presented in respect to such a violation. Other than the testimony of his wife and Sponsor, there was no direct evidence from anyone else. It was accepted that he had regular contact with his wife, daughter and grandchild. Yet, there is no witness statement from his adult daughter in support. For the vast majority of his life he had lived in Kenya. The judge then held that, He has been making regular visits to the UK and when he does not come his wife goes to him. There is no reason why this status quo cannot continue. The Appellant keeps in regular contact with his Sponsor by telephone and other methods of modern communication. This can continue and there would be no violation of or breach of Article 8 rights (see paragraph 35). 2

3 6. Finally, the judge applied the public interest requirement under Section 117 of the 2014 Act and held that it was entirely proportionate for the Respondent to refuse the Appellant s application for leave to remain in the UK. 7. The appeal was dismissed. Grounds of Application 8. The grounds of application state that the judge erred in that whilst he considered the Appellant s claim on medical health grounds under Article 3 of the ECHR, he failed to consider it under Article 8 with reference to Akhalu (Nigeria) [2013] UKUT 400. It was also argued that the judge s reference to the status quo continuing was misconceived because, although the Appellant s wife had been living in the UK for at least twenty years, and she and the Appellant had remained in contact by way of visits and telephone in previous years, the current position was that he was now in the UK and they were living together, and the status quo was other than what the judge suggested it was. The judge had considered the case not on the situation at the date of the appeal but on the basis of facts as they had been more than two years previously. 9. Permission to appeal was granted by the Upper Tribunal on 6 th May 2015 for two specific reasons. First, there was no finding by the judge as to whether the Appellant and his wife have a family life relationship. It was clear from the statement of the sponsoring wife that they had been living together for a considerable period of time at the date of the appeal. She also saw him and regarded him as her husband. Yet, there was no examination of the reasonableness of expecting any family life relationship to take place in Kenya in the context of the Sponsor s evidence on this point. Second, the judge failed to consider the health of the Appellant in the context of Akhalu (Nigeria) [2013] UKUT 400 and it was arguable that the judge did not consider the Appellant s health conditions cumulatively with his private/family life relationship with his wife in the UK in accordance with the case law. 10. On 15 th May 2015, a Rule 24 response was entered to the effect that it was clear that apart from annual visits the Appellant and his wife had lived apart for twenty years prior to his arrival in the UK in It was also clear that this visit was not intended to be the basis for settlement. The Appellant and his wife clearly had family life at a distance and there was no evidence to support the assertion that their family life was much changed although they lived under the same roof. Submissions 11. At the hearing before me on 21 st April 2016, the Appellant was represented by Mr Lane of Counsel and the Respondent was represented by Mr Mills, a Senior Home Office Presenting Officer. In his submissions before me, Mr Lane stated that the Appellant is a citizen of Kenya and it is 3

4 true that he had lived there all his life. However, he entered the UK when he was granted leave following 14 th February 2013, but upon entry he then fell ill and was subsequently diagnosed with renal failure, hypertension and dementia. He made an application for leave to remain on the basis of his family life and his health. The judge s conclusions with respect to the Appellant s family life are misconceived. The judge takes the view that there is no reason to upset the status quo so that the Appellant could easily return back to Kenya where he had lived all his life, but this overlooks the fact that this status quo was actually for the Appellant to be allowed to remain with his wife in the UK who has indefinite leave to remain. Given that the judge had failed to look at the up-to-date situation this was an error of law. The parties had been living together for at least two and a half years. To suggest that the status quo represents a situation where the parties are living separately is to misunderstand the status quo. 12. Second, given the Appellant s renal failure it will not be possible for him to return back to Kenya. Reliance was placed by Mr Lane upon GS (India) [2015] EWCA Civ 40 and upon Akhalu (Nigeria) [2013] UKUT 400 to emphasise that a holistic approach should be taken to matters of medical ill-health in the context of Article 8. However, the judge at paragraph 34 had simply looked at the availability or otherwise of medical evidence in Kenya, separately from the Appellant s family life enjoyed in the UK with his wife. Thirdly, the judge s conclusions in relation to the public interest requirement in Section 117B of the 2014 Act were in error because the public interest did not lie in the Appellant being returned to Kenya in his current condition. 13. For his part, Mr Mills submitted that the judge was entitled to conclude that the parties could return to a situation that they had been living in for twenty years, given that there was no evidence of any change of feelings towards each other, and no settlement application had been made previously for the Appellant in Kenya to come and live with his British settled wife. The parties had not cohabited for twenty years. The Appellant s British settled wife also had never contemplated returning back to live with the Appellant husband in Kenya. It was never clear whether there was a family life being enjoyed between the parties. The judge does cite the case of MM (Zimbabwe) [2012] EWCA 279 at paragraph 19 of the determination, but it is accepted that the judge does not refer to Akhalu (Nigeria) [2013] UKUT 400. But Akhalu emphasised that when health care issues arise they will invariably be construed against the Appellant and will not lead to a settlement or leave application succeeding. 14. Moreover, GS (India) [2015] EWCA Civ 40 confirmed that only in a exceptional case would a health care case succeed. As far as the public interest issues were concerned, AM (Malawi) [2015] UKUT 0260 had emphasised that an Appellant can obtain no positive right to a grant of leave to remain from either Section 117B(2) or (3), whatever the degree of his fluency in English or the strength of his financial resources. 4

