Florentina Sison, R (on the application of) v The Secretary of State for the Home Department

A decision-maker considering leave outside the Immigration Rules must take account of material evidence about the effect on persons receiving the applicant’s care. The decision-maker need not address every item of evidence separately. Reasons are adequate where they show that the relevant needs, the realistic availability of alternative care, and the public interest have been considered.

A policy for voluntary carers who are relatives or friends does not apply to a paid employee. Nor will an analogy with an emergency exception assist where alternative care may reasonably be obtained. In an appropriate case, Article 8 private life may require consideration of the effect on another person. Any interference may nevertheless be proportionate when alternative support is available and the applicant has no lawful basis to remain.

The applicant, a Philippine national and qualified nurse, sought leave outside the Immigration Rules to continue providing overnight care to an elderly couple, particularly Mrs Jost, who had Alzheimer’s disease and other serious health conditions.

The Secretary of State refused the application on the basis that the applicant was not the sole carer, alternative arrangements could be explored, and her adverse immigration history weighed heavily against a discretionary grant. The applicant brought judicial review, alleging inadequate consideration of the care evidence, failure to apply the carers’ policy, and incompatibility with Mrs Jost’s Article 8 private-life rights.

The central issues were whether the refusal was unlawful on public-law grounds, whether the carers’ policy applied, and whether the decision disproportionately interfered with Mrs Jost’s private life.

1. Claim dismissed. The Secretary of State had lawfully considered the evidence concerning Mrs Jost’s health, need for overnight care, and relationship with the applicant. It was open to her to conclude that the applicant’s care, though valued and important, was not the only adequate care that could be provided.

2. The evidence did not require a conclusion that no alternative carer could be found. Other carers already assisted during the day, the possibility of further recruitment had not been exhausted, and the employment arrangements themselves contemplated alternative cover during the applicant’s annual leave. Administrative reasons need not address every piece of evidence seriatim. The reasons sufficiently explained why there were no compelling or compassionate circumstances for leave outside the Rules.

3. The carers’ policy was directed to voluntary carers who were relatives or friends of the person needing care. It did not apply to an employed carer. Its emergency exception could not assist by analogy because further efforts could reasonably be made to secure alternative support.

4. The Tribunal accepted, for the purposes of the claim, that in an appropriate case the approach in Beoku-Betts v Secretary of State for the Home Department [2008] UKHL 39 could extend to private life between two individuals. The applicant could therefore advance the effect of the decision on Mrs Jost’s private life. The Tribunal also accepted that Mrs Jost’s well-being and health fell within the potential scope of Article 8.

5. Even assuming Article 8 was engaged, no breach was shown. The availability of alternative care and the significant public interest in immigration control made any interference proportionate. The applicant’s leave had expired on 28 January 2013, and she had no entitlement under the Rules or policy to remain. The refusal was neither irrational nor otherwise unlawful.

The applicant was ordered to pay the respondent’s costs of £9,618.00. Permission to appeal was refused.

• Upper Tribunal (Immigration and Asylum Chamber): Upper Tribunal Judge Eshun initially refused permission for judicial review on 11 June 2015.
• Upper Tribunal (Immigration and Asylum Chamber): Upper Tribunal Judge Freeman granted permission after an oral hearing on 5 August 2015, principally on the arguability of inadequate consideration of Mrs Jost’s circumstances.
• Upper Tribunal (Immigration and Asylum Chamber): The claim was dismissed. Permission to appeal was refused.