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

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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER	Case No: UI- 2025-000118
	First-tier Tribunal No: HU/59903/2023

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

 

On 26 ^th of March 2025

 

Before

 

UPPER TRIBUNAL JUDGE LOUGHRAN

DEPUTY UPPER TRIBUNAL JUDGE RODGER

 

Between

 

GULJEMAL MUHAMMEDOVA

(NO ANONYMITY ORDER MADE)

Appellant

and

 

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation :

For the Appellant: Mr Youssefian , Counsel instructed by Fernandes Vaz Solicitors

For the Respondent: Ms Nwachuku, Senior Presenting Officer

 

Heard at Field House on 12 March 2025

Order Regarding Anonymity

 

No application to anonymise these proceedings was made and no anonymity order is made as we are not satisfied that there is justification or necessity for the proceedings to be anonymised.

 

 

DECISION AND REASONS

1.              The appellant appeals with permission against the decision of the First-tier Tribunal dated 19 November 2024 dismissing her appeal against the respondent's decision of 12 July 2023 to refuse her human rights claim.

Background

2.              The appellant is a citizen of Turkmenistan born in 1996. She entered the UK on 27 December 2019 as a spouse, with leave valid from 23 December 2019 until 23 September 2022. On 23 September 2022, the appellant made an application to remain in the UK as a Family Member (Private Life). The application was made on grounds of her private life in the UK, namely that she had a property dispute in the UK with her ex-spouse and was taking legal proceedings, and that she was in full-time work in the UK.

3.              This application was refused on 12 July 2023 and this appeal relates to that refusal decision.

The Respondent's decision

4.              In a decision dated 12 July 2023 the respondent refused the appellant's application as a Family Member (Private Life).

5.              The appellant had not told the respondent about a partner, parent or dependent children in the UK and the application was not considered under the family life rules of Appendix FM.

6.              The respondent noted that the appellant entered the UK on 27 December 2019 and did not accept that she had lived continuously in the UK for at least 20 years.

7.              The respondent noted her ongoing ties to Turkmenistan and did not accept that there would be very significant obstacles to her integration into Turkmenistan.

8.              The respondent concluded that there were no exceptional circumstances in the appellant's case, that the refusal would not result in any unjustifiably harsh consequences for the appellant, a relevant child or other family member and concluded that the refusal would not be a breach of Article 8.

9.              The respondent considered the appellant did not fall for a grant of leave outside the Immigration Rules because there were no exceptional circumstances in the appellant's case.

Appeal

10.          The appellant appealed to the First Tier Tribunal on 11 August 2023. The grounds of appeal were that Article 8 was engaged and that the respondent was in breach of its obligations as the interference with the right to private life was disproportionate.

Matters subsequent to the refusal and appeal lodged

11.          A skeleton argument ("ASA") dated 16 January2024 was submitted for the appellant and raised two new matters in the form of (i) the appellant's new relationship with a partner, James Collier, a British citizen, and (ii) her part time care work for Mr Abdulla and that there is no other person who can provide this level of care and support. The ASA dated 16 January2024 made various submissions on various issues including (i) paragraph 276ADE 1(vi) and whether there are very significant obstacles to her integration in Turkmenistan, (ii) family life in the UK particularly with her new partner, Mr Collier, (iii) that the appellant cannot be expected to return to Turkmenistan and reside with Mr Collier and that paragraph EX.2 of Appendix FM is met, and (iv) that the appellant is employed in the UK and is a carer for a vulnerable British citizen; the skeleton stated that the appellant will rely upon the rationale established in Britcits v SSHD [2017] 1 WLR 3345.

12.          In a review dated 21 February 2024, the respondent consented to both new matters being considered as part of the appeal but disputed that either new ground justified a grant of leave to remain. With respect to paragraph (iv) of the ASA relating to Mr Abdulla, the respondent stated;

"The respondent does consent to this being considered as a new matter. However, they reject that it in any way engages article 8 rights. The appellant appears to be in a paid position of employment to look after Mr Abdulla, it would be possible for him to seek assistance for his care from other means, it is not the case that the Appellant is the only person who can provide this care and assistance to him. This point does nothing to further the appellants claim"

13.          The appellant's relationship with the partner, Mr Collier, subsequently broke down. The matter was listed for an oral hearing on 08 July 2024 and directions were made following confirmation from Counsel for the appellant that the relationship was no longer relied upon but that the appellant was now a full time live in carer for Mr Abdulla, who was not able to attend the hearing due to an accident. On 8 July 2024 it was directed that the issues were as follows:

(i) Whether the caring relationship wi th Mr Abdulla engages article 8 rights.

