Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/10094/2015

THE IMMIGRATION ACTS

Heard at Manchester Piccadilly
Decision & Reasons Promulgated
On 26 October 2016
On 28 November 2016

Before

UPPER TRIBUNAL JUDGE O'CONNOR

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

muhammad siddique
(ANONYMITY DIRECTION NOT MADE)
Respondent

Representation:
For the Appellant: Mr McVittie, Senior Presenting Officer
For the Respondent: Miss Pickering, instructed by Greater Manchester Immigration Aid Unit

DECISION AND REASONS
Introduction
1. The appellant before the Upper Tribunal is the Secretary of State for the Home Department ("SSHD"). For convenience I will refer to Mr Siddique as the claimant herein.
2. The claimant is a citizen of Pakistan, born 1 January 1945. He entered the United Kingdom on 18 September 2014 on a lawfully issued visit visa and claimed asylum on 8 November 2014. This application was refused by the SSHD in a decision dated 30 June 2015.
FtT's Decision
3. In a decision of 4 May 2016, the First-tier Tribunal (Judge A C Holt) dismissed the claimant's appeal on Refugee Convention and Humanitarian Protection grounds, but allowed it on human rights grounds - both in relation to both Article 3 and Article 8 ECHR.
4. The crux of the FtT's reasoning is to be found within paragraphs 23 to 26 of its decision, which read as follows:
"23. ... I have to consider the appellant's state of health. I remind myself of the very high threshold set out in the case of N v SSHD [2005] UKHL 31 and I am quite sure that, in principle, the appellant would be able to source painkillers, morphine, in Pakistan.
24. I also note the letter of the appellant's GP Dr F Karam dated 16 March 2016 ... In terms of the appellant's prognosis, he says, 'He has been admitted to the Royal Liverpool University Hospital several times in the last four weeks. The palliative care team in the community is looking after him. His oncologist has advised that there are no plans for any further palliative radiotherapy due to the advanced state of his illness'. The appellant was also asked at the hearing if his treating doctors had discussed his life expectancy with him. The appellant was tearful and clearly very distressed at being asked about this topic and simply said that he had been told that he had 'very little time' and 'a short time' and 'little time, God knows'.
25. Having seen the medical evidence and heard the appellant's answers to the questions about his remaining life expectancy and observed the appellant's very obvious discomfort and pain, I am satisfied that this is one of the rare cases that to return the appellant to Pakistan in these circumstances would give rise a breach of his Article 3 rights. I very much doubt that he would make it through an airport and cannot envisage any airline agreeing to take him given the abundantly obvious health problems that the appellant manifested. Whilst I am not medically qualified and there was no medical evidence specifically on point it was glaringly obvious to me that there would be significant doubts that the appellant would survive a long-haul flight to Pakistan.
26. Further, I find that circumstances of this case are such that requiring the appellant to leave the United Kingdom would be an unlawful interference with his private rights for a dignified death pursuant to Article 8. In relation to Article 8 and the five-stage test set out in Razgar [2004] UKHL 27, I find that Article 8 is engaged here on the very specific basis that the appellant is clearly in the end stage of terminal cancer where no further treatment is planned. I also have no hesitation in finding that it is in the public interest for the respondent to maintain and enforce policies of immigration control. However, I also have no hesitation in finding that it would be disproportionate to require such a sick and elderly man to attempt a long-haul flight simply on the basis of bolstering, albeit entirely legitimate, the enforcement of immigration control."
5. The Secretary of State sought, and obtained from First-tier Tribunal Judge Robertson, permission to appeal to the Upper Tribunal. Thus the matter came before me.
Discussion and Decision on setting aside FtT's decision
6. Having considered carefully the parties' submissions, I have no hesitation in concluding that the FtT's decision contains numerous errors of law - each capable of affecting the outcome of the appeal. I come to this conclusion for the following reasons.
7. Ostensibly this is what has become known as a "health case". Whilst the FtT properly identified that such cases require an appellant to surpass a very high threshold, supported by the citation of the decision of their Lordships House in N v Secretary of State, in my conclusion the FtT failed to lawfully apply such directions, and in particular failed to lawfully consider the evidence in its proper legal context.
