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

 

Upper Tribunal

(Immigration and Asylum Chamber) Appeal Numbers: HU/20769/2018

HU/21455/2018

 

THE IMMIGRATION ACTS

 

Heard at Field House	Decision & Reasons Promulgated
On 9 September 2019	On 15 June 2020

 

 

Before

 

UPPER TRIBUNAL JUDGE CRAIG

 

Between

 

(1) Mr l S

(2) mrs b K

(ANONYMITY DIRECTION not made)

Appellants

 

and

 

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

 

Representation :

 

For the Appellants: Ms A Bhachu, Counsel, instructed by Bassi Solicitors

For the Respondent: Ms A Everett, Senior Home Office Presenting Officer

 

 

DECISION AND REASONS

1.              The appellants are a married couple in their 60s; the first appellant, Mr L S, was born in January 1954 and the second appellant, his wife, Ms B K, was born in December 1952. They are Indian nationals and came to England in September 2017, with valid entry visas, in order to visit their family in this country, being their son, Mr P S, his wife and their grandson, a British citizen who had been born on 27 September 2012 and whose fifth birthday was due twelve days after their arrived in the UK. Their son has indefinite leave to remain and their grandson is a British citizen.

2.              It is the appellants' case that when they arrived in this country they fully intended to return to India in accordance with the terms of their entry clearance. The first appellant, Mr L S, was relatively healthy, and although the second appellant had exhibited some signs of dementia, it was not by then very advanced and the couple were able to live happily and healthily in India. However, shortly after arriving in the UK, Mr L S suffered a severe heart attack; although he was operated on successfully, he now requires regular medication and suffers from high blood pressure and diabetes.

3.              Although Mr L S was making a good recovery, very sadly as a result of his heart attack his wife, the second appellant, has suffered a rapid decline in her health, and now in addition to her dementia, is receiving care for diabetes, hypertension and bronchial asthma, as well as receiving mental health care from a psychiatrist at the Community Mental Health Team where she lives with her son.

4.              Because of the appellants' decline in health, which had not been anticipated when they arrived in the UK, they were not able to return and on 23 February 2018 they applied for further leave to remain on the grounds that because of the deterioration in their health to require them to leave the UK would be a breach of their Article 8 rights.

5.              This application was refused by the respondent on 28 September 2018 and following a hearing at Birmingham (Priory Court) on 9 May 2019 their appeal was dismissed by First-tier Tribunal Judge Fowell in a Decision and Reasons promulgated thirteen days later on 22 May 2019.

6.              The appellants now appeal against this decision, having been granted leave by First-tier Tribunal Judge Jeremey Gibb on 2 August 2019.

7.              The grounds were settled by Ms Bhachu, who has been instructed throughout on behalf of the appellants and she also relied on a skeleton argument which was prepared for the hearing before this Tribunal. Her essential argument is that Judge Fowell essentially considered the appellants' case by having regard to what would be required for an adult dependant to be granted entry clearance from outside the country, rather than by a full consideration of their Article 8 position. For this reason, it is submitted, the emphasis within Judge Fowell's consideration was whether or not the appellants had established that there would be "insurmountable obstacles" to their life continuing in India. At paragraph 3 of the grounds, it is stated as follows:

"The decision at paragraph 30 and 31 considered insurmountable obstacles to life continuing in India. Significantly, at paragraph 42, the test of insurmountable obstacles is considered by reference to the public interest question. Such test has been applied as a starting point when in fact it should not have formed part of Article 8 assessment, considering the appellants did not fall for consideration under the partner or parent route."

 

Judge Fowell's Decision

8.              In a detailed and careful Decision, Judge Fowell set out the evidence which had been before him. This included the various witness statements and supporting affidavits, evidence relating to the appellants' family and circumstances in their home area within India, medical evidence relating to each of them, including a psychiatric assessment for the second appellant, evidence relating to their grandson's progress at school and evidence relating to the accommodation they lived in in the UK with their son, and evidence relating to his income. Reference will be made to some of this evidence below.

9.              Judge Fowell summarised the oral evidence which had been given by the first appellant, who had adopted his witness statement as true. He had three daughters in India, but they lived between 45 and 90 kilometres away from their home and so would not be available to support the appellants if returned to India. He confirmed that they still had their family home in Punjab which was cleaned weekly and that he also has four sisters there who lived with their own families and grandchildren.

