Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/11628/2014

THE IMMIGRATION ACTS

Heard at Columbus House, Newport
Decision & Reasons Promulgated
On 4 May 2016
On 20 December 2016

Before

UPPER TRIBUNAL JUDGE STOREY
UPPER TRIBUNAL JUDGE GRUBB

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
And

R A
(ANONYMITY DIRECTION MADE)
Respondent

Representation:
For the Appellant: Mr I Richards, Home Office Presenting Officer
For the Respondent: Mr D Reynolds, Counsel, instructed by Migrant Legal Project

DECISION AND REASONS

1. The respondent (hereafter the claimant) is a citizen of Libya. He has advanced kidney disease which according to the medical evidence is likely to progress to end stage renal failure necessitating a combined liver and kidney transplant. He came to the UK as a student in 2010 with leave until 17th August 2011. On 12 January 2012 the appellant (hereafter the Secretary of State or SSHD) granted him a period of discretionary leave until 11 June 2012. When his application for further leave was refused in July 2013, he appealed. His appeal was dismissed by FtT Judge Holmes. On 10 July 2014 he made a claim for asylum on the basis that he had a well-founded fear of persecution in Libya because of his medical condition and the security situation/political unrest in Libya. His application was refused on 11 December 2014 and he was served on the same date with a decision to remove him as an illegal entrant. His appeal came before First-tier Tribunal (FtT) Judge Coaster. On 27 April 2015 the judge sent a decision allowing the claimant's appeal on Article 3 and 8 ECHR grounds. The two most pertinent paragraphs of the judge's decision are [60] and [61] which state:

"60. The evidence before me is that the health and medical services in Libya are shattered or have collapsed because of the violence perpetrated by armed militia who consider themselves above the law and a weak government which is unable to control the militia. This situation is prohibitive to reasonable medical treatment even of a lesser quality than was available in the UK. As a result the appellant would be at a real risk of being unable to access appropriate medication, dialysis or within 2 to 5 years a liver and renal transplant. There was evidence than an increase in kidney stones would increase the risk of the appellant's kidneys to deteriorate more quickly?

61. In this case there is a real risk that end stage kidney disease treatment for the appellant is not practically available at all in the current breakdown of public services and the indiscriminate violence occurring of the Libyan state to which there was no evidence of amelioration in the near to medium term. The mandatory return of the appellant to Libya therefore engages Article 3 in that the lack of medication and medical services would result in inhuman or degrading treatment such that the high threshold of "exceptional" is met. .."

2. At [66], having made reference to the dismissal by FtT Judge Holmes of the claimant's earlier appeal (in which Judge Holmes had found that there was no obvious reason why the claimant could not access the medical services available in Tripoli or Tunisia), FtT Judge Coaster added:

"?the difference between this [claimant's] situation and the other cases referred to above is that it is not a question of comparing the medical facilities in Libya with the medical facilities here and finding them of lesser quality. There are no medical facilities and medication available in Libya at the current time to treat the [claimant's] condition. To remove him to Libya would be inhumane and disproportionate."

3. What happened next is that the SSHD applied for permission to appeal on the grounds that the judge was wrong to allow his appeal on Articles 3 and 8 grounds as to do so was contrary to binding case law, specifically Secretary of State for Home Department v GS (India) [2015] EWCA Civ 40 (hereafter GS (India)), which had been handed down several months earlier.

4. The SSHD's grounds alleged in fine that the judge had allowed the appeal on Article 3 and 8 grounds on the basis of the claimant's advanced renal disease and what she found to be unavailability for treatment in Libya. They said that "[i]t appears from paragraphs 59 -61, though it is not made clear, that the Judge proceeds on the basis that the Article 3 threshold is lowered in health cases, where the home country is in a state of 'civil war'". These grounds went on to state that in GS (India):

"The Court of Appeal dismissed the appeals of 5 people with 'End Stage Kidney Disease' on the basis that the Article 3 threshold as established in the cases of D and N remains too high even for them at this late stage in their conditions. In the present appeal the appellant is described as having 'Advanced Stage Kidney Disease'. He is not yet on dialysis and is predicted to need a transplant in 2-5 years. The facts of this case simply cannot sustain a conclusion that removal would breach Article 3".

