Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/07274/2014

THE IMMIGRATION ACTS

Heard at Bennett House, Stoke-on-Trent
Decision & Reasons Promulgated
On 2nd August 2016
On 5th August 2016

Before

UPPER TRIBUNAL JUDGE MARTIN

Between

ABIDA [J]
(ANONYMITY DIRECTION NOT MADE)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Ms L Mair (instructed by greater Manchester Immigration Aid Unit)
For the Respondent: Mr G Harrison (Senior Home Office Presenting Officer)

DECISION AND REASONS
1. This is an application to the Upper Tribunal by the Appellant in relation to a Decision and Reasons of the First-tier Tribunal (Judge Davies) promulgated on 26th October 2015 in which he dismissed the Appellant's asylum appeal.
2. Permission to appeal was granted by a Judge of the First-tier Tribunal on 25th November 2015. The Judge agreed that the application raised an arguable error of law.
3. Ground 1 refers to the Judge's refusal to grant an adjournment to secure the attendance of what is claimed to be a key witness in the appeal, the Appellant's cousin. It is said that he attended court on a previous occasion when the appeal was adjourned but was unable to attend on the hearing date of 26th March 2015 due to a Health and Safety audit taking place at his place of work, on which basis his employer would not give him leave. The ground relied on Nwaigwe (adjournment: fairness) [2014] UKUT 00418 (IAC) which identified the central question as being whether the refusal of the adjournment deprived the affected party of his right to a fair hearing. The grounds argued that the refusal in this case did so deprive the Appellant. They then set out the basis upon which it is said that the absent witness's evidence was crucial to key aspects of the Appellant's case.
4. The second ground is that the Judge failed to give any or any adequate reasons for his adverse credibility findings in relation to the Appellant, her daughter and additional witnesses.
5. The third ground argues that the Judge did not consider the evidence in the round and made his primary finding without any reasons.
6. At the hearing before me Ms Mair expanded upon the grounds. She referred me to the absent witness's statement, contained in the Appellant's bundle, which indicated that he was the main provider of support to the Appellant and he was an independent witness. He set out a large number of issues in his witness statement and she argued that the Appellant was deprived of a fair hearing. She argued that this was a material error of law.
7. She then argued that there was an abject failure by the Judge to provide reasons for rejecting evidence. She referred to paragraph 93 of the Decision and Reasons as being speculative and that his findings went against the weight of evidence in that all of the witnesses evidence, including the witness statement of the absent witness, was that the Appellant's husband's treatment of her and her children was appalling and the Judge did not explain why he rejected the weight of evidence.
8. She referred to the reference by the Judge to the Appellant's husband having made all the arrangements for medical treatment and pointed out that the Appellant simply did not have the wherewithal to make the arrangements herself, that she was unaware of any arrangements made by her husband and argued that the Judge had no reason to depart from the preponderance of evidence which all went in favour of the Appellant.
9. Finally, she referred to the fact that the Judge had listed the matter for a further hearing in order to look at the medical evidence. 200 pages of medical evidence had been submitted, which was entirely supportive of the Appellant's case and indeed the evidence from Pakistan indicated that although the younger child had been x-rayed in Pakistan the x-rays did not reveal that she suffered from any particular illness. Overall, she argued, the Judge's findings were not reasoned and the decision was therefore tainted by material errors of law and should be set aside.
10. On behalf of the Secretary of State Mr Harrison relied upon the Rule 24 Notice which argued that the Judge had directed himself appropriately. He considered the adjournment request in the light of the overriding interest and found it unnecessary to adjourn in order to justly disposal of the appeal. He argued that the four witnesses, including the Appellant, made lengthy and detailed statements and the Judge provided reasons for not believing the evidence of the Appellant and witnesses. The Judge considered the costly medical treatment in Pakistan and that treatment in the UK would be free, even though they are not entitled to that treatment. It is said that based on the evidence, the Judge was entitled to take that into consideration and find against the Appellant.
11. With regard to the Appellant's allegations against her husband he argued that the Judge rejected these for reasons that were open to him.
12. Additionally, Mr Harrison pointed out that as there was an additional hearing seven months after the initial hearing, it would have been open to the representatives to make application for the Judge to hear from the witness who had been absent from the initial hearing; they did not do so.
