Before
UPPER TRIBUNAL JUDGE PITT
Between
Mr Raja [K]
(ANONYMITY DIRECTION NOT MADE)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
20. The First-tier Tribunal states in paragraph 56:
"I find this is not a case of considering what level of care can reasonably be provided by the state, nor is it case of considering what level of care is acceptable to the brother or of benefit to the brother. The brother is known to the local authority and the mental health services and there is no documentary evidence before me to suggest that the brother has been formally discharged from the mental health services and that he has previously had a carer's assessment. I find that there is simply no evidence that the brother would not receive adequate care in the UK, if the appellant were to leave the UK."
The judge continues in paragraph 57:
"Whilst I accept that the brother is emotionally dependent on the appellant, I find that there is no satisfactory evidence before me to suggest that the brother's emotional dependency on the appellant is such that the brother would be compelled to leave the UK even if the relevant agencies provided 24 hour care that addressed the brother's needs."
21. The grounds of appeal maintain that the judge failed to adequately assess "the character and quality of the dependency" of [A] on the appellant. The grounds sought to draw support from paragraph 42 of MS (Malaysia) v SSHD [2019] EWCA Civ 580:
"The availability of state-funded medical and social care will, in many cases, make it hard for those who provide care for their elderly relatives to bring themselves within the Regulation. The availability of state care is not, however, to be treated as a trump card in every case, irrespective of the nature and quality of the dependency on the carer which is relied on. Just as the availability of an EU citizen parent to be a carer of a minor child does not render unnecessary an enquiry into the nature of the dependency of the child on her non-EU parent (see Chavez-Vilchez), the availability of state care does not avoid the need to enquire into the actual dependency of the EU citizen on her adult carer. The availability of alternative care is a relevant, but not always decisive factor.
22.
The
grounds concede that it is self-evident that the state can provide care
needed by the brother, but the question for the judge was whether "the
quality and nature of the brother's dependency on the appellant is such
that it would seriously impair the quality and standard of the brother's
life such that he would be forced to leave the EU". The grounds argue
that the judge erred in failing to properly engage with the test set out
in
Zambrano.
The grounds maintain that the "IJ's concentration on the absence of
evidence of state provision ... is an 'irrelevant matter'".
23. It is convenient to indicate at this point that I refused to admit new grounds contained in paragraph 3 of Mr Hayes' skeleton argument dated 20 August 2020 concerning the burden of proof and discrimination. No formal application was made for those grounds to be admitted. No reason was given for the new grounds not being argued in the original grounds of appeal. I did not accept that they were so manifestly "obvious" or otherwise compelling that the grounds had to be varied to admit them. The appeal therefore proceeded on the basis of the grounds dated 27 November 2019 on which permission had been granted.
Findings
24. It is easy to have sympathy for [A] and his family, including the appellant, given the seriousness of [A]'s mental illness. As indicated by Dr Iankaov in paragraph 4.13 of his report the appellant clearly has "good intentions and is providing good support". Judge Gurung-Thapa accepted that the appellant is the primary carer for his brother and that his brother is dependent on him, needs care and that other family members would have difficulty in providing that care.
25. However, as set out above, the question that the judge had to answer here was whether the evidence before her showed that the appellant's brother would be compelled to leave the UK were the appellant to leave. The judge's concern was that without evidence of what would be provided to the brother from the state via the NHS and other statutory services, it was not possible for her to conclude that he would be compelled to leave the UK. She was astute to the potentially complicating factor of a symptom of the appellant's illness being a mistrust of anyone other than the appellant. She raised this with the appellant at the hearing; see paragraph 48, set out above.
26. In my view, the absence of evidence from the community team as to how they would address the medical and social care of the appellant's brother if the appellant was to leave was a legitimate concern here, just as it was for First-tier Tribunal Judge Powell. Certainly, there was an additional factor in the claim here that whatever statutory services did, [A] would not engage or be able to receive that support as he had become so dependent on the appellant. The difficulty Judge Gurung-Thapa found herself in was that she could not make an assessment of what the outcome would be for [A] if the appellant left the UK without knowing how statutory services "will deal with his brother's trust issues". This does not mean that she treated the availability of statutory services as a "trump card" but that she could not make the assessment without more information. The judge was not obliged to accept the appellant's assertion that his brother would refuse to engage at all and have to go to Pakistan with him or conclude, without more, that statutory mental health services would be unable to address [A]'s trust issues to the extent that he would be obliged to leave the UK in order to be with the appellant.
27. Further, the letters from Dr Adekunte clearly anticipated that the community team would continue to offer care. Also, Dr Iankov's does not suggest, for example in paragraph 4.20 of his report, that his view is that [A] would disengage and deteriorate so seriously that he would be compelled to leave the UK. He envisages [A] relying on "future supported placements being arranged and monitored by the local health service" although he is clear that this not to be preferred to the current arrangement. Dr Iankov identified a need for a care plan involving the appellant and statutory services and clearly did not consider statutory provision to be an "irrelevant" issue as suggested in the grounds. That is so even though Dr Iankov was clearly aware of the importance of the appellant in [A]'s care and well-being.
28. It is my conclusion that Judge Gurung-Thapa's approach was lawful and did offend the ratio of MS (Malaysia). She considered the evidence on the nature of [A]'s dependency on the appellant and, notwithstanding that dependency being real and serious, was entitled to ask what alternative care would be available if the appellant left the UK, including how statutory services would deal with [A]'s lack of trust and difficulty in engaging. She found that latter part of the evidence lacking and that therefore she did not accept that it had been shown that [A] would be compelled to leave the UK. That conclusion was open to her on the evidence provided.
29. It is therefore my conclusion that the First-tier Tribunal Judge here did not err and that her decision should therefore stand.
Decision
30. The decision of the First-tier Tribunal does not disclose an error on a point of law and shall stand.
Signed: S Pitt Date: 25 August 2020
Upper Tribunal Judge Pitt
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