Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: aa/01807/2014

THE IMMIGRATION ACTS

Heard at Columbus House, Newport
Determination Sent
On 12 September 2014
On 29 September 2014

Before

UPPER TRIBUNAL JUDGE GRUBB
DEPUTY UPPER TRIBUNAL JUDGE E M DAVIDGE

Between

SA
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Ms C Grubb, instructed by Hoole & Co., Solicitors
For the Respondent: Mr I Richards, Home Office Presenting Officer

DETERMINATION AND REASONS

1. This appeal is subject to an anonymity order made by the First-tier Tribunal pursuant to rule 45(4)(i) of the Asylum and Immigration Tribunal (Procedure) Rules 2005 (SI 2005/230). Neither party invited us to rescind the order and we continue it pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698).
Introduction
2. The appellant is a citizen of Pakistan who was born on 12 December 1960. He arrived in the United Kingdom on 14 March 1995 with a six month visa to receive medical treatment. On 3 April 1995, he claimed asylum but did not attend an interview on 5 March 1997 due to illness. In a handwritten letter dated 21 May 1997, the appellant indicated that he wished to withdraw his asylum case and requested the return of his passport which was done on 6 June 1997. On 20 April 2000, the appellant's (then) representatives informed the Home Office that the appellant wished to be considered under a backlog procedure. On 6 June 2000, the Home Office wrote to the appellant's representative rejecting that request and advising that the appellant should leave the UK as he had no outstanding applications. On 11 September 2006 the appellant's representatives wrote to the Home Office indicating that the appellant had not withdrawn his asylum claim and had lost contact with him for six years. He now wished to apply again to regularise his stay in the UK.
3. By a notice dated 6 October 2008 (IS151A), the appellant was notified that he was subject to removal as an overstayer under s.10 of the Immigration and Asylum Act 1999. On 1 December 2008, the appellant made an application for leave based on long residency which was refused on 28 April 2009. Further representations were made on the appellant's behalf on 16 May 2009.
4. On 29 June 2011, his representatives made a request that the appellant be considered under the 'legacy' scheme. The Secretary of State rejected that application on 3 March 2014 under the Immigration Rules (HC 395 as amended) and Art 8 of the ECHR. On that date also, the Secretary of State made a decision to remove the appellant as an overstayer under s.10 of the 1999 Act.
5. The appellant appealed to the First-tier Tribunal. A hearing took place on 22 May 2014 before Judge A Cresswell at which the appellant was legally unrepresented. Judge Cresswell dismissed the appellant's appeal. First, he rejected the appellant's claim to be at risk on return from his wife's family and consequently he dismissed the appellant's appeal under the Refugee Convention and on humanitarian protection grounds and under Arts 2 and 3 of the ECHR. Secondly, the judge concluded that the appellant did not succeed in establishing a breach of Art 8 based upon his private life in the UK formed since 1995.
6. On 18 June 2014, the First-tier Tribunal (Judge A K Simpson) granted the appellant permission to appeal to the Upper Tribunal. Thus, the appeal came before us.
The Issues
7. The grounds of appeal raise three issues.
8. First, the judge erred in law (as had the respondent) in considering the appellant's claim under the Immigration Rules in force from 9 July 2012. The appellant's application was made on 29 June 2011 and was, applying Edgehill and Another v SSHD [2014] EWCA Civ 402, to be determined on the basis of the Immigration Rules in force before that date. In particular, the long residence rule in para 276B of the Rules should have been applied rather than para 276ADE.
9. Secondly, the appellant met the requirements of para 276B because he had fourteen years' continuous residence in the UK since his arrival on 14 March 1995.
10. Thirdly, the judge erred in law in assessing the appellant's evidence at the hearing when he was unrepresented and there was medical evidence that he was suffering from depression as set out in a doctor's letter dated 3 April 2014. He was, therefore, a vulnerable witness. Reliance was placed on the UNHCR's Handbook at paras 207 and 210 and Joint Presidential Guidance Note No. 2 of 2010, "Child, vulnerable adult and sensitive appellant guidance".
