(Immigration and Asylum Chamber) Appeal Number: HU/13508/2018
THE IMMIGRATION ACTS
Heard at Bradford
Decision & Reasons Promulgated
On 24 th June 2019 and 5 th August 2019
On 20 th August 2019
DEPUTY UPPER TRIBUNAL JUDGE D E TAYLOR
(ANONYMITY DIRECTION NOT MADE)
For the Appellant: Mr Ahmed of Counsel
For the Respondent: Mr Diwnycz and Mr Howells, HOPOs
DECISION AND REASONS
1. This is the appellant's appeal against the decision of Judge Hands made following a hearing at North Shields on 23 rd November 2018.
2. The appellant applied for leave to remain in the UK on the basis of her family life with her partner Zhao [M] but was refused on 30 th May 2018 on the basis that she did not meet the Immigration Rules and there were no exceptional circumstances which required a grant of leave outside them. The respondent was not satisfied that she had provided sufficient evidence to establish that she had a genuine and subsisting relationship with her partner. Judge Hands dismissed the appeal concluding that the appellant did not enjoy family life in the UK with her sponsor.
3. The appellant sought permission to appeal on the grounds that the reasons given by the judge for her decision were immaterial to the question of whether the couple were in a genuine and subsisting relationship and in any event were insufficient and based on factually incorrect reasoning and speculation. In particular she failed to attach appropriate weight to the evidence provided in the bundle in relation to IVF treatment which the appellant had undertaken.
4. Permission to appeal was granted by Judge Simpson on 12 th February 2019 for the reasons stated in the grounds.
5. Mr Diwnycz did not seek to defend this determination.
6. The judge appeared to accept that the appellant had undertaken IVF treatment. She said "it cannot be ignored that the appellant and the sponsor were both fully aware that the appellant had no legal right to be the UK when they met and chose to embark on their quest to have a child together".
7. Choosing to have a child together is very strong evidence of a subsisting relationship.
8. There was also a considerable body of other evidence including photographic evidence, and supportive evidence from witnesses.
9. The judge erred in law because she did not give adequate reasons for her decision. Her decision is set aside.
10. Unfortunately, the decision could not be remade on the day because neither the appellant nor the sponsor were present. Apparently, the sponsor has recently undergone a kidney transplant operation. The appellant's representatives must serve any additional evidence upon which they wish to rely on the Tribunal and on the Presenting Officer seven days before the hearing
The resumed hearing
11. At the commencement of the hearing Mr Howells on behalf of the respondent conceded that the appellant was in a genuine and subsisting relationship with the sponsor and that that aspect of the appeal was no longer contested.
12. I heard brief oral evidence from the sponsor and the appellant in relation to the sponsor's present medical condition.
13. He has a difficult medical history. He has suffered from severe kidney problems for many years. He had his first kidney transplant in 2005 which failed in August 2015 when he returned to haemodialysis. From 2015 until December 2018 he required dialysis three times a week for four hours. In December 2018 he underwent a second kidney transplant because of end stage renal failure. According to the most recent letter from Hull and East Yorkshire Hospitals he has recovered well from his transplant operation and has satisfactory kidney function. He is being reviewed every two weeks.
14. In oral evidence he said that in May he was readmitted to the hospital because there was a danger of his rejecting the new kidney but the medication was altered and this kept his kidney functioning. He does however require help to go to the toilet from his wife who also has to do all of the cooking, cleaning and washing as his feet swell and he is unable to stand for any period of time. Because of an implant in his arm he is unable to carry heavy things. Aside from that he would not appear to need nursing care from her as such.
15. Mr Howells submitted that the appellant did not meet the stringent test set out in paragraph EX1(b), namely that whilst the Secretary of State no longer argued that the couple were not in a genuine and subsisting relationship, there were no insurmountable obstacles to family life with the appellant continuing outside the UK. The sponsor had recovered from the latest operation and his kidney functioned well. There was no documentary evidence to suggest that he would be denied medical support in China where both he and the appellant had family members who would be able to assist. He had run his own takeaway business in the UK which indicated that he was someone who could prosper upon return.
16. So far as Article 8 outside the Rules was concerned the appellant had arrived in the UK in 2009 and made no attempt to regularise her stay until 2015. The relationship had started at a time when both she and her partner were fully aware of her illegal status and little weight should be given to family life which commenced when one of the parties was here unlawfully.
17. Mr Ahmed submitted that the sponsor and appellant had given credible evidence. His health was very uncertain having had one kidney transplant which had failed. He would not be able to obtain treatment in China if he went with his partner there without relinquishing his British nationality. The couple were financially independent and there was no public interest in separating them.
Findings and Conclusions
18. Paragraph EX1(b) states that this paragraph applies if the applicant has a genuine and subsisting relationship with a partner who is in the UK and is a British citizen settled in the UK or in the UK with refugee leave or humanitarian protection and there are insurmountable obstacles to family life with that partner continuing outside the UK.
19. The sponsor is a British citizen who is in a genuine and subsisting relationship with the appellant. However EX1(b) sets a very high hurdle requiring there to be very significant difficulties which could not be overcome.
20. The appellant has not been well served by her representatives. At the last hearing I indicated that it would be helpful if further evidence was produced and none has been forthcoming. This case hinges on the sponsor's medical condition and any treatment which he could expect to receive for it in China should he require it. No evidence has been produced in relation to the facilities in China. Most importantly it was the appellant's case that the sponsor could not access those facilities without relinquishing his British citizenship but no evidence was produced to support that assertion.
21. Fortunately Mr Howells was able to assist and confirmed that according to Article 3 of the Chinese nationality law China does not admit dual nationality.
22. The position therefore is as follows. The facts are not disputed by the respondent. The sponsor has had one kidney transplant which lasted for ten years and then failed. He then required dialysis three times a week before receiving a second transplant in December 2018. He required inpatient treatment for one week in May to deal with problems around the rejection of the new kidney and he is presently on two weekly monitoring appointments.
23. He is therefore not someone who could confidently relocate to China without a significant likelihood of requiring medical treatment there. The Secretary of State does not argue that he could access that treatment without giving up his British nationality.
24. He has been in the UK for 22 years and runs a successful takeaway business here. Whilst he and the appellant have family in China it is difficult to see what practical help they could be.
25. He is therefore someone who is likely to require medical treatment in China but could not access it without relinquishing his British nationality. That situation, it seems to me, meets the insurmountable obstacles test, as a significant difficulty which could not be overcome. Since the appellant could not enjoy family life with her spouse in China she meets the requirements of paragraph EX1(b).
26. Accordingly there would be no public interest in her removal which in any event would have unjustifiably harsh consequences rendering it disproportionate.
27. The original judge erred in law. Her decision has been set aside. It is remade as follows. The appellant's appeal is allowed.
No anonymity direction is made.
Signed Date 18 August 2019
Deputy Upper Tribunal Judge Taylor