IA183382015

This is an appeal against the determination of the First-tier Tribunal, comprising a panel, presided over by Designated Judge McClure, and accompanied by First-tier Tribunal Judge Trent, promulgated on 15 th May 2019, following a hearing at Manchester on 7 th May 2019. In the determination, the panel dismissed the appeal of the Appellant, whereupon the Appellant subsequently applied for, and was granted, permission to appeal to the Upper Tribunal, and thus the matter comes before me.

On 22 nd July 2019, permission to appeal was granted by the Upper Tribunal on both grounds.

I am satisfied that the making of the decision by the panel involved the making of an error on a point of law (see Section 12(1) of TCEA 2007) such that I should set aside the decision and remake the decision. My reasons are as follows. First, this is a case where both the Appellant and EN, her partner, are HIV positive. He was a citizen of Zimbabwe, but is now a citizen of the United Kingdom. She is a citizen of South Africa. Given that they are both HIV positive, there is a Home Office policy, which the Grounds of Appeal make reference to, on family migration, which makes it clear that,

"Independent medical evidence could establish that a physical or mental disability, or serious illness which requires ongoing medical treatment, would lead to a very serious hardship: for example, due to the lack of adequate healthcare in the country where the family would be required to live. As such, in the absence of a third country alternative, it could amount to insurmountable obstacles to family life continuing overseas."

What is interesting here is that the Supreme Court then provided helpful guidance when it went on to say in Agyarko that,