OA010282014 & OA010312014

The judge then notes that the Sponsors indicated to the Respondent that they are unable to support the Appellants should they be placed in a care home, and continues to find that the Appellants' Sponsors are able to meet the financial and accommodation requirements "without inconvenience" in the United Kingdom. The appeals are allowed under the Immigration Rules. The judge relies on the case of R (Forrester) v SSHD [2008] EWHC 2307 . That lends no assistance to the Appellants. It was an in-country relationship of marriage involving a child, a relationship which was established when the Appellant was in the United Kingdom lawfully, and an application refused only because the cheque submitted with the application had bounced. The case did not concern the Immigration Rules currently under consideration and preceded the implementation of these Rules by some considerable margin. Whilst it is right to say that a tick box mentality should never be adopted when the factual matrix of an application concerns relationships, the bold fact is that patterns of immigration result in difficult situations where families are separated across the globe and when as here parents become elderly and infirm. The necessary use of care homes for loved ones whether here or in Sri Lanka is frequently beset with emotional disturbance for all involved.

Reading the decision as a whole it is clear that the judge has concluded that the care available in Sri Lanka is not adequate because it is not provided in the loving environment of the family home of the Appellants' children. Although he notes that that is not a determinative factor, reading the decision in the round it is plain that it is the absence of that environment which the judge finds enables these Appellants to satisfy the requirements of the Rules.

At page 69 of the Appellants' bundle there is a comparator in respect of the current care arrangements asserting that total expenses in Sri Lanka, including the care currently received, including food, utilities and so on, results in total expenses of 65,000 Sri Lankan rupees. The care in the United Kingdom is assessed, again including food, contributions towards a cleaner, medicine of £42.50 and doctor's visits of £62.50, as totalling £325 a month . At page 70 a full-time home nursing calculation provides total expenses of 140,000 Sri Lankan rupees and, through the provision of medical insurance at £375 a month a British cost of £700. In respect of a residential care home in Sri Lanka it is stated at page 71 that the total expenses in Sri Lanka would be 170,000 Sri Lankan rupees, as opposed to care home accommodation costing £700 a month in the UK, the additional costs factored in by the family which are asserted to make the position in Sri Lanka untenable are the travel costs associated with the visits of the children. The basis of the comparisons made in the bundle of evidence is not based on the rules.

The "yardstick" is the affordability of care, and whilst future provision is part of that assessment the relevant date of assessment is the date of decision.

The contested requirements are set out below:

E-ECDR.2.4. The applicant or, if the applicant and their partner are the sponsor's parents or grandparents, the applicant's partner, must as a result of age, illness or disability require long-term personal care to perform everyday tasks.

E-ECDR.2.5. The applicant or, if the applicant and their partner are the sponsor's parents or grandparents, the applicant's partner, must be unable, even with the practical and financial help of the sponsor, to obtain the required level of care in the country where they are living, because-

The reality is as stated by the Entry Clearance Manager, the provision of care in Sri Lanka is affordable particularly taking account of the assistance of relatives here, it is available, and in circumstances of old age as described here it cannot be said there is no person, whether by provision through a care home or care workers in Sri Lanka who can reasonably provide it. The fact that the sponsors are here and want to care for their parents, and their parents want them to provide it, does not mean that others cannot reasonably provide it. The burden is on the Appellants, the standard is the balance of probabilities, and, on the evidence they have not discharged it so as to show that even with the practical and financial help of the sponsors, they are unable to obtain the required level of care required in Sri Lanka.

For all the reasons above the judge's decision is vitiated by material legal error, flawed by incorrect self-direction, a failure to appreciate the appropriate standard and burden, and the making of findings which are unsustainable on the evidence. I set aside the decision.

Directions had previously been given to the point that in the event that I found an error of law I would proceed to remake the decision on the evidence as it was before the first tier, and both representatives submitted that I should do so. For the reasons I have set out above, in remaking the decision I find that the rules are not met, and I dismiss the appeal.

For all the reasons set out above I set aside the decision and remake it dismissing the Appellants' appeal on Immigration Rules grounds.

No anonymity direction is made.