In late March 2012 Gherson represented a citizen of Tanzania in a successful appeal to the Upper Tribunal (Immigration and Asylum Chamber) against the entry clearance officer (ECO), Nairobi.
The appellant was an elderly lady whose original appeal against the decision of the ECO to refuse her and her brother’s leave to enter as dependent relatives of their nephew (their brother’s son) was heard in the First-tier Tribunal (the ‘FTT’). Her brother’s appeal was allowed by the FTT and hers was dismissed for not meeting the requirements of paragraph 317(i) of the Immigration Rules. This required that the appellant was related to her nephew and was "living outside the United Kingdom in the most exceptional compassionate circumstances”.
Evidence was submitted to the FTT to show her poor living circumstances in Tanzania, the poor condition of the flat, her social isolation and the difficulties of life in Dar Es Salaam where there are power cuts, water shortages and other problems. In addition, she suffered from medical difficulties.
The judge in the FTT concluded that the appellant was with her brother and that this was fatal to her claim. The judge did not go on to consider whether she met the remaining requirements of the Immigration Rules. In addition, he dismissed the appeal under Article 8 of the European Convention on Human Rights (right to a family and private life) as, despite her dependency on her brother, he found that her brother would not move to the UK, leaving his sister in Tanzania.
After lodging the grounds of appeal and prior to the hearing at the FTT, an application was made to amend the grounds. This application to vary the grounds and to adjourn in order to allow further evidence to be obtained was renewed at the oral hearing and refused by the FTT judge who also stated that the appellant could make a fresh application.
An appeal was made to the Upper Tribunal on the grounds that leave to vary the grounds of appeal should have been granted and that the appeal should have been allowed under Article 8.
The reasons for finding a material error of law were:
(i)The FTT judge had failed to consider whether it would be fair in all the circumstances to grant the permission to amend the grounds and adjourn the case (see SH(Afghanistan) by Litigation Friend the Official Solicitor v Secretary of State for the Home Department  EWCA Civ 1284; Ex parte Martin  Imm AR 172);
(ii)The FTT judge had prejudged the issue by considering the lack of evidence provided, as this was the purpose of the adjournment;
(iii)It was not relevant that the Home Office was not represented, as they had chosen not to send a representative;
(iv)It was agreed by the parties that there was a material error in the FTT judge’s approach to Article 8.
In remaking the decision, the Upper Tribunal judge accepted that family life existed and that she could not satisfy the requirements of the Immigration Rules. The judge noted the evidence of the poor state of the accommodation and facilities in Tanzania and that there was in fact no evidence to support the previous finding of the FTT that the appellant’s brother would not travel to the UK without her.
It was held that although the threshold to meet in paragraph 317(i) ("living outside the United Kingdom in the most exceptional compassionate circumstances”) was high, in relation to Article 8, the question is one of proportionality and an assessment of competing interests on the balance of probabilities. Whilst the appellant may not have met the requirements of paragraph 317, she could succeed under Article 8. If the appellant was left alone, the fact that she had spent her entire life in the home and had been dependent upon others would create a difficult situation for her. Having considered all the evidence, the judge found that the respondent had not discharged the burden of proof to show that, in the circumstances, refusal of entry clearance was proportionate.
The Upper Tribunal allowed the appeal and found that the judge in the FTT had materially erred in law. The decision was set aside and remade by the Upper Tribunal judge.