Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/10875/2015

THE IMMIGRATION ACTS

Heard at Manchester
Decision & Reasons Promulgated
On 8th December 2016
On 15th December 2016

Before

UPPER TRIBUNAL JUDGE MARTIN

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

MR PATRICK PLATT
(ANONYMITY DIRECTION NOT MADE)
Respondent

Representation:
For the Appellant: Mr A McVeety (Senior Home Office Presenting Officer)
For the Respondent: Mr M Trevelyan (instructed by Duncan Lewis & Co, Solicitors)

DECISION AND REASONS

1. This is an appeal to the Upper Tribunal, with permission, by the Secretary of State in relation to a Decision and Reasons of the First-tier Tribunal (Judge Cruthers) promulgated on 26th January 2016. In his Decision and Reasons Judge Cruthers was determining the asylum appeal of a Jamaican Appellant born 19 July 1970. He had claimed asylum on the basis that he was targeted by a gang and also that he would be perceived to be gay due to his association with someone who was.

2. For the sake of continuity and clarity I shall continue to refer to the Secretary of State as the Respondent and Mr Pratt as the Appellant in this judgment.

3. The Secretary of State, in the letter of refusal assessed the claim on the basis that the material facts were accepted in their entirety.

4. The Judge found, by reference to AB (protection-criminal gangs-internal relocation) Jamaica CG [2007] UKAIT 0018 that the evidence overall fell well short of establishing a real risk of persecutory ill-treatment in relation to gang violence. That finding is unchallenged in the Upper Tribunal.

5. The Judge considered the Appellant's claim that he would face persecutory ill-treatment as a perceived homosexual and found also that the evidence fell well short of establishing a real risk that the Appellant would be perceived as a homosexual in Jamaica. He therefore dismissed the asylum claim and on the same basis the humanitarian protection claim.

6. The Judge then went on to consider Article 8 and noted that he had before him a medical report prepared by Prof Katona, a consultant psychiatrist from the Helen Bamber Foundation dated December 2014. He discounted the risk of suicide finding that the report did not establish a real risk of the Appellant taking his own life, on being told of any decision that he is to be removed, or in transit, or once back in Jamaica.

7. So far as Article 8 is concerned the Judge noted the Appellant had no family life in the UK and was relying on his private life, in particular his physical and moral integrity.

8. The Judge accepted that the removal of the Appellant from the UK might well provoke a significant deterioration in his mental health. The Appellant suffers from schizophrenia, at that time with predominantly negative features, although he had previously exhibited psychotic features. The medical evidence indicated that schizophrenia carries a poor prognosis and is a lifelong illness with a tendency to relapse under stress. Notwithstanding that, the Judge found that there would be no very significant obstacles to the Appellant reintegrating into Jamaican society.

9. The Judge then considered the requirements of section 117 of the Immigration and Asylum Act 2002 and found that did not assist the Appellant.

10. The Judge then referred himself to the guidance of SS (Congo) and others [2015] EWCA Civ 387 indicating that there must be compelling circumstances to consider the Appellant's case outside the Immigration Rules. At paragraph 72 the Judge found that this case was about proportionality and in particular whether there was a disproportionate interference with the Appellant's physical and moral integrity.

11. The Judge found the Appellant was terrified of return to Jamaica because of what he perceives to be a continuing threat related to the past murder of members of his family. The Judge found that the fear was real to the Appellant, irrespective of whether it had an objective basis or was the product of his mental illness. That finding accords with the opinion of the medial expert.

12. The Judge found that a return to Jamaica would result in the Appellant experiencing chronic fear and stress which would make him very vulnerable to a full-blown relapse of his psychotic illness, again accepting the expert's opinion.

13. The Judge found that the Appellant's adverse experiences of mental health treatment in Jamaica and his mistrust of the Jamaican authorities would make it unlikely that he would voluntarily accept treatment for his mental illness if offered to him in Jamaica. That would result in gradual deterioration to the point where he would require compulsory treatment such as that to which he had been subjected after his uncle's murder. That finding also accords with the expert evidence.

14. The Judge clarified, in his Decision and Reasons that, before deciding to allow the appeal on account of the Appellant's mental state, he had taken into account the fact that this case could not succeed by reference to the Immigration Rules that dealt with Article 8 or indeed any other Immigration Rule; most of the factors in Part 5 were against the Appellant as were those matters contained in section 117 of the Immigration and Asylum Act 2002. However, taking all of that into account and also what is said in GS India, he accepted the Appellant's counsel's argument that it did not fall foul of the principles explained in GS India because it was the putative adverse impact on his mental health that flowed directly from the proposed action by the British state. He allowed the appeal on the basis of Article 8 private life.

15. The Secretary of State's challenge to that is that the Judge failed to apply the guidance of GS India correctly. Mr McVeety, before me, argued that Article 8 does not have a lower threshold than Article 3 and the Appellant had not succeeded under Article 3.

16. This I find to be a finely balanced case. It is correct that case law including GS India, confirms the extremely high threshold before a medical case can succeed under Article 3 of the ECHR and that where an Article 3 claim failed, Article 8 cannot prosper without some separate or additional factual element which brings the case within the Article 8 paradigm; the core value protected being the quality of life, not its continuance. GS also indicated that Article 8 cases may require a different approach to Article 3.

17. MM Zimbabwe [2012] EWCA Civ 279 noted that the courts have declined to say that Article 8 could never be engaged by the health consequences of removal but they had never found such a breach and had not been able to postulate circumstances in which such a breach was likely to be established.

18. The Judge however did not decide this appeal based on the availability or adequacy of medical treatment in Jamaica. This was not as such a health case in that sense. What the Judge decided in this particular case was that the Appellant had an enduring and relapsing mental disorder, namely schizophrenia for which he received treatment in the UK. However, his fear in Jamaica, genuinely and subjectively held, albeit not objectively justified, would mean that he would be unlikely to seek any treatment for his disorder in Jamaica inevitably leading to a relapse into psychotic symptoms and then to a deterioration in his illness to such a degree that if he were to be treated at all it would have to be on a compulsory basis. He had experienced that previously in Jamaica which had added to his fears. That was the view of the expert. The Judge, for these reasons distinguished GS India and MM Zimbabwe and this, although perhaps not a conclusion that would have been reached by all Judges was not irrational or perverse and was based on the evidence before him and as such I find it is not tainted by material error of law.

Decision

The appeal to the Upper Tribunal is dismissed.

There having been no application for an anonymity order I do not make one.

Signed Date 15th December 2016
Upper Tribunal Judge Martin