This appeal relates to an application lodged by ICS Legal, which was then wrongly refused and the First Tier Tribunal agreed with ICS Legal in allowing the immigration appeal. Full facts of the case and what we did is enclosed. Please note due to data protection, the appellant's name or any relevant details are not enclosed.
The Appellant was 83-year-old, Indian citizen who had entered the United Kingdom in February 2020 on a multiple entry visit visa. In July 2020, she then made an application for leave to remain in the United Kingdom outside the Rules on compassionate and compelling grounds. The Respondent however, rejected the said application.
The application was refused the requirements of private life under Immigration Rules were not met. The Respondent did not accept that the appellant had dementia. The Respondent opined that India had a functioning healthcare system, and the appellant could seek care through this as well as family. Thus, the requirements of Article 3 ECHR were also not met. Hence, the litigation team of ICS legal on behalf of the Appellant filed the present appeal before the Tribunal.
Outcome of the Matter
The Appellant had resided in the United Kingdom from 1966 to 1976 and was employed by the NHS as a medical practitioner along with her late husband who was also in the United Kingdom during the said period and was employed as a medical practitioner with the NHS. In 1979, she had re-entered the UK for six months and worked for the NHS.
She had two daughters, who were born in the United Kingdom and were British Citizens. Appellant’s grandchildren were also British citizens. Appellant’s second daughter resided in California and was naturalized as a US citizen. She had breast cancer and therefore not able to assist in the care of her mother, the Appellant.
Since the death of Appellant’s husband in India in 2009, she had resided with her first daughter and her grandchildren. One of her grandson came to the United Kingdom in September 2016 and the other moved to the US and Netherlands to pursue his studies. When the Appellant travelled to the United Kingdom with her daughter on a multi - visit visa, their intention was to stay here temporarily however due to the Covid-19 pandemic they did not return to India. Travel to India was restricted and in lockdown until November 2021.
The daughter was now employed on a permanent basis with the HMRC and had made UK his home. Therefore, her mother cannot return to India on her own due to her personal, emotional and healthcare needs. That her mother also suffered from memory loss and required constant supervision and monitoring. The Appellant submitted that her daughter who took care of her in India and she primarily required nighttime care since the death of her husband. That she had dementia. That she required someone to work but not to look after, as she was scared. She says she has a brother in India who could not help her bathe, dress or undress.
The daughter submitted to the Tribunal that their visit to the UK was temporary to visit her mother’s unwell uncle and to visit her sons. That the return tickets had been booked and that she was employed in India but had to leave it due to Covid and other reasons. That her mother had never lived alone. That she was employed in India from 1995 however due to dementia and helplessness was not in a bad state. That there was intention to return, had return tickets, accommodation in the United Kingdom was rented, did not have employment here but their plans changed following the Covid-19 pandemic and lockdown. That the Appellant’s home in India had not been sold and that they had travelled to India to have maintenance and renovation work undertaken on the property. When travelling to the United Kingdom she had travelled with her mother on the same flight and her mother had used a wheelchair.
The daughter further submitted to the Tribunal that they do not believe in placing the elderly into care. That her mother is dependent upon her as she was the primary carer. That she had returned to India only on two occasions for a few days and her sons had taken care of the Appellant while she was away. The grandchild submitted that the Appellant has difficulties remembering family members, medicine and requires assistance. The Appellant also submitted that she could not return to India, as she was dependent upon her daughter and grandson for her emotional and personal care.
The litigation team of ICS legal had submitted medical evidence in support of her appeal with the appeal bundle. There were letters from GP, which confirmed the Appellant’s medical conditions. The Tribunal found the Appellant and her daughter’s evidence reliable, as at the time of their arrival to the United Kingdom they were not aware of the coronavirus pandemic. That they were not able to return to India prior to the expiry of her visa due to the pandemic and therefore the application for leave to remain was made.
That due to the pandemic there was change of plans and the daughter took up employment with the DWP on a fixed term contract, which was later transferred to the HMRC on permanent employment. The Tribunal observed that the appellant did not have any close relatives to provide care in India and care from an unfamiliar individual would not be acceptable to the appellant. Thus, there were compelling and compassionate circumstances.
The Tribunal further observed that there was no evidence medical or otherwise to show that there are substantial grounds of the Appellant being her being exposed to a serious, rapid and irreversible decline in her health resulting in intense suffering or a significant reduction in life expectancy and as a result of the absence of appropriate medical treatment or lack of access to such treatment. The Tribunal also considered the background country evidence that India had a functioning health care system and the difference in the standards of health care in the UK and India and conclude that it was not a relevant consideration. Therefore, there was no breach of Article 3.
The Tribunal observed that the appellant needed to be with her daughter due to feelings of fear, lack of trust in strangers given her declining mental health. That there was family life between the appellant and her daughter, as they lived together in India since the father’s death. That the daughter was responsible for managing the appellant’s affairs, needs and provided emotional support to her. Therefore, their bond was beyond that of an adult child and parent, it was of deep commitment and Respondent decision would be an interference in their family life under Article 8.
That not only was the daughter a British citizen and financially capable of providing for the Appellant, the appellant too had her DWP pension and an Indian pension Therefore, she was not a burden upon the State. The Tribunal considered the Appellant’s circumstances against the competing public interest argument, the need for effective immigration control necessary in a democratic society.
The Tribunal observed that the appellant was not able to return to India alone, as she was dependent upon her daughter for emotional and personal care for her mental wellbeing. That interference with their family life will not be proportionate to the legitimate public aim. That Article 8 comes into operation not because she only because here since February 2020 but because she has worked here for 10 years in the past and positively contributed to the society.
Therefore, in the light of the facts and circumstances put forth, evidences supplied and arguments advanced, the Tribunal allowed the appeal under Article 8 of the ECHR.
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