10.          The son, Mr P S gave evidence. In his witness statement he had explained that his parents had come over to visit at the time of his son's fifth birthday and that his father had suffered a heart attack which had led to an invoice for £26,412 from the NHS but that the son had paid £10,000 towards this and was also paying a standing order of £200 per month to meet the rest. The treatment would have been much cheaper in India. He also gave evidence relating to his mother's condition. His evidence was confirmed by his wife.

11.          Regarding the second appellant's medical condition, this was set out at paragraphs 6 and 7 of the decision as follows:

"6. The psychiatric report sets out to address [the second appellant's] mental health needs. It described her background and family in India, with two sisters and one brother living in Haryana and Punjab, although later he mentioned three brothers, and then one who had passed away. It recorded that she is illiterate and has relied on the support of her husband since their marriage, and that she developed dementia in 2017. It also said that she had a history of slow onset of cognitive dysfunction over the past four years, with a rapid decline since her visit to her son in the UK in September 2017.

7. Under the heading "Presenting Complaints" it describes her situation as follows:

"She remains fearful and worried on most occasions. She remains withdrawn and preoccupied mostly and gets agitated from time to time. She is not able to tolerate any degree of separation away from her husband and becomes anxious and distressed very easily. She is not able to register any new information and recall them in any meaningful manner. She is not able to plan forwards or follow any routine on her own in her day-to-day life. She remains passive on most occasions and follow the instructions and prompts given by her carers on [a] regular basis. She struggles to cope with any new changes in her daily life and tends to become more anxious and agitated when faced with new situations. When left on her own, she tends to wander away to unfamiliar places and carry an elevated risk of harm and developing health complications."

12.          Judge Fowell noted that the report had explained how the trigger for the second appellant's rapid decline in late 2017 had been her husband's heart attack and the subsequent anxiety she had felt, and also noted that she was also receiving care for diabetes, hypertension and bronchial asthma, as well as mental health care from a psychiatrist in the Community Mental Health Team, which overall was considered to be "optimal care".

13.          Dealing with the evidence of the appellants' son, he recorded that the first appellant would take his grandson to school which his son considered good exercise for him.

14.          The judge set out the submissions made on behalf of the appellants and the respondent which included Ms Bhachu's submission that "there was essentially a gap in the Rules which did not cater for situations such as this" (at paragraph 23 of the Decision).

15.          Having set out correctly that the starting point was that the appellants had to prove their case on the balance of probabilities and the position had to be assessed at the date of hearing, Judge Fowell set out his findings. At paragraph 26 he found as follows:

"26. Having regard to the medical evidence I have no difficulty in accepting that [the first appellant] did indeed suffer a severe heart attack in November 2017, something entirely unpredictable and out of the ordinary, and so this is not a case of a couple coming to the UK with pre-existing medical conditions in order to seek treatment. The cost of the treatment required by [the first appellant] and the simple fact that it would have been much less costly in India, also strongly support that view. It is also entirely understandable, given her dependence on her husband and the existing symptoms of dementia, that this event gave rise to severe anxiety on his wife's part, causing a step change in her condition."

16.          Judge Fowell then found [at paragraph 27] that it was the second appellant's condition which was now a concern, because the first appellant was able to take his grandson to school and back each day, which he enjoyed, and was also involved in the local Gurdwara. He noted that the second appellant had "a range of health conditions the main concern [of which] is her dementia". He found that within the son's household and with the help of her GP and local Mental Health Team she is now well provided for.

17.          At paragraph 28, Judge Fowell found that treatment would be available in India and noted that evidence had not been adduced (the burden being on the appellants) to show that it would not. Also, both the appellants had "extensive family" in India and financial support could continue from the UK.

18.          Judge Fowell also accepted (at paragraph 29) that the appellants' daughter-in-law had been suffering from anxiety and panic attacks and that the presence of the appellants had led to an improvement in her mental health.

19.          Judge Fowell's conclusions are set out from paragraph 30 onwards. At paragraph 30 the first question the judge asked himself was whether the facts as he had found were "sufficient to meet the requirements of the Immigration Rules". He considered that "the test here is whether there are insurmountable obstacles to their family life continuing in India". At paragraph 31 he stated as follows:

"31. Insurmountable obstacles is defined in the Rules as:

"... very significant difficulties which would be faced by the applicant or a partner in continuing their family life together outside the UK and which could not be overcome or would entail very serious hardship for the applicant or their partner."