5 15. Furthermore, Forman [2015] UKUT emphasised that the public interest in firm immigration control is not diluted by the consideration that a person pursuing a claim under Article 8 ECHR has at no time been a financial burden on the state or is self-sufficient or is likely to remain so indefinitely. The significance of these factors is that where they are not present the public interest is fortified. 16. In reply, Mr Lane submitted that the judge did expressly use the words that there is no reason why this status quo cannot continue (see paragraph 35) but the status quo is the parties living together under one roof as husband and wife for two and a half years now. The Appellant s private and family life has been strengthened in that time in the UK. Second, the medical situation is not looked at on the basis of a holistic approach. Third, it was wrong to say that the Appellant was not entitled to use NHS resources when he wants and there is no assessment as to what the Appellant s needs were with respect to the NHS at the time of the decision. Error of Law 17. I am satisfied that the making of the decision by the judge involved the making of an error on a point of law (see Section 12(1) of TCEA 2007) notwithstanding the judge s comprehensive and detailed determination. 18. First, the judge made a finding of fact that, it is accepted that the Appellant has regular contact with his wife, daughter and grandchild (paragraph 35). Although the Appellant had lived for the vast majority of his life in Kenya, the judge accepted that even then, he has been making regular visits to the UK and when he does not come his wife goes to him (paragraph 35). However, it was the situation now which had been misunderstood. That situation was that the Appellant had entered lawfully as a visitor, as he had done on previous occasions, and then upon discovery of his illness, had made an application prior to the expiry of his leave. There is no evidence, contrary to the suggestion otherwise, that the Appellant was aware of his kidney failure prior to coming to the UK. There is no evidence that there was any preplanning involved, as is implied at paragraph 34 of the determination, but there is evidence that at the time of the decision the Appellant and his wife had been living together for two years and three months. It is this which is the status quo a period of living together for over two years is not insignificant especially amongst a couple who had been married for twenty years and whose relationship was not formed at a time when one of the parties status was precarious, to use the language of immigration law, because this relationship existed for a long time prior to the Appellant s entry, and it had produced children and grandchildren. The position therefore had to be evaluated in this context. In LD (Zimbabwe) [2010] UKUT 278 it was made clear that normal families lived together and that this applies to spouses as well as to parent and child relationships. The starting point should have been this for the judge. 5

6 19. Second, as far as the medical condition was concerned, notwithstanding the the fact that the judge has dealt meticulously with the applicable case law that applies in cases of this kind, and as a general rule that position is entirely correct, the proper approach in this case, where Article 8 was concerned, was to start with the premise that the Appellant came to the UK legally and was then diagnosed whilst lawfully in the UK, without prior knowledge of his condition, with his kidney problems. It was then necessary to make findings of fact in relation to whether the Appellant was entitled to emergency NHS treatment (which he would normally be entitled to), at paragraph 39. Equally, there should have been findings as to the Appellant s current state of health, and whether or not that is critical, at paragraph 28, and an up-to-date account of what the Appellant s current state of health is, before an assessment of that health can be undertaken in the context of Article 8 ECHR, as should have been done at paragraphs 34 and Third, it is after this, that regard should have properly been had to the public interest consideration set out in Section 117B of the NIAA The only factors that were considered were those that were in favour of the Respondent, such as effective immigration control, and the use of the NHS. Whilst it is true that other factors such as financial independence and the capability to speak the English language, are otherwise neutral, they do nevertheless have to be factored into the equation. There was evidence in the Appellant s bundle of financial support being available from the Appellant s wife, and the fact that the Appellant himself receives a pension, but no reference was made to this whatsoever in the overall assessment of Article I accordingly find that there is an error of law and that the judge has reached irrational conclusions as to fact. Remaking the Decision 22. I have remade the decision on the basis of the findings of the original judge, the evidence before her, and the submissions I have heard today. I am allowing this appeal to the extent that it is remitted back to the Firsttier Tribunal under Practice Statement 7.2(b) because the nature or extent of any fact-finding which is necessary in order for the decision in the appeal to be remade is such that, having regard to the overriding objective in Rule 2, it is appropriate to remit the case to the First-tier Tribunal. I direct that the appeal be heard by a judge other than Judge Kainth. 23. This will be an opportunity for the Appellant to produce updated evidence with respect to his Article 8 claim, as well as updated evidence with respect the medical situation, and the impact of the withdrawal of treatment that he is presently receiving, together with updated evidence about the availability of treatment in Kenya. 6

7 24. There should also be updated evidence from the Appellant s sponsoring wife and relatives. It will do the Appellant no harm whatsoever to attend the hearing and give evidence, provided that he is able to do so, and I am sure his lawyers will advise him to that effect. 25. All evidence that is to be relied upon is to be served upon the Respondent Secretary of State at least seven days before the hearing. The normal direction with respect to skeleton arguments and witness statements applies. The Appellant s representatives will be aware that a failure to serve evidence as required by these directions may lead the Tribunal to refuse to admit such evidence. Decision The decision of the First-tier Tribunal involved the making of an error of law such that it falls to be set aside. I set aside the decision of the original judge. I remake the decision as follows. This appeal is remitted back to the First-tier Tribunal to be heard by a judge other than Judge Kainth at the first available opportunity after 1 st June All positive findings made in the Appellant s favour are to remain. No anonymity direction is made. Signed Date Deputy Upper Tribunal Judge Juss 11 th June