Tribunal decisions

The decision

IAC-FH-CK-V3

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/01420/2010

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 2 February 2017
On 3 April 2017

Before

UPPER TRIBUNAL JUDGE ALLEN

Between

AE
(anonymity direction MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr S Saeed of Aman Solicitors
For the Respondent: Mr S Whitwell, Senior Home Office Presenting Officer

DECISION AND REASONS

1. This appeal comes before the Upper Tribunal as a consequence of a remittal from the Court of Appeal on 18 May 2014. It is regrettable that the matter has taken so long to come to full consideration but there had been a number of preliminary matters which required to be addressed. In addition there is the decision that I made in the associated appeals of E and his family, sitting as a First-tier Judge also on 2 February 2017. The two decisions can helpfully be read together.

2. In his submissions Mr Saeed argued that the starting point were the best interests of the children. The Deputy Upper Tribunal Judge in his decision in 2012 had concluded that it had not been shown to be in the children’s best interests for them to be returned to Algeria. They were a family unit and accordingly it was in the best interests of all the children to stay in the United Kingdom. The eldest son, Mohammed, had been in the United Kingdom for more than seven years and it was in his best interests to stay here individually or with his siblings and also this was the case for Maya. The other children in effect piggybacked on those claims. They had not been in the United Kingdom for seven years but it was in their best interests to stay with their siblings.

3. It was accepted that the best interests of the children were not determinative. It was argued that the family were not overstayers although the Court of Appeal had said that they were. Only the appellant himself had been an illegal entrant but his wife and children were not.

4. The Tribunal was referred to the decision of the Court of Human Rights in Paposhvili and how that widened what had been said earlier in N. Mr Saeed accepted that he could not reopen the Article 3 issue as a consequence of the remittal by the Court of Appeal. The only issue before the Tribunal was Article 8. He argued that if there was a breach of Article 3 then there would be a breach of Article 8. It was for the United Kingdom authorities to verify whether care in Algeria was sufficient and appropriate. It was not so much a question of making a comparison but whether Article 3 rights were breached. The exceptional cases category was wider than had been thought. There was no need for an imminent risk of death. There had been no evaluation of the situation in Algeria by the Secretary of State and no verification. It was necessary to consider the extent to which there was access to care and health facilities. It was argued that they were inadequate. While there were serious doubts, assurances from Algeria were needed that Maya would not have her Article 3 rights breached. If she went back to Algeria clearly she would be subject to treatment in breach of Article 3 and if so there would be a breach of Article 8 also.

5. Also, referring to the supplementary bundle at pages 77 to 80, as a failed asylum seeker in Algeria this would affect the appellant, who had left illegally and would face a risk of prosecution. The sentence was unclear but it would be adverse to him with regard to looking after Maya either way and it was relevant to care facilities. Bearing in mind the section 117B factors, the appellant spoke English. He was not financially independent. His private life had been established while in the United Kingdom precariously. Precariousness was not enough to defeat Article 8. There were cases where private life was such that even if it was precarious then the appellant could succeed. This was a strong case.

6. In his submissions Mr Whitwell asked the Tribunal to adopt his submissions made earlier in respect of the First-tier appeal of the whole family. He argued that the wife and children were overstayers as found by the Court of Appeal. As regards the section 117B factors, speaking English was neutral. What was relevant was the issue of precariousness. Little weight was to be attached to a private life developed in such circumstances, as had been held in AM Malawi. It was a private life case if one got as far as that, concerning the family as a whole. The appellant had a job history in Algeria, having had a coffee supply business, so he had entrepreneurial skills which he could revive and also from the screening interview it was clear that he had extended family in Algeria.

7. As regards Paposhvili, paragraph 225 onwards indicated that it was a basis not just because of Article 3 success but for reasons specific to the case. That case was concerned with Article 3 medical issues and Article 3 could not be run in light of the history of this claim. It was no more than highly persuasive and was not binding. The Tribunal was bound by N, which had to be followed. In Paposhvili the appellant had died in the course of the litigation but he could have fitted into the earlier class of cases anyway therefore. Paragraph 192 applied to this case. The United Kingdom could not act as a hospital for the world. It was a medical case argued via Article 8 in trying to extend Article 3. It turned on the failure of assessment by the Belgian authorities and was not relevant in any event. From paragraph 186 it could be seen that it was necessary to prove clearly what the health situation in Algeria was. With regard to return to Algeria, it could not be agreed that there was a protection issue via Article 8. It was unclear what would happen and the point had only been raised in the skeleton today.

8. By way of reply Mr Saeed agreed that Paposhvili was not binding but it was to be followed unless there was authority suggesting otherwise. He also referred to the very recent case of Uwangey where it was said that ND would be revisited and that was done here. On the facts it was the case that the Belgian authorities had not considered the claim under Article 3 or Article 8, but the guidance was applicable generally, and reference was made to paragraphs 130, 135 to 137 and 181 to 192. It was the case that lack of medical facilities in Algeria was not the test, but it was the impact on the appellant as Mr Saeed had argued. There would be a breach as a consequence. It was within the Article 8 wider factors and could be considered as could be seen in the remittal decision. He did not argue that Article 3 was before the Tribunal. For similar reasons it was applicable under Article 8.

9. I reserved my determination.

10. What I have to say on this case has to be seen in tandem with my findings in the First-tier decision in the case of the appellant and his family under his reference number HU/18907 of 2016. The remittal from the Court of Appeal was purely on the basis of Article 8. The appeal was dismissed as regards Article 3.

11. My conclusion in the linked case was that it would be unreasonable for Maya to be returned to Algeria in light of her very significant health problems. The consequence of that is that, as I think was accepted on behalf of the respondent, effectively the rest of the family successfully piggybacked on that, leading to their appeals being allowed also.

12. It seems to me that there is relatively little to add with regard to the Article 8 claim outside the Rules. I think it is potentially unhelpful to try and make use of the reasoning from Paposhvili in this case. It cannot automatically be said that a breach of Article 3 would be a breach of Article 8, also bearing in mind the terms of the Court of Appeal’s order. In my view it is not necessary to go down that route in any event. Though the section 117B factors do not assist the appellant, in particular the fact that the private life was developed while the immigration status in the United Kingdom was precarious, nevertheless, bearing in mind Maya’s very significant health problems and the impact on the family and support provided to her, I am satisfied that the balance in this case, bearing in mind though I do the public interest in a firm and fair immigration policy and the provisions of section 117B, nevertheless falls in favour of the private life issues in this case for the above reasons. Accordingly the appeal under Article 8 is allowed.

Direction Regarding Anonymity – Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008

Unless and until a Tribunal or court directs otherwise, the appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of his family. This direction applies both to the appellant and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Signed Date

Upper Tribunal Judge Allen