Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/04572/2014

THE IMMIGRATION ACTS

Heard at Field House, London
Decision & Reasons Promulgated
On the 2nd November 2016
On the 8th November 2016

Before:
DEPUTY UPPER TRIBUNAL JUDGE MCGINTY

Between:
M.S.
(Anonymity Direction made)
Claimant
And
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant in the Upper Tribunal

Representation:
For the Claimant: Miss Heikkila (Counsel)
For the Secretary of State: Mr Duffy (Senior Home Office Presenting Officer)

DECISION AND REASONS
1. This is the Secretary of State's appeal against the decision of First-tier Tribunal Judge Metzer promulgated on the 15th August 2016, in which he allowed the Claimant's appeal on Human Rights grounds under Article 3.
2. The full reasons for the decision of Judge Metzer are set out within his judgement, but in summary, the Judge found that the Claimant suffered from learning difficulties and also suffered from epilepsy at [17] and would have fits if he were not adequately managed, which was necessary on a daily basis by support workers checking on him morning and evening to ensure he took his medication and assisted him in other regards specifically in relation to his college and to ensure that he did not become involved with groups who would destabilise him, "for example the taking of drugs and the failure to ensure that he took his medication as and when is necessary.".
3. The Judge went on at [18] to find that:
"In all the circumstances, in recognising that this is not an easy case in relation to the threshold as to whether the Appellant's 'moral integrity' would be adversely affected by his return to Afghanistan, given that he would be returning as a very young man to Afghanistan with no family ties and where he has been in the United Kingdom since June 2009, over 7 years and given the daily difficulties in relation to the medication, the risk of epileptic fits if such medication was not taken, his learning difficulties, and the benefits gained in the years since being in the United Kingdom which has meant he is in a much better position to obtain employment if his medication is continued to be successfully managed, I find that the Appellant has established that there will be a breach of Article 3 of the ECHR on the basis of a breach of his moral integrity, were the Appellant to be returned to Afghanistan".
4. The Secretary of State has sought to appeal against that decision for the grounds set out within the Grounds of Appeal. This again is a matter of record and is therefore not repeated in its entirety here, but in summary, it is argued within the Grounds of Appeal that the case falls a long way short of the Article 3 threshold in medical cases and that the test of 'moral integrity' is a consideration under Article 8 rather than Article 3. It is argued that the Claimant is not suffering from the kind of mental illness that would engaged the physical and moral integrity paradigm and that it is argued that in the case of Bensaid v The United Kingdom (App Number 44599/98) the ECtHR decided that "Mental health must be regarded as a crucial part of private life associated with the aspect of moral integrity. Article 8 protects the right to identity and personal development, and the right to establish and develop relationships with other human beings and the outside world... the preservation of mental stability is in that context an indispensable precondition to effective enjoyment of the right to respect for a private life.". It is argued that the Claimant suffers from epilepsy and learning difficulties rather than the kind of psychotic illness that could lead to an inability to develop relationships and prevent him from having a private life. It is said that the Judge misdirected himself in law and failed to give adequate reasons for the findings made.
5. Permission to appeal has been granted by First-tier Tribunal Judge Ransley on the 21st September 2016, when she found that it was arguable that the Judge erred in law due to a failure to identify and apply the Article 3 threshold and it was further arguable that the Judge erred at [18] by stating that "the threshold for Article 3 is one relating to 'moral integrity'; the Judge proceeded to allow the appeal under Article 3 on that basis. The Judge stated at [19] that he made no findings on ECHR Article 8". Judge Ransley therefore considered that the decision did contain arguably material errors of law and therefore granted permission to appeal. There has been no Rule 24 Reply filed by the Claimant.
6. It was on that basis that the case came before me in the Upper Tribunal. In the Upper Tribunal, I had the benefit of hearing oral submissions by the legal representatives on behalf of both parties.
7. Mr Duffy on behalf of the Secretary of State relied upon the Grounds of Appeal and argued that the moral and physical integrity tests set out in the case of Bensaid related to cases where there was a nullification of self, in that case due to psychosis, such that the Claimant would not be able to have a private life. He argued that health cases in respect of Article 3, and cases such as D v UK (Application 30240/96) (1997) 24 EHRR 423 related to deathbed cases where the Claimant was dying and where they would suffer so much due to the lack of treatment during the terminal stage of their illness, that it would amount to a breach of Article 3. He argued that in those cases the suffering whilst dying through lack of treatment, engaged Article 3. He argued that although the Claimant in this case may have epilepsy, and he argued "may bang his head" and could possibly die as a result, did not mean that Article 3 was engaged. He referred me to the case of GS and EO (Article 3 - health cases) India [2012] UKUT 00397 (IAC), which involved cases of renal failure, where if the Claimants were removed, there would be a dramatic shortening of their life, in which it was still said not to amount to a breach of Article 3, in the absence of suffering sufficient to amount to inhumane or degrading treatment. He argued that Article 3 did not involve the Article 8 balancing act and that there was a threshold that had to be met in Article 3 cases. He argued that the Claimant could not succeed under Article 3 or Article 8 and that the real claim should have been in respect of the asylum claim and under Paragraph 276ADE of the Immigration Rules, but that the Judge appeared to have been led into error in dealing with the case purely on an Article 3 basis, and misled into having made no findings in respect of the Article 8 claim. He argued that there was a material error of law and that the decision of First-tier Tribunal Judge Metzer should be set aside.
8. Miss Heikkila on behalf of the Claimant argued, inter alia, that the Judge made findings which were open to him in respect of Article 3. She argued that it was not simply whether or not the Claimant would bang his head but whether or not there would be effective treatment, were he to be returned to Afghanistan. Miss Heikkila referred me to the Court of Appeal case of RS (Zimbabwe) v Secretary of State for the Home Department [2008] EWCA Civ 839 and in particular to paragraphs 28 to 30 of that decision and argued that the suffering which arose from naturally occurred illness, physical or mental, may be covered by Article 3. She argued that the Judge was right to consider the Claimant's epilepsy under Article 3 and the Judge had determined whether or not the circumstances of this individual were sufficiently exceptional to amount to a breach of Article 3. She then referred me to the Upper Tribunal case of GS and EO (Article 3 - health cases) India [2012] UKUT 00398, and in particular to paragraph 85 of the judgement. She argued that the State's obligation under Article 3 could arise where the individual alleged treatment is not directly or indirectly the responsibility of the receiving State but arises from naturally occurring illness or disease or condition or treatment (in particular life sustaining treatment) which was not available in the receiving State. She argued that what may amount to exceptional circumstances depended upon the individual circumstances a person will find themselves in their home State and that the Judge needed to make a holistic appraisal of the circumstances and that no one individual factor was crucial or should stand apart or above the others. She argued the Judge was within his rights to consider the case under Article 3 and to allow it on that basis.
9. Miss Heikkila then argued that in respect of whether or not the Judge had arguably applied a 'moral integrity' test to Article 3, she accepted the decision was poorly drafted and was at times difficult to read and that the reasoning was not clear, but she argued that the Judge had applied the correct principles in making his decision and that it was open to him to raise the question of the moral and physical integrity of the Claimant in respect of Article 3. She referred me to the Upper Tribunal case of Akhalu (health claim: ECHR Article 8) [2013] UKUT 00400 (IAC), and argued that as was stated at paragraph 44 of the judgement, when considering proportionality, the Judge was required to have regard to all the circumstances relied upon by both parties and that if the Judge had left out of account aspects of the Claimant's private life as established here because it could not be shown that they had a direct bearing on her prognosis, the balancing exercise would be fundamentally flawed and legally deficient and that the consequences of removal for the health of a Claimant who would not be able to access equivalent healthcare in their country of nationality as was available in this country was plainly relevant to the question of proportionality in removal cases. She argued that has the Judge applied the same test under Article 8, he would have come to the same conclusion. She submitted that it was very difficult to understand why Article 8 had not been considered First-tier Tribunal Judge Metzer.
10. Although she conceded that the threshold for Article 3 is not a 'moral integrity' test, Miss Heikkila did argue that it was an integral part of a consideration of the test under Article 3 and that the Judge had correctly applied the threshold as set out within the GS and EO case. She said that the Judge had arrived at the right decision, although it might be unclear as to how he had got there. She further referred me to the case of SQ (Pakistan) and Another, R (on the application of) v Upper Tribunal Immigration and Asylum Chamber and Another [2013] EWCA Civ 1251, and argued that following this case, there was a strong link between Article 3 and Article 8 and that it would be a material error to separate the Articles and that the Judge had to apply the moral and physical integrity threshold.
11. The parties ask that the anonymity direction previously granted by Deputy Upper Tribunal Judge Black be maintained, even though seemingly no anonymity direction was made by Judge Metzer. Both parties submitted that if there was a material error of law, that the case should be remitted back to the First-tier Tribunal for rehearing, but at that rehearing, everything should be considered including asylum, humanitarian protection and whether or not the refusal would amount to a breach of Articles 2, 3 or 8, and not simply the Article 3 consideration as undertaken by Judge Metzer.
