Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/11877/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 23 May 2016
On 16 June 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE NORTON-TAYLOR

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

[S K]
(anonymity directioN NOT MADE)
Respondent

Representation:
For the Appellant: Mr S Kotas, Senior Home Office Presenting Officer
For the Respondent: Mr S Jaisri, Counsel, instructed by VJ Nathan Solicitors

DECISION AND REASONS

Introduction
1. For ease of reference, I shall hereafter refer to the parties as they were before the First-tier Tribunal: the Secretary of State is the Respondent and the Appellant is once more the Appellant.
2. This is the remaking of the decision on the Appellant's appeal against the Respondent's decision of 17 August 2015, refusing his protection and human rights claims. By a decision promulgated on 27 April 2016, I found that the First-tier Tribunal Judge had materially erred in law in respect of his assessment of the Appellant's Article 8 claim. On this basis alone I set his decision aside.
3. The Judge had dismissed the Appellant's appeal in respect of the protection claim, and that aspect of his decision was not challenged. I specifically preserved the findings on the protection claim, and this issue is no longer live.
The Appellant's Article 8 case in summary
4. The Appellant's case is based upon claimed medical conditions which, when taken in the context of the evidence as whole, would render his removal to Sri Lanka disproportionate.
5. He was born on [ ] 1937. It is said that he suffers from depression and dementia. These conditions have come to the fore since the Appellant arrived in the United Kingdom on 23 May 2013 as a visitor. It is also said that none of the Appellant's large family remain in Sri Lanka: a son and daughter live in this country and his wife and five other children are in India. The Appellant is said to be dependent upon his son in the United Kingdom, and that he would not be able to cope if removed.
The evidence before me
6. I have the original Respondent's appeal bundle containing the usual constituent parts: interviews, the reasons for refusal letter and some supporting evidence.
7. From the Appellant I have the bundle that was before the First-tier Tribunal (AB1, indexed and paginated 1-71) and a supplementary bundle served for the purposes of the continuation hearing (AB2, indexed and paginated 1-12).
8. The Appellant attended the hearing but did not give evidence. His son, [KC] also attended. He did give oral evidence, a full note of which is contained in the Record of Proceedings.
9. In summary, the Appellant's son's oral evidence was as follows. He adopted his statements, contained in AB1 and AB2. In cross-examination he said that the Appellant's health got much worse in October 2013. None of the Appellant's family remained in Sri Lanka: the wife had left in 2007/2008, and the children at various stages. Most recently, two had gone to India in 2014. He said that three family members were living in a refugee camp in India, whilst the others were residing in house. They were, he said, recognised as refugees in India. It was stated that the last two children left Sri Lanka due to problems from the authorities linked to the Appellant.
10. [KC] confirmed that the family had land in Sri Lanka, and that they had been financially sound when living there. The Appellant's health was good when he arrived in the United Kingdom. Subsequently, he began forgetting things. Things were gradually getting worse. The GP had been told about the mental/cognitive health problems about two weeks prior to the hearing. The Appellant was on a waiting list. In respect of the children in India going to Sri Lanka to assist the Appellant, it was said that they did not have passports and had problems from the authorities there.
11. I asked about the health conditions. [KC] said that the Appellant had not been on medications before going to the GP. The GP had asked the family to make an appointment with mental health services. There have been no scans or referrals for the dementia. The GP said that the Appellant should not be left alone. They went to see the GP two weeks ago about foot problems and the GP told them to make an appointment with a psychiatrist.
12. In re-examination it was said that the "waiting list" referred to in paragraph 30 of the First-tier Tribunal Judge's decision related to memory problems. The Appellant was asked questions by Dr Dhumad when the first report was prepared. [KC] was also asked questions. He was asked if the Appellant's answers were correct.
The Respondent's submissions
13. Mr Kotas relied on the reasons for refusal letter. There was no evidence from the family allegedly in India. If some were in fact in Sri Lanka, the Appellant's case would fail. There was no reliable evidence as to why family could not return to Sri Lanka. In respect of the medical issues, the Appellant was not receiving specialist treatment, Dr Dhumad's reports were deficient, and there was insufficient evidence to show dependency. At its highest, the case was that the Appellant had dementia and depression. He would require NHS treatment and this was relevant to section 117B of the 2002 Act. It is conceded by the Appellant that he cannot meet the requirements of the Article 8 Rules, and this is significant.
