ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Royal Courts of Justice
Strand, London, WC2A 2LL
Before :
LADY JUSTICE HALLETT
and
LORD JUSTICE SINGH
Between :
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Cheryl Ribeli |
Appellant |
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- and - |
|
|
Entry Clearance Officer, Pretoria |
Respondent |
Mr Duran Seddon and Mr Greg Ó Ceallaigh (instructed by Leigh Day) for the Appellant
Mr Neil Sheldon (instructed by Government Legal Department) for the Respondent
Hearing date: 13 March 2018
Judgment Approved
Lord Justice Singh :
Introduction
This is an appeal from a decision of the Upper Tribunal (Immigration and Asylum Chamber) (“UT”) dated 20 January 2016, which was itself an appeal by the Respondent Entry Clearance Officer (“ECO”) from a First-tier Tribunal (“FTT”) decision dated 31 March 2015.
In the grounds of appeal filed on the Appellant’s behalf there were originally five grounds set out. Initially permission to appeal was granted on a single ground, numbered ground 5, by Sir Stephen Silber (sitting as a judge of the Court of Appeal) on 20 February 2017, concerning a challenge to the lawfulness of the relevant part of the Immigration Rules. That ground of appeal has in effect fallen away following the decision of this Court in R (BritCits) v Secretary of State for the Home Department [2017] EWCA Civ 368; [2017] 1 WLR 3345. The Appellant invites this Court formally to dismiss that ground of appeal. I would accept that invitation and formally dismiss the appeal on ground 5.
On 24 October 2017 Hamblen LJ granted permission on the remaining four grounds of appeal. Those remaining grounds have been recast into three issues, which are set out in the Skeleton Argument dated 23 February 2018 for this hearing. I will address those issues below.
Background
The Appellant was born on 8 August 1953 and is a South African national. She suffers from a variety of medical conditions, including a degenerative back disease, osteoarthritis and fibromyalgia.
Her application for entry clearance was sponsored by her daughter, Carmen Steenkamp, who is a British citizen (and was formerly a citizen of South Africa). Ms Steenkamp came to the UK in 2007 and works here as an accountant, although she obtained her qualification in South Africa.
The application was refused by the Respondent on 14 May 2014, because he was not satisfied that the Appellant could not obtain necessary care and support in South Africa, as required by para. E-ECDR.2.5, which is part of Appendix FM to the Immigration Rules (HC 395, as amended).
In the Notice of Immigration Decision dated 14 May 2014, the ECO set out his reasons for refusing the application for entry clearance in the following way:
“You have applied to join your daughter, a British citizen resident in the United Kingdom. You have stated that you currently live alone in your personally owned home, and have a sister, uncle and aunt living in old age homes in Cape Town who you see every second month.
You have stated that you are incapable of performing everyday tasks, however at Question 1.9 state that you are not currently receiving care which would intimate that you are looking after yourself. You have stated that your condition has been deteriorating since approximately 2009. A letter enclosed with your application states that ‘she needs assistance with tasks as basic as cooking, shopping and washing herself’ which would indicate that you currently receive the care that it is claimed you need. You have not explained these conflicting statements.
Mention is made that you ‘require the emotional support of a family member’ which I note you already have with relatives living in your home city.
A letter enclosed with your application states that ‘the availability of elderly care services is limited in the Table View area where Mrs Ribeli lives’. This would indicate that research has been restricted to an area close to your current residence. No evidence has been provided of the availability of care either within the city of Cape Town, or within South Africa generally.
Enclosed with your application is evidence of research into home care costings in tandem with the care afforded by the applicant’s sponsor. There is no evidence that this specialist care is not available in South Africa.
The letter from Garden Court Chambers makes reference to her sponsor ‘will have to leave the United Kingdom to care for her if the instant application is not approved’. This statement intimates that it is possible for her to do so. The reference to a change in the sponsor’s private life is noted, however moving the applicant from her home environment would also cause an impact.
Your sponsor has researched assistance for a private nurse, supplements recommended by the applicant’s doctor, cleaning, medical insurance and pain relief therapies including massage and acupuncture. There is no evidence that any of this care is not available in South Africa.