My Findings on Error of Law and Materiality
12. It is relevant to consider in this appeal, the history of the appeal itself. The original decision by the Secretary of State to refuse what was the Claimant's asylum claim was made by the Secretary of State on the 24th June 2014. The Claimant sought to appeal that decision to the First-tier Tribunal, and that appeal was originally heard by First-tier Tribunal Judge Feeney on the 12th May 2015 at Taylor House in London, with her decision being dated the 15th June 2015. In that judgement, Judge Feeney dismissed the Appellant's asylum appeal, and also dismissed his appeal on humanitarian protection and on Human Rights grounds under Articles 2, 3 and 8 of the ECHR. The Claimant sought to appeal that decision to the Upper Tribunal and that appeal was heard and considered by Deputy Upper Tribunal Judge Black on the 4th April 2016, with his decision being dated the 15th April 2016. Within Judge Black's decision in the Upper Tribunal, he found that the decision of First-tier Tribunal Judge Feeney did contain material errors of law, inter alia, on the basis that First-tier Tribunal Judge Feeney had failed to take into account the expert evidence of Mr Sellwood, a Chartered Psychologist, in respect of the Claimant's learning disabilities, and that had she done so, her findings on the Claimant's credibility might have been different and Judge Black found that her failure to give consideration to Mr Sellwood's expert opinion was a fundamental flaw in her assessment of credibility.
13. Judge Black also found that there was a failure by First-tier Tribunal Judge Feeney to consider the expert evidence of a Miss Kamal and that the Judge had only seemingly attached weight to Miss Kamal's expert report, regarding the plausibility of the Claimant's account of his treatment in Afghanistan as an afterthought in the decision-making process as it appeared under the heading of "Article 8", rather than when Judge Feeney was considering the Claimant's overall credibility. Judge Black therefore set aside the decision of First-tier Tribunal Judge Feeney, and remitted the case back to the First-tier Tribunal for a hearing de novo, before any other judge other than First-tier Tribunal Judge Feeney.
14. It is on that basis the case was then listed before First-tier Tribunal Judge Metzer at Taylor House on the 8th August 2016. Sadly, despite the fact that Deputy Upper Tribunal Judge Black had remitted the case for a complete hearing de novo, it appears having read the judgement of First-tier Tribunal Judge Metzer and in particular, paragraph 2 of his judgment, that as he stated:
"At the hearing, both parties agreed that the appeal on asylum, Article 3 of the European Convention on Human Rights (ECHR) and Article 8 of the ECHR on the basis of the Appellant's private life in the United Kingdom need not be determined before me and the appeal will proceed solely on the basis of the claim that to return the Appellant today on the basis of the evidence available about him irrespective of the background of his claim would amount to a breach of Article 3 of the ECHR, and arguably Article 8 of the ECHR, although the parties agreed that the issue of 'moral integrity' could best be dealt with as Article 3 ECHR alone. All other issues were therefore suspended pending the determination of the appeal on the issue of 'moral integrity' Article 3 ECHR appeal which proceeded before me".
15. In my judgement, regrettably, Judge Metzer has been led into error by Counsel acting on behalf of both parties in this case. The case had been remitted to him by Deputy Upper Tribunal Judge Black for a consideration of all issues including the asylum appeal, and the Claimant's Article 2 and 3 claim on the basis of risk upon return to Afghanistan, and also in respect of the Claimant under Article 3 and Article 8, both in terms of his health claim and any family or private life in the United Kingdom. However, despite that, the Judge was induced by both Counsel simply to consider the case on an Article 3 footing, and solely seemingly on the basis of him considering the issue of 'moral integrity' which both Counsel seemed to imply could be best dealt with as an Article 3 ECHR consideration, rather than under Article 8.
16. As a result, Judge Metzer considered the Appellant's case and made findings between [14 and 19] and in so doing, applied to those findings, a test as to whether or not the Claimant's 'moral integrity' would be adversely affected by his return to Afghanistan and found specifically at [18] that "I found the Appellant has established that there would be a breach of Article 3 of the ECHR on the basis of a breach of his moral integrity were the Appellant to be returned to Afghanistan.".
17. However, the paradigm Article 3 case and the test to be applied in Article 3 health cases, was set out Baroness Hale in the case of N v Secretary of State for the Home Department [2005] UKHL 31, where at paragraph 69, she stated "In my view, therefore, the test, in this sort of case, is whether the Appellant's illness has reached such a critical stage (i.e. he is dying) that it would be inhuman treatment to deprive him of the care which he is currently receiving and send him home to an early death, unless there is care available there to enable him to meet that fate with dignity."
