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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER |
Case No: UI- 2024-003264/UI-2024-03334 |
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First-tier Tribunal No: HU /01792/2023 |
THE IMMIGRATION ACTS
Decision & Reasons Issued:
On 21 May 2025
Before
UPPER TRIBUNAL JUDGE NEVILLE
DEPUTY UPPER TRIBUNAL JUDGE WALSH
Between
FARHAN ROOFI
(NO ANONYMITY ORDER MADE)
Appellant
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation :
For the Appellant: Mr. R Solomon, counsel instructed by Taylor Rose TTKW Ltd
For the Respondent: Mr. K Ojo, Senior Home Office Presenting Officer
Heard at Field House on 18 December 2024
DECISION AND REASONS
Introduction
1. This is an appeal against a decision of First-Tier Tribunal Judge J Bartlett ("the judge") promulgated on 25 th April 2024. By that decision, the judge refused the appellant's appeal against the decision of the Secretary of State to refuse his human rights claim, made within an application for leave to remain as a family member under the Immigration Rules.
Factual Background
2. The appellant is a national of Pakistan, born on 29 th August 1985. He is a Muslim.
3. The appellant applied on 12 th April 2011 for leave to enter as a Tier 4 student. This was granted on 20 th April 2011 and was valid until 3 rd September 2013. The appellant entered the United Kingdom on 21 st May 2011.
4. The appellant met his wife, Sayan Ladai, in 2011. They began living together in February 2012 and married on 30 th October 2014. Ms. Ladai holds both Thai and British citizenship. She is a Buddhist.
5. The appellant applied for leave to remain as a Tier 4 student on 30 th August 2013. This was granted on 26 th September 2013 and expired on 1 st November 2014.
6. Thereafter the appellant made a number of applications for leave to remain which were unsuccessful.
7. This appeal arises out of an application for leave to remain on the basis of family and private life made on 2 nd July 2022 which was refused by the respondent in a refusal letter dated 30 th August 2023. The respondent's accompanying refusal of a human rights claim was appealed by the appellant under section 82 of the Immigration, Nationality and Asylum Act 2022.
Grounds of Appeal and Grant of Permission
8. The Appellant appealed against the decision of the Secretary of State on 9 th May 2024. The Grounds of Appeal can be summarised as follows:
a. The reasoning of the Judge was insufficient and/or speculative in finding the appellant and his partner could obtain their medications in Pakistan because the medications were commonly prescribed and failed to engage with the CPIN on medical and healthcare provisions in Pakistan;
b. The reasoning of the Judge was insufficient and/or speculative in finding the appellant and his partner would be able to afford their medical treatment and medications in Pakistan and failed to engage with the CPIN on medical and healthcare provisions in Pakistan;
c. The reasoning of the Judge was insufficient and/or speculative in finding the appellant and his partner would be financially supported by his family in Pakistan;
d. The Judge's finding that the CPIN on interfaith marriage in Pakistan was of limited value as it did not address how interfaith marriages between Muslims and Buddhists are treated and focuses on those of Pakistani origin and those who face pressure from their families was not reasonably open to her and perverse/irrational;
e. The Judge's finding that the appellant's wife would not be treated in a persecutory or discriminatory manner failed to take into account and/or give sufficient weight to relevant and material evidence, namely the CPIN on interfaith marriages in Pakistan.
9. The appellant's sixth ground of appeal averred a number of material errors in the judge's analysis of the appellant's claim under Article 8 outside the Immigration Rules.
Consideration of the judge's findings on Grounds 1 and 2 [1]
10. In respect of the first and second grounds the judge's findings were as follows:
5 (b) the appellant gave evidence that he was on a number of tablets for type 2 diabetes, high cholesterol and high blood pressure. These are commonly prescribed medications and I find that he would be able to obtain these in Pakistan. The appellant stated that he would not be able to benefit from medical care in Pakistan because of the cost. I do not accept this. The medications he said he was on are very commonly available throughout the world and are largely low cost; (basis of appeal underlined)
(c) Mrs Ladlai has a previous history of anxiety and depression and no longer takes medication for it. There is no evidence that she receives any treatment for these conditions or that they are active conditions. She is 54 years of age. In 2002 she suffered from a TIA which is a mini stroke. A GP letter dated 25 August 2023 sets out that she is on Atovastatin, Clopidogrel and Lansoprazole. Though the GP letter sets out that she was diagnosed with type 2 diabetes in October 2022 there is no reference to medication being taken for that. I consider that the medication taken by Mrs Ladlai is again very common medication particularly the statin and the lansoprazole. I find that this would be available in Pakistan as all the medications are common. I do not accept that the appellant has established these common medications would be priced so as the appellant would not be able to afford them: insufficient evidence has been provided to support that contention;
11. As noted in the appellant's grounds of appeal, the appellant's skeleton argument [CB 145-155, CB147] referred to the Country policy and information note: healthcare and medical treatment, Pakistan, September 2020 which had been included in the Appellant's bundle for the FtT [CB 156-206]. The judge makes no reference to this CPIN in her findings.