20.          It is the appellants' case as set out in the grounds of appeal that this is not the appropriate test relevant to adult dependent relatives who are in the UK, but that this test applies only where the application is made for leave under "the partner or parent route where either the financial requirement or immigration status cannot be met".

21.          In any event, Judge Fowell was quite satisfied that the insurmountable obstacles test "cannot be met" because "it focuses entirely on the relationship between the appellants, rather than between them and their son and his family, which was the main aspect of Ms Bhachu's submissions". He considered that because the appellants had "significant family connections in India" and their former home available to them "there is no real obstacle to their return".

22.          Judge Fowell then considered that the Rules "do however allow for exceptional circumstances or compelling compassionate factors which make refusal unjustifiably harsh" but considered that in this case the medical psychiatric report had emphasised the second appellant's dependence on her husband (the first appellant) rather than her son or daughter-in-law and noted that under the Rules "the test is not one of reasonableness or suitability; it requires something exceptional or compelling, which is a very high threshold to meet". The judge did not regard the "medical difficulties associated with increasing years" as in any way exceptional, and considered that for the appellants to "return together to a familiar environment in Punjab after a relatively short stay in the UK cannot be regarded as unjustifiably harsh".

23.          Judge Fowell then considered the "broader balancing exercise" which he believed was required under Article 8, on the basis as explained at paragraph 34 that:

"No set of Rules can apply to every case without some risk of injustice, so, if the Rules are not met, the next stage is to carry out a broader balancing exercise required by Article 8, identifying all of the relevant circumstances and weighing them against the public interest."

In this context, he set out what the Supreme Court had found in Agyarko v SSHD [2017] UKSC 11 in which at paragraph 57 the Supreme Court had stated that "In general, in cases concerned with precarious, a very strong or compelling claim is required to outweigh the public interest in immigration control".

24.          At paragraph 35, Judge Fowell stated as follows:

"35. There are some factors here which are not readily included in the test set by the Immigration Rules. Those include the family life between the appellants and their son, their son's increased peace of mind and his wife's newfound role in the house, and also the family life between grandson and grandparents. ( Given the extent of the dependence by the appellants on the rest of the family I accept this amounts to family life) [my emphasis] However, it is instructive to compare this arrangement with the test required for adult dependent relatives. If the appellants were applying from India, they would need to show that as a result of age, illness or disability they required long-term personal care to perform everyday tasks, and that they were unable, even with the practical and financial help of their son, to obtain the required level of care in India, either because it was not available or was not affordable. This is a very much more stringent test. ..."

25.          Judge Fowell then noted that the first appellant needed to do little more than to take his medication but also that his daughter-in-law wished to have her parents-in-law remain in order that her father-in-law could continue supporting her in taking care of her child. This does not seem to have been developed further within the Decision.

26.          At paragraph 36 Judge Fowell dealt with the position of the second appellant as follows:

"36. {The second appellant] clearly does require ongoing care, but it follows that her husband would be in a position to provide this, or at least there seems no reason why he could not do so in the first instance, supported by the family members in India and if need be with financial support from the UK. [The psychiatrist's] report does state that she carries a high risk of self-neglect and disengaging with the mental health services without the full-time care and support of her husband and her daughter-in-law, together with other risks such as absconding from her home, but:

(a) she would have the care and support of her husband on return; and

(b) [The psychiatrist] is not in a position to give evidence about the availability of mental health services or other treatment in India."

27.          Judge Fowell did not consider that the fact that the support which the second appellant was currently receiving from her daughter-in-law would come to an end was a sufficient reason for the grant of leave to remain. He was also unimpressed with the argument which had been made on behalf of the appellants that there was a "cultural expectation" that they would be looked after by their son and therefore should not be expected to rely on their daughters' assistance on return to India. He noted that their son had made his life in the UK and had clearly done everything he could for his parents whilst here, including providing long term financial support, having them live in his home and also paying substantial sums in respect of the NHS debt his father had incurred as well as all the legal costs associated with this claim. However, he considered that family support was available within India, even if it was more normal, or the cultural expectation was, that support would be provided by the son. At paragraph 38, the judge summed up his conclusion on this aspect of the claim as follows:

"Whatever the usual cultural expectation, where there is no son available in India others may have to do more. Again, family support could continue from the UK, together with the possibility of visits to India."

