Tribunal decisions

The decision

IAC-AH-CO/KRL-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/07975/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 16 February 2017
On 21 March 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE HANBURY

Between

mISS Miranda Berisha
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr P Draycott of Counsel
For the Respondent: Mr S Walker a Home Office Presenting Officer

DECISION AND REASONS
Introduction
1. The appellant is a Kosovan national who came to the UK at the age of 17 in April 2013. She claims this is because of complex health needs, including epilepsy and ongoing substandard kidney function, she would suffer inhuman and degrading treatment falling within Article 3 of the European Convention on Human Rights (ECHR). Alternatively, the appellant claims that her right to respect for her private or family life including her physical and moral integrity, would be unlawfully interfered with by the respondent’s decision to remove her from the UK. Alternatively, the appellant claims she would be a refugee within the meaning of the UN Convention relating to the Status of Refugees (Refugee Convention) if she were returned to Kosovo.
2. The appeal proceedings have a lengthy history. The decision to refuse asylum and human rights protection was made on 29 April 2015. The appellant appealed that decision to the First-tier Tribunal (FtT) on 15 May 2015. On 17 March 2016, I found that there was a material error of law in the decision of the FtT, in that despite reaching clear conclusions the Immigration Judge had failed to consider fully the appellant’s protected human rights. The respondent conceded that it would be appropriate to hold a further hearing to consider that issue and make an up-to-date appraisal of proportionality of the respondent’s decision.
3. Unfortunately, when the matter came before me on 20 October 2016, the parties were not ready to proceed. In part, this was because the appellant’s brother’s wife was due to give birth at any moment and it was therefore necessary for him to be elsewhere. Upper Tribunal Judge Gleeson gave directions to re-list the matter on 23 December 2016 as the parties had not complied with the directions I made on 20 October 2016. In particular, the appellant had taken no steps to list the matter. This may be indicative of a lack of desire on the part of the appellant to delay a final decision for as long as possible. I will consider this further later in this decision.
Background
4. The appellant, a national of Kosovo, suffers from a number of health needs. She received a kidney transplant in 2015 and still has to experience dialysis three times a week and immunosuppressive therapy. Without this treatment, it is contended on her behalf, she would be likely to die within a matter of “days or weeks” (paragraph 1 of the amended skeleton argument filed in support of the hearing on 16 February 2017). It is alleged in paragraph 2 of Mr Draycott’s skeleton argument that if the respondent returned her to Kosovo it would violate her rights under Articles 3 and 8 of the ECHR and would constitute a breach of “Article 15(b)”, presumably a reference to Article 15 (b) of the Qualification Directive. She also urges on the Tribunal that her appeal ought to be allowed under paragraph 276ADE(vi) because there would be “very significant obstacles” to her reintegration into Kosovo, notwithstanding that she has only been in the UK for less than four years.
5. The respondent’s refusal of 29 April 2015 noted the appellant’s apparently serious medical condition but considered that, since she had received a kidney transplant, appeared to be in a stable condition. Having allowed the appellant to stay in the UK for discretionary leave for a period of three years to allow her treatment to take effect, the respondent was not inclined to grant her any additional period of leave.
6. The appellant’s medical condition is summarised by Dr R. Baker, a renal physician at Leeds Teaching Hospitals NHS Trust, who confirms that the appellant is seen monthly. She will need to continue to take immunosuppressive drugs for the remainder of her life.
7. Medical evidence has also been filed from Illir Hoxaha, a specialist in public health from Kosovo, who states that the appellant would not be able to access services relating to kidney transplants as they do not exist in Kosovo. There are drugs available as part of an essential list. However, some of the medication she takes is not available.
8. The appellant therefore contends by reference to a number of authorities that there is a real possibility that she would suffer from life threatening deterioration in her health if she is returned to Kosovo.
The Hearing
9. The hearing on 16 February 2017 rehearsed many of the arguments summarised above. Mr Draycott, who appeared on the appellant’s behalf, said that both Articles 3 and 8 were engaged. He did not mention humanitarian protection in his opening remarks. He relied on both the witness statements his client had provided. He said that they were to be adopted.
10. At this point the appellant confirmed that her witness statements were true. Her first witness statement states that she claimed asylum on 31 January 2014 because she feared a rapid decline in her health if she returned to Kosovo. She has become very dependent on her three brothers, Faton, Valdet and Ramadan, who live in the UK. They have supportive families. She says that her father still lives in Kosovo in the same house that she grew up in. It was basic with no heating. The appellant says that her father is elderly and that she did not believe he would be able to care for her. His income was limited.
