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

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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER	Case No: UI-2024-005400 UI-2024-005401
	First-tier Tribunal No: HU/64022/2023 HU/64023/2023

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

 

On 6 ^th of February 2025

 

Before

 

UPPER TRIBUNAL JUDGE KAMARA

 

Between

 

MARIA GUADALUPE HUERTA DE JIMENEZ 

HELADIO FRANCISCO JIMENEZ ZARAGOZA

(NO ANONYMITY ORDER MADE)

Appellant

and

 

Secretary of State for the Home Department

Respondent

 

Considered on the papers on 31 January 2025

 

DECISION AND REASONS

Introduction

1.        The appellants have been granted permission to appeal the decision of First-tier Tribunal Judge Seelhoff who dismissed their appeals following a hearing which took place on 28 August 2024. Permission to appeal was granted by First-tier Tribunal Judge J Dixon on 25 November 2024.

Anonymity

2.        No anonymity direction was made previously, and there is no application nor obvious reason for one now.

Factual Background

3.        The appellants are a married couple who are nationals of Mexico aged in their mid-eighties. They applied for leave to enter the United Kingdom on 30 May 2023 as adult dependent relatives. The appellants' daughter, who is their sponsor, resides in the United Kingdom, as does their son. Those applications were refused on 6 November 2023 as it was not accepted that the appellants could meet the requirements of the Immigration Rules with the respondent also being of the view that the impact of the decision on the appellants was not unduly harsh and was a proportionate interference with their human rights.

The decision of the First-tier Tribunal

4.        The findings of Judge Seelhoff are detailed but his summary at [39] of the decision encapsulates his reasoning.

On my findings the Appellant's care needs are not extreme enough to meet the requirements of 5.1 or 5.2. If the application is refused it will always be open to the family to move the Appellants to a private care home and funds are available to pay for a very good care home.

The appeal to the Upper Tribunal

5.        The grounds of appeal can be summarised as follows.

Ground 1 - the judge misapplied the relevant legal tests in his consideration of the requirements of Paragraphs ADR 5.1, ADR 5.2, and ADR 7.1 and reached irrational conclusions.

Ground 2: There was a failure to consider material facts or to consider the evidence in the round.

6.        Permission to appeal was granted on the basis sought.

7.        The respondent filed a Rule 24 response dated 9 December 2024, in which the appeal was not opposed, with the following comments being made.

2. The Respondent agrees that the First Tier Tribunal adopted too narrow an interpretation of the word "everyday" contained in the Adult Dependent Relatives rules, as argued in paragraphs 12 and 13 of the grounds.

3. It also appears that the First tier Tribunal has overstated the degree of difficulty the appellants experience in performing everyday tasks.

4. The First-tier Tribunal also appeared to err in finding that "I am not satisfied that it was parliament's intention that taking walks or even using a garden would be counted as "everyday tasks."

5. The respondent does not oppose the appellant's application for permission to appeal and agrees that the First-tier Tribunal decision involved the making of an error in law.

The error of law

8.        On 24 January 2025 the Upper Tribunal sent the following correspondence to the parties.

The Upper Tribunal notes from the Rule 24 response dated 9 December 2024 that the respondent agrees with the appellants that the decision of First-tier Tribunal Judge Seelhoff contains material errors of law.

Neither the Rule 24 response nor the grounds of appeal contain any indication as to future disposal of these appeals. The provisional view of the Tribunal is that the Tribunal can decide the error of law matter without a hearing under Rule 34 of the Tribunal Procedure (Upper Tribunal) Rules 2008.

The parties are invited to provide their views on disposal and whether any of Judge Seelhoff's findings can be preserved, no later than 5 working days from the date of this email. Should no response be received, the Upper Tribunal propose to reach a decision without a hearing in line with the parties' views as to the errors of law and to remit the appeals to the First-tier Tribunal for a de novo hearing.

9.        A response was received from Richmond Chambers, on behalf of the appellants, on 28 January 2025 in which the following was stated.

2. The Appellants do not oppose a decision on the error of law being made without a hearing in line with the above proposal from the Tribunal.

3. By way of disposal of this appeal following the setting aside of the First-tier Tribunal decision, it is submitted that it will be appropriate for the case to be remitted to the First-tier Tribunal. This is on account of the extent of judicial fact-finding necessary to remake the decision given the nature of the errors. The Appellants agree with the proposal of the Upper Tribunal, on the basis that the findings of First-tier Tribunal Judge Seelhoff have been infected by the errors set out in grounds such that a de novo hearing is appropriate.

4. Given the age, health and vulnerability of the Appellants and their circumstances as set out in the evidence provided, it is respectfully requested that the matter is remitted to the First-tier Tribunal to be relisted at the earliest possible opportunity

10.    A response to the directions was also received on behalf of the Secretary of State on 29 January 2025 which agreed with the proposal that this appeal be remitted to the First-tier Tribunal.

This is a response to the directions issued by the Upper Tribunal on 24/01/2025. In light of the Respondent's rule 24 response, we agree that it is unnecessary for this appeal to be determined with an oral hearing. The Respondent further agrees with the Appellants that, in the circumstances, it would be appropriate for the appeals to be remitted to the FtT with no findings of fact preserved.

11.    The Upper Tribunal finds that the respondent has rightly conceded the argued errors in these appeals. Indeed, as set out in the first ground, the judge has narrowed the meaning of what is meant by everyday tasks, assessed medical treatment rather than the availability of care and dismissed the sponsor's circumstances as irrelevant in the proportionality assessment. There was further a failure to take account of evidence, including that set out in the witness statements and the objective evidence at all or in the round.

12.    Having canvassed the views of the parties as to the venue of any remaking, both were of the view that the matter ought to be remitted. Applying AEB [2022] EWCA Civ 1512 and Begum (Remaking or remittal) Bangladesh [2023] UKUT 46 (IAC) , careful prior consideration was given as to whether to retain the matter for remaking in the Upper Tribunal, in line with the general principle set out in statement 7 of the Senior President's Practice Statements. Taken into consideration was the history of this case, the nature and extent of the findings to be made as well as the fact that the nature of the errors of law in this case meant that the appellants were deprived of a fair hearing.

13.    It would also be unfair for either party to be unable to avail themselves of the two-tier decision-making process and therefore the appeal is remitted to the First-tier Tribunal.

Notice of Decision

The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law.

The decision of the First-tier Tribunal is set aside with no preserved findings.

The appeal is remitted, de novo, to the First-tier Tribunal to be reheard by any judge except First-tier Tribunal Judge Seelhoff.

The First-tier Tribunal is urged to give consideration as to whether to expedite the de novo hearing of this appeal given the ages of the appellants.

 

 

T Kamara

 

Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

31 January 2025