Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DA014112014

THE IMMIGRATION ACTS

Heard at Manchester
Decision & Reasons Promulgated
On 9th May 2016
On 14th June 2016

Before

UPPER TRIBUNAL JUDGE KING TD

Between

[J K]

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Miss L Mair of Counsel, instructed by Greater Manchester Immigration Aid Unit
For the Respondent: Mr Diwncyz, Home Office Presenting Officer

DECISION AND REASONS

1. The appellant born on [ ] 1968 is a citizen of Malawi. She came to the United Kingdom in August 2015 as a student. She obtained further leave to remain on that basis until 13th November 2012.

2. In October 2012 she made a claim for asylum which was refused by the respondent and further dismissed by the First-tier Tribunal, following a hearing on 10th May 2013 before First-tier Tribunal Judge White.

3. On 7th August 2013 she was convicted in the magistrates' court for making false representations. Subsequently she was sentenced at the Liverpool Crown Court to fourteen months' imprisonment. The respondent thereafter made a deportation order against the appellant which was the subject of appeal. That appeal came for hearing before First-tier Tribunal Judge Herwald on 17th November 2014.

4. The matter now comes before me to determine whether or not the Judge in that decision made a material error of law such that the decision should be set aside in whole or in part.

5. The detailed grounds seek to challenge the approach taken by the First-tier Tribunal Judge to the medical evidence as presented. It was also contended that the consideration of human rights was in the circumstances inadequate.

6. It is common ground that the appellant has a number of medical problems. She was diagnosed with diabetes in 2006 and HIV diagnosed in September 2013. She was receiving a complex compliment of prescribed drugs which included darunavir, ritonavir and trovada. In addition to these physical problems the appellant also has a number of medical difficulties. It was argued before the Tribunal that those conditions, whether separately or in combination, served to make a return to Malawi untenable having regard to Articles 2, 3 and 8 of the 1950 Convention. The Judge did not agree with that submission and in a detailed decision dismissed the appellant's appeal on all matters.

7. Challenge is made to that decision essentially on the basis that the Judge did not properly assess the medical evidence nor give to that medical evidence the weight which it deserved.

8. There were a number of medical reports presented, in particular the report of Dr Michael Beadsworth of 14th July 2014 and a supplementary report 10th November 2014. There was also produced a report of Dr Ghosh of 10th October 2014 speaking as to the mental condition of the appellant. In response to those documents the respondent relied upon country of origin information research with such reports dated 29th January 2013, 16th June 2014, 21st November 2013, 8th November 2013 and 20th February 2014.

9. Dr Beadsworth described in his report his experience with the condition of HIV. The current role as at the time of the hearing was in the management of both inpatient and outpatient HIV patients. Of particular relevance was that in his registrar training he had studied HIV and another disease in Malawi and had significant practical experience in that country.

10. He first had direct dealings with the appellant on 3rd June 2014 shortly after she had been released from prison and was in hostel accommodation in Liverpool. She had been diagnosed with HIV in September 2013 and put onto antiretroviral therapy. Her lowest CD4 count had been 231 in September 2013 but at the time of the report had increased to 499. It is his view that her CD4 count was still not within normal range and would require close monitoring.

11. At the time of the examination the appellant also had confirmed tuberculosis and was receiving a six months course of anti-tuberculosis therapy in the form of isoniazid.

12. Further she had been diagnosed with type 2 insulin treated diabetes in 2006. The diabetes remained currently poorly controlled. She was referred to the Regional Diabetic Team within the Royal Liverpool.

13. Finally she had depression which was associated with suicidal ideation whilst in prison. Again it was his view that that health has not been stabilised although she was receiving input from the mental health teams in Merseyside.

14. Dr Beadsworth spoke of the management of these problems as being problematic. The HIV and the drugs used to control it could increase the risk of complications affecting her diabetes including ischaemic, cerebrovascular events and renal failure. Though the HIV was not yet controlled there were clear signs that the antiretroviral regime was working which had led to an improvement in her immune system.

15. Although the doctor did not indicate when he had last had dealings with Malawi, he did seek to express comments as to the availability of medical and drug management for the appellant were she to return. HIV drugs had been available since 2004/2005 but the first line regime available in Malawi would not be appropriate for her because of the inability to switch her over to nevirapine because of her CD4 count and the risk of hypersensitivity reaction. It is necessary therefore to maintain her on a protease inhibitor. The availability of darunavir remains problematic. Kaletra (another protease inhibitor) is more widely available but this is associated with a significant side effect. Reference was also made to there being large and expanding clinics for antiretrovirals in Malawi but that it was not possible to monitor CD4 counts and viral loads within the public sector.

16. As to diabetics clinics in Malawi there was availability of oral agents and insulins. It was his suggestion however that she should be fully assessed, managed and stabilised by specialist teams in the UK before any consideration of treatment elsewhere.

