Britse Chavez Zambrano uitspraak inzake volwassen gehandicapte broer - Could or would leave

 

Upper Tribunal

(Immigration and Asylum Chamber) Appeal Number: EA/01773/2019

THE IMMIGRATION ACTS

 

 

Heard at Bradford On 28 th January 2020	Decision & Reasons Promulgated On 4 th February 2020

 

Before

 

UPPER TRIBUNAL JUDGE BRUCE

 

Between

 

RM

(anonymity direction made)

Appellant

 

And

 

Secretary of State for the Home Department

 

21.   The concern expressed by the First-tier Tribunal was that A would simply prefer the care he needs to be provided by his brother. Reference is made to his evidence that he did not have a good experience of care provided by Bradford before his brother's arrival: carers did not arrive as scheduled, he was uncomfortable with female carers etc. I note however that the "relevant care package" that the Tribunal believed would be available to A should the Appellant depart was, on Bradford Social Services' own evidence, only available during the day. A has been advised in no uncertain terms that the kind of night-time care he requires is simply not available in the home: as I understand it the point is that the council would pay for a carer to come to the house between say 2am and 3am, but this is no good for A because he does not know when he might wet himself or become unable to move.

 

22.   The alternative is that A find the £17 per hour needed to pay for a private carer. Assuming that this carer would be on duty from, say 10pm 'til 7am in the morning, this amounts to £1071 per week. The First-tier Tribunal, presumably accepting that A's income currently consists mostly of DWP benefits, suggested that A could look to his paternal uncle for this money, a man who lives in Pakistan and is "financially very strong". There is absolutely no evidence before me that this uncle could or would find c£4500 per month to pay for his nephew's care in the United Kingdom.

 

23.   I am satisfied that in respect of his physical care needs, A is dependent upon his brother, and that if that care was removed A would find himself in serious difficulty during the night. He would have to wait until carers arrived in the morning to clean him and help him to move. If he found himself unable to move in the night he may have to call the emergency services as he has done in the past. During the day he may receive in-home care but his ability to continue his involvement in public life - the essence of his private life - would be substantially reduced, dependent upon his ability to pay privately for carers to accompany him to meetings etc. Having heard his oral evidence I am wholly satisfied that A does not regard this as a feasible option for himself.

 

24.   This is not a case where the British national is heavily dependent upon the medical treatment he receives in the United Kingdom (cf. Ayinde and Thinjom (Carers - Reg.15A - Zambrano) [2015] UKUT 560 (IAC)). In this case his care consists primarily of day-to-day assistance and personal attention provided by a close family member. I am wholly satisfied that as a matter of fact A would consider himself unable to remain in the United Kingdom in the absence of that care. Given the consequences that he would face should he 'choose' to remain, his conclusion is perfectly understandable. In Pakistan he will have the care of his brother, his sisters and parents, and will be able to live comfortably in the family home. In this country he will be confined to his home, and would have to give up most, if not all, of the work and community activism that he currently finds so important; he will have to face each night with trepidation, knowing that he may well end up soiled or in an ambulance. I am satisfied that the Appellant has demonstrated that he meets the criteria in Regulation 16(5)(c).

 

25.   I note for the sake of completeness that on the very day that permission was granted in this matter by First-tier Tribunal Judge Keane (the 16 ^th December 2019) the Supreme Court has handed down its decision in Patel (FC) v Secretary of State for the Home Department [2019] UKSC 59. Whilst primarily concerned with whether a distinction should be drawn between Chavez-Vilchez children and adult dependents, the Court generally reviewed the principles applicable in derivative rights cases. Two points relevant to this decision arise.

 

26.   First, that the court cited with approval the dicta in the CJEU decision of KA v Belgium (Case C-82/16) [2018] 3 CMLR 28:

 

"where the Union citizen is an adult, a relationship of dependency, capable of justifying the grant to the third-country national concerned of a derived right of residence under article 20 TFEU, is conceivable only in exceptional cases, where, in the light of all the relevant circumstances, any form of separation of the individual concerned from the member of his family on whom he is dependent is not possible"

 

For the reasons I have set out above, I am satisfied that this is such an exceptional case. The objective reality underpinning A's 'choice' is that should the care provided by his brother be removed, he would be far better off in Pakistan than he would be here, where he legitimately fears a deterioration in his mental health and physical neglect.

 

27.   Second, the Court underlined that the compulsion test in Regulation 16(5)(c) must be applied in a practical way. The term "unable" should not be interpreted to mean that it is physically impossible for the EEA national to remain in the country. It is a question of fact, of whether the individual concerned would in reality leave with his carer [at §32]:

 

" In those circumstances I consider that the Court of Appeal made an error of law when it treated as determinative what could happen to Mr and Mrs Shah's son if the father left the UK, rather than what the FTT had found would happen in that event. In other words, it was not open in law to the Court of Appeal to hold that Mr Shah had no derivative right of residence because the mother could remain with the child in the UK even if the father was removed".

 

[emphasis added]. Here, there obviously is an option for A to remain in the United Kingdom without his brother: no matter how lonely, physically challenging and restricted that life would be, he could do it. The fact remains that he would not.

 

 

Anonymity Order

 

28.   Having had regard to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 and the Presidential Guidance Note No 1 of 2013: Anonymity Orders I am satisfied that the identification of the appellant in this case would lead to the identification of his brother, whose confidential medical history is discussed herein. I therefore consider it appropriate to make an order in the following terms:

 

"Unless and until a tribunal or court directs otherwise, the Appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of his family. This direction applies to, amongst others, both the Appellant and the Respondent. Failure to comply with this direction could lead to contempt of court proceedings"

 

 

 

Decision

 

29.   The decision of the First-tier Tribunal is set aside for material error of law.

 

30.   I remake the decision by allowing the appeal under the Immigration (European Economic Area) Regulations 2016.

 

31.   There is an order for anonymity.

 

https://www.bailii.org/cgi-bin/format.cgi?doc=/uk/cases/UKAITUR/2020/EA017732019.html&query=(Zambrano) 

 

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