First Tier Tribunal Judge Rhys-Davies presiding over the matter on the 28th of September 2023 at Columbus House, Newport.
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The immigration appeal was related to the 2 appellant's family life with their children in the UK and entered the UK on a visit visa.
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Home Office had refused their human rights application claiming on the credability issues and also on medical grounds. Grounds raised on Article 3 & 8 ECHR.
On paragraph 11 of the judgment, it was pointed out on the new matter, on the following "Mahmud (S. 85 NIAA 2002 - 'new matters') [2017] UKUT 488 (IAC); Quaidoo (new matter: procedure/process) [2018] UKUT 87(IAC); OA and Others (human rights; 'new matter'; s.120) Nigeria [2019] UKUT 00065 (IAC)".
The Judge referred to the following "The Parties agree that I must resolve the Article 3 medical claims in accordance with the tests set out in AM (Art 3; health cases) Zimbabwe [2022] UKUT 00131 (IAC)".
In considering the legal matter, the Judge sat out the following:
20. The first question is whether the refusals breach the Appellants’ Article 3 ECHR right not to be “subjected to torture or to inhuman or degrading treatment or punishment”. Each Appellant must establish that they are a seriously ill person and adduce evidence capable of demonstrating that substantial grounds have been shown for believing that as a seriously ill person they would face a real risk, on account of the absence of appropriate treatment or the lack of access to such treatment, of being exposed to a serious, rapid and irreversible decline in their state of health resulting in intense suffering, or to a significant reduction in life expectancy.
21. The second question is whether the refusals breach the Appellants’ right to respect for private and family life under Article 8 ECHR. That right is qualified. The Appellants must establish on the balance of probabilities the factual circumstances on which they rely and that Article 8 (1) is engaged. If it is, then I have to decide whether the interference with the Appellants’ rights is justified under Article 8 (2). If an Appellant does not meet the Immigration Rules, the public interest is normally in refusing leave to enter or remain. The exception is where refusal results in unjustifiably harsh consequences for the appellant or a family member such that refusal is not proportionate. I take into account the factors set out in s.117B Nationality Immigration and Asylum Act 2002 and balance the public interest considerations against the factors relied upon by the appellant.
In our legal defence, paragraph 40 of the judgement:
40. The relevant test is whether the Appellants would face very significant obstacles to their integration into life in South Africa. The Court of Appeal addressed this in Parveen [2018] EWCA Civ 932. Underhill LJ, giving the only reasoned judgment stated that “… the words "very significant" connote an "elevated" threshold, and I have no difficulty with the observation that the test will not be met by "mere inconvenience or upheaval"
The Judge considered the Adult Dependand Relatives (ADR) Immigration Rules, referred to the human rights grounds:
53. This is informed by the requirements of the Immigration Rules relating to adult dependent relatives (see Mobeen [2021] EWCA Civ 886 at [68]).
54. Such applications could only be made from outside the UK when the Appellants made their own applications, but is now possible from within the UK. In either event, the tests are the same: (a) An applicant must as a result of age, illness or disability require long term personal care to perform everyday tasks; and (b) An applicant must be unable to obtain the required level of care in the country where they are living, even with the financial help of the sponsor because either: (i) the care is not available and there is no person in that country who can reasonably provide it: or (ii) the care is not affordable.
The Judge concluded in the legal matter that it would be unduly harsh to remove both appellants from the UK and that their support network including their family members are part of the consideration which the Home Office have failed to consider.