18. Regrettably, Judge Metzer has not considered the very high threshold for Article 3 in respect of health cases, and has simply, in an Article 3 context, applied a test of 'moral integrity' and as to whether or not there has been a breach of Article 3 on the basis of a breach of his moral integrity.
19. Nowhere within his judgement has Judge Metzer, properly considered or applied the correct test for consideration of an Article 3 case, and he has wrongly relied upon simply whether or not there would be a breach of the Claimant's moral integrity, in respect of a consideration of an Article 3 claim. The fact that a Claimant's 'moral integrity' might be interfered with to the extent that as a possibility, returning someone to their home country may give rise to such suffering and potentially be such an exceptional case as to lead to a breach of Article 3 on health grounds, does not mean that a breach of the Claimant's moral integrity, is in itself sufficient to lead to a breach of Article 3. That is not the test. The decision of First-tier Tribunal Judge Metzer therefore does contain an error of law in this regard, as the learned First-tier Tribunal Judge has applied the wrong test.
20. Further, although it is argued by Miss Heikkila that the Judge came to the right decision, the Judge clearly from his own comments, has not considered the case under Article 8, and as correctly stated by Mr Duffy on behalf of the Secretary of State, the ECHR in the case of Bensaid v The United Kingdom (App number 44599/98), made it clear that "mental health must also be regarded as a crucial part of private life associated with the aspect of moral integrity. Article 8 protects a right to identity and personal development, and a right to establish and develop relationships with other human beings and the outside world... the preservation of mental stability is in that context an indispensable precondition to effective enjoyment of the right to respect of private life.".
21. In such circumstances, in effect, the 'moral integrity' considerations and test under Bensaid, is a test applicable to Article 8, rather than Article 3. Although, I do bear in mind in that regard that moral integrity considerations can be taken into account in respect of Article 3, that it is not the test. The Judge has not properly considered moral integrity under the correct test under Article 3, and in circumstances where Judge Metzer has not made any findings on Article 8, in respect of the Claimant's private life and as to whether or not were the Claimant to be returned to Afghanistan with his learning difficulties and his epilepsy and the need for daily support by support workers, although the Judge considered that it would be a breach of his 'moral integrity' he has not considered, whether or not any interference with the Claimant's moral integrity would be sufficient such as to mean that there would be a breach of his right to private life, were he to be removed from the United Kingdom.
22. I do not consider that in the circumstances, the findings of Judge Metzer in respect of Article 3 and the consideration that he gave to whether or not the removal of the Claimant would amount to a breach of his moral integrity, is in itself sufficient to mean that I can say that, had the Judge properly considered the correct test under Article 3, or indeed, applied the moral integrity test to Article 8, that the decision would have been the same. In my judgement, in such circumstances, the error of law of Judge Metzer, in considering Article 3 simply on the basis of whether or not there would be a breach of the Claimant's moral integrity were he to be return to Afghanistan, does amount to a material error of law, such that the decision of First-tier Tribunal Judge Metzer should be set aside in its entirety.
23. I direct that the appeal be remitted back to the First-tier Tribunal, to be reheard before any First-tier Tribunal Judges other than First-tier Tribunal Judges Metzer and Feeney. I further direct, as agreed between the parties, that at such rehearing, a material error having been found, the First-tier Tribunal should fully consider the entirety of the Claimant's claim including his asylum, humanitarian protection and the entirety of his Human Rights claims under Articles 2, 3 and 8, rather than simply a consideration of his appeal under Article 3 as was conducted by Judge Metzer.
Notice of Decision
The decision of First-tier Tribunal Judge Metzer does contain material errors of law and is set aside in its entirety. The appeal is remitted back to the First-tier Tribunal for rehearing before any First-tier Tribunal Judge other than First-tier Tribunal Judge Metzer and First-tier Tribunal Judge Feeney.
At that rehearing, the entirety of the Claimant's claim including his asylum, humanitarian protection, and the entirety of his Human Rights claims under Articles 2, 3 and 8 should be considered.
Deputy Upper Tribunal Judge Black did order anonymity in this case, at a time when the Claimant was an adult. Miss Heikkila asked me to maintain such anonymity direction, and that was not objected to by Mr Duffy. Therefore, I do order anonymity pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008. Unless and until a Tribunal or Court directs otherwise, the Claimant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of his family. This direction applies both the Claimant and to the Secretary of State. Failure to comply with this direction could lead to contempt of court proceedings.
Signed

Deputy Upper Tribunal Judge McGinty Dated 3rd November 2016