28.          Having found that there "Do not ... appear to be any sufficiently strong factors here, beyond those considered under the Rules, which would lead to a different outcome" Judge Fowell then "for completeness" set out what is provided within Section 117B of the Nationality, Immigration and Asylum Act 2002 which provides as follows:

" 117B Article 8: public interest considerations applicable in all cases

 

(1) The maintenance of effective immigration control is in the public interest.

 

(2) It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are able to speak English, because persons who can speak English-”

 

(a) are less of a burden on taxpayers, and

 

(b) are better able to integrate into society.

 

(3) It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are financially independent, because such persons-”

 

(a) are not a burden on taxpayers, and

 

(b) are better able to integrate into society.

(4) Little weight should be given to-”

 

(a) a private life, or

 

(b) a relationship formed with a qualifying partner, that is established by a person at a time when the person is in the United Kingdom unlawfully.

 

(5) Little weight should be given to a private life established by a person at a time when the person's immigration status is precarious."

29.          Regarding sub-paragraph (1) Judge Fowell regarded this as "simply a statement" to the effect that maintenance of immigration control is in the public interest, but had considered, at paragraph 42, that "the more significant question is how much weight attaches to the public interest". When answering this question, he considered the answer as follows:

"The answer to that is that it is set out in the Rules and Guidance. So in a case like this the general position is that establishing family life in the UK is not sufficient unless there would be insurmountable obstacles to continuing it abroad."

30.          Judge Fowell noted that neither appellant had any particular ability in speaking English, but acknowledged that they would not be financially dependent on the state, because they would be supported by their son.

31.          Regarding (4) and (5) at paragraph 45, Judge Fowell found as follows:

"... given their age and the length of their marriage it cannot really be said that their family life has been strengthened and developed in the UK to any noticeable extent."

32.          Having set out the facts and his interpretation of the law, Judge Fowell dismissed the appeal because he considered that the appellants could return together to India and would be able to cope with other family and medical support which he considered would have been the case had the first appellant suffered his heart attack whilst in India.

Submissions

33.          I heard oral submissions on behalf of both parties. Ms Bhachu, on behalf of the appellants, continued to rely on the grounds and her skeleton argument. Her primary submission was that the Rules had not been designed to deal with situations such as this, where adult dependent relatives had not come to the UK with the intention of circumventing the Rules rather than applying from outside, but whose circumstances had changed whilst they were here. The facts in this case were that they could not return when their leave ended, and the judge had accepted this. The distinction between the facts in this case and a case where a couple had come to this country intending to circumvent the Rules was that Article 8 was engaged here, which did not just depend on what care was available in India. A decision-maker had to consider the family life which had been built up while they were in this country; that included the family ties which the appellants had with their son, daughter-in-law and grandson.

34.          Where the judge had gone wrong was that in this case this couple now had a family life beyond their family life with each other and there were arguably compelling and compassionate circumstances, regarding their medical needs and so on which had arisen after they had arrived here. The English language requirements (Ms Bhachu claimed) were not required under the Rules with regard to partner applications, and so far as financial independence was concerned, third party support was sufficient. The judge had accepted that the appellants were financially supported by their son.

35.          The judge did not deal with the emotional impact of the appellants not having their family with them, and had not taken into account that there would be a family split, rather focussing on practical support which might be available within India. He also had not factored in that the appellants' daughters lived some four to five hours away.

36.          On behalf of the respondent, Ms Everett submitted first of all that the judge had to be guided by consideration of adult dependency Rules, and the fact that they could not was "inevitably going to attract a lot weight as a finding".

37.          Ms Everett accepted that the judge had found that there was family life between the appellants and the family unit within the UK, but asserted that the second appellant was largely dependent on her husband and as they could not meet the Rules and they had a home in India and a cleaner and so on, as well as three daughters there, requiring them to return to India would be a proportionate interference with their family life in this country. While she did have some sympathy for the argument advanced on behalf of the appellants, the judge had considered family life and proportionality and had come to a conclusion that was legally sustainable.