11. In her skeleton argument and oral submissions, Ms Grubb relied also upon a further point not raised in the grounds. She relied upon a letter from Dr Yaqub, a GP at the practice where the appellant is registered, dated 24 July 2014 dealing, in particular, with the appellant's mental health. Ms Grubb submitted that in the light of this letter it was questionable whether the appellant had capacity to give evidence or conduct litigation on his own behalf and if he lacked capacity then the First-tier Tribunal's decision was a nullity.
12. In support of her additional submission, Ms Grubb invited us to adjourn the hearing in order that a psychiatric report could be obtained on the appellant in order to assess his capacity to given evidence before the First-tier Tribunal. We heard oral submissions from both representatives on all the issues raised in the appeal, including whether to adjourn the hearing. Having done so, after deliberation, we indicated that we were refusing the application for an adjournment and our decision on the substantive issues would be reserved. We now give our reasons.
The Adjournment Application
13. The only medical evidence before Judge Cresswell was in a short letter from Dr Yaqub, a GP dated 3 April 2004. In that letter he stated:
"[The appellant] ... suffers anxiety symptoms he has started on treatment. Prev history left inguinal hernia and chronic low back pain."
14. In support of her application for an adjournment, Ms Grubb relied upon a letter from Dr Yaqub postdating the hearing on 24 July 2014 which states as follows:
"[The appellant] ....has suffered with anxiety and depression for the last few years. He is having problems with stress and anxiety symptoms which are progressively getting worse. He also suffers with social phobia, forgetfulness, and long term headaches after a head injury a few years ago. His general mental health state is not very stable at the moment. He also suffers with chronic low back pain and is going for a hernia repair soon under the surgical team. I assessed him today again as he is very anxious and depressed. He also suffers with fluctuating high blood pressure. We have started him on antidepressants. He is also taking medication for his panic attacks and anxiety and some medication for his back pain."
15. Ms Grubb submitted that this raised the possibility that the appellant lacked capacity to give evidence and take part in the First-tier Tribunal proceedings. If it did, she submitted that the proceedings were a nullity.
16. We will consider this letter despite the fact that no application was made to admit it in the Upper Tribunal under rule 15(2A) of the Tribunal Procedure (Upper Tribunal) Rule 2008 (SI 2008/2698). In our judgment, it provides no basis for an adjournment in order to obtain a psychiatric report concerning the appellant's capacity to take part in the First-tier Tribunal proceedings.
17. Ms Grubb referred us to no authorities on the meaning of capacity and the effect, if any, on proceedings if the appellant had, indeed, lacked capacity. Ms Grubb's submissions entail the argument that the appellant was, in effect, a "protected party" which, for example, in the High Court would require the appointment of a "litigation friend" (see CPR, Part 21). No equivalent provisions were drawn to our attention applicable in the First-tier Tribunal. For the present purposes, we will assume (without deciding) that retrospectively demonstrating that the appellant lacked capacity would render those proceedings sufficiently irregular to be set aside even if the proceedings could not properly be said to be a nullity.
18. As regards the meaning of 'capacity', it suffices for these purposes to note the definition set out in the Mental Capacity Act 2005 as follows:
"2. People who lack capacity
(1) For the purposes of this Act, a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.
(2) It does not matter whether the impairment or disturbance is permanent or temporary.
(3) A lack of capacity cannot be established merely by reference to-
(a) a person's age or appearance, or
(b) a condition of his, or an aspect of his behavior, which might lead others to make unjustified assumptions about his capacity.
(4) In proceedings under this Act or any other enactment, any question whether a person lacks capacity within the meaning of this Act must be decided on the balance of probabilities. .....
3. Inability to make decisions
(1) For the purposes of section 2, a person is unable to make a decision for himself if he is unable-
(a) to understand the information relevant to the decision,
(b) to retain that information,
(c) to use or weigh that information as part of the process of making the decision, or
(d) to communicate his decision (whether by talking, using sign language or any other means).
(2) A person is not to be regarded as unable to understand the information relevant to a decision if he is able to understand an explanation of it given to him in a way that is appropriate to his circumstances (using simple language, visual aids or any other means).
