South African who cared for sick British mother refused deportation appeal



Lord Brailsford
Lord Brailsford

A South African national who challenged his deportation from the UK on the ground that he was required to look after his mother has had his petition challenging the decision of the Upper Tribunal not to allow him an appeal refused.

Ferdinand Pieterse was unsuccessful in appealing the decision of the Home Office to refuse him further leave to remain. He sought judicial review of the UT’s decision not to allow him a further appeal from the First-tier Tribunal.

The petition was heard in the Outer House of the Court of Session by Lord Brailsford.

No emotional dependency 

The petitioner entered the UK on 12 April 2016 on a visitor’s visa valid until 23 September of the same year. He made an application for further leave to remain on the basis that he was required to care for his mother, a British citizen with whom he had lived since entering the UK, and therefore had a right to family life under article 8 of the ECHR. The petitioner’s mother suffered from various medical conditions.

The Home Office refused the application for FLR on 12 August 2019. The refusal was appealed to the First-tier Tribunal, which found that the petitioner’s relationship with his mother could not constitute family life as per article 8. The FtT found it was proportionate to remove the petitioner from the UK.

On appeal to the Upper Tribunal, it was found that the FtT approached the relationship between the appellant and his mother in a lawful manner and properly noted that in order for article 8 to be engaged the relationship had to contain more than the normal emotional bonds between adult children and their parents. It held that the petitioner’s grounds of appeal did not disclose any arguable material error of law in the FtT decision.

It was submitted for the petitioner that the UT had erred in law in concluding there was limited evidence of emotional dependency. The factors which were relied upon in support of the submission included evidence that the petitioner was the only relative of his mother resident in Scotland, that he ensured she took her prescribed medication, and that she was an alcoholic who had put herself in danger as a result of that condition. Such evidence showed a real and committed tie between them.

Counsel for the respondent submitted that the UT had not erred in law. The UT’s finding was plainly based upon the FtT decision, which could not be addressed in the scope of present proceedings. There had been no suggestion by the petitioner that the UT failed to have regard to the FtT decision, and no suggestion that the FtT failed to have regard to any material factors.

Entitled to reach decision 

In his opinion, Lord Brailsford said of the petitioner’s submissions: “It is significant that in the submission of counsel for the petitioner there was no suggestion that the UT failed to have regard to the FtT decision. There was no suggestion that the FtT failed to have regard to any material factors properly before it. Equally there was no suggestion that the FtT had regard to immaterial factors or information not properly before it.” 

He continued: “In a criticism of the FtT, for example in relation to the effect the petitioner’s mother’s medical conditions may have had on her relationship with the petitioner and of the significance of state assistance available in the UK to the petitioner’s mother matters were approached on the basis of the weight which it was appropriate to attribute to these factors. Essentially the petitioner’s submission was that the FtT failed to attach appropriate weight to these factors.” 

He concluded in this respect: “The UT in considering the FtT decision, as it was bound to do, and having regard to the factors advanced in the grounds of appeal before it rejected those arguments concluding, expressly, that the FtT judge was entitled to reach the decision he did in relation to these factors.” 

Evaluating the approach of the UT, he said: “The approach of the UT was correct in law. The grounds of appeal before the UT amounted, in essence, to no more than disagreements on the question of assessment of weight of certain aspects of evidence reached by the FtT judge. The same characterisation applies to the same criticisms raised again in this petition.” 

For these reasons, the petition was refused. 

© Scottish Legal News Ltd 2021



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