England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (QUEEN'S BENCH DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION & ASYLUM CHAMBER)

		Royal Courts of Justice Strand, London, WC2A 2LL
		1 December 2015

LORD JUSTICE BEATSON:

1. The applicant, Tarik Jamik Raja, who need not be anonymised and was not anonymised below, is a citizen of Pakistan. He renews his application for permission to appeal against the decision of Deputy Upper Tribunal Judge Juss dated 2 January 2015. The substantive issue is whether he is entitled to a derivative residence card under the Immigration (European Economic Area) Regulations 2006 SI number 1003 of 2006 ("the 2006 Regulations") because he is a third country national who is the primary carer of a British citizen.
2. Mr Raja married Vicky Louise Baxter, a British national, on 13 November 2011. Ms Baxter suffers from epilepsy, for which she receives treatment, but she has fits and seizures. She also has learning difficulty. She is not allowed to drive or to use a cooker. Her medical conditions were confirmed by a letter dated 19 September 2011 and a patient summary showing a consultation on 15 June 2012, both from hr GP practice.
3. On 31 July 2012 Mr Raja applied for a residence card under Regulation 18A of the 2006 Regulations. His application was refused by the Secretary of State in a notice dated 20 November 2013. The notice stated that, in order to qualify for a right under the decision of the CJEU in Case 34/09 Ruiz Zambrano and Regulation 18A, Mr Raja had to demonstrate that he is the primary carer of a British citizen who is residing in the UK and who would be unable to reside in the UK or another EEA state if he is required to leave. The letter also refers to Regulation 15A(7), which provides that a person is to be regarded as a "primary carer" of another if that person is a direct relative of the person and "is the person who is primary responsibility for that person's care" or shares it with another person who is not an exempt person. The letter states at page 2:

"In cases where the British citizen is … over the age of 18, then the level of evidence required to demonstrate primary and shared responsibility is significantly higher than in cases involving children. This is because it can generally be assumed that an adult has the capacity to care for their own daily needs unless there are reasons, such as a severe physical or mental disability which would prevent this. Only the provision of evidence that shows the British citizen's reliance on the primary carer is for such reasons will that person likely fall within scope of the judgment."

4. After referring to the documents from the GP practice the decision letter states:

"Although these documents provide detail of the British citizen's medical condition, they do not state that you are the primary carer and only source of care available. These letters are therefore insufficient to demonstrate that you are the primary carer of a British citizen and your removal would force the British citizen to leave the UK/EEA."

5. The decision letter also refers to a letter of support from Ms Baxter which is stated is insufficient to demonstrate that Mr Raja is her primary carer. It then states that there was no evidence provided as to whether she has any other direct family members residing in the UK who could provide her with care if required on page 3.
6. The applicant appealed to the First-tier Tribunal. As well as the documents from the GP practice the FtT had before it the applicant's statement that his wife is prone to fits and seizures, has difficulty in remembering things and that he prepares all cooked food because she is not permitted to use the gas cooker. He also stated that he does all the driving and if public transport is used he accompanies her to work. He also stated that he dispensed the medication she used to control her epilepsy.
7. Ms Baxter also gave a statement which she adopted. In it she adopted she described and stated she required daily assistance from her husband in the form of care, assistance and supervision. She worked at Primark for four hours a day. She stated that before her marriage to the applicant she lived with her parents, who looked after her, and if the applicant were to be returned to Pakistan she would have to live with her parents again.
8. Before the FtT judge, the applicant's evidence of the extent and nature of the care he provided for his wife was not challenged. The FtT judge stated that he was satisfied that Ms Baxter was affected by the medical conditions and that the applicant was her primary carer. "Primary carer" did not mean "only carer". Other family members might help from time to time, but the judge stated he was satisfied that the applicant was Ms Baxter's primary carer and allowed his appeal.
9. The Secretary of State was granted permission to appeal to the Upper Tribunal and the matter came before the deputy Upper Tribunal judge. He allowed the appeal on the ground that there were two errors of law in the FtT's decision. The first, set out in paragraph 12 of the determination, is that the evidence with respect to whether the applicant is his wife's primary carer came only from him and his wife, with a GP's letter in the background. The deputy Upper Tribunal judge referred to the statement in the refusal letter that evidence from the NHS or local authority of private care would be expected to support the submission that an applicant meets the requirement.
10. The deputy Upper Tribunal judge stated:

"If the applicant was providing the degree and level of care that he maintains it would be an easy matter for him to get local authority confirmation of this. As things stand at the moment, the letter of 15 June 2012 only confirms that the condition of the appellant is an improving one [this must have been a reference to the wife, not to the applicant]. Given that she has been working since 2010 for 20 hours a week, the need for such evidence is all the more compelling."