With no substantiated evidence that care cannot be provided locally, I am not satisfied that you are unable to obtain the required level of care in South Africa. I therefore refuse your application under paragraph EC-DR.1.1(d) of Appendix FM of the Immigration Rules. (E-ECDR.2.5)”
The ECO had before him a letter from the Appellant’s doctor dated 18 December 2013, which it is necessary to set out in full:
“Mrs Ribeli has been under my care as her GP for a number of years. Since her late twenties she has suffered from recurring pain due to degenerative disease of her lower and lumbar spine. In recent years she has also presented symptoms of osteoarthritis in her knees and hips. In 2011, she was diagnosed with Fibromyalgia, a condition that causes widespread chronic pain in the fibrous tissue of the body.
In the past 3-4 years Mrs Ribeli’s musculoskeletal pain has become persistent and is now significantly impacting her daily life.
Her spinal condition makes even simple daily tasks involving bending and lifting objects almost impossible. She experiences neck and spinal pain from only mild physical exertion. Fibromyalgia causes her almost constant stabbing pain in her legs, preventing her from walking or standing for long periods. Like many sufferers of this condition, Mrs Ribeli has joint and muscle stiffness and muscle spasms – this severely disrupts her sleep resulting in fatigue and lack of energy.
Her mobility is further restricted by osteoarthritis in her knees and hips. Given the level of joint deterioration in her knees, Mrs Ribeli has been advised by her orthopaedic surgeon that she will need to undergo full knee replacements in coming years. Although this will improve her mobility to some extent, she is unlikely to have a full range of movement. Given the limited lifespan of replacement joints, further surgery may be necessary after 10-15 years.
As a result of Mrs Ribeli’s medical condition, she suffers from anxiety and mild depression. There is medical evidence that this in turn makes the symptoms of her Fibromyalgia condition more severe. As she lives alone, she is currently struggling to cope with everyday life and it has reached the stage where she requires assistance to perform everyday tasks such as cooking, shopping & washing.
Mrs Ribeli’s only daughter lives overseas, and I believe that this has caused significant distress to her particularly given her deteriorating medical condition over the past 4 years. It is important that patients who suffer from conditions resulting in chronic pain receive encouragement and emotional support from family members in order to develop a coping mechanism for daily life. This support also serves to relieve stress and anxiety which are known to amplify symptoms. In Mrs Ribeli’s case, I believe her anxiety is primarily as a result of being separated from her daughter.
The availability of elderly care services is limited in the Table View area where Mrs Ribeli lives. Local nursing homes are currently operating at full capacity and have waiting lists of between 5 and 10 years.
Having observed Mrs Ribeli’s mental state and the impact of her lack of mobility on her lifestyle, it is my opinion that she would only be able to obtain the level of care she requires for an adequate quality of life from a close family member. The support she requires is not only physical but also emotional and given her level of pain, I believe that this would not be achieved by a nursing home or hired help.”
Although it was not before the ECO, the FTT also had before it a letter from Dr Antonie Rod (a specialist physician) dated 15 December 2014. So far as material that letter said:
“Mrs Ribeli is on a significant amount of analgesics which help with the pain control, but do cause sedation. If she over exerts herself she suffers from an exacerbation of her pain the same day and into the following day. As a result of this she has had to restrict her activities significantly. She currently lives alone and is struggling to cope with everyday activities. This has led to a degree of anxiety and depression which have heightened her muscle tension and this is making her fibromyalgia worse.”
As will be apparent from the above, the ECO’s refusal letter also referred to a letter dated 12 March 2014, signed by counsel from Garden Court Chambers (Greg Ó Ceallaigh), who was then advising the Appellant and her daughter. Under the heading “Article 8 ECHR” that letter included the following passage:
“Ms Steenkamp is a British citizen. If the application is not granted she will have to leave the country to go and care for her mother in South Africa. That will have a significant impact on her private life, built up over many years in the United Kingdom.”
Relevant Provisions of the Immigration Rules
The relevant provisions of the Immigration Rules are to be found in Appendix FM, which was introduced with effect from 9 July 2012.
Para. EC-DR.1.1 provides:
“The requirements to be met for entry clearance as an adult dependent relative are that –
(a) the applicant must be outside the UK;
(b) the applicant must have made a valid application for entry clearance as an adult dependent relative;
(c) the applicant must not fall for refusal under any of the grounds under Section S-EC: Suitability for entry clearance; and
(d) the applicant must meet all of the requirements of section E-ECDR: Eligibility for entry clearance as an adult dependent relative.”
Section E-ECDR in turn makes it clear that, to meet the eligibility requirements for such an entry clearance, an applicant must meet all of the requirements in paragraphs E-ECDR.2.1-3.2.
