Tribunal decisions

The decision

IAC-AH-RG-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/05504/2013

THE IMMIGRATION ACTS

Heard at Newport
Determination Promulgated
On 28 November 2013
On 19 December 2013

Before

upper tribunal judge POOLE

Between

mr a k
(anonymity direction maintained)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr H Dieu of Counsel
For the Respondent: Mr Irwin Richards, Home Office Presenting Officer

DETERMINATION AND REASONS
1. For the purposes of this determination I will adopt reference to appellant and respondent in the same manner in which they appeared before the First-tier Tribunal.
2. The appellant is a citizen of Afghanistan born 1 January 1994. He first arrived in the United Kingdom in January 2007 and claimed asylum. His claim was refused by the respondent on 17 June 2008 but because of his age he was granted discretionary leave until he reached the age of 17½ years. He did appeal that decision. That appeal was dismissed by the First-tier Tribunal Judge. On 29 June 2010 the appellant made application for leave to remain in the United Kingdom which was again refused by the respondent in July 2010 and a subsequent appeal was dismissed by another First-tier Tribunal Judge in August 2010. The appellant made another unsuccessful application for leave to remain in June 2011 and again an appeal against that decision was dismissed although no decision was made in respect of an Article 8 appeal. A subsequent appeal to the Upper Tribunal was dismissed when the appellant “withdrew his case”. This withdrawal was made because the respondent gave fresh consideration to the appellant’s claim but in a decision dated 17 May 2013 a fresh removal decision was made after all grounds were rejected by the respondent.
3. The latest appeal came before Judge of the First-tier Tribunal Harries on 16 August 2013. The appellant attended an oral hearing and both parties were represented. In a decision dated 30 August 2013 Judge Harries dismissed the appellant’s appeal on asylum and humanitarian protection grounds but allowed the appeal on Article 8 human rights grounds in relation to private life.
4. The respondent sought leave to appeal that decision. Leave was sought on one ground although a number of sub-paragraphs to that ground were advanced. In summary it was alleged that the judge had misdirected herself by failing to have regard to the Immigration Rules in making an Article 8 assessment in failing to conduct an appropriate balancing act between the individual’s rights and the public interest. It was further suggested that the judge had erred in assessing proportionality had wrongly reviewed the law with regard to the appellant’s health issues.
5. In granting leave to appeal the Designated First-tier Judge considered the argument regarding “Article 8 issues under the Immigration Rules” had limited merit by reason of the content of the judge’s determination but it was felt that the judge may well have failed to make a finding on the availability of drugs in Afghanistan which might have had an impact upon the outcome of the case. Hence the matter comes before me in the Upper Tribunal.
6. At the hearing before me the respondent was represented by Mr Irwin Richards and the appellant by Mr Dieu (who had appeared for him before Judge Harries).
7. Mr Richards submitted that the grounds seeking leave were clear and he relied upon them. He said there was little more that he could add. A balancing act had been required of the First-tier Tribunal Judge but there had been no balancing act undertaken. There had been no acknowledgement of any public interest and the judge had merely set out a number of factors in favour of the appellant and says nothing against those factors. She had fallen into an error of law and there was no meaningful way in which a balancing act had been undertaken. A great deal of weight had been placed upon the mental state of the appellant but at no point in the determination does the judge take any account of what treatment would be available if the appellant were returned to Afghanistan. That omission compounds the error. The decision should be set aside.
8. Mr Dieu submitted that there was no error of law but, in the alternative, he indicated that if an error did exist it was not material to the outcome. With regard to reference in the Immigration Rules to Article 8 he referred me to paragraph 33 of the determination where clearly the judge had in mind the Immigration Rules so far as Article 8 reference was concerned. Having satisfied herself that the appellant could not succeed under the Immigration Rules the judge focused on Article 8 under the Convention as is clear from paragraph 34. Mr Dieu referred me to paragraphs 39, 43 and 47 of the determination with regard to proportionality and with regard to the consideration of the appellant’s mental state. The judge clearly then finds the decision not proportionate. With regard to the lack of mention of treatment available in Afghanistan Mr Dieu submitted that the judge did not need to as she had made clear findings and the health grounds did not stand alone therefore she did not need to look at treatment available in Afghanistan.
9. In response Mr Richards accepted that Judge Harries had turned her mind to Article 8 after rejecting his claim under the Rules but he still insisted there was no balancing act conducted.
10. Having considered the matter in the light of the fairly brief submissions made I announced that I could find no material error of law and I would dismiss the appeal of the respondent.
Reasons
11. Dealing firstly with the point regarding the judge not engaging with the Article 8 aspects of the Immigration Rules the Designated Judge grantedly did indicate that had “limited merit”. I consider paragraph 33 of the determination of Judge Harries adequately deals with the question of the Immigration Rules. The appellant had not argued compliance with the Immigration Rules before the judge and she in turn was satisfied that he could not. The judge was then perfectly entitled to proceed with Article 8 issues under the Convention and quite clearly went on to consider the appropriate steps as set out in the case of Razgar.
12. The two remaining issues of criticism the question of the performance of a balancing test on proportionality and the way the judge dealt, or did not deal with, the availability of medication in Afghanistan.
13. The determination is silent as to the judge recording that she needs to undertake a balancing act between the individual’s needs and public interest. However a reading of the determination from paragraph 33 onwards shows that the judge was indeed undertaking a balancing act in reaching a conclusion on the proportionality or otherwise of the respondent’s decision. The judge has not merely listed those items for arguments in the appellant’s favour and has, in effect, critically considered each point in turn. In paragraph 42 she noted the precarious nature of the appellant’s immigration status. In paragraph 43 she questions the genuineness of the appellant’s illness and at paragraph 47 takes note of the respondent’s arguments regarding the appellant’s treatment. I consider the judge was perfectly entitled to reach the conclusions that she did upon the evidence that was available to her. She had taken full account of the interests of the public.
14. The judge made no mention of the availability of prescription drugs in Afghanistan that would be suitable for the appellant. I accept Mr Dieu’s argument that the health and/or treatment of the appellant was but one issue among a number which the led to judge to reach the conclusions that she did in regard to the appellant’s private life. The absence of reference to such availability would have made no material difference to the outcome of the appeal and in the context of this case and this does not amount to an error of law that would have affected the decision.
15. For these reasons I dismiss the respondent’s appeal against the decision of First-tier Tribunal Judge Harries whose decision must stand.
16. No application was made with regard to anonymity and the direction previously made must remain.

Signed Date

Upper Tribunal Judge Poole