(Immigration and Asylum Chamber) Appeal Number: HU/15525/2017
THE IMMIGRATION ACTS
Heard at Birmingham CJC
Decision & Reasons Promulgated
On 2 May 2019
On 9 May 2019
DEPUTY UPPER TRIBUNAL JUDGE CHAMBERLAIN
DEQO ALI SHIRE
(anonymity direction not made)
ENTRY CLEARANCE OFFICER - PRETORIA
For the Appellant: Not represented
For the Respondent: Ms. H. Aboni, Home Office Presenting Officer
DECISION AND REASONS
1. This is an appeal by the Appellant against a decision of First-tier Tribunal Judge Hall, promulgated on 15 October 2018, in which he dismissed the Appellant's appeal against the Respondent's decision to refuse entry clearance on human rights grounds.
2. Permission to appeal was granted as follows:-
"The grounds are arguable. It is arguable that the judge erred in adding additional hurdles not present in Appendix FM-SE , such as evidence to show that the diagnosis was accurate, details of tests undertaken, and details at the doctors qualifications, none of which appear in the Rules (all of these may have been relevant to weight, but arguably not to whether the specified evidence requirements were met).
There may be unusual circumstances in which a judge can reject expert evidence where there is no conflicting expert evidence, but it is arguable that the judge erred in this case in refusing to accept the diagnosis and opinion of a doctor without adequate reasons.
It is also arguable that there were no reasons given for the judge's conclusion on E-ECDR.2.5 (see  and ); and in evaluating this issue there was arguably a need to assess the sponsor's oral evidence and the relevant documentary evidence, including from the carer, none of which the judge mentions.
The need for findings on this evidence also arguably applied in the Article 8 proportionality assessment outside the Rules."
3. There was no attendance on behalf of the Appellant. The file showed that notice of the time, date and place of the hearing had been sent to the Appellant's representatives and to the Sponsor, at the last address notified by the Sponsor to the Tribunal, on 26 March 2019. There was no application for an adjournment. The Tribunal telephoned the Appellant's representatives. There was no answer and so a message was left asking them to contact the Tribunal. There was no response. I was satisfied that it was in the interests of justice to proceed with the hearing in accordance with rules 2 and 38 of the Tribunal Procedure (Upper Tribunal) Rules 2008.
4. I heard submissions from Ms Aboni. I reserved my decision.
Error of Law
5. The Judge states at  to :
"The medical evidence relied upon by the appellant is a medical certificate dated 5 November 2017 issued by St Michael Clinic in Addis Ababa Ethiopia. I do not find that this evidence proves that E-ECDR.2.4 is satisfied as it does not prove on a balance of probabilities that as a result of age, illness or disability, the appellant requires long-term personal care to perform everyday tasks. I reach this conclusion for the following reasons. 
There is no satisfactory evidence of the qualification or expertise of the author of the certificate. It is not clear whether the author is a general medical practitioner or specialist. The certificate has been issued following one examination on 24 March 2017. No satisfactory details have been given as to what tests were carried out in order for a diagnosis of dementia to be made. 
It is not clear why the conclusion has been reached that the appellant "needs close family care and support as she is old and cannot support herself" and there is no satisfactory evidence within the certificate to show that the appellant cannot undertake everyday tasks such as for example washing, dressing and cooking. The diagnosis indicates that she has a urinary tract infection, kidney stones, gastritis and left shoulder joint arthritis. That diagnosis, without more, does not prove on the balance of probabilities that the appellant cannot undertake everyday tasks. The diagnosis also refers to dementia, but as I have previously stated, I do not accept that sufficient evidence has been produced, to show that it is an accurate diagnosis, in the absence of any explanation as the nature of tests carried out, and the absence of qualification or expertise of the author to make such a diagnosis. 
Additional medical evidence is provided in the appellant's bundle at pages 11-15. This takes the form of a referral slip issued by Washington Medical Centre in Addis Ababa dated 19 April 2018. There is no mention of dementia. An abdominal ultrasound scan was carried out, with the result given as a normal scan. There is no mention within this medical evidence of the appellant requiring long-term personal care to perform everyday tasks. "
6. The Judge has set out the medical evidence which was provided in order to show that the immigration rules were met. He then states in conclusion that the specified evidence has not been provided, and so it has not been shown that the Appellant meets the requirements of E-ECDR.2.4. He states it is therefore not necessary to consider E-ECDR.2.5, "but in any event I find that the specified evidence required by paragraph 35 appendix FM-SE has not been provided".