5.There then followed a cross-appeal from the claimant contending that the judge erred in failing to consider and determine the ground of appeal as regards eligibility for humanitarian protection, specifically Article 15(c) of the Qualification Directive.

6. At the hearing before us, Mr Richards for the SSHD acknowledged that he was in great difficulty in sustaining the SSHD's grounds of appeal which were confined to a challenge to the legal evaluation of the findings of fact made by the judge. The SSHD's grounds had focused exclusively, he said, on arguing that the judge had departed from binding principles of case law which made clear that even cases of kidney disease far more advanced than the claimant's could not establish exceptional circumstances sufficient to found a violation of Articles 3 or 8. Mr Richards accepted that in fact the judge had not sought to allow the appeal on the basis of the "deathbed" paradigm to be applied in ill health cases reliant on Articles 3 and 8, but had rather allowed it on the basis of a combination of the claimant's medical circumstances and the parlous state of civil war in Libya and the fact that "the health and medical services in Libya are shattered or have collapsed because of the violence perpetrated by armed militia who consider themselves above the law and a weak government which is unable to control the militias" ([60]). That was consistent with the Court of Appeal's analysis in GS(India). Mr Reynolds' skeleton argument and short oral submissions were to similar effect.

7. We then asked the parties to address us as regards the claimant's cross-appeal, pointing out to Mr Reynolds that at a previous hearing before the Upper Tribunal on 20 October 2015 the claimant's then counsel, Mr Hoshi, had indicated that if the SSHD's appeal was dismissed the claimant was not pursuing his cross-appeal. In much the same words, Mr Reynolds said that if we decided to dismiss the SSHD's appeal against the judge's allowance of the claimant's appeal on Article 3 and 8 grounds, he would not pursue the humanitarian protection ground which had been advanced in the cross appeal grounds and in his skeleton argument of May 2016.

The judge's findings of fact
8. Before turning to give our assessment it is important first of all to highlight the fact that neither party has sought to challenge in any way the findings of fact made by the FtT judge, including his findings regarding the country conditions in Libya. The grounds also contain no challenge based on the point seen as significant by FtT Holmes when dismissing the claimant's earlier appeal that the claimant seemed, based on how he had managed his kidney disease before coming to the UK, to have been able to travel from Libya to Tunisia and back for treatment. The complete lack of any challenge to those findings needs to be borne in mind for an understanding of the analysis we now proceed to give.

Secretary of State for the Home Department v Said
9. It is secondly of importance to mention that shortly after we heard this appeal the Court of Appeal has given further guidance on health cases involving adverse country conditions in Secretary of State for the Home Department v Said [2016] EWCA Civ 442. We gave consideration to whether it was necessary to seek further submissions concerning this guidance but concluded that it was not.

Analysis

GS and EO and GS (India)
10. Addressing first the SSHD's grounds of appeal, we are satisfied that the judge did not materially err in law. The judge's unchallenged findings of fact included a finding that the breakdown of health and medical services in Libya was caused by human actors namely armed militias and a weak government unable to control such militias and as such was the responsibility of the state. The judge's assessment also made very clear that the basis for allowing the appeal on Article 3 grounds was the combined effect of the claimant's ill health and adverse conditions in Libya. It was not the claimant's ill health on its own. Of course, the judge justified doing so by reference to the Upper Tribunal case of GS and EO (Article 3-health cases) India [2012] UKUT 00897. In that case the Upper Tribunal held that whilst the rapidity of decline caused by the withdrawal of medical treatment cannot of itself amount to the kind of exceptional circumstances that makes removal a breach of Article 3, there were recognised departures in cases concerning children, discriminatory denial of treatment, absence of resources through civil war or similar human agency giving rise to state responsibility.