38.          Regarding the help which might be provided by the appellants' daughters in India, while Ms Everett understood the point about this being speculative, it was not enough for the appellants to rely on "cultural expectations". The question was about how families organised themselves and there was no evidence that the daughters would refuse to help their parents notwithstanding difficulties which might arise.

39.          In reply, Ms Bhachu asked the Tribunal to note that there had been evidence before the First-tier Tribunal regarding the daughters to the effect that they would be unable to travel everyday to assist their parents.

40.          The representatives then made submissions as to the application of the Supreme Court decision in Agyarko v SSHD and Ikuga v SSHD [2017] UKSC 11. On behalf of the respondent, Ms Everett submitted that the judge had considered all the facts in this case, but that if this Tribunal is of the view that he had not, that might be sufficient to find an error of law. On behalf of the appellants, Ms Bhachu, referring in particular to paragraph 60 of Agyarko and Ikuga submitted that the judge had not factored into his conclusions the blamelessness of the appellants and the extent to which the events since they had arrived in the UK had affected their family life, and had had impact on the unity of the family unit as a whole.

41.          I reserved my decision.

My conclusions

42.          When granting permission to appeal, First-tier Tribunal Judge Gibb, setting out his reasons, stated as follows:

"...

2. The grounds, ... complained that the judge erred in:

(i) using the "insurmountable obstacles" test as a starting point to the Article 8 proportionality assessment where this was not relevant to the position of elderly dependent relatives; and

(ii) not conducting the proportionality assessment in view of the fact that there was a gap in the Rules.

3. The grounds are arguable. On the second ground the appellants' representatives need to be prepared to show why it was an incorrect legal approach to the focus on the entry clearance test for elderly dependent relatives, on the hypothetical basis that that would be the test applicable if they had applied from abroad (see [35]) of the judge's Decision. The difficulty of the point advanced in the second ground is that it could be said to put those who apply when here as visitors in a better position than those who apply for entry clearance. ..."

43.          In my judgement, in a case where an applicant has come to the UK as a visitor with the ulterior purpose of making a claim to remain in this country rather than applying from abroad, this may well be a weighty reason why permission should be refused. That, however, is not the case here, as the judge clearly found.

44.          I do not need to set out the various Decisions in which Article 8 has been considered over the years because for present purposes the law is summarised within paragraph 60 of Agyarko and Ikuga, with reference to paragraph 19, which sets out the relevant Immigration Instructions. Although Agyarko and Ikuga was concerned with the position of a partner whose application cannot be granted under the Rules, what is said at paragraph 60 clearly has a general application. I set out paragraphs 19 and 60 of Agyarko and Ikuga:

"19. The Instructions state that although refusal of an application will normally be appropriate where the applicant does not meet the requirements of the Rules, leave can be granted outside the Rules where exceptional circumstances apply. In that regard, the Instructions state:

 

"'Exceptional' does not mean 'unusual' or 'unique'. Whilst all cases are to some extent unique, those unique factors do not generally render them exceptional. For example, a case is not exceptional just because the criteria set out in EX.1. of Appendix FM have been missed by a small margin. Instead, 'exceptional' means circumstances in which refusal would result in unjustifiably harsh consequences for the individual such that refusal of the application would not be proportionate. That is likely to be the case only very rarely." (para 3.2.7d)

 

In determining whether there are exceptional circumstances, the decision maker is instructed to consider all relevant factors. Some examples are given:

 

"The circumstances around the applicant's entry to the UK and the proportion of the time they have been in the UK legally as opposed to illegally. Did they form their relationship with their partner at a time when they had no immigration status or this was precarious? Family life which involves the applicant putting down roots in the UK in the full knowledge that their stay here is unlawful or precarious, should be given less weight, when balanced against the factors weighing in favour of removal, than family life formed by a person lawfully present in the UK."

 

...

60. It remains the position that the ultimate question is how a fair balance should be struck between the competing public and individual interests involved, applying a proportionality test. The Rules and Instructions in issue in the present case do not depart from that position. The Secretary of State has not imposed a test of exceptionality, in the sense which Lord Bingham had in mind: that is to say, a requirement that the case should exhibit some highly unusual feature, over and above the application of the test of proportionality. On the contrary, she has defined the word "exceptional", as already explained, as meaning "circumstances in which refusal would result in unjustifiably harsh consequences for the individual such that the refusal of the application would not be proportionate". So understood, the provision in the Instructions that leave can be granted outside the Rules where exceptional circumstances apply involves the application of the test of proportionality to the circumstances of the individual case, and cannot be regarded as incompatible with Article 8. That conclusion is fortified by the express statement in the Instructions that "exceptional" does not mean "unusual" or "unique": see para 19 above."