11. The appellant’s second witness is dated 10 February 2017 and explains she has to take different tablets every day. She is reminded that if she does not take her medication her body could reject her new kidney and she may have to go on to dialysis again. Although she had not seen her mother for a long time, she believed that she was still alive and also lived in Kosovo but she did not believe her health was good. However, she emphasised that she had not seen her for several years. The appellant said that when she returned home after her operation she had to have help with everyday care.
12. I then heard from her brother, Faton, whose statement appears at page 7 of one of several bundles I was provided with, which I will call Bundle 1. There are two statements in bundle one and one at pages 4 to 6 in bundle 2. The statements, which were both prepared in 2015, were adopted. The statement dated July 2016 was also adopted. Mr Berisha said that the appellant’s father had been badly injured in a road accident when he had been driving his car. He had injured his sternum, etc. He is described as weak and at the date of the hearing was aged 67. Mr Faton Berisha worked as a taxi driver in the past but at the date of the hearing was a delivery driver, a job which he did five days a week. His shifts were twelve hour shifts and he earned approximately £360 per week. He had a family in the UK.
13. Cross-examined, Mr Berisha was asked about certain documents he had produced from Kosovo. He said he was not aware of an express postal service by which medication could be supplied to his sister if she were returned to Kosovo but believed it took up to a week to send drugs. There were problems with corruption in that country. He said that he did have a brother-in-law living about eight miles from his father but he did not necessarily believe he could assist with his father. His sister had visited his father and stayed there for a night. His sister went back whenever she could afford to. He had no plans himself to return to Kosovo. He said he had helped pay some of the costs of the appellant’s NHS treatment. However, it was pointed out in cross-examination that there was at least £1,800 outstanding and that took no account of the cost of the transplant (put at approximately £17,000). Therefore, most the cost of providing treatment for his sister had fallen on the taxpayer via the NHS.
14. In re-examination, it was emphasised that postal services are “extremely difficult”. I suggested that this was largely an economic issue and asked whether such a service could be supplied if one was prepared to pay for it. Faton Berisha did not necessarily accept that this was so.
15. Valdet Berisha was then called. He adopted his statement but several supplementary questions were asked. He said that his mother lived with her brother. She was described as an insulin-dependent diabetic. Transport links between Pristina, the capital city, and the home area were described as poor.
16. In cross-examination Valdet said that he had given his brother £60 towards his sister’s NHS treatment.
17. Finally, I heard from Merita Babejthalahou, the appellant’s sister. She confirmed that her witness statement was true. She said that she had travelled to see her mother on occasions. She lived with her brother in Metehi. That was approximately two hours from Pristina. There was a bus service but buses only went every two or three hours. She reiterated that her mother was an insulin-dependent diabetic.
18. She was asked about the document accompanying her witness statement which in translation recorded that her mother, who had been born in 1954, had been a diabetic for sixteen/seventeen years, taking insulin for seven years. The witness was asked where her mother obtains her medication. She said that most of it came from Pristina. She said there was a local doctor but she was only able to access his services in an emergency. She said that her mother had a brother and his sons were able to take her to an emergency hospital when required. There is apparently a house owned by the family which is currently vacant. She said that she did not think this would be suitable for her sister to live in.
19. The respondent submitted that the appellant had had a great deal of care from the NHS, including a kidney transplant at a cost of approximately £17,000 and continuing treatment at a cost of approximately £5,000 per annum. Mr Walker said that the medical evidence did not support the appellant’s assertion that she would suffer a failure in her kidney transplant if she returned to Kosovo. Although there was some lack of clarity in these matters, drug therapy would be available in Kosovo. He emphasised the public interste in proper immigration control. The appellant had a family support network in Kosovo, although her father was elderly and her mother had her own health needs. She had an uncle (her mother’s brother) and cousins and she could visit Pristina to access healthcare. There was even a spare house where she could live. There is family life in Kosovo. The immunosuppressive drugs were available on the internet or by post and doctors could be visited in Pristina. The asylum claim had no merit. There is no reason why the respondent should be expected to grant the appellant indefinite leave to remain simply so she could avail herself of free health services in this country. There were no very significant obstacles to her return to Kosovo.