(ii) Whether the Appellant's removal would represent a disproportionate interference with those rights .

The appeal before the First-tier Tribunal

14.          The appeal came before the Judge for full hearing on 15 November 2024. The appellant was represented by Mr Paramjorthy, the writer of the ASA dated 16 January24. The respondent was represented by Ms Furtado, a Home Office Presenting Officer. The appellant and Mr Abdulla both gave evidence and the appellant was cross-examined.

15.          At paragraph 8, the Judge outlined the submissions heard, which included reliance on the Home Office review of 21 February 2024 and ASA of 16 January 2024. The Judge noted Counsel's submission that this appeal was a " Britcits [2017] EWCA Civ 368 situation" and at paragraph 8 states as follows: "In that case the Court of Appeal had confirmed the lawfulness of the adult dependant relative Immigration Rules."

16.          At paragraph 10 the Judge notes that the only issue in the proceedings before him was the appellant's caring responsibilities for Mr Abdulla. The Judge proceeds to set out the medical evidence relating to Mr Abdulla.

17.          At paragraph 11 the Judge refers to the medical report from Dr Mansour of 21 October 2024 and summarises Dr Mansour's description of Mr Abdulla and details of the recommendations made by Dr Mansour.

18.          At paragraph 12 the Judge makes reference to the Independent Social Worker report and notes the contents of the report, including that the report followed interviews and a home visit with the appellant and Mr Abdulla and that the report "confirmed the valuable support provided to him by the appellant."

19.          The Judge made the following conclusions at paragraphs 13 to 14:

13. In my view, the serv ices which the appellant provides do not l ead to a successful claim under Article 8 ECHR. These are not exceptional circumstances which would result in unjustifiably harsh consequences if she left the UK. Sh e still is in contact with her pare nts and four marrie d brother s in Turkmenistan, and had prev iously studied and worked there. There is no re ason why she cannot resume her life in Turkmenistan - and/or if she wishes, apply from there to return to the UK as a carer . She also is attending English studies in the UK , and it appears that she has also undertaken some maths studies. She stated that she attends class once a week, but then stated that this was done online. She lived the first 23 years of her life in Turkmenistan, and there is no reaso n why she cannot resume her life there . It wou l d not be unjustifiably harsh for h er to do so , nor are there a ny unjustifiably harsh consequences.

14. In respect of Mr Ab dulla's care, it is confirmed in the medical reports th at he can access alternative care facilities for his various needs.

The appeal to the Upper Tribunal

20.          The appellant sought permission to appeal on two grounds, (1) failing to adequately engage with the evidence relating to the appellant's caring role for Mr Abdulla and (2) failing to properly assess the effect on the Article 8 rights of Mr Abdulla if the appellant were to be required to leave the UK.

21.          On 09 January 2025 First-tier Tribunal Judge Thomas granted the appellant permission to appeal to the Upper Tribunal. FTJ Thomas stated:

3. Although not d irectly identified within the grounds of appeal I consider the Judge to have failed as a starting point to identify if Artic le 8 ECHR is engaged on a family life basis. Although at paragraph 4 of their decision they identify that the issues for determination are whether the caring relat ionship with Mr Abdulla e ngages Article 8, and whether then her r emoval would be a disproportionate interference on that basis, the Judge has not addressed the former. In short, although within paragraph 13 the Judge states that the services provided do not lead to a successful claim under Article 8, that is not sufficient. In the first instance whether th e relationship engages Article 8 needs to be addressed.

The UT appeal hearing

22.          At the hearing on 12 March 2025, we all had the benefit of a composite appeal bundle made up of 150 pages. We heard submissions from Mr Youssefian of Counsel for the appellant and Ms Nwachuku , a senior Home Office Presenting Officer for the respondent.