Para. E-ECDR.2.1 provides:
“The applicant must be the –
(a) parent aged 18 years or over; … of a person (‘the sponsor’) who is in the UK.”
Para. E-ECDR.2.3 provides that the sponsor must at the date of application be
“(a) aged 18 years or over and
(b) [so far as relevant to the present case]
a British citizen in the UK.”
I would also note para. E-ECDR.2.4:
“The applicant or, if the applicant and their partner are the sponsor’s parents or grandparents, the applicant’s partner, must as a result of age, illness or disability require long-term personal care to perform everyday tasks.”
Of central importance in the present case is para. E-ECDR.2.5:
“The applicant or, if the applicant and their partner are the sponsor’s parents or grandparents, the applicant’s partner, 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.”
Also relevant are the evidential provisions of Appendix FM-SE. Para. 34 provides:
“Evidence that, as a result of age, illness or disability, the applicant required long-term personal care should take the form of:
(a) Independent medical evidence that the applicant’s physical or mental condition means that they cannot perform everyday tasks; and
(b) This must be from a doctor or other health professional.”
Para. 35 provides:
“Independent evidence that the applicant is unable, even with the practical and financial help of the sponsor in the UK, to obtain the required level of care in the country where they are living should be from:
a central or local health authority;
a local authority; or
a doctor or other health professional.”
The Determination of the FTT
The FTT determination was made by FTT Judge Napthine. He found the Appellant’s sponsor, Ms Steenkamp, to be an impressive witness (para. 11). The judge accepted that South Africa is a dangerous country for unprotected vulnerable persons, like the Appellant, and that this can only be mitigated through living in an expensive secure compound (para. 14). The judge found that the Appellant has no emotional/family support in South Africa (para. 19).
The judge ruled that the Respondent was wrong to reason that it followed from the existence of a need for assistance that the Appellant was receiving assistance at present (para. 16). He said that it was possible that there was an unmet need (para. 17).
The judge directed himself that access to care must be reliable, as well as affordable (para. 23) and then went on to find that the Appellant did not have access to care in South Africa (para. 24).
Accordingly the FTT allowed the Appellant’s appeal under the Rules. For that reason he did not need to address Article 8 of the Convention rights, as set out in Sch. 1 to the Human Rights Act 1998.
The Determination of the UT
The Secretary of State appealed against the decision of the FTT. Her appeal came before UT Judge Clive Lane. In accordance with common practice, the task of the UT was two-fold: first, to consider whether to set aside the determination of the FTT on the ground that there had been a material error of law; and, if so, to consider the merits of the underlying appeal itself.
There was a single ground of appeal before the UT, concerning the adequacy of the reasons provided by the FTT judge for his factual findings (para. 4). The judge concluded that there had been a material error of law because: first, the FTT did not resolve the apparent contradiction presented in the evidence as to the Appellant’s “unmet needs”; secondly, there was no evidence to indicate that care services were not available outside the Table View area of Cape Town (para. 8); and finally, the judge did not rely on any independent evidence when finding that there was no reliable care available to the Appellant (para. 10).
Having set aside the determination of the FTT, the judge then proceeded to refuse the underlying appeal on the basis that the Appellant had not established that her case satisfies the requirements in E-ECDR.2.4 (para.12).
The UT dismissed the Appellant’s cross-appeal under Article 8 outside the Rules because the Appellant’s sponsor was willing to move to South Africa to provide care if necessary (para. 13). The UT decided the Article 8 issue against the Appellant essentially on the ground that this case concerns an adult dependent relative and not (for example) a young child, in circumstances where it would be reasonable for Ms Steenkamp to move back to South Africa in order to look after her mother or to oversee the care arrangements made for her there.
The Appellant’s Submissions
We have had the benefit of oral submissions by Mr Duran Seddon, who appeared with Mr Ó Ceallaigh. The Appellant has filed a number of skeleton arguments. The version referred to here is the most recent, dated 27 February 2018. As I have mentioned the four remaining grounds of appeal have been recast into three issues before this Court.
Issue 1: It is submitted that the UT erred in ruling that the FTT decision contained an error of law. The Appellant submits that there was no need for the FTT to consider E-ECDR.2.4 because it was not raised in the decision letter; it is clearly possible for someone to have unmet needs; and the Appellant did present medical evidence regarding the availability of medical care and this was accepted by the FTT. The UT may have disagreed with the FTT judge’s conclusions, but did not rule that they were perverse or identify why that might be the case.