13. He argued that the Judge had given adequate reasons so far as the evidence of Dr Ballard was concerned and referred to paragraph 101 where the Judge noted that his opinion was based on the account given by the Appellant, which he had found not to be credible and as a result the expert's evidence was not useful.
14. The Appellant's case is that she had arrived in the United Kingdom on a valid visit visa in July 2013 with her husband and four children. She claimed asylum in April 2014. It is her case that when living in Pakistan, due to difficulties with her husband she returned to her parents for a year and a half between 1998 and 1999.
15. The family came to the UK to visit her sister-in-law and stayed with her from July to August 2013. The Appellant also has other close family members in the UK.
16. The Appellant's eldest child suffers from Osteogenesis Imperfecta (OI), also known as brittle-bone disease, having been diagnosed by 5 to 7 doctors in Pakistan. She been unable to attend school due to being in plaster as a result of injuries suffered by her.
17. The two middle children are well. The youngest daughter, Rafia had suffered fractures when she was aged one or two in Pakistan but had not been diagnosed as suffering from OI. She broke her leg in December 2012 which required insertion of a metal plate. Three months later she broke her other leg. She obtained treatment from a clinic in Karachi. The Appellant did not know that she was suffering from OI.
18. Her husband would shout at her children and not show any emotion towards her.
19. Whilst in the UK Rafia fell and was in pain in July or August 2013 and the Appellant's husband threatened the Appellant that if anything happened to her he would kill the Appellant. He left the Appellant and her two daughters, taking the two healthy children to stay with his sister in the UK before returning to Pakistan on 19th September 2014 without having any further contact with the Appellant.
20. Before her husband left, the Appellant had taken Rafia to a doctor in Manchester. Her husband made the arrangements. The doctor arranged an x-ray but the Appellant did not take her for it and she still did not know Rafia was suffering from OI.
21. The Appellant then attended a second appointment in Manchester with Rafia and was told that she was probably suffering from OI. This, she said, annoyed her husband.
22. While her husband and two healthy children left the UK within the time prescribed by their visas the Appellant could not leave due to problems she was having with her husband.
23. The Appellant was asked at the NHS hospital to show her entitlement to treatment. She was unaware that treatment was not available to visitors. She suspected her husband knew this and that was why he did not attend the appointments.
24. She cannot relocate to where her parents live in Jhelum. Her husband has no concern for her or her disabled daughters and she fears him if she is returned to Pakistan.
25. The Secretary of State noted in the refusal that the Appellant had given differing accounts of when she had seen a consultant in the UK. She did not accept the Appellant's evidence to be credible or that she was a member of a particular social group. She did not believe the Appellant feared her husband or that he had no concern for his daughters. Even if she did there was both a sufficiency of protection and the opportunity to internally relocate within Pakistan. The Secretary of State did not believe the Appellant had in truth been abandoned by her husband and was not a truthful witness over all. The Secretary of State believed the Appellant and children would have the support of family members in Pakistan.
26. In his decision the Judge set out the Appellant's case and the reasons for the refusal. He noted that he heard first of all an application for an adjournment. He set out in paragraph 6 that he had been asked to adjourn due to the non attendance of one of the witnesses but he found it not to be necessary for the just disposal of the appeal that the hearing should be so adjourned and decided to proceed. The grounds refer to the Judge making comments that as a packer in a factory the witness could not have been crucial to the health and safety audit. Whether or not that comment was justified is irrelevant to the issue of whether or not he was correct to refuse to adjourn. It does indicate that he did not accept the excuse given for the witness's absence. However, it is the case that the Appellant's bundle contained a statement from the witness which was lengthy and detailed and also the case that the Judge could still hear from the Appellant and her adult daughter. As he had a witness statement from the absent witness I agree that the interests of justice did not require an adjournment.
27. I can see no error of law in the Judge's decision. It is also of note that, as Mr Harrison pointed out, the Representatives made no attempt to ask the Judge to hear that witness's evidence when they had the opportunity to do so when the case was listed on a later date. They cannot therefore, at that time have considered the witness's evidence to be crucial as they now assert.
28. Ms Mair is wrong when she says that witness is independent. He is the Appellant's cousin and clearly close to her and no more independent than the other witnesses.