23.          Mr Youssefian clarified and confirmed during the course of the hearing that Ground 1 was essentially a failure to consider whether family life existed between the appellant and Mr Abdulla and Ground 2 was a failure to properly and meaningfully consider the ISW report and assess Mr Abdulla's Article 8 rights. Mr Youssefian submitted that if the Judge had properly considered the relationship between the appellant and Mr Abdulla and whether it amounted to family life, then that would have affected the issue of proportionality. He submitted that the failure to make a finding that there was family life between the appellant and Mr Abdulla was a material error of law and he relied upon the contents of the ISW to support that there was sufficient evidence before the Judge for family life to have been found to exist between the two even though there was a lack of blood relations. Mr Youssefian also submitted that the ISW report did not bear out the finding made at paragraph 14 of the decision and that the Judge failed to properly assess the impact on Mr Abdulla if he were to lose the care and support from the appellant.

24.          Following Mr Youssefian's submissions, we referred him to the ASA dated 16 January24 which was relied upon in submissions before the First Tier Judge and asked him to show us where in the papers it could be shown that Article 8 family life was argued before the Judge, the ASA being silent on the same and there being no reference in the decision to such argument made before the First Tier Judge. Mr Youssefian was unable to take the tribunal to any specific reference within the bundle to Article 8 family life with Mr Abdulla having been raised at the oral hearing but submitted that when one raises Article 8 rights, then that encompasses family life as well as private life. He submitted that given the issues identified by the First tier Tribunal in the directions dated 8 July 2024and the overwhelming evidence of family life in this appeal, that it was incumbent on the Judge to engage with whether there was family life between them.

25.          Ms Nwachuku confirmed that the respondent's position is that Article 8 family life was never pleaded and that the only new issue raised in respect of family life was that relating to her then current partner, Mr Collier. She submitted that there was no suggestion within the ASA of Mr Abdulla being considered as having Article 8 family life with the appellant. In these circumstances, she submitted that it cannot be said to be an error of law to not consider something that was not raised by the appellant in written or oral submissions. She submitted that Ground 1 has no merit. With respect to Ground 2, Ms Nwachuku submitted that the Judge made clear references to the ISW report and that the findings made were ones open to the Judge to make based on the evidence before him. She submitted that there is no requirement for a Judge to reference every single point within the evidence and that the Judge gave adequate reasons to show why they came to the decision.

26.          In response Mr Youssefian submitted that his primary submission was that family life between the appellant and Mr Abdulla was argued before the Judge and his secondary submission is that it is a Robinson obvious point and if not argued it still should have been considered.

27.          We reserved our decision which we now give.

Discussion

28.          In deciding whether the Judge's decision involved the making of a material error of law, it is helpful to remind ourselves of the principles set out within the case law and in particular at paragraph 26 of Ullah v Secretary of State for the Home Department [2024] EWCA Civ 201. We remind ourselves that the FTT is a specialist fact-finding tribunal and that where a relevant point was not expressly mentioned by the FTT, the UT should be slow to infer that it had not been taken into account. Further, when it comes to the reasons given by the FTT, the UT should exercise judicial restraint and not assume that the FTT misdirected itself just because not every step in its reasoning was fully set out, as recently confirmed by the Court of Appeal in Yalcin v SSHD [2024] EWCA Civ 74, at [50] and [51].

29.          Further, we remind ourselves that an appeal court should assume, unless it detects an express or implicit misdirection of law, that the specialist tribunal knows and has applied the relevant law as set out in Gadinala v SSHD [2024] EWCA Civ 1410, at [46] and [47].