Issue 2: It is submitted that the UT itself made an error of law when re-determining the appeal under the Rules. Mr Seddon submits that the UT was in error because the Respondent had already accepted that the Appellant met the terms of E-ECDR.2.4; and, in any case, the Appellant had presented evidence to support her care needs, which had been specified in various documents. At the hearing before this Court Mr Seddon’s submissions focussed in particular on the emotional needs of the Appellant and that there was evidence from her doctor that the only person who could provide the emotional support needed is her daughter, Ms Steenkamp.
Issue 3: It is submitted that the UT erred in dismissing the appeal under Article 8 outside the Rules. Mr Seddon submits that the consideration of this ground was cursory, engaged little of the extensive evidence before the UT, and did not consider the family’s Article 8 rights in the round.
The Respondent’s Submissions
We have also had the benefit of written and oral submissions by Mr Neil Sheldon, who appeared on behalf of the Respondent.
On Issue 1, Mr Sheldon submits that the UT was correct to set aside the determination of the FTT for the reasons given by UT Judge Clive Lane.
On Issue 2, Mr Sheldon submits that the UT was correct to reject this appeal within the Rules because the burden of proof was on the Appellant to demonstrate that she qualified under the Rules and that she did not provide evidence that she would be unable to obtain adequate care in South Africa. Mr Sheldon submits that the care needs of the Appellant are physical; that her emotional needs are relevant in so far as her physical health may deteriorate as a result of those emotional needs; and that the UT was entitled to form the view that this case was nowhere near the kind of severity that would be required to qualify under the Rules.
On Issue 3, Mr Sheldon submits that the UT came to a conclusion which was properly open to it, so there is no need to investigate the factual findings in detail. He also submits that the application for entry clearance is based on a choice by the Appellant and her daughter to reside in the UK, rather than any compelling need to do so. In this context Mr Sheldon emphasises that the Article 8 issue only arises if the appeal has failed under the Rules themselves; and that, in that context, the fact that the Appellant does not qualify under the Rules is an important consideration to which weight should be given when assessing the proportionality of any interference with the rights protected by Article 8.
Analysis
In the light of the way that the case has now been put on behalf of the Appellant the three issues for the court are:
Was the UT correct to find that the FTT had erred in law and so set its decision aside? If the answer is No, that is the end of the matter and the other issues do not arise, since the UT should not have interfered with the decision of the FTT, which was in favour of the Appellant.
If the answer to Issue (1) is Yes, then did the UT itself make an error of law when re-considering the appeal?
Was the UT’s approach to Article 8 flawed?
Before I address each of those issues in turn, I will summarise the decision of this Court in BritCits because that forms an important part of the background to this case.
The Decision of this Court in BritCits
As I have mentioned the new rules on adult dependent relatives (“ADRs”) which were inserted into the Immigration Rules at Appendix FM with effect from 9 July 2012 were challenged by way of judicial review in the case of BritCits. That claim failed in the High Court. This Court (comprising Sir Terence Etherton MR and Davis and Sales LJJ) dismissed the appeal by the Claimant organisation. We were informed at the hearing that the application for permission to appeal was subsequently refused by the Supreme Court.
At para. 58 the Master of the Rolls described the policy lying behind the changes to the rules in the following way:
“… It is twofold: firstly, to reduce the burden on the taxpayer for the provision of health and social care services to those ADRs whose needs can reasonably and adequately be met in their own country; and, secondly, to ensure that those ADRs whose needs can only be reasonably and adequately met in the UK are granted fully settled status and full access to the NHS and social care provided by local authorities. The latter is intended to avoid disparity between ADRs depending on their wealth and to avoid precariousness of status occasioned by changes in the financial circumstances of ADRs once settled here.”
At para. 59 the Master of the Rolls continued:
“… The focus in on whether the care required by the ADR applicant can be ‘reasonably’ provided and to ‘the required level’ in their home country. As Mr Sheldon [counsel for the Secretary of State] confirmed in his oral submissions, the provision of care in the home country must be reasonable both from the perspective of the provider and the perspective of the applicant, and the standard of such care must be what is required for that particular applicant. It is possible that insufficient attention has been paid in the past to these considerations, which focus on what care is both necessary and reasonable for the applicant to receive in their home country. Those considerations include issues as to the accessibility and geographical location of the provision of care and the standard of care. They are capable of embracing emotional and psychological requirements verified by expert medical evidence. What is reasonable is, of course, to be objectively assessed.” (Emphasis added)
In the present case Mr Seddon emphasised the contents of that passage, in particular the references to the standard of care being “what is required for that particular applicant” and to the “emotional and psychological requirements” of an applicant.
