The Upper Tribunal recently dismissed the Home Office’s appeal and upheld the judgement of the First tier Tribunal’s decision to allow the application in the case of Dasgupta (error of law – proportionality – correct approach)  UKUT 28 (IAC) (11 December 2015). The Appellant had made a visa application as an Adult Dependent Relative which was refused in 2013 by the Home Office, however the Upper Tribunal allowed the appeal in the Appellant’s favour as they found that his Article 8 rights were engaged and that the Home Office decision was a disproportionate interference with the family life of the Appellant and therefore infringes Article 8 ECHR.
Facts of Case
The Appellant in this case was an 85 year old widower residing in his home country and he suffered from Glaucoma and Ischemic heart disease. The Appellant had made regular visits to his daughter and grandchildren in the UK and vise versa they had travelled to India to visit the Appellant on a number of occasions. The Appellant’s daughter was a doctor in the NHS and she had undertaken in writing that she would be fully responsible for the maintenance, accommodation and care of the Appellant in the United Kingdom for a period of 5 years.
The Appellant made a visa application as an Adult Dependent Relative which was refused in 2013. An ensuing appeal to the First-tier Tribunal (the ” FTT”) was successful under Article 8 ECHR outside of the UK immigration rules. Unhappy with this decision the Home Office appealed to the Upper Tribunal.
First-tier & Upper Tribunal’s Determination
The Immigration Judge in the First-tier Tribunal held that this matter fell beyond the scope of the prescribed immigration rules and it was clear that the Appellant did not meet the same. However, the immigration Judge, following persuasive submissions from Counsel, found that the Appellant’s Article 8 rights had been engaged. Taking into consideration the relevant case law, the learned Judge allowed the Appellant’s appeal.
I find that there are such exceptional circumstances here, particularly the fact that there are children that are affected and also the cultural aspects. I find that the decision is a disproportionate interference with the family life of the Appellant and the sponsor and her children and therefore infringes Article 8 ECHR.”
Upper Tribunal Commented:
We can detect no error of law in the conclusion reached by the FtT on the issue of proportionality. Neither the decision making process of the FtT nor its outcome discloses any such error. We remind ourselves that the focus of the Secretary of State’s challenge was the sufficiency of reasons and evidence underpinning the impugned conclusion. For the reasons explained above, this challenge is not made out.
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