8. There were effectively two limbs to the consideration undertaken by the FtT. First, the FtT purported to undertake an assessment as to whether there would be a breach of the claimant's human rights by virtue of him being required to undertake the journey to Pakistan, irrespective of the circumstances that would pertain upon his arrival there. The second consideration related specifically to the circumstances after the claimant's arrival in his homeland.
9. In relation to the former, the FtT found there to be 'significant doubts' that the claimant would survive a long haul flight to Pakistan. In my view the rationale deployed by the FtT in reaching this conclusion discloses a number of legal errors.
10. First, there has never been any indication from the SSHD that she would attempt to remove the claimant by air. The mechanism of removal is entirely a matter for the SSHD and until the SSHD shows her hand in this regard it cannot be assumed that she will use a particular form of transport. Second, there is no assessment of the level of care the SSHD would provide for the duration of the journey. There are policies in the public domain which seek to identify the provision of such care on the journey, if necessary. Although these policies were not before the FtT, it was not entitled to proceed on the basis that there would be an abject absence of any care. To do so is to take as a starting point the fact that the SSHD would not comply with her obligations under section 6 of the Human Rights Act 1998.
11. In any event, and this is an error of such significance that of itself it vitiates the aforementioned conclusion by the FtT, there was no evidence available to the FtT which could have led it to lawfully conclude that there were significant doubts that the claimant would survive a long haul flight to Pakistan. The medical evidence did not touch at all on the consequences of the claimant undertaking a long-haul flight, nor was there any evidence that an airline would not take the claimant in his current condition - as was found to be the case by the FtT. In reality the FtT put itself in the place of a medical expert and came to conclusions in relation to the claimant's health on this basis. Such an approach is in my view unlawful.
12. The aforementioned errors each impinge on the lawfulness of the FtT's conclusion in relation to both the Article 3 and Article 8.
13. As to the second limb of the FtT's reasoning i.e. the circumstances that would pertain for the claimant in Pakistan; duly scrutinised it is clear that the FtT failed to undertake any, let alone a rigorous, analysis of the evidence before it in this regard, save to say that the claimant would in all likelihood be able to obtain the necessary drugs that he requires there.
14. In N Lady Hale [at 69] had this to say about the considerations a decision maker in a case such as the instant one must undertake:
"69. In my view, therefore, the test, in this sort of case, is whether the applicant's illness has reached such a critical stage (i.e. he is dying) that it would be inhumane treatment to deprive him of the care which he is currently receiving and send him home to an early death unless there is care available there to enable him to meet that fate with dignity." (See also Lord Brown at paragraphs 89 to 94)
15. There is no analysis in the FtT's decision as to whether the claimant will meet an early death in Pakistan and, equally significantly, there is no analysis of the level of care (if any) that would be available to him there. In short, there is a palpable lack of analysis of any of the features identified in N as being of significance. This vacuum of consideration on a core issue in the Article 3 claim is self-evidently an error of law. Absent a reasoned consideration and conclusion in relation to the exact circumstances which will likely pertain for the claimant upon return to Pakistan, the finding that Article 3 would be breached by such return must inevitably be flawed. Once again the same conclusion must be reached in relation to the Article 8 analysis undertaken by the FtT.
16. Further errors can be identified, in particular with the FtT's Article 8 considerations, but, given what I say above, I need not extend this decision any further by setting those errors out.
17. For these reasons I conclude that the FtT's decision is flawed by legal error and should be set aside.
18. Both parties sought to persuade me that the appeal should be remitted to the First-tier Tribunal for a consideration afresh. I agree that that is so given the extensive fact finding that needs to be undertaken in this case. None of the findings of FtT are to stand.
19. I made the observation at the hearing that the SSHD should file and serve, in good time for the hearing before the FtT, all of her relevant polices in relation to the removal of individuals with significant health problems. The claimant should produce up-to-date medical evidence relating to his condition.

Decision
The First-tier Tribunal's decision contains an error of law capable of affecting the outcome of the appeal and it is set aside. The matter is remitted to the First-tier Tribunal to be determined de novo.

Signed:

Upper Tribunal Judge O'Connor