45.          Although, as I indicated at the outset when referring to Judge Fowell's decision, it is detailed and careful, nonetheless I consider that it is not sustainable. Although at paragraph 35 the judge found that "given the extent of the dependence by the appellants on the rest of the family I accept that this amounts to family life", that finding does not seem to have been factored into the judge's consideration of whether or not that family life was such that the interference with that family life which would be caused by the removal of the appellants could be said to be proportionate.

46.          Judge Fowell immediately after accepting that the relationship between the appellants and his family in the UK amounted to family life went on to state that "However, it is instructive to compare this arrangement with the test required for adult dependent relatives". With this test in mind he considered that had they been applying from outside the UK they could not succeed under the Rules.

47.          The judge, when considering the public interest considered that the effect of the Rules and Guidance was that "in a case like this the general position is that establishing family life in the UK is not sufficient unless there would be insurmountable obstacles to continuing it abroad"(paragraph 42). He could only have had in mind when making this statement the family life between the two appellants, because clearly the family life between the appellants and their family in the UK could not continue if the appellants return to India. The appellants' son, daughter-in-law and grandson will remain in the UK and whatever modest comfort they may be able to salvage from what are euphemistically known as "modern means of communication" this is not in any meaningful sense a continuation of family life. If current lockdown conditions have taught us anything, (in my Judgement), it is that so-called family life experienced through these modern communication methods are no substitute for the real thing.

48.          The restricted way in which the judge treats family life (that is without regard to the family life which at paragraph 35 he had accepted existed between the appellants and his UK family) is also apparent in paragraph 45 where he stated that "given their age and the length of their marriage it cannot really be said their family life has been strengthened and developed in the UK to any noticeable extent" (this was in regard to (4) and (5) of Section 117B of the 2002 Act). It is clear that the judge again can only have had in mind the relationship between the two appellants, because this does not consider the family life which the appellants have with their son who they had not seen since their previous visit to this country and their daughter-in-law and their grandson who they had not seen before. It does not have any regard to the effect of their departure from the UK on the son or grandson or on their daughter-in-law, who has come to depend on her father-in-law.

49.          The proportionality exercise which must be conducted by all decision-makers can only be conducted properly by reference to the family life which will actually be disrupted and interfered with, which in this case is that between the appellants and his UK family, and not the family life between the two appellants, which obviously will continue.

50.          For this reason, I am satisfied that Judge Fowell's decision must be set aside and re-made.

My Decision

51.          Although when I reserved the Decision I had at that stage considered it likely that there would have to be a re-hearing, having given anxious scrutiny to all the facts and circumstances of this case, I do not now believe that a re-hearing is necessary. This is because I am able to make the Decision myself, in light of the judge's factual findings, which are not to any meaningful extent challenged. As I have indicated, the primary finding is that the judge was satisfied that the relationship between the appellants and their son, grandson and daughter-in-law amounted to family life. I am quite satisfied, on the facts of this case, that this family life goes beyond the normal emotional ties to be expected between parents and their adult children. I have in mind also the judge's finding at paragraph 26 that "This is not a case of a couple coming to the UK with pre-existing medical conditions in order to seek treatment". As the judge noted, any treatment which the first appellant needed would have been much less costly in India, and I agree with the judge's conclusion that on the evidence it was certainly much more likely than not that the rapid deterioration of the second appellant's health and her accelerating dementia was as a consequence of her husband's unexpected heart attack.

52.          In this regard what is contained within the Instructions, as set out at paragraph 19 of Agyarko and Ikuga is particularly relevant, and applies equally to their position as it would in an application for leave to remain by a partner. They did not develop this relationship with their UK family from choice; their very sad medical history was not anticipated and accordingly the fact that their family life was established in this country at a time when their immigration was precarious, is not a factor to which any substantial weight should be given. I also note in this context that strictly neither Section 117B(4) or (5) is applicable in this situation, because this Tribunal is not now considering a private life formed at a time when the appellants were in this country unlawfully or when their immigration position was precarious, but their family life. In this context, what is important, as the Supreme Court emphasised at paragraph 60 of Agyarko and Ikuga is to strike a "fair balance ... between the competing public and individual interests involved, applying a proportionality test".