29. Moving on to consider the adequacy of reasons I turn to the Decision and Reasons. The Judge set out the evidence. He heard oral evidence from the Appellant who confirmed the contents of her witness statement and said that her daughter, Rafia had been released from hospital in January 2015 and was diagnosed with OI in February. She now spent time in bed and a wheelchair and receives ongoing treatment from a physiotherapist. She had a further appointment at the Manchester Children's Hospital where consultants were planning to remove the plate from her leg and replace it with a rod. The plate had been inserted by surgeons in Pakistan.
30. In cross-examination she told the Judge that she had brothers and sisters and her husband's relatives in the UK. There was a lot of intermarriage between the two families. The children had cousins in the UK, one of whom also had OI. Rafia had not been diagnosed with OI in Pakistan.
31. She could not live with her parents in Jhelum as they were elderly and would not be able to look after her and her disabled children. If she went to them they would simply send her back to her husband.
32. She said that she got confused about dates and that she did not claim asylum at the earliest opportunity because she did not know about it and had not been told about it by her family members. She came to the United Kingdom to visit family members and her husband had asked her to come. She claimed asylum when advised to do so by her cousin.
33. In re-examination she told the Judge that she had not claimed asylum at the first opportunity because her husband threatened he would not allow her two disabled daughters to return to Pakistan and if he ever saw them again he would kill them. Her cousin was the first person to tell her about the possibility of claiming asylum.
34. The Judge then heard evidence from the elder daughter, an adult. She has OI and was using a wheelchair. She has had OI all her life and she understood a cousin as well as her sister had also been diagnosed with the disorder. She said her father returned to Pakistan in September 2013 and she did not know that he was going. Her mother had been upset when she found out. She said her relatives in Pakistan were her mother's parents and her mother's siblings. Her mother has two sisters and a brother in Pakistan. Her brother runs a clothing shop owned by her grandfather. She had not seen her grandfather very often. She has attended various hospitals in Pakistan including in Karachi, always being taken by her father.
35. In re-examination she confirmed that she had only gone to hospital to have a fracture set and that the doctors have told her father she should not move around a lot. Her father related this to her mother and she said that her parents treated her with care. She had not received in Pakistan either the six monthly injections or physiotherapy that her young sister receives in United Kingdom.
36. The Judge then heard submissions from the Secretary of State's Representative who argued that the claim was not credible. The Appellant's credibility was damaged by the delay in claiming asylum. Her sister had been in the UK for 20 years with a large extended family and there were numerous people who could have assisted her in claiming asylum. If she had genuinely been seeking protection she would have done so straightaway. She had not dealt credibly with the contradictions that arose during her interview with the Respondent and it was not credible that her younger daughter would not be similarly diagnosed in Pakistan given that her elder sister suffered from the disorder. He argued it was not credible that the elder daughter would not receive proper treatment in Pakistan for OI and the objective evidence clearly indicated that treatment was available.
37. He referred to letters from the National Health Service in the UK indicating treatment for OI is not available in Pakistan which is clearly not the case.
38. He submitted that the claim that the husband was so horrified about the medical condition of his daughters that he abandoned them is not credible given that he had taken his daughters for treatment in Pakistan and paid for it.
39. He indicated that her estrangement from her husband was not accepted, but even if they were separated she could receive support from her brother and treatment was available for her daughters.
40. He argued that if the husband wanted to harm the Appellant and his daughters he had plenty of opportunity to do so in Pakistan and yet he had not. His actions were not those of a man who wished them harm. The report of Roger Ballard, he said, amounted to advocacy on behalf of the Appellant.
41. The Judge then set out Ms Mair's submissions to him which stressed that all of the evidence he had heard was that the Appellant had suffered years of emotional abuse and neglect by her husband and the children by their father. She said it was known that domestic violence was rife in Pakistan and there were cultural reasons why she could not return to her parents. She submitted that shelters were not suitable for children in wheelchairs and referred to the Appellant's explanation for the delay in claiming asylum.
42. She argued that the children would not receive adequate medical treatment in Pakistan and that the best interests of the children dictated they should remain in the UK.
