Tribunal decisions

The decision

IAC-AH- -V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/10750/2015

THE IMMIGRATION ACTS

Heard at Birmingham ET
Decision & Reasons Promulgated
On 7 February 2017
On 14 February 2017

Before

UPPER TRIBUNAL JUDGE KAMARA

Between

Mrs Olubukola Daramola
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr R Bircumshaw, solicitor, Coventry Law Centre
For the Respondent: Mr D Mills, Senior Home Office Presenting Officer

DECISION AND REASONS

Introduction
1. This is an appeal against the decision of First-tier Tribunal Judge Lloyd-Smith, promulgated on 5 May 2016. Permission to appeal was granted by Upper Tribunal Judge Kopieczek on 28 June 2016.
Anonymity
2. No direction has been made previously, and there is no reason for one now
Background
3. The appellant was issued with a family visit visa on 16 November 2011, following which she left Nigeria, entering the United Kingdom on 27 February 2012. The appellant overstayed her leave to enter from 17 May 2012 onwards. On 4 April 2014, she sought leave to remain on Article 8 grounds. That application was refused with no right of appeal.
4. The appellant applied for asylum on 24 February 2015. The basis of that claim was that she had been ill-treated by the family of her late partner who blamed her for his death. The appellant had been forced to support herself from prostitution in order to escape her partner's family and this is how she funded her departure from Nigeria. Furthermore, since arriving in the United Kingdom she had married again and had become a carer for this partner (hereinafter referred to as TI), who suffered from a number of ailments. It is the refusal of that claim which is the subject of this appeal.
5. The respondent set out her reasons for refusing the appellant's asylum and human rights claims in a decision dated 27 July 2015. It was not accepted that the appellant's former partner was killed owing to the appellant's inability to answer questions regarding his political activities; the lack of supporting evidence and inconsistencies between her account and the information provided in support of her visa application. Consequently, for the aforementioned reasons as well as additional reasons, it was not accepted that she was at risk from SD's family. The appellant's credibility was considered damaged with reference to section 8 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 owing to the 3-year delay in the appellant approaching the Home Office and the fact that the claim was made after she was notified of an immigration decision. Considering the appellant's claim at its highest, the respondent contended, with reference to background material, that the appellant could return to her home area of Nigeria where she would not be at risk, seek protection from the Nigerian state or relocate within the country.
6. With regard to the appellant's Article 8 claim, the respondent noted that she was now married to TI but concluded that EX.1(b) of Appendix FM to the Rules had not been fulfilled owing to the absence of any evidence of insurmountable obstacles to her relationship continuing in Nigeria, where treatment for TI's medical conditions was available. The Rules relating to private life under paragraph 276ADE were said to be unmet and there were said to be no exceptional circumstances.
The hearing before the First-tier Tribunal
7. Prior to the hearing before the First-tier Tribunal, the appellant's asylum and humanitarian protection claims were abandoned. Before the judge, the appellant and TI gave evidence. The judge heard that TI, who is diagnosed with secondary progressive multiple sclerosis (MS) was wheelchair-dependent and that Nigeria lacked the infrastructure for people with disabilities. The appellant stated that she had no family or support network in Nigeria and TI said that none of his relatives in the United Kingdom could accommodate him or assist him on a daily basis.
8. The Secretary of State's representative conceded that the marriage was genuine and thus the judge was concerned solely with whether there were insurmountable obstacles to the couple living in Nigeria. The judge concluded that TI's medical condition had been exaggerated and made reference to the medical evidence showing that TI was able to move around independently with the aid of a stick as well as to other matters which he considered to be inconsistent with the evidence before him. The judge, therefore, concluded that the appellant could not succeed under the Rules. Considering the appeal outside the Rules, the judge attached little weight to the appellant's relationship owing to her precarious status when it began and unlawful status at the time of the marriage and therefore concluded that her removal was proportionate.
The grounds of appeal
9. The grounds of appeal in support of the application argued, in essence, that there was no contradiction between the medical evidence and the evidence relied upon by the appellant; that the judge had imposed an overly stringent test in determining insurmountable obstacles and that the judge failed to consider the evidence regarding negative attitudes to people with disabilities and the lack of accessibility and opportunity in Nigeria.
10. Permission to appeal was granted on the basis that;
"the issues raised in the grounds concerning the FtJ's assessment of insurmountable obstacles merit further consideration. In other words, it is arguable that the FtJ erred in law in his assessment of the facts relating to that issue."
11. The respondent's Rule 24 response, received on 20 July 2016 stated that the appeal was opposed; the findings made by the judge were open to him on the evidence and that the judge properly considered the issue of insurmountable obstacles.
The hearing
12. Mr Bircumshaw argued that the judge's reasoning was defective. The judge's conclusion that the appellant's husband, TI, had exaggerated his symptoms was undermined by evidence from a consultant regarding his care needs at night. Furthermore, he argued that there was no inconsistency regarding whether or not TI used a wheelchair.
13. It was argued that the evidence was that TI used a wheelchair to get around outside the home but could manage with a stick otherwise. Mr Bircumshaw emphasised that TI is assessed at high rate mobility for DLA, whereas he received the low rate in relation to his care needs and that the judge was not entitled to come to the conclusions he did. The judge had focused on TI's medication needs, however it was undisputed that his medication was available in Nigeria. This was not the only issue in relation to very significant difficulties. At this point, Mr Bircumshaw referred to evidence before the judge regarding the treatment of people with disabilities in Nigeria, the lack of equality laws and access. Furthermore, TI's condition was of a degenerative nature.