53.          In this case, having regard to what is set out at Section 117B of the 2002 Act, which contain the public interest considerations applicable in all cases, I note, as the judge did, that the appellants will not be a financial burden on the state, because their son at great personal expense has shouldered so far the burden of repaying the NHS and will also be looking after his parents financially and I also note that their inability to speak English will be of less relevance than if they were younger, because they will not be a burden on taxpayers (because they will be supported by their son) and the first appellant, in particular, is clearly integrating into society to some extent, because he is going to his local place of worship and also taking his grandson to school.

54.          I have in mind the definition of "exceptional" set out within the Instructions, as approved within the Supreme Court at paragraph 60 of Agyarko and Ikuga, and that this does not mean "unusual" or "unique" but should be considered in light of the question as to whether or not the consequences for the appellants will be sufficiently harsh that the refusal of the application would not be proportionate.

55.          When I consider all the factors, I am satisfied that whereas the disruption to the appellants' family life in this country by their removal would be severe, the adverse consequences for society of their remaining in this country would in reality have be only slight. Although, as a general statement the maintenance of effective immigration control is in the public interest, that does not require in wholly unanticipated circumstances such as this that an inflexible approach be adopted.

56.          The appellants will not be a financial burden on this country, and their presence here will not and cannot be seen properly as a precedent whereby others would be encouraged to circumvent the Rules. In answer to the "difficulty" posited by First-tier Tribunal Judge Gibb when giving his reasons for allowing permission to appeal that "It could be said to put those who apply when here as visitors in a better position than those who apply for entry clearance [from outside]" I do not consider this to be so. The reason the appellants' family life developed in this country was because of circumstances which had not been anticipated when they came to this country. There is no reason to believe that but for the very sad deterioration in the second appellant's health, caused by the first appellant's very serious heart attack, they would not have returned to India as they had said they would before they came. This makes their case very different from the sort of case which Judge Gibb had in mind.

57.          In carrying out an independent assessment, on the basis of the facts as Judge Fowell had found them to be, I am quite satisfied that it is not proportionate for the appellants' Article 8 rights to respect for the family life they currently enjoy with their family in England to be interfered with. Their circumstances, while not necessarily "unique" are certainly (I would hope) "unusual", but even that is not required. It would in my judgement be very harsh indeed, and unduly harsh, to require these appellants' family life which they now have with their UK family to be interfered with, and indeed stopped, merely because had they now been applying from outside the UK they could not have satisfied the dependent relative requirements. Had they been applying from outside the UK, they would not have built up their family life within this country to the extent to which they have. I do not consider it necessary to leave out compassion and humanity when considering proportionality; nor should I ignore the effect on the rest of the family in the UK, (including the grandson, whose relationship with his grandfather who regularly takes him to school is a valuable one), whose Article 8 rights also have to be taken into consideration (see Beoku-Betts [2008] UKHL 39).

58.          I note in this regard that at paragraph 49, Judge Fowell had stated that "Overall, their desire to stay in the UK with their son and his family is entirely understandable and I accept that it is beneficial to them and to the rest of the family group". While, as the judge stated (also at paragraph 49) it might be "perfectly manageable" for the appellants to return together to India and to cope together there, and even though as the judge also found it "would no doubt have been the case had [the first appellant] suffered his heart attack whilst there", I do not in all the circumstances of the case consider that it would be proportionate for the respondent to require them so to do.

59.          It follows that this appeal must be allowed, and I so find.

Decision

I set aside the decision of First-tier Tribunal Judge Fowell as containing a material error of law and re-make the Decision allowing the appeal on human rights grounds, Article 8.

 

No anonymity direction is made.

 

 

Signed:

 

 

 

 

Upper Tribunal Judge Craig Dated: 29 May 2020

 

 

 

TO THE RESPONDENT

FEE AWARD

 

As I have allowed the appeal and because a fee has been paid, I have decided to make a fee award of any fee which has been paid or may be.

 

 

 

 

Signed:

 

 

 

 

Upper Tribunal Judge Craig Dated: 29 May 2020