20. Mr Draycott in reply emphasised the appellant’s health needs, stating that she had received a transplant which had made her condition stable, but she would deteriorate if there was a break in her treatment. I was referred to the medical evidence of Dr Hoxha and I was also taken to the case of Paposhvili v Belgium which was recently decided by the European Court of Human (application no. 41738/10). I was taken to paragraphs 183-185. I pointed out to Mr Draycott that under the law set out there, there must be a risk that in the country to which the applicant for humanitarian protection is sent there will be a “serious, rapid and irreversible decline … resulting in intense suffering or to a significant reduction in life expectancy”. I suggested that this was a high threshold, which was not met simply by showing that the foreseeable consequences of removal are adverse, however serious. Although the primary decision in that case was taken under Article 3 of the ECHR the court also touched on the alleged violation of Article 8 of the ECHR. The decision of the Grand Chamber was that it could not discern any exceptional circumstances that would require the Belgian authorities to refrain from removing the individual concerned. Secondly, the state must strike a fair balance between the competing interests of the individual and society. These include economic factors such as the cost of health treatment to the individual in question, if borne by the state.
21. Mr Draycott emphasised the practical availability of treatment in Kosovo, stating that immunosuppressive treatment was essential to his client. Judge Henderson, who made the decision in the FtT in this case and whose fact-findings I preserved, seemed to accept several parts of the appellant’s evidence. With respect, Mr Draycott was somewhat selective in relation to the findings he sought to rely on. For example, I noted that at paragraph 54 of the decision the Immigration Judge rejected the appellant’s account of her mother being uncaring or having abandoned her child.
22. Mr Draycott had argued that there was no reliable source of these drugs. The internet could not be relied on, transport links were so poor that the appellant could not be expected to go as far as Pristina to get her drug therapy and the availability of local doctors and emergency treatment was questionable. She had an extremely strong family life in the UK and her father and mother were unable to care for her. I was referred to the expert country report dated 13 August 2015. This, like several important documents was loose, rather than placed in any bundle. Unfortunately, I was only supplied with one page of the report. However, Mr Draycott did hand in his copy, which indicates that kidney transplants are not available in Kosovo, medication was unreliable and one of the drugs that the appellant takes could not be confirmed to be available for her. Quite frankly, he suggested, the health service there was a “lottery”. I was then referred to the July 2016 bundle. It was pointed out from the documents in that bundle that if the transplant was rejected the appellant would be on dialysis and that that treatment was simply unavailable. Corruption was a great risk in Kosovo.
23. I was then referred to numerous cases by Mr Draycott, including, the decision of Lord Justice Laws in a case called GS (India) at [2015] 1 WLR 3312. I was referred to paragraph 24 where Laws LJ states that in that case the Secretary of State had invited a further application under Article 8 to reflect the fact that the appellant was dependent upon drugs following a kidney transplant. I was also referred to paragraph 71 where Laws LJ pointed out that the other appellant (GM) may also wish to submit a claim under Article 3. It was clearly envisaged by the court that both Articles 3 and 8 might be engaged on the facts of that case. I was also referred to a case called Okonkwo [2013] UKUT 00401 (IAC). That case, heard at Field House on 23 July 2013, concerned an appellant who had been provided with an organ transplant during a period of unlawful leave. He had made a claim under Article 8 of the ECHR. He was a citizen of Nigeria. I was particularly referred to the fact that he had not established a family life here but nevertheless had been given discretionary leave to receive medical treatment. The Tribunal pointed out that the immigration status was a relevant consideration. However, where the operation depended on the continued supply of medication there may be cases where the need to respect bodily and physical integrity were such that the respondent may be required to produce very strong evidence to support the public interest justifying removal. However, it is noteworthy there that the appeals by the appellant were dismissed. It was envisaged, however, that the appellants would place before the Secretary of State any further information that they saw fit.
Discussion
24. Clearly, cases such as these are not straightforward. The respondent was faced with a difficult decision in this case having regard to the fact that the appellant during her period of discretionary leave had, unsurprisingly, availed herself of the high standard of healthcare available to her in a developed economy. These facilities would have undoubtedly have been more difficult to access in Kosovo. However, I consider that she is in a stable condition at the present time provided she continues to have three month check-ups. She has now gone two years since her transplant but it will be necessary for her to continue to access immunosuppressive medication.
25. The framework within which this appeal is considered was set out in paragraph 19 of my earlier decision (promulgated on 28 April 2016). I pointed out in that paragraph that the clear conclusions reached by the Immigration Judge before the FtT, who fully considered the evidence, were preserved. The error of law that I found was that the FtT failed to consider fully the issue of proportionality at the correct date (i.e. the date of the hearing). I did not set aside the findings of fact made by the FtT, pointing out that the Immigration Judge had come to clear conclusions of the evidence.