7. The grounds of appeal have set out paragraph 34 from Appendix FM-SE, which applies to the evidence which must be provided to show that "as a result of age, illness or disability, the applicant requires long-term personal care". It states that the evidence must be independent, and must be from a doctor or other health professional.
8. I find that the Appellant provided evidence from a doctor. The Judge attached no weight to this as there was no satisfactory evidence of the qualification or expertise of the doctor. However the stamp at the bottom indicates that the person who signed it is a doctor. This meets the requirements set out in paragraph 34. There is no requirement that the doctor be a specialist in any particular area.
9. I find that the Judge has set a higher bar than is set in paragraph 34 in relation to the qualification or expertise of the medical professional, given that it is clear from the certificate that he is a doctor.
10. However I find that this error is not material. Paragraph 34(1)(a) states that the evidence must show that the Appellant "cannot perform everyday tasks". The certificate does not state that the Appellant cannot perform everyday tasks. It states that she needs "close family care and support", but it is not evidence that she cannot perform everyday tasks. The Judge made this finding at  where he stated that "there is no satisfactory evidence within the certificate to show that the appellant cannot undertake everyday tasks such as for example washing, dressing and cooking". This finding was open to him.
11. Further, any error when considering E-ECDR.2.4 cannot be material as the Appellant did not provide evidence required by paragraph 35 of Appendix FM-SE to show that she was unable to obtain the required level of care in Ethiopia so as to meet E-ECDR.2.5. Paragraph 35 of Appendix FM-SE is also set out in the grounds of appeal. The evidence must be provided from "(a) a central or local health authority; (b) a local authority; or (c) a doctor or other health professional". The Appellant did not provide any evidence from one of these sources to show that the care that she requires is not available in Ethiopia, as found by the Judge at . The grant of permission to appeal refers to the fact that there was a need to assess the Sponsor's oral evidence, but such evidence would not meet the requirements of Appendix FM-SE.
12. There is also reference in the grant to the evidence of the carer. I have considered this evidence (pages 10 and 21 of the Appellant's bundle). These are two letters from Ayan Salah Mohamed. There is no reference to this individual being from a central or local health authority, from a local authority, or to him being a doctor or other health professional. It states only that he is the Appellant's "guardian". Neither does this evidence state that the Appellant would be unable to obtain the required level of care in Ethiopia. This evidence does not meet the requirements set out in paragraph 35 of Appendix FM-SE. The Judge did not err when finding that the Appellant had not provided evidence to show that E-ECDR.2.5 was met.
13. I therefore find that any error in the Judge's consideration of the evidence which was provided to show that E-ECDR.2.4 was met is not material as the evidence did not show that the Appellant could not perform everyday tasks such as to meet the requirements of E-ECDR.2.4. Further, the Appellant had not provided the specified evidence to show that E-ECDR.2.5 was met.
14. I therefore find that there is no material error of law in the Judge's consideration of whether or not the Appellant met the requirements of the immigration rules.
15. The grant of permission also refers to the need for findings on this evidence for the purposes of the proportionality assessment outside the requirements of the immigration rules. I have found there is no material error of law in the Judge's consideration of the immigration rules. The extent to which an individual meets the requirements of the immigration rules is clearly significant to any proportionality assessment. The Judge has stated that the Appellant has not proved that she needs long-term personal care, or that any care required would not be available in Ethiopia . These are findings which he was entitled to make, and which he has taken into account in the proportionality assessment. I find that there is no error of law in the Judge's consideration of Article 8.
Notice of Decision
16. The decision of the First-tier Tribunal does not involve the making of a material error of law and I do not set the decision aside.
17. The decision of the First-tier Tribunal stands.
18. No anonymity direction is made.
Signed Date 8 May 2019
Deputy Upper Tribunal Judge Chamberlain