14. Mr Jaisri did not have a skeleton argument. He noted that the First-tier Tribunal Judge had not made adverse credibility findings against the Appellant. The Appellant's family no longer resided in Sri Lanka. Whilst there may be financial support available to the Appellant in Sri Lanka, there would not be emotional support from the family. Reliance was placed on the reports of Dr Dhumad. It would be better for the Appellant to be cared for by family members.
15. The issue of suicide was not being "pushed". The fitness to fly issue was not being pursued at all.
Legal framework
16. This is a 'new style' appeal under the amended provisions of the 2002 Act. The protection issue has already been determined against the Appellant. Thus, the only issue for me to "determine" is whether the Appellant's removal from the United Kingdom would be unlawful under section 6 of the Human Rights Act 1998.
17. I cannot allow or dismiss the appeal "under the Rules", as it were. However, I direct myself that the ability or otherwise to satisfy those provisions of the Rules which bear on Article 8 remains a relevant factor in assessing the claim under the well-established Razgar approach. In addition, I will take all relevant aspects of section 117B of the 2002 Act into account, together with any further matters I deem to be appropriate to the balancing exercise.
18. The burden of proving the material facts rests with the Appellant and the standard of proof is that of a balance of probabilities.
19. I assess the facts as at the date of hearing.
Findings of fact and reasons
The Appellant's family members
20. I am just about prepared to accept that the Appellant's wife and seven children have all in fact now left Sri Lanka. I find that his wife and five children are in India and that a son and a daughter reside in the United Kingdom.
21. In large part this is on the basis that the First-tier Tribunal Judge accepted that this was the case (see paragraph 33 of his decision), and this finding was not challenged in the Respondent's grounds of appeal. In addition, this fact is mentioned in the Appellant's own statement of 16 December 2015 (1A AB1). This evidence is consistent with that of [KC] before me.
22. However, I do not accept that none of the family members currently in India could not quite reasonably return to Sri Lanka if the Appellant himself were to be removed there. My reasons for this are as follows.
23. First, although it has been said that they are there as recognised refugees (or at least putative refugees), there is no supporting evidence for this assertion. There is no documentary evidence indicating status of any kind. On [KC]'s evidence, the family members have been in India since 2014 at the latest. It is also stated that some of them live in a refugee camp. It is, I find, highly unlikely that there would not be some form of official documentation available to show their status. Certainly, if any of them were recognised refugees, formal evidence of this would exist. There has been ample time in which to produce supporting evidence of residence and status. None has been forthcoming. There is not even any evidence from the children themselves.
24. Second, in terms of any subjective fear of returning to Sri Lanka on the part of family members, this does not assist the Appellant's case. The Appellant's own protection claim was rejected by the First-tier Tribunal in late 2015 and this was upheld by me in my error of law decision in April 2016. One would reasonably assume, given that there is contact between the family in this country and those in India, that this outcome has been communicated. If it has not, this could quite easily be done.
25. This is relevant because [KC] told me that his siblings in India were in fear because of the Appellant. However, if there is no real risk to the Appellant, any risk to his children (said to be predicated upon his own profile) would necessarily be much lower still. Thus, any subjective fear remaining is unfounded.
The Appellant's health
26. I have several concerns about the evidence relating to this issue.
27. I bear in mind that the First-tier Tribunal Judge did not make adverse credibility findings against the Appellant or indeed [KC]. However, I am assessing the evidence for myself, including evidence that was not before that Judge. I note too that the Judge had his own concerns about some aspects of the medical evidence (see paragraph 30).
28. My first concern is as follows. I have been told that the Appellant's health on arrival in May 2013 was good. It is said that this changed dramatically in October 2013. However, when the Screening Interview was conducted on 18 November and 20 December 2013 no health conditions were raised and the Appellant stated that he was fit and well. It is apparent that relevant details were provided in respect of his family members, addresses and such like. Then, on 17 January 2014, a full Asylum Interview was conducted. This ran to 203 questions. The Appellant confirmed that he was fit and well at the outset and the end of the interview. There are no indications in the record of that interview of any mental health or cognitive problems. There were no post-interview representations suggesting that the Appellant had had problems in the interviews.