11. At paragraph 14 he stated that whereas the FtT judge made the factual findings in the way that he saw fit "their relationship to corroborative evidence from a state agency is not made out" and "on the facts of this case taken as a whole, such evidence was required".
12. The deputy Upper Tribunal judge's second reason for concluding that the FtT made an error of law was that Regulation 15A(4A), in referring to the "primary carer of a British citizen", also stipulated that in order to satisfy the criteria the relevant British citizen must reside in the United Kingdom and "would be unable to reside in the UK or in another EEA state if [the applicant] were required to leave": see Regulation 15A(4A)(c).
13. Mr Maqsood, who appears today on behalf of the applicant, accepted that the First-tier Tribunal did not deal with this before. The deputy Upper Tribunal judge stated "the appellant's wife was previously looked after by her parents. There is no reason why, in the event of her husband, the appellant, being removed, she cannot return to being looked after by her parents again should be necessary in the circumstances of her improving condition". The "improving condition" is a reference to what was in the June letter from the doctor's surgery, which is not before this court.
14. The deputy Upper Tribunal judge then remade the decision himself. He dismissed the appeal because the applicant had not furnished evidence from the NHS or the local authority to confirm that he is the primary carer in the sense that he is providing the majority of the care for his wife. He stated that it was open to the applicant to make another application.
15. Mr Maqsood Iqbal submits that the evidence referred to in the decision letter and at paragraph 12 of the deputy Upper Tribunal judge's determination concerned factual matters. In this case both the applicant and his wife provided statements; they attended for cross-examination, but their evidence was not challenged by the respondent. In those circumstances, he submitted in his written submissions which he developed this morning, it was open to the First-tier Tribunal to accept their evidence. Accordingly, there was a proper evidential basis for the First-tier Tribunal allowing the appeal and it was not open to the Upper Tribunal, or indeed to the Secretary of State, to go behind that ruling.
16. As to what the deputy Upper Tribunal judge stated about the sort of evidence, I was directed to paragraph 21 of the European Operational Policy Team's Guidance on derivative rights of residence dated 12 December 2012, which states:

"In order to demonstrate primary/shared responsibility for adults, the majority of the care must be provided by the primary carer(s). Evidence from the NHS/local authority/private care may be submitted to support this."

17. Reliance was placed on the fact that the guidance is not prescriptive but simply states that such evidence may be submitted. It was argued by Mr Maqsood that what the deputy Upper Tribunal judge did was to erect that factor into a necessary requirement.
18. When refusing permission Vos LJ stated that the deputy Upper Tribunal judge may have fallen into error in effectively requiring a particular kind of corroborative evidence in circumstances in which the First-tier Tribunal, on unchallenged evidence before it, decided that the appellant was a primary carer.
19. I referred during the hearing of the decision of the Supreme Court in Jones (Caldwell) v FtT & Criminal Injuries Compensation Authority [2013] UKSC 19. In that case, at paragraph 43, Lord Carnwath stated:

"it was hoped that the Upper Tribunal might be permitted to interpret 'points of law' flexibly to include other points of principle or even factual judgment of general relevance to the specialised area in question."

20. That might in principle permit a specialised tribunal to conclude, as the deputy Upper Tribunal judge did in this case, that a particular type of evidence is required in particular circumstances, but Mr Maqsood submitted that this cannot be one of those circumstances in view of the terms of paragraph 21 of the guidance. I accept hat submission.
21. At any rate, even if points can be put the other way, that would not be a reason for not giving permission. So I would not have refused permission on this ground solely on the basis of what can loosely be called a Jones (Caldwell) approach, which is giving a specialised tribunal flexibility in interpreting what the point of law is. It is a response which, even if it would ultimately have disposed of the appeal, would have merited consideration and resolution in a full appeal.
22. What is, however, crucial are the remaining points made by Mr Maqsood. They are all to do with the Regulation 15A(4A)(c) point. In a nutshell, he submits that the deputy Upper Tribunal judge's decision on this was flawed because there were no findings made by the First-tier Tribunal on this point. The only evidence before him related to the arrangements that were made before the marriage, when she had lived with her parents. He submitted that it would be necessary to hear evidence from the applicant and his wife as to what would happen in the future. He pointed to a questionnaire that is sent out by the Secretary of State when the Secretary of State wishes further information, with questions such as "why can that previous care not continue?" (question 16) and "is there anyone else, either another person, a local authority or a private care provider that currently provides care?" (question 17) Those questions are not answered. It was necessary, he submitted, to have findings of fact on those.
23. Mr Maqsood has put his argument in a very attractive way, but ultimately I reject the submission that it gives rise to an arguable ground of appeal. In my judgment, on the evidence that was accepted in the First-tier Tribunal and preserved in the Upper Tribunal, the provisions of Regulation 15A(4A)(c) constitute an insurmountable hurdle for any appeal in this case. It is clear that the applicant failed to provide any evidence that his wife would be unable to reside in the UK or EEA if he was required to leave. That is seen from page 3 of the decision letter. More fundamentally, Ms Baxter's evidence before the First-tier Tribunal was that she had lived with her parents before the marriage and, if the applicant is required to leave, she would have to live with them again. It is submitted that that says nothing as to whether her parents would be capable of caring for her. Nevertheless, there is positive evidence that that is what she would do and there is no indication that they would not be able to cope. It is important to state that the burden lies on the applicant to make out his or her case. Nowhere in the evidence that was put before the FtT was it said that Ms Baxter's parents would not be able to provide the care.
24. Mr Maqsood submitted that the findings in the FtT were made against a different background, a background which did not have subparagraph (c) in mind. They are, however, findings of fact as to the factual position in the real world. I conclude that it was open, on the basis of those preserved findings of fact, for the deputy Upper Tribunal judge to make the inference that he did. I recognise, however, that it may have been better for the deputy Upper Tribunal judge, once he had decided that there was a Regulation 15A(4A)(c) point, to have heard additional evidence on that.
25. Nowhere was the point taken, perhaps because it is not relevant under the Immigration Rules, that article 12 of the ECHR has implications in a case such as this. For those reasons, even if Mr Maqsood is correct about the effect of the failure of the Secretary of State to challenge the applicant and his wife about the extent of the care he provided, it is not possible to say that an appeal in the circumstances of this case would have a real prospect of success.
26. For these reasons I refuse permission to appeal. Like the Upper Tribunal judge, I also observe that it is open to Mr Raja to reapply, providing the evidence that he now knows will be required. There is no suggestion by the Secretary of State that this is not a genuine relationship and therefore the only issue is as to the evidence provided and its sufficiency, and the approach of the deputy Upper Tribunal judge. While his judgment could have been fuller, for the reasons I have given it is not a judgment that is such as to require the attention of the full court.

Order: Application refused