Mr Seddon also placed emphasis on what was said by the Master of the Rolls in para. 62 of his judgment: that there is no inevitability about the failure of most applications under the new ADR rules, once it is appreciated that an application will only be rejected on the ground of adequacy of care available in the applicant’s home country if the care that is available is both reasonable for the applicant to receive and of the level required for that applicant.
In the result, this Court held in the BritCits case that the changes made to the rules in 2012 had been lawfully made. This is despite the fact that, as Mr Seddon acknowledged at the hearing before us, the test now imposed by the rules is “a rigorous and demanding test”, as the UT put it at para. 12 of its judgment in the present case.
Against that background I turn to each of the three issues in this appeal.
Issue 1: Was the UT right to say that the FTT had erred in law?
In my view, UTJ Lane was correct to identify an error of law in the FTT decision. This is in substance for the three reasons he gave at paras. 6-10 of his determination.
In my view, FTT Judge Napthine had expressed the point too strongly when he said that the Respondent had “commenced his reasoning on a false basis – to state ‘she needs assistance with tasks as basic as cooking, shopping and washing herself’ does not ‘indicate that you currently receive the care that it is claimed you need.’” (Emphasis added) The point that the Respondent was making was a perfectly reasonable one; it certainly was not a “false” one. He was observing that the difficulties experienced by the Appellant could not be as fundamental or severe as was being submitted because, if they had been, she would not be able to wash herself or eat. It was reasonable for the Respondent to query the need for clear evidence on what exactly was happening on a day to day basis in the Appellant’s life.
Mr Seddon is entitled to respond by saying that there can be such a thing as unmet needs; the fact that a person’s needs are not being met does not mean that they do not have those needs. At para. 17 of his determination, the way in which FTT Judge Napthine made that point was as follows:
“One can have unmet needs. A person could struggle to survive against the odds and manage to survive but still have their needs unmet. They may be ill-fed, inadequately washed and dressed, lacking care and attention to the extent that their life is nothing more than physical existence in circumstances of pain and discomfort.”
That passage was expressed in the abstract, not by reference to the facts of the present case. It is therefore difficult to see what its relevance was to this case. If it was intended to reflect the facts of the present case it was unsupported by any evidence. In that context, I note that the Appellant had recently stayed with her daughter in the UK. The Appellant visited her daughter in the UK on two occasions, in 2008 and, more recently, between 28 August and 30 November 2012. Yet nothing in the evidence of either the Appellant or Ms Steenkamp had said that her condition was so bad that she was not eating properly; that she was not washing herself or anything of that sort.
I also agree with the second reason that UT Judge Clive Lane gave for setting aside the FTT determination. There was no independent evidence that the Appellant was unable, even with the practical and financial help of her daughter and sponsor in the UK, to obtain the required level of care in the country where she was living. As the UT Judge observed at para. 8, that is what the relevant Rules require: see e.g. para. 35 of Appendix FM – SE. The only evidence that was placed before the FTT on behalf of the Appellant (the GP’s letter of 18 December 2013) referred only to the Table View area, where the Appellant lives, not to the larger Cape Town area, still less the whole of South Africa.
On the subject of waiting lists for care homes in South Africa, the FTT had before it two letters. The first, dated 30 January 2015, by Mr Clive van Zil (the manager of the home) said that it did not take in pensioners younger than 65 years old. It also said the home was full and it had a very long waiting list. The second letter, dated 13 February 2015, from Huis Boland said that the home had no openings at that time and there was also a long waiting list. That was insufficient evidence, in my view, to justify the conclusion that there was no care available to the Appellant in the whole of South Africa.
As to the UT’s third reason, again I agree with its reasoning. There was no independent evidence to support the FTT’s assertion that, without the supervision of a close relative, the delivery of care services in South Africa would be wholly unreliable. What the FTT said, for example at para. 14, was generalised and far too sweeping about conditions in South Africa.
In my view, therefore, the UT was entitled, and indeed was right, to set aside the determination of the FTT.