29. The evidence of the two interviews is, I find, significantly at odds with the claimed serious deterioration in the Appellant's health only a couple of months previously.
30. Further, notwithstanding evidence that the Appellant is effectively incapable of caring for himself or giving evidence at court or providing coherent information, he did provide a perfectly lucid nineteen-paragraph witness statement in December 2015 (1A-1D AB1). It has not been explained to me how this was possible. It clearly does not sit well with the other assertions being made by [KC] and Dr Dhumad.
31. My second concern relates to the evidence from Dr Dhumad. I have two reports from him, dated 29 May 2014 (32 AB1) and 5 May 2016 (3 AB3).
32. The first report followed an interview with the Appellant on 1 May 2014, less than four months after the full Asylum Interview. The apparent inconsistency in the Appellant's cognitive and/or mental health impairment as between these two interviews is not addressed by Dr Dhumad at all despite him apparently having seen the Asylum Interview record and there being a clear instruction provided by the solicitors to deal with communication issues relating to formal questioning. There is, I find, a material omission in Dr Dhumad's assessment. This affects the weight to be attributed to the report.
33. Having regard to Dr Dhumad's CV, I see no reference to any expertise in assessing/diagnosing dementia. This might not of itself preclude him from being able to test and comment on the matter, but I view what he says in this context.
34. Based on the Appellant's score in a MMSE test, Dr Dhumad concludes that there was an indication of "moderate cognitive impairment (Dementia)" (38 AB1). I m unclear whether this is tantamount to a formal diagnosis, or whether it is somewhat tentative because a full assessment had not been undertaken. I incline towards the latter view, as Dr Dhumad goes on to say that a "full dementia workup" and referral to a memory clinic was recommended. Therefore, I cannot necessarily take from Dr Dhumad's report that the Appellant in fact had dementia.
35. The second report refers to a second MMSE test and a score of 11 out of a possible 27 (8 AB2). It is said at one point that this indicates "moderate dementia." However, in a subsequent paragraph Dr Dhumad then states that the Appellant's presentation was consistent with a diagnosis of moderate to severe Depressive Episode and cognitive impairment (possibly dementia)" (underlining added). I find it unclear and indeed inconsistent that on the one hand it is said on several occasions in the two reports that the condition is dementia, whilst then appearing to row back from this by concluding that the impairment might be dementia.
36. What I say above leaves me with a distinct sense that either Dr Dhumad simply cannot and has not diagnosed dementia at all, or that he has purported to do so but has provided unclear conclusions on the issue. On either scenario, the weight I attribute to the evidence is diminished.
37. I find that Dr Dhumad's comments that the Appellant was unfit to give evidence at that time (38 AB1) and was unable to provide a factually consistent and accurate account of his history (39 AB1) is at odds with what occurred in the Screening and Asylum interviews. As mentioned previously, this issue has not been addressed by Dr Dhumad.
38. Both Dr Dhumad's reports refer to a risk of suicide (38 AB1 and 8 AB2). In fairness to Mr Jaisri, he has somewhat distanced himself from this aspect of the evidence, and has not sought to "push" this point. I place little weight on Dr Dhumad's view that the risk of suicide is "high". There is no evidence that the Appellant sought to harm himself when the Respondent refused his claims and threatened him with removal. Further, it is only very thinly reasoned in the reports. Finally, I already have found that there will be family members who could be in Sri Lanka to support the Appellant.
39. At paragraph 5.5 of the second report Dr Dhumad states, "He [the Appellant] is unfit to fly." This bold conclusion is wholly unsupported by any reasons or evidence. Mr Jaisri was in my quite right not to rely on this point at all. I find that the conclusion is baseless. It does nothing but add to my serious concerns about the quality and content of the reports as a whole.
40. The fact that the second report repeatedly refers to "2015" for the date of the first report rather than "2014" may not be of great import, but it does nothing to assist my overall view of the evidence.
