HU054172017 [2019] UKAITUR HU054172017 (5 April 2019)

HU054172017 [2019] UKAITUR HU054172017 (5 April 2019)

The appellant failed to demonstrate, on the balance of probabilities, that appropriate personal care (including for mental health needs) is unavailable or unaffordable in India; the evidence did not establish a complete absence of suitable residential care or specialist mental health provision in India; cultural preferences and familial wishes, while understandable, do not satisfy the objective legal test under the Rules; therefore, the requirements of E-ECDR.2.5 are not met and Article 8 ECHR is not breached by refusal of entry clearance.

Citation
[2019] UKAITUR HU054172017
Parties
Appellant: Mrs Surjit Kaur; Respondent: Entry Clearance Officer
Jurisdiction
United Kingdom
Judgment Date
05 April 2019
Procedural Posture
Immigration Appeal (human Rights Claim, Entry Clearance, Adult Dependent Relative) / Remaking of Decision After Error of Law Found in First Tier Tribunal Decision; Upper Tribunal Determination
Outcome
Appeal dismissed
Legal Topics
Appendix FM (adult Dependent Relative), Article 8 ECHR, Entry Clearance, Personal Care Needs, Availability of Care in Home Country
Immigration Law Human Rights Law Appendix FM (adult Dependent Relative) Article 8 ECHR Entry Clearance Personal Care Needs Availability of Care in Home Country

Case Brief

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Parties

Mrs Surjit Kaur

Appellant

Entry Clearance Officer

Respondent

Procedural Posture

Immigration Appeal (human Rights Claim, Entry Clearance, Adult Dependent Relative) / Remaking of Decision After Error of Law Found in First Tier Tribunal Decision; Upper Tribunal Determination

Legal Issues

  1. 1 Whether the appellant can meet the requirements of E-ECDR.2.5 of Appendix FM to the Immigration Rules (i.e., whether appropriate care is unavailable or unaffordable in India)
  2. 2 Whether refusal of entry clearance breaches Article 8 ECHR rights

Ratio Decidendi

The appellant failed to demonstrate, on the balance of probabilities, that appropriate personal care (including for mental health needs) is unavailable or unaffordable in India; the evidence did not establish a complete absence of suitable residential care or specialist mental health provision in India; cultural preferences and familial wishes, while understandable, do not satisfy the objective legal test under the Rules; therefore, the requirements of E-ECDR.2.5 are not met and Article 8 ECHR is not breached by refusal of entry clearance.

Court Disposition

Appeal dismissed

Orders

  • The decision of the First-tier Tribunal is set aside for error of law.
  • The Upper Tribunal re-makes the decision and dismisses the appeal.