12. Mr. Ojo accepted that whilst there was no reference to the CPIN in the judge's decision it was clear that even though her reasons were succinct, she had the CPIN in mind when she came to her conclusion. He argued that this can be inferred from her reference to the reasons for refusal letter [3] which dealt extensively with the CPIN and there is sufficient information to understand why the judge came to the conclusion that she did.
13. Mr. Ojo further, and properly, stressed that the burden of proof was on the appellant to evidence the lack of availability of medications. He also asserted that it was for the appellant to prove that there were no substitutes for specified medications, it having been accepted that two of the medications do not appear among the list of available medications in the CPIN.
14. We bear in mind The Practice Direction from the Senior President of Tribunals: Reasons for Decisions, 4 June 2024 which stipulates that reasons should be appropriately concise [PD paras 5,7] and that "providing adequate reasons does not usually require the First-tier Tribunal to identify all of the evidence in reaching its findings of fact..." [PD para 6] and remind ourselves of the principles set out in Volpi v Volpi [2022] EWCA Civ 464 at [2].
15. However, we do not agree with Mr. Ojo that it can be properly inferred that the judge had in mind the CPIN when making her findings with respect to the availability and affordability of the appellant's and Ms. Ladai's healthcare and medications in Pakistan.
16. Firstly, whilst the judge refers generally to the refusal letter, she does not further reference it in her findings at paragraphs 5b and 5c either generally or specifically to the Secretary of State's analysis of the CPIN.
17. Secondly, and more significantly, her findings are arguably contrary to the CPIN. This is particularly so with respect to the availability of medications. The letter from Ms. Ladlai's GP, Dr. Mehta, confirms her current medication as Atorvastatin, Clopidogrel and Lansoprazole [CB 143]. Clopidogrel and Lansoprazole are not on the list of pharmaceuticals available in Pakistan [CB 195, 197]. The CPIN also includes a section specifically on affordability [CB 164] as well as general observations as to accessibility and cost of healthcare in Pakistan which could arguably be seen to support, at least in part, the appellant's submissions.
18. The judge provides no rationale for departing from the country information, in circumstances where it was highly material evidence to a principal issue in dispute. It is not possible to know, therefore, whether she arrived at her conclusions having failed to consider material information or whether she made her findings notwithstanding the country information, for reasons of her own that remain unknown to the parties. Having regard to the Practice Direction above and paragraph 8 of HA v SSHD (No 2) [2010] CSIH 28, recently cited in Abdi v ECO [2023] EWCA Civ 1455 at [29], we conclude that her reasoning is inadequate. We further conclude that the findings, at least insofar as the availability of medications, were not findings she could reasonably make on the evidence before her. We thus find an error of law in respect of the issues identified in the first and second grounds.
19. Further or in any event, with respect to Mr. Ojo's submission that it was for the appellant to prove there were no substitute or alternative medicines available in Pakistan, we cannot see that this was ever put in issue before the First-tier Tribunal or in the Upper Tribunal by way of Rule 24 notice, and it could not reasonably be inferred to have formed part of the judge's reasoning.
20. The issue to which the findings relate are a central plank of the appellant's arguments that he falls within the Immigration Rules under Appendix FM EX.1(b) and/or para 276ADE(1)(vi), namely that the inaccessibility of healthcare and medication constitutes an insurmountable obstacle to family life continuing outside the UK/very significant obstacle to his reintegration in Pakistan. As such we find the error of law to be material.
Other Grounds
21. Whilst it is not strictly necessary to determine the remaining grounds we find that similar issues arise in Grounds 3, 4 and 5 with respect to the judge's reasoning.
