Case No. UKUT-00542-(IAC)

1. Th is appeal originates in a decision made on behalf of the Secretary of State for the Home Department (the “ Secretary of State “) dated 28 February 2014, whereby the application of the Appellant, a national of Nigeria now aged 71 years, for I ndefinite Leave to R emain in the United Kingdom outwith the framework of the Immigration Rules (hereinafter “ the Rules ”) was refused . 2. The decision maker first considered whether the Appellant qualifies for leave to remain under the Rules. In doing so, the relevant history summarised was that the Appellant last entered the United Kingdom on 16 July 2009, pursuant to a 180 day multi-entry visitor visa issued on 26 August 2008 and valid until 26 August 2013. The application made on behalf of the Appellant was dated 24 October 2013. It was decided, firstly, that a refusal under paragraph 322(1) of the Rules was appropriate on the basis that variation of leave to enter or remain was sought for a purpose not covered by the Rules. Next, having regard to the terms of the multi-entry visitor visa and the Appellant’s failure to honour “ any declaration or undertaking given orally, or in writing, as to the intended duration and/or purpose of …. stay ”, the application was further refused under paragraph 322(7). The third conclusion made was that the application did not satisfy the Article 8 ECHR provisions of the Rules, specifically paragraphs 276ADE, 277C and Appendix FM. The decision continues: “ Notwithstanding the above your application has also been considered on compassionate and compelling factors ”. The considerations which were then identified are the Appellant’s age (70); her state of health (general age related ailments only); her family connections with the United Kingdom (a daughter only); the death of her husband in 1997; her ability to live in Nigeria during most of the period between 1997 and 2009; and the absence of evidence that she would be exposed to ill treatment in the event of returning there. The decision continues: “ It is not considered that you have provided any evidence showing that your circumstances have significantly changed since you last left Nigeria on 16 July 2009, or that you would be living in the most exceptional compassionate circumstances should you return to Nigeria. All your representations have been taken into consideration and it is the view that you have not raised any exceptionally compelling or compassionate factors that would warrant a grant of leave in the UK . ” The application was refused accordingly. 3. The First-tier Tribunal (the “ FtT ”) dismissed the ensuing appeal. Its assessment was that the impugned decision interfered with the Appellant’s right to respect for private and family life but was “ in accordance with the law and necessary for the economic well being of society ”. In considering the issue of proportionality, the Judge noted the applicability of section 117A of the Nationality, Immigration and Asylum Act 2002 (the “ 2002 Act ”), proceeding to highlight the following facts and factors: the absence of evidence that the Appellant speaks English; her “ accessing ” NHS medical treatment, to which her daughter knew she was not entitled, since first registering with a General Medical Practitioner in 1997; the inevitability of further recourse to free NHS treatment; the absence of evidence of “ substantial integration ” into life in the United Kingdom or of an extensive private life outside the family unit. 4. Next, having highlighted the evidence, including several doctors’ letters, relating to the Appellant’s state of health, the Judge noted the absence of any claim that she required long term personal care to perform everyday tasks. The Judge was satisfied that such longer term personal care as the Appellant may require, will be available to her in Nigeria. He also noted the ability of the Appellant’s daughter to continue to support her mother financially, evidenced by, inter alia , her second home in the United Kingdom . The Judge further found that the Appellant would not be at risk of any ill treatment in Nigeria , noting in particular the evidence of both the Appellant and her daughter that in 2009 the Appellant fully intended to return there. In summary, the status quo ante 2009 would be re-established upon the Appellant’s return to Nigeria . 5. Permission to appeal was granted in the following terms: “ The decision as a whole displays cogent evidence based reasoning. However, the grounds argue bias and lack of a fair hearing rooted in the Judge’s remark at paragraph 51 that