Issue 2: The UT decision to dismiss the appeal under the Immigration Rules
In my view, despite the attractive way in which Mr Seddon made his submissions, he has been unable to identify any error of law in UT Judge Clive Lane’s re-determination of the underlying appeal.
UT Judge Clive Lane’s reasons for dismissing the Appellant’s appeal under the Immigration Rules are to be found at para. 12 of his determination:
“In the circumstances, I have set aside the decision of the First-tier Tribunal and I now remake the decision. For the reasons which I have given above, I do not find that the appellant meets the requirements of the Immigration Rules. The care requirements of the appellant as at the date of the application remain unclear, as noted by the ECO. In order to succeed in her appeal against the ECO’s decision, the appellant is required to satisfy all the requirements of the Immigration Rules including those set out in Appendix FM-SE. I find that there is no independent evidence that the appellant is unable, even with the practical and financial help of the United Kingdom sponsor, to obtain the required level of care in South Africa. If the appellant has been receiving care, then there was no evidence to satisfy paragraph 37 of the Appendix FM-SE. I agree with Mr Jarvis that the admission of adult dependent relatives under the Immigration Rules is intended to be subject to a rigorous and demanding test both as regards the care requirements themselves but also the evidence which must be provided to establish those requirements. It may well be the case in future that the appellant may meet the requirements of the Immigration Rules but I am not satisfied that she has addressed the concerns of the ECO regarding inconsistencies in her application nor has she provided, in the current application, sufficient evidence of the type required by the Immigration Rules to establish that she has care needs. In the circumstances, I dismiss the appellant’s appeal against the ECO’s decision.”
In essence, he was making the point he had already made in the earlier part of his determination, when deciding that the FTT had erred in law and setting aside its decision: that there was no independent evidence that the care that the Appellant requires is not available in South Africa, even with the practical and financial help of her daughter and sponsor in the UK.
I agree with Mr Sheldon that it is important in this context to recall that the burden of proof lies on the Appellant to show that she qualifies for entry clearance in accordance with the terms of the Rules. As I have already mentioned, those Rules, as amended from 2012, are “rigorous and demanding”. That was the policy decision of the Secretary of State and was endorsed by Parliament in approving the change to the Rules in 2012. A challenge to that change has been considered and rejected by this Court in BritCits.
At the hearing before us Mr Seddon placed emphasis on the Appellant’s emotional needs. He submitted that nowhere in the UT’s reasoning at para. 12 is there any reference to the medical evidence, still less what that evidence said about those emotional needs.
I agree with Mr Sheldon that what is crucial in the present case is the Appellant’s physical needs. The medical evidence speaks of her emotional needs not in themselves but in so far as a failure to meet them may lead to a deterioration in her physical health, in particular the fybromyalgia. Taken by itself, the Appellant’s mental health (“anxiety and mild depression”) cannot possibly be regarded as being so serious that she could not be cared for in South Africa.
As to her physical care needs, the fundamental point made by the UT was that the evidence simply did not discharge the burden of proof: it was insufficient to prove that the Appellant’s care needs cannot be met in South Africa. There was insufficient evidence as to what particular steps had been taken to obtain a place at a care home elsewhere in that country even if one was not available in her home area. In so far as it was being suggested that a care home was not a viable option and so the Appellant would need to be cared for in her own home, what the FTT had relied on was far too generalised and sweeping: he had suggested that in effect South Africa is so dangerous a country that no one could receive care at home because no one coming in to care for them could be trusted (para. 14 of the FTT determination).
I would therefore reject the submissions made by Mr Seddon on Issue 2.
Issue 3: The UT decision on Article 8
UT Judge Clive Lane’s reasons for rejecting the appeal under Article 8, and therefore outside the Rules, are at para. 13 of his determination:
“… Insofar as the appeal is pursued on Article 8 grounds, I am satisfied that no evidence has been produced which would lead the Upper Tribunal to allow the appeal on those grounds where it has decided to dismiss it under the Immigration Rules. Some mention is made in the evidence of the appellant’s isolation in South Africa and a need for emotional support of the United Kingdom sponsor but I note (as did the ECO) that the evidence submitted with the application for entry clearance indicated that the United Kingdom sponsor ‘will have to leave the United Kingdom to care for [the appellant] if the instant application is not approved.’ That statement indicates a willingness on the part of the United Kingdom sponsor to travel to South Africa to care for her mother if necessary. I find it would be reasonable for her to do so. In those circumstances, there would be no disproportionate breach of the rights of the appellant protected under Article 8 ECHR. … .”