41. In the first report Dr Dhumad states the "fact" that the Appellant required constant help and full-time care from [KC] (38-39 AB1). With respect, this 'statement of facts' can only have been on the basis of what the Appellant and/or [KC] told Dr Dhumad. The author had not of carried out any full care assessment. There had been no dementia-related care assessment by anyone (and there still has not). I place little weight upon what are apparently stated by Dr Dhumad as being "facts" derived from direct knowledge.
42. Despite my numerous concerns with the evidence of Dr Dhumad, I do accept that he was able to and did make a diagnosis of depression. It is said to be a "moderate to severe" Depressive Episode in both reports. I accept that the Appellant has been and is suffering from depression. However, taking the evidence as a whole (that considered above and below) I find that it is not of a severe level.
43. There is no diagnosis of PTSD and I find that the Appellant does not suffer from this condition.
44. My third concern with the evidence relating to the Appellant's health is what I find to be the glaring absence of any relevant treatment, referrals or assessments.
45. Taking the evidence from [KC] and Dr Dhumad at face value for present purposes, the Appellant has, since late 2013 and certainly no later than May 2014, been suffering from two serious health conditions: depression and dementia, with all the care needs resulting therefrom. Indeed, in his first report Dr Dhumad recommends that the Appellant be prescribed antidepressant medication and a full dementia assessment, together with a referral (37-38 AB1).
46. Despite this, and what one might expect to be the great concerns of [KC], I find that no steps have been taken to access any assessment, treatments, or other care for the Appellant (aside from the two appointments with Dr Dhumad, a year apart). Based on my assessment of oral evidence I find that the Appellant's GP was only informed of the possible health issues some two weeks prior to the hearing before me. Even then, I find that the visit was prompted by a problem with the Appellant's feet. In fact, the issue of the feet is the only medical matter recorded in the supporting evidence (leaving aside Dr Dhumad's reports - see 46-58 AB1).
47. It is, I find, extraordinary that the Appellant has not been to see his GP (with whom he has been registered since at least early 2014 - see 46 AB1) previously about the claimed serious health issues relating to depression and dementia if these in fact are as serious as claimed. Even if a prompt were required, Dr Dhumad provided this in May 2014. And yet nothing was done. As a result, the Appellant is not on any relevant treatment for depression and there has been no full dementia assessment. I find that there has not even been a referral by the GP. This undermines the overall credibility of the claim that there are significant mental health and cognitive problems.
48. In light of the evidence as a whole, references to a "waiting list" are not, I find, any reliable evidence of a formal referral having been made to a neurologist or any other dementia specialist. There is no documentary evidence of this and [KC]'s evidence on this issue in general was poor.
49. The timing of the very recent disclose to the GP about matters other than the feet is, I find, more than a coincidence. It follows the upholding of the First-tier Tribunal's rejection of the protection claim and the possibility that the Article 8 claim was open for remaking by myself in due course.
50. There has been no credible explanation (indeed, no explanation at all) for the inaction as regards the Appellant's health.
51. I now bring my findings on the Appellant's health together.
52. Ultimately, having had regard to the evidence as a whole, I find that the Appellant does suffer from depression, but that this is not at a severe level: it may be mild to moderate at best.
53. I find that the Appellant does not suffer from dementia. The evidence on this as a whole is simply too unreliable. If I were wrong about this, I would find that any onset of dementia is certainly not at a significant level at this time.
54. In my view, the reality of the situation is that the Appellant is an elderly man who will want and receive a degree of assistance from those around him given his stage in life. In light of the evidence as a whole, I do not accept that the levels of care claimed by [KC] and re-stated in Dr Dhumad's reports, are required as a result of specific health conditions. The unsatisfactory nature of much of the evidence has rendered the picture painted of the Appellant's circumstances in this country unreliable.
Other matters
55. I accept that the Appellant has a good relationship with [KC], his wife, their children, and the Appellant's daughter and her family in this country. That much is hardly surprising.
56. I find that the family retains land in Sri Lanka, as confirmed by [KC] in his evidence. There is nothing to suggest that it has been lost.
57. I find that there would be, should the Appellant return to Sri Lanka, the very real probability of financial support from the family in the United Kingdom and any whom would remain in India. I have already found that family members could return to Sri Lanka from India.

