IA219902014 & IA219962014

Whilst this is an appeal by the Secretary of State for the Home Department for convenience I will refer to the parties in the determination as they appeared before the First-tier Tribunal.

The appellants, nationals of India, appealed to the First-tier Tribunal against the decisions of the Secretary of State of 23 April 2014 to refuse to grant their applications for indefinite leave to remain and to remove them from the UK. First-tier Tribunal Judge Camp allowed the appeals and the Secretary of State now appeals with permission to this Tribunal.

First-tier Tribunal Judge Camp heard oral evidence from the first appellant and the appellant's son and grandson. In summary the evidence was that the appellants are close to and depend on their son in the UK. They have lived with their son for nine years. They also have a daughter, son-in-law and grandson in the UK. They have a daughter in India from whom they are estranged and they have no home in India. The first appellant suffers from depression and is unwell and the second appellant is forgetful.

The Judge accepted that the appellants do not meet the requirements of Appendix FM and paragraph 276ADE. The Judge went on to consider the appeals outside the Immigration Rules under Article 8 and allowed them on the basis that the decisions to remove the appellants are not proportionate.

The grounds of appeal further contend that the unauthorised use of the NHS is a public interest factor and that the First-tier Tribunal Judge was wrong to consider that the delay had diminished this factor. Mr Tallow submitted that the Judge erred in paragraph 36 where he said;