(3) The fact that a person is able to retain the information relevant to a decision for a short period only does not prevent him from being regarded as able to make the decision.
(4) The information relevant to a decision includes information about the reasonably foreseeable consequences of-
(a) deciding one way or another, or
(b) failing to make the decision."
19. Put simply, a person lacks capacity, therefore, if he or she lacks the ability to understand, retain and weigh information concerning what is involved in a decision or to communicate that decision due to an impairment, or disturbance in the functioning, of the brain or mind. Here, the required capacity relates to taking part in (and making decisions in relation to) the First-tier Tribunal proceedings as a litigant and witness.
20. What is abundantly clear to us is that nothing in either letter prepared by Dr Yaqub comes anywhere near suggesting that the appellant lacked sufficient understanding to take part in the First-tier Tribunal proceedings as a litigant and witness. That is not raised explicitly or by implication as a result of the appellant being said to suffer from "anxiety and depression" for which he has been prescribed antidepressants. Reference is made to him suffering from "social phobia" and "forgetfulness" and, indeed, "panic attacks", the latter of which is no doubt treated by the antidepressants. In our judgment, this medical evidence (even that obtained since the hearing) cannot form a proper basis for an adjournment in order to obtain a psychiatric report in relation to an asserted consequence of his mental health which is simply not raised in the letters.
21. We also note that this issue was raised for the first time in Ms Grubb's skeleton argument for the hearing before us. It was not raised in the grounds of appeal drafted by Counsel (not Ms Grubb) dated 6 June 2014. We are not aware of any explanation as to why the issue of the appellant's capacity and the need for a psychiatric report was not raised earlier, in particular since the letter of Dr Yaqub on 24 July 2014.
22. Applying the overriding objective of dealing with the appeal fairly and justly as set out in rule 2 of the 2008 Procedure Rules, we exercised our discretion at the hearing not to grant an adjournment.
23. We turn now to the issues raised in the grounds.
The Immigration Rules
24. In his determination, Judge Cresswell considered the appellant's private life under para 276ADE of the Rules. He concluded that the appellant could not meet the requirements of para 276ADE(iii) as he had not been in the UK for at least twenty years. Further, he concluded that the appellant could not meet the requirements of para 276ADE(vi) on the basis that he still had ties with Pakistan.
25. The grounds do not challenge those findings. Rather, it is argued in the grounds that the judge erred in law by considering the appellant's case under para 276ADE rather than para 276B which was in force until 9 July 2012. On the basis of Edgehill, the grounds argue that the pre-9 July 2012 Rules applied as the appellant's application was made before that date. In her rule 24 response dated 10 July 2014, the Secretary of State appears to accept that the First-tier Tribunal was wrong to apply the Rules in force from 9 July 2012. However, it is submitted that the error was immaterial as the appellant could not succeed under the old Rule in para 276B based upon fourteen years' continuous residence. That was because the notice of 6 October 2008 (IS151A) notifying the appellant that he was liable to removal, 'stopped the clock' short of fourteen years. Mr Richards adopted the respondent's reply and told us that that notice had been served on the appellant on 9 October 2008 at Cheltenham Police Station. In the light of this, Ms Grubb accepted that she was in difficulties on this ground.
26. We accept the respondent's submissions on this issue. Even if para 276ADE was wrongly applied, and the respondent's concession may not be consistent with the Court of Appeal's subsequent decision in Haleemuddin and Others v SSHD [2014] EWCA Civ 558, the appellant could not succeed under the long residence rule in para 276B in force before 9 July 2012. That rule applied where an individual could establish "at least fourteen years' continuous residence in the United Kingdom". However, para 276B(i)(b) excluded from consideration:
"Any period spent in the United Kingdom following service of notice of liability of removal or notice by way of a decision to remove by way of directions under paragraphs 8-10A or 12-14 of Schedule 2 to the Immigration Act 1971 or Section 10 of the Immigration and Asylum Act 1999 or notice of intention to deport from the United Kingdom."
