AD (Pakistan) v Secretary of State for the Home Department

This is a renewed application for permission to appeal against the decision of Deputy Upper Tribunal Judge Lever, who upheld the determination of First-tier Tribunal Judge Bruce, which in turn dismissed the applicant’s appeal against her removal from the United Kingdom.

The applicant is a 48 year-old national of Pakistan She last entered the UK in 2007. She has previously applied for leave to remain on compassionate grounds but that was refused. She made the present application on 30 July 2013 for leave to remain on human rights grounds outside the rules. By a decision dated 26 December 2013 the respondent decided to remove her from the United Kingdom.

The applicant is the eldest of five children of Mr Mohammed Majid and his wife Abida Begum. The parents are now both British citizens, having migrated to the United Kingdom many years ago. Other members live in the UK. Both parents are very unwell. The applicant provides constant care for her parents without significant assistance from her siblings.

The applicant’s case is that it would contravene her article 8 rights to family and private life to remove her to Pakistan. The Fist-tier Tribunal judge did find that the applicant shared a family life with her parents and that there was a sufficient dependency in the present case to show that family life was present, despite the maturity of the applicant. That was principally because of the bond which had been cemented between the applicant and her father since her arrival in the United Kingdom in 2007.

Mr Majid is too unwell to travel to Pakistan and it is likely that if the applicant was removed he would not see his daughter again. The judge concluded that the removal of the applicant constituted an interference with family life of sufficient severity to engage article 8.

The critical issue for the applicant was therefore the proportionality of her removal. The First-tier judge found that there were other members of the family, the sons Omar and Yasir, who were able to help with the parents’ care if the applicant could not.

The critical point on which Mr Jagadesham focuses this morning is what the judge said at paragraph 29 of her judgment. She said this:

“I am guided in assessing proportionality by looking at the rules. As I note above, there is no provision under appendix FM for British nationals to bring in a family member or otherwise to care for them. It may however be instructive to consider the requirements for the converse situation, where a carer is already here and it is the person who is requiring the care that is seeking entry. Paragraph E-ECDR 2.4 provides that the latter ‘must as a result of age, illness or disability require long-term personal care to perform everyday tasks’. I do not think it is in dispute that this requirement is met. Paragraph E-ECDR 2.5 further provides that they ‘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’. I cannot find that this requirement transposed to this situation would be met. The care that the appellant provides to Mr Majid is no doubt valued, but she is not indispensable; he has two sons in this country, both of whom could assist, and he could of course call upon the greater assistance of the state.”

The judge then goes on in paragraph 30 to consider the emotional impact on the appellant and the wider family of her return to Pakistan, but concludes paragraph 30 by saying “since I have found that his care could be conducted by others it is difficult to see why this decision is disproportionate”. Mr Jagadesham submits that the very narrow rule to which the judge referred cannot be exhaustive of the article 8 proportionality considerations. He submits in essence that the judge was too strongly influenced by the corresponding rule, which did not apply in any event, and lost sight of the broad duty which he was under to make sure that removal did not disproportionately interfere with the applicant’s article 8 rights.

He goes on to submit in his second ground that the judge, in making certain criticisms, particularly in paragraphs 23 and 30 of the judgment, went beyond what was fair, given that none of these points had been put to the witnesses in question, either by the court or by the respondent, and had not been raised with the applicant’s representatives in argument. The judge concluded at one point in his judgment that he considered that the applicant might be better off going back to living alone in the family home than remaining here.

This is a second appeal and I should not grant permission unless I consider it raises an important point of principle or practice or there is some other compelling reason for granting permission. Having heard Mr Jagadesham this morning, I am satisfied that the two points which he has argued do justify a second appeal. This court has not yet looked at the extent to which the very narrow Immigration Rule on which the judge relied properly reflects the proportionality assessment necessary under article 8. In ZB (Pakistan) v SSHD, 30 July 2009, [2009] EWCA Civ 834, this court considered a much wider rule, albeit against a very different family background, but nevertheless held that there was a margin in which article 8 had a significant impact outside the rules. It would be right, in my judgment, for the full court to consider whether the judge did indeed err by placing the weight she did on the much narrower new rule.

For those reasons I grant permission. Time estimate of one day. The panel should include one judge with expertise in Immigration law.