TR v The Secretary of State for the Home Department

This is an appeal against the respondent’s refusal, dated 3^rd July 2006, to issue a residence card to the appellant as confirmation of a right of residence as an extended family member of an EEA national. Immigration Judge Turquet dismissed the appeal on 25^th September 2006. A reconsideration was applied for and ordered, and at a first stage reconsideration, heard on 9^th February 2007, this Tribunal, similarly constituted, concluded that there had been a material error of law in part of the determination of Immigration Judge. The reasons for that conclusion are set out below.

The issue before the Tribunal at the second stage reconsideration hearing was whether or not the appellant satisfies the provision of regulation 8(3) of the Immigration (European Economic Area) Regulations 2006 [SI 2006 Number 1003]. Is he “a relative of an EEA national or his spouse… and on serious health grounds strictly requires the personal care of the EEA national, (or) his spouse…” It is accepted that the appellant lives with an elder sister, here called “the appellant’s sister”, in Sutton, Surrey. This sister is married to a Sri Lankan, “the appellant’s brother-in-law”, who, in the 1990s, lived in Germany and became a German national. He and his wife lived in Germany and ran a business there until approximately 2001. Since 2002, both have lived in the UK. The appellant’s brother-in-law is therefore in the UK exercising his right as a citizen of the Union to move with his family members and reside freely within the UK. For the purposes of regulation 8(3) of the 2006 Regulations, the appellant is a relative, i.e. the brother, of the spouse of an EEA national. It is his case that, “on serious health grounds”, he “strictly requires” from his sister “the personal care “ of her as the spouse of an EEA national.

The appellant came to the UK on 5^th March 2001 and claimed asylum when he arrived. That claim was refused but he appealed. His appeal was heard in 2003, and the determination was promulgated on 10^th June 2003. The adjudicator (Mr J. Azam) dismissed the appeal. He did not consider that the appellant was at risk of persecution or of Article 3 ill treatment on any return to Sri Lanka.

The adjudicator made findings of significant relevance to this appeal. He accepted that the appellant had been held in custody by the authorities in Sri Lanka because of his imputed political opinions. The adjudicator also accepted that whilst in custody the appellant had been anally raped, tortured and ill-treated. He had concluded, however, that the appellant was of no further interest to the authorities in Sri Lanka, and he had been held and made to do labour until released on payment of a bribe.

The adjudicator also disbelieved certain aspects of the appellant’s claim. In particular, he did not accept the appellant’s story as to how he left Sri Lanka. He also did not accept that the appellant’s claimed fears of the LTTE were well founded. The asylum appeal was dismissed and not successfully further appealed. On 20^th December 2005, the appellant applied for a residence card as an extended family member of an EEA national. It is that appeal that is before us and in particular we need to consider whether on serious health grounds this appellant strictly requires the personal care of the EEA national and/or his spouse.

The appellant has seen and been reported upon by a number of consultant psychiatrists. A psychiatric report by Dr Anthony Coleman on 8^th April 2003 diagnosed the appellant as suffering from post-traumatic stress disorder (PTSD) and depression. Dr Anne Patterson, in reports dated 29^th November 2003, 22^nd April 2005, 14^th September 2006 and 30^th September 2007, in all cases confirmed that diagnosis. Since at least 2005, and possibly before, the appellant has been treated on a regular basis, currently monthly, by another consultant psychiatrist, Dr Kanagaratnam. He has provided a number of reports, the most recent being dated 4^th October 2007. He too confirmed the diagnosis of PTSD and depression.

It is also accepted that the appellant misled the authorities and the adjudicator who heard the appeal in 2003. Immigration Judge Turquet found that the appellant and his relatives had not been honest in the past. The appellant had not claimed to have a relative who was an EEA national or married to an EEA national. He did not tell the authors of the medical reports up to 2003 that he was living with his sister. His brother-in-law made a statement describing himself as a landlord. The Immigration Judge made a finding that this was an attempt deliberately to deceive the adjudicator. She did however find that the sister and brother-in-law were related as claimed.