17. Dr Beadsworth also ventured into the mental health area and concluded that essentially the appellant should have further treatment in the United Kingdom to stabilise her condition and that until such was done, deportation was inappropriate.

18. The further report of 10th November 2014 speaks of the current instability of her diabetes, a number of complications which must be monitored, otherwise blindness could ensue. He said that although diabetic services are available in Malawi the management of complications of diabetes such as described were not available. Significantly the comment was made that the control of her diabetes had already been problematic in the United Kingdom and that she now has some stability at the Royal Liverpool University.

19. The view of Dr Beadsworth is if she were deported the systems of management will fall apart and complications of diabetes including blindness, renal failure, vascular disease and nerve damage and stroke could result.

20. The Judge dealt with those reports in some detail at paragraphs 28 to 38 of the determination. The Judge correctly identified that a significant feature of the report was in connection with his experiences in Malawi. It is from far clear to what extent that knowledge was current and indeed on what basis the comments as to the current availability of treatment were based. It was noted in particular that Dr Beadsworth had commented only on what was available within the public sector in Malawi making no comment whatsoever as what might be available within the private sector.

21. It is to be borne in mind of course that the comments about the report are in the light of the evidence adduced on behalf of the respondent, that antiretroviral drugs were available in Malawi and of the submissions made that treatment for the appellant was available in Malawi albeit possibly not to the same extent. The Judge felt that greater weight could have been given to the report had the author of the report attended or had there been a little more basis to the comments that were made.

22. Miss Mair, who represents the appellant, invites me to find that it was wholly inappropriate for the Judge to make the comments that were made particularly in discounting the evidence of the doctor by reason of the non-appearance of that doctor. She submits that had the Judge been concerned about the non-appearance of Dr Beadsworth, and indeed for that matter Dr Ghosh, there should have been an adjournment of the matter in order that they appear to clarify the concerns that had been expressed. She submits that it was fundamentally unfair of the Judge to make the comments which were made.

23. It seems to me, however, that the comments of the Judge should be seen in the overall context of the hearing, namely that it was clearly on the basis of the complicated physical and mental condition of the appellant focused upon whether her return would infringe her Article 2, 3 and 8 rights. It seems to me that the burden does rest largely upon those acting on behalf of the appellant to produce the evidence to substantiate that proposition, particularly in the light of the evidence presented by the respondent that treatment for those conditions was available in Malawi. It was fundamental to a proper assessment of the weight to be given to an expert that the expert set out in clear terms the basis of his or her current knowledge and experience. It was far from clear how long ago it was that Dr Beadsworth was in Malawi and indeed what enquiries or connections he maintained with the systems there.

24. Miss Mair invites me to find that on one particular aspect the evidence of Dr Beadsworth was crucial and that related to the absence of the drug darunavir. She invited my attention to the COI Report of 20th February 2014 to be found at pages 38 to 39 of the bundle. That confirmed that truvada and ritonavir were available but not darunavir. That was significant in the overall assessment and little weight seemingly had been given to the absence of that drug by the First-tier Tribunal Judge. It is indeed that very point which illustrates as I so find the difficulty in the evidence that was presented on behalf of the appellant because it was the evidence of Dr Beadsworth that although that inhibitor was not available, kaletra was. There has been no analysis however as to whether or not that was a drug inhibitor that could have been used. Article 3 is not engaged simply by there being a less satisfactory system of welfare in the country to which the appellant is to be returned. It is often the case that certain drugs that would be most desirable to use in the United Kingdom are not available elsewhere but other drugs are. There is no analysis that kaletra would not have been a suitable drug and no indication as to the nature of the significant side effect which is spoken about.

25. Dr Beadsworth has talked about the absence of any monitoring of CD count of viral load, which is in the contrast to what is contained in the Country of Information Report that such count testing is available and the viral load monitoring is also available but samples are sent to South Africa for analysis. Clearly therefore the nature of Dr Beadsworth's experience is of importance in that context.

26. Dr Beadsworth talks about the availability of psychiatric services in Malawi, indicating that there are some services available but they are not comprehensive. Once again there is no indication that that is his field as an HIV specialist nor indeed what experience he has in order to justify those comments. It seems to me and I so find that the comments made by the Judge were properly open to be made in all the circumstances. The Judge was facing a difficult task of determining how the combination of physical and mental illness impacted upon the appellant in the United Kingdom and how that would be effected upon her return. Essentially the comment by Dr Beadsworth was that with some care her condition was improving, but gave very little practical or informative illustration as to the nature of the risk that she would run without certain drugs in Malawi other than the potential loss of her eyesight. The other Judge was even less impressed with the evidence of Dr Ghosh describing the report as "sloppy". That report can be seen at pages 52 to 60 of the appellant's report. Much of the report is taken up with a description by the appellant as to her experiences and her problems. It sets out her history of diabetes and it is clear that it is an illness suffered by many of her family. She speaks of having been diagnosed with HIV in September 2013 and with tuberculosis while she was in prison. She spoke of her release from prison on 24th May 2004. The first four pages of the report consists essentially of what the appellant had to say.