14. Mr Bircumshaw also criticised the judge's findings in relation to his consideration of Article 8, outside the Rules. He commented on an inference drawn by the judge with regard to an apparent delay by the appellant in making the application. While the judge thought that the appellant cynically delayed until she had resided in the United Kingdom for two years, Mr Bircumshaw reminded me that the appellant was married to TI and therefore this issue was irrelevant. The delay was said to be owing to the cost of the application and their priest also wanting to be satisfied the marriage was genuine. Mr Bircumshaw asked me to note that TI had no cultural connection to Nigeria and that he received medical treatment in the United Kingdom. The presenting officer at the hearing before the First-tier Tribunal had not challenged the evidence regarding disability in Nigeria, none of which the judge referred to, but simply made the point that the appellant could return to Nigeria in order to seek entry. Mr Bircumshaw contended that the appellant probably could meet the Rules for entry as a partner.
15. In reply, Mr Mills argued that the judge's conclusion on Article 8 outside the Rules was sustainable because the appellant had overstayed at the time her relationship was established and therefore she would be caught by section 117B of the 2002 Act. Furthermore, there was nothing very compelling in her circumstances as required by SS(Congo). He accepted that the appellant's case in relation to EX.1(b) of Appendix FM to the Rules was stronger than average. He emphasised that the test of insurmountable obstacles was a very stringent test, citing Agyarko. Mr Mills argued that the judge did not err in finding that the circumstances of TI did not amount to very significant obstacles which could not be overcome. The judge considered the difficulties involved and that TI's health was likely to decline, but medication controlled his symptoms, his health was stable at the time of the hearing and his visits to the consultant were not that frequent. In addition, in Nigeria, TI would have the support of a loving wife. There was nothing irrational about these findings.
16. In response, Mr Bircumshaw said that the judge did not consider all the evidence before him and did not even refer to it. With regard to the position outside the Rules, if the appellant met the Rules for entry, what would be the point of requiring this separation and applying for entry clearance.
17. At the end of the hearing, I reserved my decision.
Decision on error of law
18. The judge made the following material errors of law.
19. Having examined the evidence which was before the judge, it is apparent that there were approximately 75 pages of documents which related to the position of those with disabilities in Nigeria. Included was a 2008 report, commissioned by DFID, by Dr Raymond Lang, a research fellow at University College, London and Ms Lucy Upah, a social welfare officer at the Joint National Association of Persons with Disabilities based in Abuja. That report paints a grim picture of the position of people with disabilities; noting that they are perceived as being in need only of charity and welfare; that there is a lack of social inclusion; a lack of disability discrimination legislation and no form of social protection. Other reports before the judge referred to the current position, in 2016. In particular, a Guardian report refers to the lack of progress in relation to the presidential assent of the Persons with Disabilities bill.
20. I have taken into consideration that at [8] of the decision, the judge stated that he had taken account of all the evidence before him, including the background information. Furthermore, at [9] of the decision, the judge records the appellant's evidence that her husband would have difficulties as a disabled person in Nigeria and at [13] to a submission to the same effect. Nonetheless, the judge did not specifically refer to any of the background material or the issues contained therein and there is therefore no assessment of the likely situation for the appellant's husband, accompanying her to Nigeria.
21. The judge's findings in relation to the extent of TI's disability were that this had been exaggerated. He concluded that there were inconsistencies in relation to his ability to sleep well at night and to get around with a stick or whether he needed a wheelchair.
22. The documentary evidence before the judge referred to TI sleeping well but having his sleep disturbed by increased urinary frequency. The appellant's evidence that TI required care at night is not, therefore, inconsistent with the medical evidence and indeed is supported by the fact that TI receives the lower care component of Disability Living Allowance (DLA).
23. With regard to TI's mobility, the judge failed to take into consideration that he receives the higher rate DLA. The medical evidence was that TI could walk with a stick for about 20 metres. I find that this does not undermine his oral evidence that he was reliant on a wheelchair when outside the house.
24. The judge's reference to the Article 3 threshold at [16] indicates that too high a threshold was considered in this case, which concerns insurmountable obstacles to family life taking place in Nigeria.
25. For the foregoing reasons, the judge's findings are unsafe and have been set aside in their entirety.
26. In considering whether to re-make the decision on the basis of the material on the file, I noted the poor quality of the photocopied evidence which meant the date of the medical evidence, in particular, was unclear. Furthermore, the parties did not have an opportunity to make submissions or to provide further evidence. The appeal is, therefore, remitted to the First-tier Tribunal.

27. Conclusions

The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law.

The decision of the First-tier Tribunal is set aside.

The appeal is remitted, de novo, to the First-tier Tribunal to be reheard at Stoke, with a time estimate of 2 hours by any judge except First-tier Tribunal Judge Lloyd-Smith.

Upper Tribunal Judge Kamara

10 February 2017