The appellant was mugged in March 2003 whilst on the way to attend a consultation with Dr Patterson. Prior to that he had held a job down for one month and had gone to college. Subsequent to the mugging, he and his family say, and the psychiatrists accept, that his condition has deteriorated.

It is the respondent’s case that the evidence of the appellant and his witnesses is full of contradictions and should not be relied on. In so far as the psychiatrists have relied on what has been reported to them by the appellant and his witnesses, such findings have to be open to question.

The respondent moved into the appellant’s home in Sutton when he arrived in the UK in March 2001. For the first fifteen months or so of his stay, it appears that the appellant’s sister and brother-in-law spent the bulk of their time in Germany, no doubt winding up their business affairs there. The respondent says that the appellant was not, during that period which concluded in 2002, looked after on a regular basis by anybody. The appellant’s evidence in relation to this has not been consistent.

Another brother-in-law, Mr B…, in a statement dated 21^st January 2007, purported to deal with a finding by Immigration Judge Turquet that the appellant had been left “living alone” for a fifteen-month period in 2001/2002. He said that either himself or his wife, another sister of the appellant, went to see the appellant at his house in Sutton nearly every day. It was not his written evidence that he or his wife stayed there on any regular basis. Before us, Mr B… gave evidence that “somebody stayed every night” with the appellant in the fifteen-month period under consideration. It was either his wife, he said, or an older brother of the appellant.

It is therefore the respondent’s case that the factual evidence about the care both required by and given to the appellant is inconclusive from the various witnesses and should not be relied upon. It is also submitted that the psychiatrists Dr Patterson and Dr Kanagaratnam have been in part misled by not being provided with copies of the determination of Immigration Judge Turquet, where she makes findings against the credibility of the appellant.

We do not accept on the evidence we have heard that, during the fifteen months in 2001/2002 when the appellant’s sister and her husband were mainly in Germany, on each and every night somebody was staying with the appellant in the house in Sutton. We do accept that there was almost daily visiting there and care provided by various relatives in relation to cooking and the provision of medication. The evidence points clearly to that conclusion. We also accept that the appellant during this period did spend some time staying with relatives. However, the constant nightly care apparently now claimed was not in our view in fact present.

We are however satisfied that since the appellant’s brother-in-law the EEA national and his wife, the appellant’s sister, have permanently settled in the UK from 2002, the appellant has lived with them and been looked after by them on a daily basis. We heard evidence that the sister and brother-in-law have been abroad for short periods over the five years since 2002. We were told, particularly in relation to the more recent absences, that the appellant either stayed with the other sister and brother-in-law or the family members came to stay at the house in Sutton. The evidence points to the need, it is said, for constant assistance to the appellant. We accept that such assistance has been provided, particularly in more recent years.

We also accept the evidence which suggests that the appellant’s condition had improved for a period prior to March 2005, when he was mugged. Thereafter, both consultant psychiatrists are of the view that the appellant’s condition has worsened. We accept that view.

We have considered whether the consultant psychiatrists’ reports and diagnosis can have been adversely affected by such wrong information as may have been given to them by the appellant and his relatives. All three psychiatrists who have reported accept that the appellant suffers from PTSD. The adjudicator has previously accepted that the appellant had been tortured as referred to in paragraph 4 above. This is the foundation of the PTSD diagnosis. Dr Patterson and Dr Kanagaratnam accept the evidence they have heard from the appellant and the relatives that the appellant wakes three to four nights every week and screams. Dr Patterson, in her latest report, considers the extent to which the appellant is dependent upon his sister, brother-in-law and their family because of his mental state. She says:

“In my opinion, he remains just as heavily dependent on his relatives as before. This is confirmed in the statements of his relatives to which I have had access and have listed above. His sister and his brother-in-law, with whom he lives, are so concerned about his state of mind, at night, in particular his waking up screaming and sleep-walking, that they have installed the equivalent of a baby alarm in his bedroom to monitor him. The care that he requires because of his impaired mental state is more appropriate to that of a primary school child than a man of nearly thirty. In my opinion, he is unequal to fulfilling the tasks of everyday adult life without their support.”

