Carer of a British national in line with private life & exceptional circumstances
This appeal relates to an application lodged by ICS Legal, which was then wrongly refused and the First Tier Tribunal agreed with ICS Legal in allowing the immigration appeal. Full facts of the case and what we did is enclosed. Please note due to data protection, the appellant's name or any relevant details are not enclosed.
Case Facts
The Appellant a Philippines national entered the UK on 15 February 2018, to work as an overseas domestic worker to take care of her employer’s aged father. Initially, this stay was valid for a period of 6 months. On 11 June 2018, she left the country and returned to the UK in the same capacity on 5 July 2018. The subsequent stay was valid until 29 December 2018.
To extend her stay she further made an application to vary her leave. However, the Secretary of State refused this application. The Secretary of the State treated her application as an application for private life. In actuality, the application was for her to remain in the UK to continue caring for her employer’s father who was a British citizen. The litigation team of ICS legal was approached with this matter. ICS Legal recommended appealing against the refusal to extend the Appellant's leave to remain. Hence, the present appeal.
The outcome of the matter
The Respondent's case for refusal of the Appellant's application was a leave to remain in the UK based on private life. The Respondent examined the said application in line with private life grounds and concluded that it lacked grounds of suitability. The grounds to prove private life in the UK should have significant evidence. In the Appellants’ case, she had lived abroad up to the age of 40, which meant she had spent most of her life from childhood in the Philippines.
She has retained knowledge of the Philippines life, language and culture and would not face significant obstacles to re-integrating there. On the other hand, her private life in this country was only as an overseas domestic worker which meant no possibility for a route to settlement.
The Respondent also claimed that they considered the aspect of there being any exceptional circumstance in the matter to see whether a refusal of her application would breach Article 8 and cause the Appellant unduly harsh consequences for her or for her family. However, based on the information provided, it was decided that there was no such exceptional circumstance in the appellant’s case that would deserve the grant of leave outside of the Immigration Rules.
The litigation team of ICS Legal submitted that the Appellant cared for the aged father of her employer, who finds it difficult to walk unaided, is very hard of hearing, and has hypertension. In spite of providing evidence to demonstrate that he suffered from various health problems and that it was only the appellant who cared for him in the absence of his children unable to be there with their father, the respondent failed to consider this.
The Respondent contended that Leave outside of the Immigration Rules (LOTR) to care for someone is only granted in the most exceptional circumstance. Since the employers’ father, was a British citizen they also contended that he could avail himself of the services of the NHS and social services. In addition, they claimed that it was possible for care to be provided by someone not subject to Immigration control. They further suggested that the employers’ sister could also take care of their father as she lived in the same country.
The litigation team of ICS Legal brought to the notice of the Tribunal that even though the employers’ sister lived in the same country she herself suffered from various health problems and would not be in a position to take care of their father. Besides, the son lived in Dubai which made it impossible to live here in the UK to care for his father. The Appellant apparently worked as a Domestic worker for the employer in Dubai and accompanied him to the UK in the same capacity but had to extend her stay to care for the employer’s father due to his health conditions.
The litigation team put forth vital evidence before the Tribunal to prove the health conditions of the employer’s father and demonstrated how the Appellant assisted him in his day-to-day life and that the employer’s father would not be comfortable with anyone else if the Appellant was not allowed to remain in the UK. The employer’s father also supported this claim in his witness statement. He had been acquainted with the Appellant for a period of 10 years as she worked for her son. The employer and his sister explained to the Tribunal how the Appellants' presence with their helps them to be in touch with their father.
With the help of experts, it was also proved that the removal of the Appellant from the Employers’ father’s life or relocating him from his house in the UK where he has spent most of his life would be very harsh.
In light of the facts and circumstances put before the Tribunal, it concluded that removing, the appellant from this country simply in the interest of immigration control would be inconsistent. It would lead to harsh consequences on their lives, especially in the life of the employers’ fathers, which would be unjustifiable.
Hence, the appeal was allowed. The Appellant was granted limited leave with the periodic review until the employer’s father no longer required her care. After which it was for the Secretary of State to decide whether to curtail her leave or not grant her any further extension.