11. Direct reliance on GS and EO would have been appropriate had that case still being current, but the judge failed to note that it had been the subject of Court of Appeal deliberation in GS (India) which, whilst rejecting the appeals brought against the Upper Tribunal decision by GS and EO on both Article 3 and 8 grounds, furnished its own guidance. That guidance, which should have been directly applied by the FtT judge as binding on him, resolved two matters: firstly that (i) on the basis of the ratio decidendi in N v Secretary of State [2005] 2 AC 296, [2005] UKHL 31 (hereafter N), the D v UK [D v UK (1997) 24 EHRR 423] exception is confined to deathbed cases ([65]-[66]); and (ii) there may be departures from the Article 3 paradigm of the kind vouchsafed in D v UK. As regards such departures, Laws LJ, undertook a detailed analysis of the Strasbourg and UK jurisprudence in which he recalled, inter alia, what the European Court of Human Rights had said in 2011 in Sufi and Elmi v UK app.no.8319/07 [2011] ECHR 1045 at para 282 regarding the dire humanitarian conditions in Somalia at the time, namely that if they were solely or even predominantly attributable to poverty or to the State's lack of resources to deal with a naturally occurring phenomenon, such as a drought, the test in N. v. the United Kingdom may well have been considered to be the appropriate one. Laws, LJ, concluded at [62] of GS (India) that:

"62. This learning shows that there may be departures from the Article 3 paradigm other than of the kind vouchsafed in D v UK. These departures are variously justified. But such an approach is indicated in D itself, at paragraph 49, and in N at paragraph 43. I have already cited both passages:

"49? [G]iven the fundamental importance of Article 3 in the Convention system, the Court must reserve to itself sufficient flexibility to address the application of [Article 3] in other contexts which might arise."
"43. The Court does not exclude that there may be other very exceptional cases where the humanitarian considerations are equally compelling."

In my judgment it is clear that the departures from the Article 3 paradigm given in MSS and the other cases to which I have referred do not extend the reach of the departure allowed in D and discussed at paragraphs 42 - 45 of N v UK. [N v UK (2008) 47 EHRR 39]. The plight of an individual whose life expectancy may be severely shortened by his removal or deportation to his home State is a distinct state of affairs whose treatment under the Convention is not qualified by the court's approach, for example, to the reception conditions for asylum-seekers. The circumstances in which a departure from the Article 3 paradigm is justified are variable; the common factor is that there exist very pressing reasons to hold the impugned State responsible for the claimant's plight. But the fact that there are other exceptions unlike D or N does not touch cases - such as these - where the claimant's appeal is to the very considerations which D and N address".

The high threshold issue
12. Contrary to what the SSHD's grounds appear to assert, we see no significant difference between the guidance given by the Upper Tribunal in GS and EO and by the Court of Appeal in GS (India). We note that the SSHD's grounds sought to rely on the words of the Upper Tribunal in point 2 of the headnote and in paragraph[87(7)(a)] that "there are recognised departures from the high threshold approach in cases concerning children, discriminatory denial of treatment, absence of resources through civil war or similar human agency." It does not seem to us, however, that this wording and its particular reference to "departures from the high threshold approach" - can be read as mooting a lower threshold for such cases. We see nothing in the decision elsewhere to suggest that the panel meant to assert that such cases at a general level justify a lower threshold, only that on a fact-sensitive basis they may justify departure from the approach in D v UK cases. The Upper Tribunal was clearly aware that in all Article 3 cases the minimum level of severity required to cross the Article 3 threshold is dependent on a range of circumstances (see e.g. [84]). Indeed, at [85(7)(a)] the UT held (in terms clearly contrary to the portrayal of their position in the SSHD's grounds as regards the threshold issue) that: "although not raised in these appeals, we anticipate that there may be circumstances which enhance an individual's claim that the circumstances on return will be "exceptional" and more likely to pass the high threshold of Article 3 to establish a real risk of inhuman or degrading treatment".

13. In any event, even if we are wrong about this, it is clear that the approach applied by the judge in the instant case fell squarely within the scope of departures from the Article 3 paradigm identified in GS (India). Immediately prior to stating his material reasons for allowing the appeal on Article 3 grounds the judge specifically referred to [85(7)(a)] of GS and EO. (which as we have just noted identifies a need for a high threshold of exceptionality). Further in [61] the judge specifically stated that he was allowing it on the basis that "...the high threshold of 'exceptional' is met".