Ground 1

30.          Having considered Mr Youssefian's primary submission that the Judge had failed to properly consider the relationship between the appellant and Mr Abdulla and whether it amounted to family life, we are not persuaded that the appellant's first ground has been made out. Having read the ASA dated 16 January2024, which the Judge at paragraph 8 of the decision specifically notes was relied upon in the appellant's submissions, we are not satisfied that the issue of whether the carer relationship between the appellant and Mr Abdulla amounts to family life was directly raised before the Judge. The ASA makes no mention of it, the only family life relied upon being that between the appellant and her former partner. Mr Youssefian accepted that the ASA did not raise family life between the appellant and Mr Abdulla as being an issue for the tribunal to determine. In his submissions Mr Youssefian relied upon the caselaw of Lama v SSHD [2017] UKUT 16, in which he says the UT provided support for there being family life between a carer and the person being cared for regardless of a lack of blood ties. However, there is no persuasive evidence that this caselaw was put before the Judge or that such arguments were pursued in submissions before the First Tier Judge. At paragraph 8 of the decision, the Judge specifically refers to the submissions made, including reliance on the ASA and that counsel had submitted that the appeal was a Britcits [2017] EWCA Civ 368 situation. We are not satisfied that reliance on that case is supportive of Counsel having raised family life between a carer and person being cared for as an issue before the Judge and there is no reference to the case of Lama [2017] UKUT 16 having been relied upon before the First Tier tribunal.

31.          We do not accept Mr Youssefian's submission that when one raises Article 8 rights or refers to Article 8 rights that that automatically encompasses family life rights as well as that of private life rights. There are two specific types of Article 8 rights and use of the term 'Article 8 rights' cannot be taken to mean that both types are relied upon and raised in issue. It is important to note that the original application was made on grounds of private life. The new matters raised were family life with a new partner and her employment with Mr Abdulla. The family life with the partner was not pursued and there is nothing within the bundle or decision to persuade us that the Judge was asked to consider the relationship between the appellant and Mr Abdulla as one amounting to family life rather than considering the care work and closeness to Mr Abdulla as part of an assessment of the appellant's private life in the UK and the private life of Mr Abdulla. There was nothing persuasive to support that counsel at the hearing relied upon the Lama case. It is also relevant that the grounds of appeal dated 02 December 2024 make no mention of the Judge failing to consider caselaw put before him which specifically deals with family life between a carer and person being cared for.

32.          Overall and having considered the issue with care, we do not accept that Article 8 family life was directly raised as an issue before the First Tier Judge. The appellant was represented at the time of submitting the appeal to the First Tier and on the day of the First Tier hearing. We do not accept Mr Youssefian's submission that it is incumbent on a Judge to engage with the issue of whether there is Article 8 family life even if it is not one raised before them. We do not accept that the existence of family life between the appellant and Mr Abdulla is a Robinson obvious point such that the Judge should have dealt with even if not raised or specifically relied upon in the ASA or oral submissions at the hearing. The Judge was entitled to assess the evidence before him in determining the issues raised before him and it is not an error of law for a Judge to not raise and determine alternative grounds of appeal that have not been relied upon by a represented party.

33.          Having considered the decision carefully, and bearing in mind that the burden was on the appellant to show that they had raised the issue and that the Judge failed to deal with it, we are not satisfied that that FtT failed to take into account or consider an issue that was raised before it. Accordingly, it has not been shown that it was an error for the Judge not to make a specific finding on whether there was Article 8 family life between the appellant and Mr Abdulla or to not specifically refer to this in carrying out the proportionality assessment.

34.          In any event, even if the Article 8 family life had been argued before the Judge, which we do not accept, we are satisfied that the decision is adequately reasoned and that at paragraph 13 the Judge makes a clear finding that the services which the appellant provides do not lead to a successful claim under Article 8 ECHR. It is of note that the grounds of appeal did not suggest that the Judge failed to make any assessment of whether there was family life between them but rather at paragraph 9 states that the Judge gave no consideration of Mr Abdulla's family life with the appellant and consequence for him if he was deprived of her care and support. IJ Thomas, in the grant of PTA on 09 January 2025, stated that although not directly raised in the grounds of appeal the Judge failed as a starting point to identify if Article 8 was engaged on a family life basis. On the facts of the appeal before the Judge, the appellant would not be able to meet the Immigration Rules and it has never been her case that she did meet the requirements of the Rules. Therefore, the issue was always whether there were any exceptional circumstances which would result in unjustifiably harsh consequences if she left the UK such that leave ought to be granted outside of the Immigration Rules. We remind ourselves that the Upper Tribunal will not readily assume that a tribunal has misdirected itself merely because every step in its reasoning is not fully set out in its decision. Thus, a challenge based on the adequacy of reasons should only succeed when the appellate body cannot understand the Tribunal's thought process in making material findings.