Conclusions on the Article 8 claim
Private and family life
58. I find that the Appellant does have a private life in this country, albeit a rather tenuous one. He has been here since 2013 and has lived with his son. He sees his daughter regularly. There relationships are all part and parcel of a private life.
59. As regards family life, in light of my findings of fact, I do not accept that the test in Kugathas [2003] EWCA Civ 31 has been met. The Appellant is elderly and can expect some help from his children. In this context, that is perfectly understandable and normal. However, there is nothing beyond this level.
Interference
60. Removal would probably result in a sufficiently serious interference with the private life. The Appellant would be removed from his current life with his son.
In accordance with the law and legitimate aim
61. These matters are not in dispute and both questions are answered in the affirmative.
Proportionality
62. I take the following matters into account, all of which have to been seen in the context of my findings of fact.
63. The public interest lies in maintaining effective immigration control. This is a weighty factor in the Respondent's favour.
64. It has been conceded throughout that the Appellant cannot satisfy the Rules, either in respect of paragraph 276ADE or the Adult Dependent Relative provisions under Appendix FM. This is also a significant factor against the Appellant. The Rules continue to represent the Respondent's view, approved by Parliament, as to where the balance rests between the interests of the public and the rights of the individual. Here, it is been accepted that the Appellant cannot meet the substantive requirements of the relevant Rules. Even if this position had not been taken, I would conclude that the Appellant could not satisfy the Rules, based upon my findings of fact.
65. The Appellant has only ever been in the United Kingdom on a very precarious basis. He entered as a visitor and sought asylum shortly after the leave expired. The weight to be attributed to the private life is thereby reduced significantly.
66. The Appellant has accessed the NHS and would continue to do so if he remained in the United Kingdom. This in turn has a bearing on the public purse. I take this into account.
67. The Appellant's health is not as it has been claimed to be. He does have depression at a mild to moderate level, and he may (on my alternative finding, above) have the early onset of dementia, although not at a significant level. There is no evidence to suggest that depression cannot be treated in Sri Lanka. Financial support would be available from the family for any treatment.
68. The Appellant is seventy-nine years old, and that brings with it certain frailties. I take this into account. Older age does not however represent a compelling factor.
69. [KC] is a refugee in the United Kingdom and I accept that he would not travel to Sri Lanka. The Appellant's removal would clearly put pay to the status quo in terms of living arrangements. [KC]'s children would no doubt miss their grandfather being present in their lives. However, there is no reason why visits could not be sought by the Appellant to this country, or to India. Other non-direct methods of communication could be used as well. There is no evidence to suggest that the Appellant's departure would have a significant impact on the grandchildren in this country. The same reasoning applies to the Appellant's daughter here.
70. I have found that other family members would be able to go to Sri Lanka to assist in supporting the Appellant (such as that is required in an emotional and/or practical sense). There would also be financial support available.
71. There are no protection issues of course.
72. I can see no compelling factors in this case.
73. Removal would therefore be proportionate.

