OA170942013

Second, under Article 8, the judge was bound to consider Section 117B, the full structure of the public interest consideration and the judge here has simply made a passing reference to that provision without having done so. This is clear from what the judge said at paragraph 29. The reality is that the case of FK and OK (Botswana) [2013] EWCA 328 makes it quite clear that proper consideration is required.

Third, it is a feature of this appeal that the Appellant is indeed of medical care. In fact, the judge observes that the evidence is that there is no specialist medical care in Pakistan (see paragraph 14). If that is the case, then the question is bound to arise about the Appellant's recourse to medical health facilities in the UK. The judge has not engaged with this question. The case of FK and OK (Botswana) [2013] EWCA 328 directly addresses this point. As a matter of a public interest consideration this feature has to be considered by the judge. Mr Mills submitted that I should set aside the decision and reconsider either remaking it or remitting it back to the First-tier Tribunal.

For his part, Mr Mahmood submitted that there was no material error of law. The judge had not allowed the appeal under the Immigration Rules. He had done so under Article 8. He had referred at paragraph 29 to the Section 117 provision of the new Act. It is not as if he was oblivious to it. He was fully aware of it and took it into account. The Appellant's brother, M Khan, was now no longer providing care for the Appellant. In these circumstances, the judge was right to hold that the claim was made out under Article 8. The Appellant's brother was now in the UK. That is where their family life would be enjoyed. The judge was clear that, "I find that in all the circumstances of this case, that this Appellant does have a family life with at the very least his brother" (paragraph 26).

In reply, Mr Mills submitted that the Section 117B consideration requires the judge to have regard to the recourse to public funds by way of seeking medical treatment on the NHS in this country. The judge had not done so.

I am satisfied that the making of the decision by the judge 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. My reasons are as follows.

First, and most importantly, Section 117A(2) requires that in considering the public interest question the court or Tribunal must have regard to what is set out in Section 117B. This principally includes, not just the maintenance of effective immigration controls, but also the burden on taxpayers, the ability to integrate into society in circumstances where this Appellant does not speak English, and the interests of the economic wellbeing of the United Kingdom. In Dube [2015] UKUT 90 , the Tribunal made it clear that this required a structured approach to the question, whereas it was unnecessary to expressly draw attention to Section 117 itself, nevertheless the substance of the considerations must be addressed. The judge has not done so here. There is, for example, evidence that the Appellant, who states that there is no specialist care for him in Pakistan, has the support of his brother, M Khan, and his Sponsor, Sadia Khan and his niece. They, however, have given no evidence, and have provided no proof, of their ability to provide paid for care for the Appellant on the National Health Service.

Second, the judge has indeed considered the human rights situation as at the date of the hearing, rather than date of the decision. This, too, needs revisiting.

I remake the decision on the basis of the findings of the original judge, the evidence before him, and the submissions that I have heard today. Under Practice Statement 7.2(b), the nature or extent of any judicial fact-finding may be such that it is necessary, having regard to the overriding objective, to remit the case to the First-tier Tribunal. I so hold in this case.

The decision of the First-tier Tribunal involved the making of an error on a point of law such that it falls to be set aside. I set aside the decision of the original judge. I remake the decision as follows. This appeal is allowed to the extent that it is remitted back to the First-tier Tribunal, to be heard by a judge other than Judge H Narayan, under Practice Statement 7.2(b) so that proper findings can be made, on the evidence brought before the Tribunal, in relation to the extent to which the Appellant needs medical treatment, and the extent to which he is likely to be a burden on the state were that to be the case. This will enable a decision to be made under Section 117B in the manner that it presently cannot be.

No anonymity order is made.