35.          At paragraphs 10, 11 and 12, the Judge makes clear references to the medical reports relating to Mr Abdulla and the ISW report. At paragraph 12 the Judge notes that the ISW report followed interviews and a home visit with the appellant and Mr Abdulla and says that it ' confirmed the valuable support provided to him by the appellant.' We find that it is clear that the Judge has fully engaged with the medical evidence and the ISW report and the Judge's finding was that there were no exceptional circumstances which resulted in unjustifiably harsh consequences if she left the UK and this is set out with clear sufficient reasons in paragraphs 13 and 14. Therefore, even if the Judge has not specifically set out whether he has assessed whether there was family life between them, this would not be a material error as we are satisfied that the Judge had comprehensively considered all of the evidence and we accept that the Judge was not satisfied that the circumstances relied upon amounted to exceptional circumstances or unjustifiably harsh consequences for either of them. We are not persuaded that a positive finding of family life would have resulted in a different Article 8 outcome; the rules still could not have been met, the appellant still would have ties to Turkmenistan and alternative care facilities were available for Mr Abdulla's various needs.

Ground 2

36.          We do not accept that Ground 2 has been made out. Paragraph 12 refers to the ISW report and as set out above the Judge accepts that it confirms the valuable support provided by the appellant. There is sufficient detail within the decision for us to be satisfied that the Judge carried out a proper assessment of the report. The Judge is not required to set out and specifically deal with each paragraph of the evidence relied upon. We were taken to paragraphs 9.7 and 9.8 of the ISW report and Mr Youssefian submitted that the report states that these alternative services may be limited and are means tested and that the report makes clear that Mr Abdulla wished to remain with his current care arrangements. We were also taken to parts of the report wherein the emotional and psychological impact on Mr Abdulla was reported if the appellant was not able to care for him. Having read the report with care and having read paragraphs 10- 14 of the decision, we are satisfied that the Judge has actively engaged with the medical evidence and the ISW report. Paragraphs 10-12 specifically refers to the good relationship between Mr Abdulla, the emotional upset that he would suffer if sthe appellant had to leave the UK, the level of care provided to him by the appellant and Mr Abdulla's wishes. Having read the ISW report, we find that it was open to the Judge to find that alternative care facilities were available to Mr Abdulla. Paragraph 9.7 of the report refers to alternative care services and whilst these may be limited and means tested, the Judge was entitled to find there are alternative care facilities for his various needs. The fact of something being means tested does not mean that it is not available to Mr Abdulla as failing a means test would make it likely that he could afford to pay for alternative care provision with his own funds. Paragraph 10 of the decision demonstrates that the Judge was aware of and took into account Mr Abdulla's likely upset and stated preferences for his care. The finding that alternative care was available was one that was open to the Judge.

37.          We note that paragraph 14 is short. However, the determination must be read as a whole. We are satisfied that it is clear from the decision that the Judge has rejected that the refusal would adversely interfere with Mr Abdulla's Article 8 rights. We are also satisfied that the Judge has given sufficient reasons for their decision, in particular that alternative care would be available to Mr Abdulla. We are satisfied the decision adequately explains to the appellant why she lost.

38.          To the extent that the appellant was relying upon a rationality challenge, we take account of the elevated threshold which applies: based on the evidence and relevant legal framework, was the Judge's finding on Article 8 and exceptional circumstances one which no reasonable decision-maker could have reached? Our answer to this is 'no'. He assessed the evidence, took all relevant considerations into account, made appropriate findings of fact, and directed himself correctly in law. The decision reached was rational and was based on a proper assessment of the evidence before him.

39.          Accordingly, for all of the above reasons, we consider that the decision of the First-tier Tribunal did not involve the making of an error of law and we uphold it.

Notice of Decision

The decision of the First-tier Tribunal did not involve the making of an error of law and we uphold it.

 

 

Judge Rodger

 

Deputy Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

Dated 20/03/25

 

 

Judge Loughran

Judge of the Upper Tribunal

Immigration and Asylum Chamber