27. On 9 October 2008, the appellant was served with notice of liability to removal. That 'stopped the clock' in relation to his period of "continuous residence in the UK". Having entered the UK on 14 March 1995, by 9 October 2008 the appellant had not been resident, therefore, for "at least fourteen years". He had only been resident for thirteen years and five months. Consequently, even if Judge Cresswell had applied para 276B the appellant could not have succeeded under that rule.
28. Ms Grubb did not seek to argue that the judge's decision was otherwise unlawful in dismissing the appeal under Art 8. The appellant could not succeed under the old or new long residence rule. The evidence of his private life was meagre. He had been in the UK since March 1999 but he did not work and he survived on money from friends. He had no family in the UK and owned no property. His family remained in Pakistan and he had continuing contact with Pakistan. As we have said, Ms Grubb did not seek to challenge the judge's finding under Art 8 apart from her third submission that he applied the wrong rule. We see no basis for concluding that his decision was other than properly open to him on the evidence.
The Appellant's Evidence
29. Ms Grubb submitted that the judge had failed to consider the appellant's evidence in the light of the medical evidence concerning his mental health. She submitted that he was an unrepresented, vulnerable witness and relying upon paras 206-212 of the UNHCR Handbook and the Joint Presidential Guidance Note on the treatment of vulnerable witnesses where it is stated, "if there is no or inadequate representation it is important that you obtain clarification of all matters of which you are unclear" (para 10.2(vii)), Ms Grubb submitted that the judge had erred in law. She further placed reliance upon the post-decision letter of Dr Yaqub dated 24 July 2014.
30. The judge dealt with the appellant's evidence at paras 21(i)-(viii) as follows:
21. I find that the material facts relevant to this appeal, applying the standard of proof referred to above, are as follows:
(i) Even if I take the Appellant's claim at his highest, there are no grounds for believing that he would be at risk on return to Pakistan such as to require international protection. The hearing was the first time he had expressed in any detail his fears for a return. I will deal with his account at its highest, but note that there is a substantial reason to believe that the Appellant has not given a truthful account.
(ii) I have recorded that the Appellant told me that he spent time working in Saudi Arabia before coming to the UK, but note that he told those presenting him in 2009 that whilst he was in Pakistan he was not in employment and was solely financially dependent on his family there, there being no mention of the 14 to 15 years in Saudi Arabia he told me about in his closing submissions, after hearing Ms Randall say that he spent the majority of his life in Pakistan.
(iii) He told those representing him in 2009 that he did not know the whereabouts of 1 brother and sister. He did not mention a sister or 2 brothers to me, only telling me that his brother was shot dead whilst speaking to him on the telephone in 2007. He is not likely to forget detail like that when instructing his solicitor about the death of his other brother. Nor did he, apparently, mention his son or concerns about in-laws to his solicitor.
(iv) He told his representative in 2009 that his wife was dead and told me she is alive. He has clearly not been at all honest about his true circumstances in Pakistan.
(v) He told his current solicitors (16 March 2011) that he is fluent in English, but I saw no evidence of that. He told them that he has become a useful part of British society and has a restaurant where he employed 12 people, but told me he had not worked since 2008 and does nothing other than talk to his friends. Someone is not being told the truth. In 2009, those representing him then tried to paint him as a man 'reaching a delicate age of 50' incapable of securing work in Pakistan, yet in 2011 'our client is a hard working man' running a restaurant and employing 12 staff.
(vi) He fears his in-laws and the general circumstances in Pakistan, he told me.