22. The judge's finding in relation to the third ground is: (our emphasis)
5 (f) the appellant has said that his brother does not work and therefore he would not be able to provide financial support. He stated that his sister would not be able to provide financial support because she studies. The fact that his sister studies in Pakistan indicates that somebody supports her financially. The appellant also said that his father supported the appellant when he came to England but after he started work this support ceased. His evidence was that his father was retired and so could not support him. As a result of the support the appellant's sister receives, I do not accept this. I find that the appellant's family would be able to provide financial support to the appellant and his wife if they returned to Pakistan;
23. It was submitted by Mr. Ojo that the Judge was entitled to come to this conclusion on the basis that Pakistan is a patriarchal society, the suggested inference being, we presume, that if the father had sufficient income to support his daughter in education, he would certainly support his son and his wife on their return to Pakistan. In response, Mr. Solomon referred Mr. Ojo's submission as a creative attempt to cure the deficits in the judge's decision making. We agree. Patriarchy did not feature in the judge's reasoning which fails to set out the rationale or sufficient evidential basis for linking the family support of the sister's education with financial maintenance of the appellant and his wife. We note that the evidence as recorded in the judgment was not that the family supported the sister in education but that the sister could not support the appellant and his wife because she was in education. There is in fact no recorded evidence as to how the appellant's sister's education was being funded.
24. The judge's findings with respect to grounds 4 and 5 are as follows:
I have found the CPIN [Pakistan: Interfaith marriage, January 2016 CB 207-224] to be of some albeit limited assistance in this case. This is because the CPIN does not directly address how interfaith marriages including a Buddhist or Buddhists generally are treated in Pakistan. It is also focused on those who are of Pakistani origin and those who face pressures from their family in Pakistan. This is not the appellant and Mrs Ladlai's situation. I accept that Buddhism would be treated as a minority religion however there is some disparity between how religious minorities are treated in Pakistan depending on the actual religion. Given that the CPIN sets out that Christians generally do not face persecution and can practise their religion, I find that the appellant has not established that Mrs Ladlai would be treated in a persecutory or even a discriminatory manner.
25. Mr. Ojo argued that the judge was entitled to come to reach those findings on the evidence before her pointing to the evidence in the CPIN that there is a difference in the way religions are treated highlighting the judge's reference to Christians and noting that Ms. Ladlai is not a devout Buddhist. He properly took us to the entirety of a paragraph relied on by the appellant, that is paragraph 3.1.2 the final sentence of which states that whilst it may be difficult for women in [interfaith] marriages to access services this treatment will not reach a level of severity to amount to persecution or serious harm [CB 211].
26. The judge appears to link her conclusion that Ms. Ladlai will not suffer discriminatory treatment with the assertion that Christians generally do not experience persecution. This is erroneous, firstly as the assertion that "Christians do not generally face persecution" may be correct for an individual claiming asylum solely based on her religion, but in the present case omits other relevant parts of the CPIN [see eg para 2.2.1 or Section on Muslim and Christian marriage CB 216-217]. Secondly, the judge does not explain how she makes that connection. In the section on Interfaith marriage [CB 215], the CPIN notes that there is a distinction with "People of the Book", that is under Islamic law Muslim men can marry women who are "People of the Book" identified as Christians or Jews. Ms. Ladlai, as a Buddhist is clearly not a "Person of the Book". The judge does not engage with this point and in the absence of any further rationale it is not possible to understand how the judge arrived at the conclusion that Ms. Ladlai would not be discriminated against.
27. In reaching that conclusion we note that Mr. Solomon correctly identified that to constitute an insurmountable obstacle, treatment does not need to amount to persecution.
28. The judge's reasoning in relation to the issues identified in grounds 3, 4, and 5 is inadequate and the findings that she makes in respect of those matters again, we conclude, were not findings she could properly make on the evidence before her. Thus for the same reasons as found in relation to grounds 1 and 2 we conclude there are material errors of law.
29. Given our findings above it is not necessary to address the remaining ground of appeal in respect of the judge's assessment of the appellant's claim under Article 8 outside the Immigration Rules.
Disposal
30. Applying the principles set out in the Practice Direction, according to the guidance given in Begum (Remaking or remittal) Bangladesh [2023] UKUT 46 (IAC) we consider it appropriate to remit the Decision to the First-tier Tribunal. Given the need to consider the evidence overall, we do not consider it appropriate to preserve any findings of fact and the appeal must be entirely re-heard. The appellant has furthermore not yet had a fair hearing of his appeal and ought not to be unfairly deprived of the two-tier decision making structure.
31. We have not been asked to make any anonymity order, nor are any circumstances apparent that might justify derogation from the public interest in open justice.
Notice of Decision
(i) The decision of the First-tier Tribunal contains a material error of law and is set aside.
(ii) The case is remitted to the First-tier Tribunal for a re-hearing with no findings of fact preserved, to be heard by any judge other than J Bartlett.
M Walsh
Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber
6 th January 2025
[1] Page references to the composite bundle will be noted as [CB xx]. Paragraphs in the judge's decision are will be referred to as [x]