Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA085042015

THE IMMIGRATION ACTS

Heard at Bradford
Decision & Reasons Promulgated
On 3 May 2016
On 17 June 2016

Before

UPPER TRIBUNAL JUDGE CLIVE LANE

Between

the Secretary of State for the Home Department

Appellant

and

[M M]
(ANONYMITY DIRECTION not made)
Respondent

DECISION AND REASONS

1. I shall refer to the appellant as the respondent and the respondent as the appellant (as they appeared respectively before the First-tier Tribunal). The appellant, [MM], born on [ ] 1983 claims to be a citizen of Iran. The appellant may be returned not to Iran but rather to Italy under the provisions of the Dublin Agreement. He appealed against the decision to remove him to the First-tier Tribunal (Judge Hindson) on Article 8 ECHR grounds. His claim under Article 8 ECHR had been considered and rejected by the respondent by a decision dated 18 May 2015
2. Notwithstanding what Judge Hindson states at the end of his decision ("the appeal is allowed on human rights grounds") he considered only Appendix FM and EX1 of HC 395. Notwithstanding his stated intention to deal only with Article 8 ECHR, there was no analysis of the appeal on Article 8 grounds.
3. The judge accepted that the appellant is suffering from post-traumatic stress disorder (PTSD) and moderate depression. Both the judge and the respondent accept that the appellant is "heavily reliant on his partner for support and care owing to his frail mental state". The judge noted [31] that the appellant had given an account of "substantial privation while he was living in Italy legally as an asylum seeker". The appellant had lived in the United Kingdom with a [V] and their child had been born here in July 2015. The judge noted that "neither representative was able to say what the status of [V] and their son would be in Italy should they travel there with the appellant". At [32] the judge stated:
"The appellant says he has no access to medical treatment in Italy and I believe him; his account generally is credible and his authenticity has for the most part not been challenged by the respondent. It is clear from the medical evidence that he is having medication for his medical health problems and needs further treatment from a psychologist. The respondent accepts the appellant relies heavily upon [V] in this regard. ? I can therefore find that both the appellant and [V] would face very significant difficulties in continuing family life in Italy. In addition the difficulties faced by the appellant in Italy previously and which he would face again on return, he has now been diagnosed with two serious mental illnesses for which he would not get treatment. His partner would face similar economic deprivation and both have the added responsibility of caring for their very young child."
4. I have no doubt that the judge felt sympathy for the appellant and his partner and child. However, I find that he has made findings of fact upon which are not supported by the evidence. For example, it appears that the judge found that there would be "no access to medical treatment in Italy" because he believed the appellant's uncorroborated assertion that that was the case. That finding of fact is unsound. The appellant obviously has a reason for stating that he could not access medical health services in Italy (a claim which clearly supports his claim to remain in the United Kingdom) but it is not clear whether his medical condition was such that he required treatment when he was last in Italy or whether, having sought it, he could not obtain it. I take judicial notice of the fact that Italy has a functioning medical service and I have no evidence at all to show that asylum seekers or those suffering from mental illness are specifically excluded from seeking treatment there. It was, simply, not possible to maintain the assertion that the appellant would be unable to seek medical treatment in Italy on the basis of the evidence available to the FTT.
5. Secondly, the judge has moved swiftly and without any proper examination of the evidence from a finding that the appellant and his partner and child would face "very significant difficulties" in continuing their family life in Italy to finding that there are insurmountable obstacles (such as to satisfy EX2) to concluding that they would face "economic deprivation". There was no evidence that asylum seekers in Italy would face circumstances so severe as to be described properly as "economic deprivation".
6. In the circumstances, I set aside the judge's decision and have remade the decision. On the evidence available, I am not satisfied that, notwithstanding his mental health difficulties, the appellant and his partner and their child would face insurmountable obstacles which would prevent them continuing their family life together outside the United Kingdom (in particular, in Italy). I do not accept that living in Italy for the appellant and his partner and child would "entail very serious hardship". The appellant does not, therefore, come within the provisions of HC 395 (Appendix FM). Similar considerations apply to the determination of the appeal on Article 8 ECHR grounds. The public interest concerned with the removal of the appellant whose asylum and Article 2/3 ECHR claims have been certified as clearly unfounded is a strong one. I accept that there would be a degree of upheaval to the appellant and his family should they need to move to Italy but I am unable to find that such upheaval would render the interference caused to their family and private lives disproportionate.
Notice of Decision
7. The decision of the First-tier Tribunal promulgated on 8 December 2015 is set aside. I have remade the decision. The appellant's appeal against the decision of the respondent dated 18 May 2015 is dismissed on all grounds.
8. No anonymity direction is made.

Signed Date 1 June 2016

Upper Tribunal Judge Clive Lane