26. The Tribunal has the benefit of a wealth of medical evidence. However, the legal framework within which the decision was taken by the FtT has not essentially changed. The FtT made clear findings of fact based on much of the evidence that I have seen. This included careful consideration of the medical evidence presented. The FtT also considered the availability of drugs. It noted that the appellant’s evidence had been exaggerated in relation to the age of her parents and their infirmity. I would endorse the finding by observing that the appellant’s father is only 67 and although he has suffered a relatively minor road accident can provide support for the appellant. The Immigration Judge specifically rejected the contention that the appellant’s mother had neglected her and found that her father was not of any great age. The suggestion that he was “very elderly” was clearly an exaggeration. The appellant was by that date an adult. The primary barrier to the appellant’s continued medication is the cost of drugs – i.e. economic issues.
27. The appellant has a large supportive family network in Kosovo, including an uncle and Faton’s brother in law, to whom she can turn. In summary, the appellant has her mother, father, uncle, aunt and cousins all living in Kosovo. The family apparently has a spare house in which she could be accommodated and although there would be significant disruption in her family life, it is appropriate to consider the wider public interest embodied in Sections 117B-117D of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”). The appellant not only has a poor knowledge of the English language, as was acknowledged by the Immigration Judge, she has received extensive and expensive medical treatment at the cost to the UK taxpayer. Whilst she should not be blamed for taking advantage of the advanced health care on offer, the attempts to pay for this by her brother seem to me miniscule in comparison with the cost. It is in the public interest to ensure that limited health resources are used to best effect and benefit to those who contribute to the system.
28. I remind myself that this appellant has only been in the UK for under four years. She will undoubtedly suffer hardship if she is returned to Kosovo. However, I do not accept she crosses the high threshold for Article 3 set out in the case of Paposhvili. I do not accept on the evidence that she would suffer a “serious, rapid and irreversible decline in her state of health” resulting in an “intense suffering or a significant reduction in life expectancy” if she were returned to Kosovo. Kosovo, although still recovering after a period of war and having a less advanced medical system than the UK, nevertheless has experienced economic growth in recent years. The appellant, utilising public transport, could attend Pristina for medical treatment. Drugs at the cost to her family in the UK and/or her family in Kosovo could be acquired and posted internationally and locally, if available there, and sent to her. I find that, contrary to the evidence of her witnesses, there is reasonably likely to be a postal service to her home in Kosovo. Having fully reconsidered the appellant’s protected human rights under articles 3 and 8 I find that it is unlikely that the appellant’s physical and moral integrity will be sufficiently compromised by her return to Kosovo to require the respondent to grant her indefinite leave to remain in the UK. It may be that it is largely an accident that the appellant did not come to the UK earlier in life and settle here like her other family members but the fact is that the appellant is fully integrated into Kosovo society. However, desirable it is for the appellant from a personal point of view to continue to be with her supportive brothers and be treated by the NHS, I find that the interference with her human rights is justified by the need to enforce proper immigration controls against foreign national. I also find that the appellant does not qualify under any of her other claimed bases for international protection including asylum and for humanitarian protection.
29. The appellant has sought to criticise the respondent for delay but she has done nothing to speed up the process of determining her appeal. Indeed, I note Judge Gleeson’s comments on the lack of progress on the part of her representatives in relation to her appeal. Having been given temporary admission to the UK there was an expectation that she would repay that generosity shown to her by the respondent by returning to Kosovo but unfortunately it proved necessary for the respondent to serve with notice of her liability to be removed from the UK.
Conclusions
30. Having carefully considered this matter I have concluded that the decision of the FtT contained an error of law in that the Immigration Judge failed to fully consider the appellant’s human rights at the date of the hearing before him.
31. I have re-evaluated the evidence before the FtT in the light of the preserved findings.
32. I have concluded at the date of my re-evaluation that the decision of the FtT should be allowed to stand-i.e. the appellant’s appeal against the decision of the Secretary of State is dismissed. Accordingly, the decision of the respondent to reject the application for further leave to remain also stands.

Notice of Decision
The appeal to the Upper Tribunal is dismissed. The decision of the FtT stands. The decision of the respondent to refuse further leave to remain stands.
No anonymity direction is made.

Signed Dated 14 March 2017

Deputy Upper Tribunal Judge Hanbury

TO THE RESPONDENT
FEE AWARD
I have dismissed the appeal and therefore there can be no fee award.

Signed Dated 14 March 2017

Deputy Upper Tribunal Judge Hanbury