Relevance of Secretary of State for the Home Department v Said
14. We should add that we have given consideration to whether our decision on this appeal is affected by the recent Court of Appeal guidance in Secretary of State for the Home Department v Said [2016] EWCA Civ 442. We have decided it is not because in Said the Court of Appeal was concerned with appeals seeking to resist removal on Article 3 grounds on the basis of suggested poverty or deprivation on return which are not the responsibility of the receiving country or others in the sense described in para [282] of Sufi and Elmi. In such cases, the Court of Appeal held that "? whether or not the feared deprivation is contributed to by a medical condition, the person liable to deportation must show circumstances which bring him within the approach of the Strasbourg Court in the D and N cases." ([18]). At [31] Burnett, LLJ observed in the context of cases relating to Somalia:

"I entirely accept that some of the observations made in the course of the discussion of IDP camps may be taken to suggest that if a returning Somali national can show that he is likely to end up having to establish himself in an IDP camp, that would be sufficient to engage the protection of article 3. Yet such a stark proposition of cause and effect would be inconsistent with the article 3 jurisprudence of the Strasbourg Court and binding authority of the domestic courts. In my judgment the position is accurately stated in para 422. That draws a proper distinction between humanitarian protection and article 3 and recognises that the individual circumstances of the person concerned must be considered. An appeal to article 3 which suggests that the person concerned would face impoverished conditions of living on removal to Somalia should, as the Strasbourg Court indicated in Sufi and Elmi at para 292, be viewed by reference to the test in the N case. Impoverished conditions which were the direct result of violent activities may be viewed differently as would cases where the risk suggested is of direct violence itself" (emphasis added).

15. In the claimant's case, it is an unchallenged fact that the relevant deprivation on return was the responsibility of the receiving country (Libya). Clearly the Court of Appeal, expressly following GS (India), sought to make clear that so far as Article 3 was concerned, ill health ('medical condition') cases would only be able to succeed on the basis of exceptional circumstances such as those envisaged in D v UK and N. However, cases where there was state responsibility (as in the claimant's case there was, through state failure to prevent militias from destroying the health and medical system) "may be viewed differently".

16. Insofar as the SSHD's grounds took issue with the judge's decision to allow the appeal notwithstanding that the claimant "is not yet on dialysis and is predicted to need a transplant in 2-5 years", that was only developed in the context of a challenge to the judge's alleged reliance in allowing the appeal on the claimant's 'health case'; whereas, as we have seen and as acknowledged by Mr Richards, the judge in fact relied on the combination of factors to do with the claimant's health and adverse country conditions in Libya. The judge does not appear to us to have misdescribed the claimant's medical condition and, as already noted, was herself at pains to point out at [60] that the claimant might not need a liver and renal transplant in the next 2-5 years. The judge's overall assessment was within the range of reasonable responses. No point was taken in the grounds or by Mr Richards before us, given the judge's clear findings, that Art 3 was not breached in this case due to any lack of 'immediacy or 'imminence' of any consequences for the claimant on return (on which see JA and others v Netherlands app.no.21459/14 at para 32)".

17. Given that the SSHD's grounds raise no other point in relation to Article 3 and that Mr Richards effectively conceded that the SSHD's grounds were not made out, we consider we are driven to conclude that the FtT judge did not materially err in law.

18. In light of our decision in relation to Article 3, we see no need to analyse the judge's decision to also allow the claimant's appeal on Article 8 grounds, the parties having agreed that if the judge was right on Article 3, the Article 8 issue was superfluous.

19. To conclude:

The FtT judge did not materially in law in allowing the claimant's appeal on Article 3 and Article 8 grounds.

The claimant's cross-appeal was not pursued.

Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008

Unless and until a Tribunal or court directs otherwise, the appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of their family. This direction applies both to the appellant and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Signed

Judge of the Upper Tribunal
Date: