Mudibo, R (on the application of) v Secretary of State for the Home Department, Court of Appeal - Civil Division, November 28, 2017, [2017] EWCA Civ 1949

Issuing Organization:Civil Division
Actores:Mudibo, R (on the application of) v Secretary of State for the Home Department
Resolution Date:November 28, 2017

Case No: C2/2015/0424

Neutral Citation Number: [2017] EWCA Civ 1949




Upper Tribunal Judge Southern


Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 28/11/2017







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Simon Harding (instructed by Quality Solicitors Orion) for the Appellant

Zane Malik (instructed by the Government Legal Department) for the Respondent

Hearing date: 31 October 2017

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JudgmentLord Justice McCombe:

1. This is an appeal from an order of 15 January 2015 of the Upper Tribunal (Immigration and Asylum Chamber) (Upper Tribunal Judge Southern) refusing the appellant's application for permission to apply for judicial review. The appellant sought from the Upper Tribunal permission to review the decision of the respondent of 17 December 2013 which refused to grant her application of 22 June 2012 for leave to remain (``LTR'') in the United Kingdom, made on the basis of her relationship with a British citizen, Mr Rahim Ali (born on 11 May 1968), whom she had married on 12 June 2012. She had made a previous application for LTR as Mr Ali's partner on 3 September 2010, prior to the marriage, but that had been refused on 29 December 2010.

2. The application, following the marriage, had been initially refused on 14 February 2013. Judicial review proceedings in respect of that decision followed and by a consent order of 6 September 2013, the respondent agreed to reconsider the application. It was refused again by the decision now under challenge. The judicial review permission application was refused by Simler J after consideration of it on the papers. It was refused again by UTJ Southern who, on 15 January 2015, also refused permission to appeal to this court. It was further refused by Sales LJ in this court after consideration on the papers. Permission to appeal was, however, granted by Gloster LJ on 15 January 2016.

3. The appellant is a citizen of Tanzania, born on 21 July 1972. She arrived in the United Kingdom on 7 November 2004, with entry clearance as a visitor for 6 months to 7 May 2005. That period expired and she has remained in the country unlawfully since then.

4. The appellant says that her relationship with Mr Ali dates from 2007. The medical material adduced indicates that Mr Ali was diagnosed in 2000 as suffering from HIV. It is useful to quote from the two short letters from medical practitioners that were before the respondent when she considered the application. The first letter is from the West London Centre for Sexual Health and is dated 28 July 2010. It states this:

``This is to certify that Mr. Ali was diagnosed with AIDS in 2000 when he was treated for cerebral toxoplasmosis. He has been on combination antiretroviral therapy since that time. He is currently on tablet Truvada 1 tablet OD and tablet Nevirapine 400 mg OD.

In 2003 he had a fall at work resulting in fractures to his right arm and wrist. Due to poor healing of his scaphoid bone fracture on his right wrist, he has ongoing pain in this area and this has prevented him from employment as it is too painful to use this arm. He also suffers from high blood pressure treated by his GP and low Vitamin D levels.''

The second letter from the same source, dated 21/09/2012, says this:

``Mr Ali has been known to be HIV seropostive since August 2000 when he presented with an AIDS defining condition cerebral toxoplasmosis, and was extremely immunosuppressed with a CD4 lymphocyte count of 13. In November 2011 he was showing signs of virological failure with a fall in his CD4 count from previous levels and a rise in his HIV viral load levels. This necessitated a change in his antiretroviral medication.

In April 2002 a biopsy from the anal area showed anal intraepithelial neoplasia grade 1-2 and he remains under monitoring for this.

He is on treatment for high blood pressure.

Physically, Mr Ali's main problem is longstanding severe back pain following an injury with an x-ray of the lumbar spine confirming degenerative changes and a probable previous compression fracture. In addition, he has had injuries to his right and left hands with previous surgical treatment resulting in reduced function of both hands.

I would hope that the above factors are taken into consideration when deciding on his benefits including incapacity benefit.''

There was a further letter of 12/04/13 from the same doctor. This third letter was sent to the respondent under cover of a letter of 30 April 2013 from the appellant's solicitors; however, it contained essentially the same medical information.

5. This material was considered by the respondent in reaching her decision. As the appellant had no subsisting LTR she was unable to meet the criterion for a grant of LTR in the normal way since (using the same double negative as in the decision letter) she had not been able to show that she had not remained here in breach of immigration laws.

6. The respondent then addressed the appellant's family life under Article 8 of the European Convention on Human Rights and Fundamental Freedoms (``ECHR''), within Appendix FM to the Immigration Rules. Without labouring the labyrinthine provisions of that Appendix unduly, the crucial question for the appellant's application for LTR was whether she satisfied the criteria EX.1(b) in that Appendix as follows:

``Section EX: Exceptions to certain eligibility requirements for leave to remain as a partner or parent

EX.1 This paragraph applies if ...

... (b) the applicant has a genuine and subsisting relationship with a partner who is in the UK and is a British citizen, settled in the UK...and there are insurmountable obstacles to family life with that partner continuing outside the UK. ''

7. In applying these criteria, the respondent decided that they were not satisfied in the appellant's case for the following reasons:

``In your application and supporting documents you have not demonstrated any impediment to lawfully entering and staying in the United Republic of Tanzania or any cultural or religious barriers which would disadvantage your partner for it to be unreasonable to expect you and he to live there.

Consideration has also been given to the fact that your husband suffers from various health problems. According to medical reports, Mr Rahim is HIV positive and receives anteviral medicine to control...

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