(vii) He told me that his own village no longer exists, so (if true) he could not return to his village in any event. He still speaks fluent Urdu and required the interpreter. He has shown, if his evidence can be believed, that he can work in different jobs in different places (Saudi Arabia, London and Bristol) where his own language is not the norm. How much better can he fare in his own country, speaking his own language and with the benefit of his varied experience? He is older now than when he started his work career, but has many years of working life ahead of him. The medical note was not suggestive of any serious problems likely to impact upon his ability to work.
(viii) If he does not want to live near his in-laws then, as he himself accepted, Pakistan is a huge country with many large cities. There was no evidence before me that the security situation across Pakistan is such that he could not safely return and live safely in one of those cities. He has no assets now in the UK and relies upon the charity of others; he would have available to him to give him a head start on return the possibility of a grant under the Voluntary Assisted Returns AVRFC programme under Choices to help him find accommodation, etc."
31. The judge found the appellant's evidence to be unsatisfactory in a number of ways, including that he gave inconsistent accounts about whether his wife was still alive in Pakistan or had died in 2008, and in relation to his family in Pakistan. However, as the judge stated in para 21(i), he took the appellant's claim "at its highest" and concluded that he would not be at risk on return. His reasoning at paras 21(vii)-(viii) was that the appellant could safely and reasonably internally relocate within Pakistan so that, even if he were at risk in his own home area from his in-laws, he could safely and reasonably live elsewhere in Pakistan. That is a finding which is not challenged in the grounds. That, in itself, leads us to conclude that the First-tier Tribunal's decision should stand. The judge's conclusion did not turn upon the appellant's evidence.
32. In any event, we do not accept Ms Grubb's submission that the judge failed properly to assess the appellant's evidence in the light of him being unrepresented and the medical evidence. At para 16(iv), the judge set out the evidence before him in Dr Yaqub's letter of 3 April 2014 which stated that the appellant suffered from "anxiety symptoms" for which he was receiving treatment together with a number of physical conditions including back pain. At para 19, the judge explicitly noted that he had considered that letter. At para 19 the judge also noted that the appellant "gave oral evidence assisted by me". We have no evidence to contradict the latter. The appellant did not attend the hearing before us and no witness statement was submitted.
33. Nothing in the determination or in the medical evidence before the judge leads us to conclude that the appellant as an unrepresented litigant was in any way unable to give his evidence and conduct the proceedings on his own behalf. It is difficult to see how the discrepancies in the appellant's evidence, for example whether his wife had died in 2006 or not, could be attributed to any mental health issue raised in Dr Yaqub's letter of 3 April 2014. The post-decision letter of 24 July 2014 was, of course, not available to the judge. In any event, it goes little further than the earlier letter in describing the appellant as having suffered "anxiety and depression for the last few years" and that his symptoms are "progressively getting worse". Whilst it does refer to the appellant suffering from "forgetfulness", that cannot explain his differing recollection. His general mental health is described as "not very stable at the moment" but he is receiving treatment by antidepressants. Even if this evidence had been available to the judge, we reject the submission that the judge unfairly dealt with the appellant at the hearing or was not entitled to rely on the stark inconsistencies in, and difficulties with, the appellant's evidence identified by the judge. The judge indicated, and we have no reason to doubt, that he assisted the appellant give his oral evidence (see para 19). Given all the circumstances, and the medical evidence such as it was before the judge, we see no unfairness or breach of any applicable guideline in the proceedings. But, as we have already said, in truth the judge dismissed the appellant's appeal on asylum grounds even if his account were true.
34. Finally, we have already dealt with Ms Grubb's additional submission that the evidence supports a finding that the appellant lacked the capacity to take part in the First-tier Tribunal's proceedings. It did not and still does not.
Decision
35. For these reasons, the First-tier Tribunal's decision to dismiss the appellant's appeal on all grounds did not involve the making of an error of law. That decision stands and we dismiss the appellant's appeal to the Upper Tribunal.

Signed

A Grubb
Judge of the Upper Tribunal