Mohamed v Secretary of State for the Home Department

Under paragraph 317(i)(e) of the Immigration Rules, the applicant must be living in the most exceptional compassionate circumstances notwithstanding financial support from relatives settled in the United Kingdom. The decision-maker must include that support when assessing the applicant’s circumstances. A counterfactual “but for” approach is incorrect.

Exceptional compassion may nevertheless arise where, despite financial support, the applicant cannot cope independently. The appeal was dismissed because the applicant’s circumstances did not satisfy the required threshold and she was not financially dependent on her son.

Azza Mohamed, a widowed Egyptian national under 65, appealed against the Upper Tribunal’s dismissal of her appeal from the refusal of indefinite leave to remain as a dependent relative under paragraph 317 of the Immigration Rules.

She lived alone in Egypt and received a state pension and regular financial support from her son, who was settled and working in the United Kingdom. The Upper Tribunal found that her medical conditions made her circumstances compassionate but not the most exceptional, and that she was not financially dependent on her son. It also rejected claims under articles 3 and 8 of the ECHR. The central issue was whether financial support should be excluded from, or included in, the assessment under paragraph 317(i)(e).

1. The appeal was dismissed. Paragraph 317(i)(e) requires the decision-maker to ask whether the applicant is living in the most exceptional compassionate circumstances notwithstanding support from relatives settled in the United Kingdom. The “but for” test would require speculation about circumstances without the support and would involve rewriting the rule.
2. Financial support does not make the requirements self-cancelling. There may be cases where, despite support, the applicant cannot cope alone, including because of dementia or terminal illness, and exceptional compassion is required.
3. Although the rule requires the applicant to be living alone outside the United Kingdom, the court made no criticism of the Upper Tribunal’s approach of making findings as if the applicant were in Egypt. No adversarial argument had been made on that point.
4. On the facts, the applicant’s depression, osteoarthritis, restricted mobility and difficulties with housework did not come close to the required threshold. Her pension and remittances enabled her to obtain home help or move nearer to relatives.
5. The applicant was not financially dependent on her son because her pension supplied sufficient independent means. The claims under articles 3 and 8 of the ECHR were also rejected, and permission to appeal under those heads had been refused.

• Upper Tribunal (Immigration and Asylum Chamber): the First-tier Tribunal’s dismissal was set aside and a fresh decision dismissing the appeal was substituted in case IA252972010.
• Court of Appeal (Civil Division): the appeal from the Upper Tribunal was dismissed.