England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)
The Upper Tribunal (Immigration and Asylum Chamber)
IA252972010

		Royal Courts of Justice Strand, London, WC2A 2LL
		20/03/2012

Sir Stephen Sedley:

The judgment which follows is the judgment of the court.

The law

1. Paragraph 317 of the immigration rules provides:

Indefinite leave to enter or remain as the parent, grandparent or other dependent relative of a person present and settled in the United Kingdom.

The requirements to be met by a person seeking indefinite leave to enter or remain in the United Kingdom as the parent, grandparent or other dependent relative of a person present and settled in the United Kingdom are that the person:

(i) is related to a person present and settled in the United Kingdom in one of the following ways:

(a) mother or grandmother who is widowed aged 65 years or over; or

(b) father or grandfather who is a widower aged 65 or over; or

(c) parents or grandparents travelling together of whom at least one is aged 65 or over, or

(d) a parent or grandparent aged of 65 or over who has entered into a second relationship of marriage or civil partnership but cannot look to the spouse, civil partner or children of that second relationship for financial support; and where the person settled in the United Kingdom is able and willing to maintain the parent or grandparent and any spouse or civil partner or child of the second relationship who would be admissible as a dependant; or

(e) a parent or grandparent under the age of 65 if living alone outside the United Kingdom in the most exceptional compassionate circumstances and mainly dependent financially on relatives settled in the United Kingdom; or

(f) the son, daughter, sister, brother, uncle or aunt over the age of 18 if living alone outside the United Kingdom in the most exceptional compassionate circumstances and mainly dependent financially on relatives settled in the United Kingdom; and

(ii) is joining or accompanying a person who is present and settled in the United Kingdom or who is on the same occasion being admitted for settlement; and

(iii) is financially wholly or mainly dependent on the relative present and settled in the United Kingdom; and

(iv) can, and will, be accommodated adequately, together with any dependants, without recourse to public funds, in accommodation which the sponsor owns or occupies exclusively; and

(iva) can, and will, be maintained adequately, together with any dependants, without recourse to public funds; and

(v) has no other close relatives in his own country to whom he could turn for financial support; and

(vi) if seeking leave to enter, holds a valid United Kingdom entry clearance for entry in this capacity.

2. The inelegant phrase "compassionate circumstances" in sub-rule (i)(e) has required some judicial unpacking. In Senanayake v Home Secretary [2005] EWCA Civ 1530, Chadwick LJ at paragraph 21 paraphrased it as meaning circumstances which evoke compassion in the mind of the decision-maker. The superlative form used in the current rule stresses how extreme such circumstances must be in order to qualify.
3. This appeal raises a question of law which was identified by Sir Richard Buxton in his grant of permission to appeal: does rule 317(i)(e) cover a case in which the very financial dependency which qualifies a parent or grandparent for entry to the United Kingdom is also what keeps their circumstances from being "the most exceptional compassionate circumstances"?
4. Put another way, is the question which the decision-maker has to answer

(a) whether, but for the support provided by relatives settled in the UK, the applicant would be living in the most exceptional compassionate circumstances (the "but for" test, which takes support out of the calculation), or

(b) whether, notwithstanding the support provided by relatives settled in the UK, the applicant is already living in such circumstances (the "notwithstanding" test, which incorporates support in the calculation)?

5. The attraction of the "but for" test is that it reflects the apparent object of the sub-rule, which is to allow reunification where a foreign parent or grandparent is already being supported by a child or grandchild settled here. The difficulty with it is that it requires the decision-maker to speculate about what the applicant's circumstances would be if she were not receiving the support that she is in fact receiving. It also requires re-wording of the sub-rule to produce this meaning.
6. The attraction of the "notwithstanding" test is that it does not require a strained construction of the words of the sub-rule. The difficulty with it seems to be that it makes the two main limbs of the sub-rule self-cancelling, since the whole point of providing financial support will have been to alleviate the applicant's circumstances. But the argument of Susan Chan for the Home Secretary has satisfied us that this is not a sufficient objection: there may well be cases in which, notwithstanding the provision of financial support, the parent or grandparent simply cannot cope on their own – for example because of dementia or terminal illness – and the most exceptional compassion is called for.
7. We accordingly consider that meaning (b) is the correct one.

This case

8. The applicant, Azza Aboel-F Mohamed, is the mother of Mohammed Allam, a psychiatrist settled and working in the United Kingdom. Her home is in Egypt, where she lives on her own in rented accommodation. She has been widowed since December 2008. Her son has in the past sent her regular sums of money, but since 31 October 2009 she has been living here with him and his wife, having entered the country on a visitor's visa.
9. On 13 April 2010 she applied for indefinite leave to remain as a dependent relative. At that date, being under 65, she had only paragraph (i)(e) of rule 317 to rely on. (As it happens, her 65^th birthday on 29 October this year will make it unnecessary for her to continue to rely on exceptional compassionate circumstances.) The Home Office refused the application, partly because it did not consider her circumstances in Egypt to come within the rule, and partly because it considered that she had broken her word about the intended length and purpose of her visit. It also took the view that her case did not fall within either article 3 or article 8 of the ECHR.
10. A decision of the First-Tier Tribunal dismissing her appeal was set aside and a fresh decision of the Upper Tribunal (DUTJ Hemingway) substituted for it. It is against this decision, once more dismissing her appeal, that the present appeal is brought.
11. Although the rule is explicit in requiring that the applicant should be "living alone outside the United Kingdom", no point was taken by the Home Secretary either before us or below that this prevented any application under sub-rule (i)(e) being made by a foreign national now living in the UK (leaving them to seek protection, if at all, under article 8). We raised the point with counsel, but in the absence of adversarial argument on it we make no criticism of the Upper Tribunal judge's approach (paragraph 88, fin) that he must "make findings as if [the applicant] was, in fact, in Egypt".
12. His findings were, in short, that the applicant was suffering from clinical depression of moderate severity and from osteoathritis of the knees and hips which limited her mobility to 20 or 30 metres before needing to pause. She consequently found housework difficult but was able to attend to her personal hygiene. She had friends and relatives within reach, though none with whom she could live. But she received a state pension of which less than 4% went in rent. To this had to be added "quite considerable sums" sent to her by her son.
13. It is not necessary to set out the full detail of the judge's findings, which can be found at IA/25297/2010. He concluded that the applicant enjoyed a sufficient net income to employ a home help or to move house if she was worried about local crime or wanted to be nearer to her sister. Her circumstances, in short, might be described, in the vocabulary of rule 317, as compassionate, but came nowhere near being the most exceptional compassionate circumstances. Not only did the judge so find; in our view he would, despite the attractive submissions made on the applicant's behalf by Sibghat Kadri QC, have been acting perversely had he decided otherwise.
14. This outcome in fact followed whichever of the two tests was applied. It was neither possible to say that but for her son's support the applicant would be living in Egypt in the most exceptional compassionate circumstances; nor to say that she would be living in such circumstances notwithstanding his support. In another case, however, the difference could matter: hence the first part of this judgment.
15. Separately the judge found, as he was also quite justified in doing, that Mrs Mohamed was in any event not financially dependent on her son. She had sufficient independent means in the form of her pension. His subventions were no doubt welcome but they were not necessary.
16. The judge also considered Mrs Mohamed's case under articles 3 and 8 of the ECHR. It is sufficient to record that he dismissed the former claim outright, and that he found, following a properly structured consideration, that return to Egypt would not be disproportionate. Permission to appeal to this court was refused under these heads.

Conclusion

17. For the reasons we have given, this appeal must be dismissed.