Mr Seddon criticises that passage as exaggerating what the evidence was as to Ms Steenkamp’s position. In particular he submits that it was not a fair summary of the evidence that Ms Steenkamp was “willing” to return to South Africa. He reminded this Court of what the Appellant and her daughter had said in their witness statements about this.
Before the FTT and the UT there was a witness statement from the Appellant. At para. 9 she stated:
“I have tried to get into few old age homes in Cape Town so that I can have some help, but this is almost impossible because of such high demand and very long waiting lists. I have no relatives or friends who can offer me any help – they all have their own families and some also have health problems that they are dealing with. As I have grown older, I have become more and more reliant on Carmen for emotional support and I feel that she helps me to stay positive in spite of having to live with daily pain in my body.”
At para. 10 the Appellant continued:
“Carmen is now a British citizen and is very happy in the UK – she does not want to move to South Africa. It would be a big adjustment for me to leave South Africa but I just do not see another option as I am desperate to be re-united with my child and need her help and support in my life.”
Before the FTT and the UT there was also a witness statement from the Appellant’s daughter, Carmen Steenkamp. That included the following material passages. At para. 13 she said:
“… Given the exceptionally high crime rates in South Africa, getting a private care for my mother in her own home is not an option that either of us feel comfortable with.”
At para. 15 Ms Steenkamp said:
“From my perspective, the prospect of potentially having to leave the UK to care for my mother is extremely distressing. I have built a career here, made a home, formed friendships and relationships that I value greatly. I have a good life and I am happy and privileged to now call myself a citizen of this country. This country is my home.”
However, it is important to recall that the test under Article 8 is an objective one, whatever the subjective feelings of a person may be. That is not to criticise Ms Steenkamp: for understandable reasons she wants to continue to have the professional and social life she has built up in the UK and does not wish to return to South Africa. However, that does not come close to establishing that the Respondent’s refusal to grant the Appellant entry clearance constitutes a disproportionate interference with Article 8 rights.
The starting point is that it is well-established in the authorities that there is no relevant family life for the purpose of Article 8 simply because there is a family relationship between two adults (such as a parent and her child) who live in different countries. There has to be something more than normal emotional ties: see Kugathas v Secretary of State for the Home Department [2003] EWCA Civ 31; [2003] INLR 170. In this case it is said on behalf of the Appellant that there is more: in particular that the Appellant needs to be close to her daughter so that she can receive the care and support which she needs.
The crucial point (and it is a powerful point as a matter of common sense as well as a matter of law) is that the Appellant’s daughter could reasonably be expected to go back to South Africa to provide the emotional support her mother needs as well as to provide practical support. For example, if the concern is that the Appellant may be cared for in her home by people who may turn out not to be trustworthy, there is no reason why her daughter cannot live and work in South Africa to supervise the care arrangements made for her mother.
As the UT Judge observed, at the end of the day, what this case is about is the choice which Ms Steenkamp has exercised and wishes to be able to continue to exercise of living and working in a major international centre like London rather than in South Africa, which is her own country of origin. She is entitled to exercise that choice. But, in those circumstances, the UT cannot be faulted for having come to the conclusion that any interference with the Appellant’s right to respect for family life conforms to the principle of proportionality.
This is especially so in a context where, as Mr Sheldon has submitted, “appropriate” or “due” weight must be given on the other side of the balance to the assessment by the Secretary of State and by Parliament (which has approved the Secretary of State’s changes to the Immigration Rules) of what the public interest requires. Depending on the context the weight which is appropriate or due may be “considerable” weight: see Ali v Secretary of State for the Home Department [2016] UKSC 60; [2016] 1 WLR 4799, para. 44 (Lord Reed JSC), citing Huang v Secretary of State for the Home Department [2007] UKHL 11; [2007] 2 AC 167, para. 16 (Lord Bingham of Cornhill); and also paras. 46 and 50; and R (Agyarko) v Secretary of State for the Home Department [2017] UKSC 11; [2017] 1 WLR 823, para. 47 (Lord Reed JSC).
I would therefore reject Mr Seddon’s argument based on Article 8.
Conclusion
For the reasons I have given I would dismiss this appeal.
Lady Justice Hallett :
I agree.