43. The Judge then explained that after spending five hours considering the documents he decided that he needed further evidence on a point he was unable to resolve. He said that this related to public interest and that this was a finely balanced case. He noted the suggestion that the Appellant and her husband and children in reality came to the UK specifically to access medical treatment. He referred to a document which indicated that the family had registered with a GP very shortly after they arrived in the UK and he asked for medical evidence from the GP.
44. The Judge then set out how he had a further hearing in October 2015 (original hearing in March). He referred to the fact that both representatives were content to proceed by way of submissions only. He noted then, having set out the submissions, that the GP records did not indicate when the family registered with a GP but it was clear that they had done so when they were not entitled to. The documents indicated a large amount of money spent on medical treatment in Pakistan. There was evidence consistent with Rafia being diagnosed in the UK. The fact that the Appellant had not taken her daughter for the x-ray indicated, according to Ms Mair, that she was not intending to utilise the NHS.
45. The Judge then started his findings at paragraph 92. He states there that he has concluded it reasonably likely that the Appellant and daughter and the other witnesses have not given truthful evidence.
46. Ms Mair criticises the fact that that finding contains no reasoning and that he starts his findings saying the witnesses are untruthful. However, a Judge can put his conclusions either at the beginning of his findings and then set out why he has reached that conclusion or he can set out his individual findings and put his conclusion at the end. Putting the conclusion first is not an error of law unless it is unreasoned.
47. The Judge set out very clearly what the evidence revealed in this case, namely that the Appellant and her husband was well aware that medical treatment for their children in Pakistan is expensive. They have a large number of family members in the UK and would have been well aware of the existence of the NHS and the fact that it is free and they would also have been aware that they were not entitled to use it.
48. He concluded that the Appellant's account of ill treatment by her husband both towards her and towards the children in Pakistan was a fabrication because it was clear from the evidence that he was far from the uncaring father she claimed. He had taken steps to ensure his daughters received proper medical care in Pakistan and indeed he paid for it. The Judge found it clear from the evidence that it is reasonably likely that the Appellant and her husband had made a decision to come to the UK in order to access medical treatment for free. He found the suggestion that her husband would kill her if she returned to Pakistan to be without credibility, given the actions of the husband in the UK. It was he who had arranged for the family to see a GP which flew in the face of her claim that he wants to kill both his wife and his daughters because they are disabled.
49. He found it not credible that the husband suddenly abandoned the Appellant in the UK returning with the two healthy children. He was aware of their medical condition over a considerable period in Pakistan and had not abandoned them.
50. The Judge found on the basis of the Appellant's lack of credibility that it is reasonably likely she is not even estranged from her husband. He found it reasonably likely that he had returned to Pakistan to allow her to make a fabricated asylum claim.
51. The Judge then goes on at paragraph 98 to find that even if she were credible internal relocation would be available to her and her daughters in Pakistan where she has family members to assist her and where treatment is available.
52. The Judge did take into account the opinion of the expert Roger Ballard but noted that his evidence was only of assistance if the Appellant's claim was credible, which it was not. Contrary to Ms Mair's submission, the fact that the Appellant did not take Rafia for an x ray does not indicate that she had no intention of obtaining NHS treatment when she was not entitled as she subsequently did take her for treatment - which remains ongoing.
53. The Judge was entitled to reach the conclusions he did on the evidence before him; indeed it would have been surprising had he reached any other conclusion. It is hardly surprising that the Judge in this case concluded that the asylum claim had been fabricated in order to ensure the family could access medical treatment for two severely disabled children at no cost when it had proved very costly when they were in Pakistan.
54. I disagree with Ms Mair's assertion that to find they were "health tourists" was speculation on the Judge's part. On the evidence it was inevitable. While the family may not have been given a formal diagnosis for Rafia in Pakistan, they must have considered it a very real possibility given two serious fractures in a short space of time when they had the experience of an older child suffering from the same thing.
55. I do not find that the First-tier Tribunal made an error of law and the decision is therefore upheld.
Notice of Decision

The Appellant's appeal to the Upper Tribunal is dismissed.

There has been no application for an anonymity order and I do not make one

Signed Date 4th August 2016

Upper Tribunal Judge Martin