Decision
The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law.
I set aside the decision of the First-tier Tribunal.
I re-make the decision by determining that the Appellant's removal from the United Kingdom would not be unlawful under section 6 of the Human Rights Act 1998.
Therefore, the Appellant's appeal is dismissed.

Signed Date: 15 June 2016

H B Norton-Taylor
Deputy Judge of the Upper Tribunal

TO THE RESPONDENT
FEE AWARD

No fee is paid or payable and therefore there can be no fee award.

Signed Date: 15 June 2016

Judge H B Norton-Taylor
Deputy Judge of the Upper Tribunal

Annex 1: the Error of law decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/11877/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 6 April 2016

?????????????

Before

DEPUTY UPPER TRIBUNAL JUDGE NORTON-TAYLOR

Between

Secretary of State for the Home Department
Appellant
and

[S K]
(ANONYMITY DIRECTION not made)
Respondent

Representation:
For the Appellant: Mr S Kotas, Senior Home Office Presenting Officer
For the Respondent: Mr S Jaisri, Counsel, instructed by VJ Nathan Solicitors

DECISION AND REASONS

Introduction
1. For ease of reference I shall refer to the parties as they were before the First-tier Tribunal. Thus, the Secretary of State is the Respondent and [SK] is once more the Appellant.
2. This is an appeal by the Respondent against the decision of First-tier Tribunal Judge Sweet (the judge), promulgated on 12 January 2016, in which he dismissed the Appellant's appeal on protection grounds but allowed it under Article 8 ECHR.

The judge's decision
3. The judge dealt first with the protection claim element of the appeal. Whilst not providing particularly clear findings of fact, it is apparent from paragraph 31 of his decision that the judge found the Appellant to be broadly credible as having had some involvement with the LTTE in the past. The judge concluded that, "there was some risk on return". However he went on to conclude that in light of GJ and Others (Post-civil war: returnees) Sri Lanka CG [2013] UKUT 319, the Appellant was not at risk on return.
4. At paragraph 33 the judge goes on to consider the Article 8 element of the appeal. He notes the concession by Appellant's counsel that the Rules could not be met. In respect of the Article 8 claim outside of the Rules the judge says the following:
"Taking into account his age (79), his ill-health and the fact that his wife and children are in India (not Sri Lanka) and following the criteria set out in Razgar I have concluded that it would be disproportionate for him to return to Sri Lanka. I am satisfied that his reason for coming to the UK in May 2013 was indeed a visit to see his family members and I have serious concerns as to whether it was ever his intention to return to Sri Lanka after his stay. He claimed asylum within two weeks after his visa had expired, which I do not think is an inordinate delay. Though I have rejected his asylum and humanitarian protection claim, I have concluded that it would be disproportionate for the Appellant to return to Sri Lanka, therefore his appeal under Article ECHR should succeed."
The grounds of appeal and grant of permission
5. Given the contents of paragraph 33 of the judge's decision quoted above, it is perhaps unsurprising that the Respondent sought to challenge his decision. The grounds in essence assert that the judge had failed to have regard to and apply the provisions of section 117B of the Nationality, Immigration and Asylum Act 2002, failed to take into account the fact that the Appellant could not meet the Immigration Rules in respect of Article 8, and failed to give any or any adequate reasoning as to the significance of the Appellant's ill-health.
6. Permission to appeal was granted by Upper Tribunal Judge Deans, sitting as a Judge of the First-tier Tribunal on 23 February 2016.
Decision on error of law
7. There are a number of clear material errors of law in the judge's decision.
8. The entire extent of the Article 8 consideration is contained within a fairly brief paragraph in the decision (paragraph 33, as quoted previously). It is abundantly clear from this paragraph that the judge has failed to consider the relevant factors in section 117B, has failed to deal with the significance of the failure to meet the Immigration Rules as regards Article 8, has failed to deal in any way with the Kugathas issue, has failed to make findings or deal in any way adequately with the medical aspect of the Appellant's claim, and has failed to provide in general any clear reasoning for his ultimate conclusion that the appeal would succeed under Article 8 outside of the Rules. In fairness to Mr Jaisri, he acknowledged the shortcomings in the judge's decision and I did not need to hear from Mr Kotas. Because of the numerous and significant errors of law, the judge's decision must be set aside.
9. The judge's conclusion on the protection claim has not been the subject of a cross-appeal, and therefore it stands.
Disposal
10. I have decided to adjourn this appeal within the Upper Tribunal. Ordinarily I would be re-making the decision on the basis of the evidence before me but here there are a number of outstanding factual issues that require determination and in addition the medical evidence, such as it is, is almost a year old. In my view this necessitates a continuation hearing in due course. I make appropriate directions below.
Anonymity
11. There is no longer any need for a direction and I do not make one.