Dr Kanagaratnam in his most recent report notes that the appellant is generally brought to his regular consultations by a member of the family. The consultant describes the appellant as demonstrating “features of avoidance and emotional numbing, and he is not readily able to engage in conversations, activities or visit places… he becomes quite aroused or agitated when he is challenged”. The consultant says “it is improbable from my observation of him in view of his mental state that he will be able to understand the nature of oral questions put to him or give instructions or properly follow the proceedings” at a hearing.

Dr Patterson considered that the appellant was not fit to give evidence and has said so in all her reports. She regarded the process as “retraumatising” for the appellant. She further considered that the appellant’s “state of mind has not improved since my previous review last year”. Both psychiatrists also regard the appellant as a suicide risk, particularly if he is returned to Sri Lanka.

We acknowledge that a good deal of the information which has been given to the psychiatrists and on which each of them relies has come directly from the appellant and periodically and indirectly from the appellant’s witnesses. We are however satisfied having considered all the reports that the psychiatrists have made objective assessments of the appellant. Both have long knowledge of him and, in particular, Dr Kanagaratnam. Both are convinced that the appellant has PTSD and depression and is a suicide risk.

Most unusually, this appellant has, since at least 2003, had the benefit of the advice of three different psychiatrists and has throughout most of that time been treated on a regular basis by one of them. Dr Patterson in particular and Dr Kanagaratnam, the treating psychiatrist, both have long knowledge of the appellant and of his continuing treatment. Their reports are consistent. We are satisfied from the evidence from the psychiatrists that the appellant has serious mental health problems. To satisfy regulation 8(3) of the EEA Regulations 2006 the appellant has to show “serious health grounds”. We have no doubt the use of the word “serious” requires the “health grounds” to be well beyond ordinary ill health and as a matter of practice to require detailed medical evidence in support of any claim. We consider the evidence is such as to show that this appellant can be properly categorised as having “serious health grounds” as required by the regulation.

Unsurprisingly, there is no definition of “personal care” in the legislation. We were much assisted by Mr Blundell on behalf of the respondent who drew our attention to a number of sources which might provide some guidance as to the meaning of the phrase. These included a Department of Health pamphlet entitled “Supported housing and care homes – guidance on regulations” from April 2002; a Disability Living Allowance Customer Information Leaflet from the Department for Work and Pensions, Disability and Carers Service from January 2006; and Acts of the Scottish Parliament including the Community Care and Health (Scotland) Act 2002 section 1 and Schedule 1. The Regulation of Care (Scotland) Act 2001 (ASP8) at section 2 (28) provides a statutory definition of “personal care” for the purposes of that Act as follows:

“Personal care means care which relates to the day to day physical tasks and needs of the person cared for (as for example, but without prejudice to that generality, to eating and washing) and to mental processes related to those tasks and needs (as for example, but without prejudice to that generality, to remembering to eat and wash).”

We consider that section 2(28) provides helpful guidance by which the concept of personal care within the EEA Regulations can be considered. We have looked at the evidence before us with that in mind.

In Dr Patterson’s report of 29^th November 2003, she describes the appellant as being looked after and doing no shopping, cooking or housework. He said he could not do anything. He was “unable to manage” (page 5). He was “in need of care and attention” and “reliant on external sources of support” (page 18). The doctor described the appellant then as being not fit to give evidence and she has continued in that view throughout all the rest of her reports to that of October 2007.

In Dr Patterson’s report of 20^th July 2005, she said the appellant does nothing unless prompted and he was entirely dependent on his sister-in-law (page 3). She thought there was a significant deterioration in his mental state and level of functioning at that time (page 5). He was less fit to give evidence than before (page 8). On 14^th September 2006, she said that the appellant was “dependent on his relatives”. He had to be told to bath, manage his clothes, do any washing and clean his room (page 3). She thought there was no significant change in his state since the previous year (page 5). She reported at page 6 that the appellant’s “sister prompts him with self-care, laundry and the importance of eating”. “In my opinion”, she said, “their constant presence and vigilance acts as a protective factor against further self-harm, although he has resorted to burning himself in the past and was unable to guarantee that he would not repeat this”. She regarded him as unable to function as an independent adult, and that he needed to be escorted as if he were a child (page 7). Her updated report, signed 30^th September 2007, is quoted from at paragraph 16 above and repeats these views.

Dr Kanagaratnam supports these views in his various reports. His view is summarised in his supplementary psychiatric report of 4th October 2007, page 6, as follows:

“Mrs S… (the appellant’s sister) and her family continue to provide him with care and emotional support that is essential for his stability and prevent suicide. This will continue to be a requirement if a satisfactory prognosis is to be achieved. Mr and Mrs S… (the people he lives with) continue to play the leading role in his care although they are usefully supported in this function by other members of the family who live close by.”

We have noted above that information on which the psychiatrists base their views has been provided, as necessarily is the case, by the appellant and his relatives. We conclude, however, at paragraph 19, that the psychiatrists have made objective assessments of the appellant and we remain of that view. The evidence in our judgement points clearly to the appellant as having needed personal care from his sister, the wife of the EEA national, from 2003 onwards. We accept that the need for personal care was reduced for the apparently brief period when he found a job stacking shelves, and prior to his mugging in Croydon on 19^th March 2005. Thereafter the evidence is consistent that he needs personal care.

It is clear from the evidence that there have been brief periods when the appellant’s sister, the wife of the relevant EEA national, and her husband have been away. In those circumstances, care has been provided on the evidence by other members of the appellant’s family. We do not consider that the regulation has to be interpreted as meaning that the requirement for personal care must be for twenty-four hours a day, seven days a week from the relevant person. There has to be some allowance for respite for any carer. But to satisfy regulation 8(3) the “personal care” must be provided on a day to day basis and relate to either or both the physical and mental tasks and needs required for a person to function. The evidence points clearly in our view to the personal care being provided for the overwhelming majority of the time by the appellant’s sister.

We therefore consider that in this case the clear medical evidence shows that the appellant has PTSD, depression and is a suicide risk. The doctors consider that the appellant functions at a very low level and we consider the evidence shows that he does “require the personal care” of his sister given his current state of health. If some of the uncertainties he faces are removed or reduced, the evidence from 2005 suggests that he may improve in the future, but, for the present, he requires the personal care.

“Strictly” is defined in the Oxford English Dictionary as “requiring complete compliance or exact performance”. “Strictly” is a restrictive word and cases under regulation 8(3) must be restrictively construed. It reinforces the need for the personal care to be provided on a day to day basis. In this case, the full and detailed medical evidence points to the appellant “strictly” requiring personal care at the time of the decision on his application by the Secretary of State and continuing up to the date of this hearing. The evidence points to the appellant needing such help. It may be it was not so needed when the appellant arrived in the UK in March 2001. But it is now and has been since 2005. The Tribunal must consider the position as at the time of the decision appealed against and subsequently.

In our judgement, for a relative to satisfy regulation 8(3) the “serious health grounds” need to be significantly beyond ordinary ill health and as a matter of practice will require detailed medical evidence in support of any claim. Personal care must be provided on a day to day basis and relate either or both to the physical and mental tasks and needs required for a person to function. “Strictly” is a restrictive or limiting requirement and imports a need for complete compliance or exact performance and reinforces the need for personal care to be provided on a day to day basis.

The reasons for refusal letter in this case and the notice of Refusal to Issue a Residence Card were both issued on 3^rd July 2006. Neither referred in terms to regulation 8(3) of the EEA Regulations, nor to the tests that the appellant seeks to satisfy that he “strictly requires the personal care” of here the spouse of an EEA national who has exercised his treaty rights in moving to the UK. Both advocates submitted to us that if we declined to uphold the decision of the Immigration Judge in dismissing this appeal then the matter had to go back to the Secretary of State. We agree. Accordingly, on this reconsideration, we do not uphold the Immigration Judge’s decision and allow the appellant’s appeal to the extent only that the application be referred back to the Secretary of State for a further decision. In reaching any decision on this application, the Secretary of State will no doubt have regard to the findings we have made and the views expressed in this determination.

The appeal is allowed to the extent that the decision of the Immigration Judge is not upheld and the matter is referred back to the Secretary of State for a further decision on the application.