Tribunal decisions

The decision

IAC-AH-SAR-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/06833/2015

THE IMMIGRATION ACTS

Heard at Liverpool
Decision & Reasons Promulgated
On 30 November 2016
On 15 December 2016

Before

UPPER TRIBUNAL JUDGE CLIVE LANE

Between

MARK ANTHONY ROLLINS
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Brown, instructed by Greater Manchester Immigration
For the Respondent: Mr McVeety, a Senior Home Office Presenting Officer

DECISION AND REASONS
1. The appellant, Mark Anthony Rollins, was born on 20 December 1970, and is a male citizen of Barbados. He appealed against the decision of the respondent dated 27 March 2015 to refuse his claim for asylum and to remove the appellant from the United Kingdom. The First-tier Tribunal (Judge Andrew Davies) in a decision promulgated on 29 July 2016 dismissed the appeal on Article 3 ECHR grounds but allowed it on Article 8 ECHR grounds. The appellant now appeals, with permission, to the Upper Tribunal. There is no cross-appeal in respect of the Article 8 decision by the Secretary of State.
2. The appellant claims to be in fear in Barbados of a criminal gang from whom the claims to have stolen drugs. Further, the appellant's mental health is problematic. As regards the latter, Judge Davies was aware that the appellant is currently detained under the Mental Health Act 1983 (I was told that he remains in hospital as at the date of the Upper Tribunal hearing). Section 86(3) of the 1983 Act provides that the powers to be exercised in the case of any patient shall not be exercise except with the approval of the appropriate Tribunal (Mental Health Tribunal). Judge Davies found that it would be a breach of Article 8 for the respondent to remove the appellant from the United Kingdom at a time when he was detained under the 1983 Act. As I have noted above, that finding is not challenged by the Secretary of State.
3. The judge was satisfied [33] that Article 3 ECHR would not be breached as a result of the decision to remove the appellant. As regards Article 3, the appellant had pleaded that his mental health difficulties placed him at real risk in Barbados. The judge recorded [32] that Barbados has a comprehensive health system including inpatient care in hospital, community care, pre-primary and secondary mental health services, and provision for "100% of the population have free access to essential medication such as antipsychotics, antidepressants and other drugs".
4. As regards Article 3 and the criminal gang which the appellant claims to fear, the judge found [28] that the Barbadian state authorities were willing and able to offer protection to the appellant against the actions of non-state agents including criminals. Notwithstanding corruption in the country, there is "nonetheless a functioning internal security and police apparatus" [27].
5. The appellant complains that the judge unjustly and unfairly refused an adjournment of the First-tier Tribunal hearing. The judge dealt with the application for the adjournment at [20]:
An application has been made for an adjournment and refused by a Duty Judge on 12 July 2016. The judge indicated that he had already refused an adjournment. The earlier request was made on 11 July 2016. The appellant's solicitors enclosed a letter from Home Bird Care indicating that the appellant had been sectioned in hospital. A medical report was also enclosed following an assessment of 31 March. The refusal of 11 July referred to the fact that the matter had been adjourned previously for the psychiatric report but none had been filed. There was no indication of when the appellant would be released and no medical evidence. I note that the original adjournment was as long ago as 6 July 2015. There was very considerable delay in obtaining medical evidence. There was no statement in the appellant's bundle. Although I understand clearly Mr Brown's point that it would not at present be possible to take instructions from the appellant given the state of his mental health, it would clearly have been possible to obtain evidence for his asylum claim which relates to events allegedly occurring years ago had a statement been taken a year ago before the deterioration in his mental health and to deal also with Article 8 and children issues. I must however make it clear that this implies no criticism of Mr Brown who was most helpful in his submissions at the hearing.
6. The judge notes that the hearing then proceeded by way of submissions only. Given the appellant's mental health deterioration, the appellant submits that the judge should have adjourned the hearing in order to enable medical evidence to be obtained but also, should the appellant again become lucid, for a witness statement to be taken from him by the solicitors.
7. I do not consider the ground has merit. As I have recorded above, the judge concluded that the appellant was not at real risk of ill-treatment upon return to Barbados, not because his account was untrue but because Barbados has a functioning security and police service which would be willing and able to offer the appellant protection. Those findings have not been challenged by the appellant. It follows that, if the judge had received either written or oral evidence from the appellant testifying to a fear of criminals in Barbados and had he accepted that evidence, the claim in respect of Article 3 ECHR would nonetheless have been defeated in the light of the judge's findings regarding sufficiency of protection. The presence of the pp at the hearing would, therefore, have made no difference to the outcome. In any event, I find that the reasons given by the judge at [20] are adequate to dispose of the adjournment application. The judge was faced with an application for an adjournment with no realistic prospect fixing a future date for the hearing by which time the appellant may have given evidence. Without any evidence concerning the likely duration of the appellant's mental health difficulties, the judge would, in effect, have been adjourning the appeal sine die. Had the judge fixed a future date and had the appellant not been fit to give instructions to his solicitors prior to that date then the same problem would arise again and, having granted an adjournment, might prove difficult for the First-tier Tribunal to deny a second or subsequent applications. With those considerations in mind and having regard also to the overriding objective, it is difficult to see how such an adjournment might be justified. In any event, I do not find that the decision not to adjourn the hearing resulted in any unfairness given that the judge has, in effect, assessed the appellant's Article 3 appeal on the basis that his account regarding the criminal gang was true.
8. The appellant also appeals on the ground that the judge has failed properly to assess the consequences for his mental and physical health should he be removed from the treatment regime in the United Kingdom which he currently enjoys to Barbados. I find that that ground has no merit. As I have noted above, the judge has made a finding that Barbados has a fully functioning health service, including provision for mental illness. There is no reason to suppose that the Secretary of State would expose the appellant to the risk of suicide or self-harm during the course of his return to Barbados, whereupon the Barbadian health authorities would assume responsibility for his care. That was a finding clearly available to the judge on the evidence. It is a finding which the judge has supported by clear and cogent reasoning having proper regard to all the evidence and in particular the background material regarding health services in Barbados.
9. In the circumstances, the appeal is dismissed. Finally, Mr McVeety informed me that the appellant has been granted leave to remain (following the success in the First-tier Tribunal of his Article 8 ECHR appeal) until 9 May 2019.
Notice of Decision
10. This appeal is dismissed.
11. No anonymity direction is made.

Signed Date 10 December 2016

Upper Tribunal Judge Clive Lane