27. It is not entirely clear when she was seen by Dr Ghosh, as that particular date is nowhere stated in the report, but clearly it was of a time subsequent to her release from prison in 2014. A description of the mental state is largely recorded through the words of the appellant who spoke of obtaining medication for her depression and her feelings of unworthiness because of the way that her two partners had "cheated on her". She spoke of her helplessness and hopelessness and feelings of despair. Significantly there was this passage:

"She admitted to suicidal ruminations. She told me, however, that as long as she was seen by the doctors and nurses, she would continue to cooperate with them fully. She told me with a great deal of pride that she had never missed a single appointment, both in terms of a need for her physical illness or in terms of psychological therapy including counselling sessions with the Probation Services.

[JK] told me that she does have suicidal thoughts and she constantly ruminates about her life. She told me that she was aware that the Home Office had talked about her returning to Malawi to die with dignity and she told me that she did intend to die with dignity but in this country.

She told me that she was aware that there was a choice, either of going back to Malawi or to kill herself while she was in the UK. She told me that she did not feel that she would be able to die with dignity if she returned to Malawi after seeing the suffering that her father was put through because they could not access adequate medication for him."

28. The diagnosis was fairly brief in its terms, that the appellant suffered from a major depressive disorder. There were recurrent thoughts of death or suicidal ideation and plans as well as attempts. It is perhaps to somewhat exaggerate what had actually been recounted to the author of the passage to which I have made reference. Thereafter there follows a more general discussion as to what may be the symptoms or the consequences of having a major depressive disorder, the author commenting "frequently there are thoughts of death, suicidal ideations or suicidal attempts". Again this is somewhat generalised having regard to the situation of the appellant and what was said to the doctor. One comment is that the management of the general medical condition is complex and that the prognosis of major depressive disorders are adversely affected by chronic medical conditions.

29. Dr Ghosh concludes by the opinion that the appellant has attempted suicide in the past, is generally recognised to be a serious suicide risk by all professionals and remains at a very serious risk of committing suicide particularly if forced to return to Malawi. The Judge deals with that evidence at paragraphs 39 to 50 of the determination, in which passages from the report are set out, particularly those relating to his comments as to the likelihood of the appellant committing suicide. The point is made that there is little indication as to when the expert saw the appellant and for how long or indeed what documents were considered in the preparation of the report. The point was made again that the prognosis was based almost entirely upon what was said to the doctor. The Judge noted also that the psychiatrist seemed not to have practised for some five years according to her report.

30. The psychiatrist had commented towards the end of the report that the appellant was likely to commit suicide if she is informed that her asylum application has failed. The Judge points out that that had happened a long time ago with no attempt at her life at that stage. Once again Miss Mair invited to find that it was fundamentally unfair of the Judge to hold it against Dr Ghosh that he was not present at the hearing. Again I find that it was properly open for the Judge to comment on that matter given the very little detailed analysis in the report which was simply generalised comments arising from what the appellant had to say about her condition with very little detailed analysis of the issues. The Judge does not discount the report but understandably gives it less weight than might have otherwise been the case. Contained within the appellant's original bundle, as it was before the Tribunal, are a number of medical reports. I note in particular one dated 26th March 2014 from Dr Musgrove who was a general practitioner and that was obviously written at a time when the appellant was in Styal Prison. It was noted her HIV, diabetes, low mood and suicidal thoughts, latent TB and to some extent her low mood was as a result of being bullied by other residents and suffering racist comments. The recommendation of the doctor was that she should not be in custody. There was comment from Vicky Corris of the Greater Manchester West NHS that the appellant was establishing a therapeutic relationship with the mental health team and was currently able to manage her thoughts around suicidal ideation because of the support which she received. There was comment from Jill Delaney an HIV specialist nurse of The Pennine Acute Hospitals NHS in a letter of 24th April 2014 speaking of previous mental health diagnosis of adjustment disorder with demoralisation and previous suicidal thoughts. This is particularly so when in custody and she was put on suicide watch by the prison staff. She had access to mental health services and was undergoing counselling.

31. What seems to be missing from the bundle are more up-to-date medical reports as to what progress has been made. The report of Dr Ghosh was 10th October 2014, the most recent report of Dr Beadsworth is 10th November 2014.

32. It was clear from the generality of the reports that progress, albeit slow progress, was being made.

33. No further reports, or up-to-date reports, have been submitted and thus it is right that I judge the remarks of First-tier Tribunal Herwald in the context of the reports which were presented at the hearing. The Judge was very much aware of the interaction between the various conditions of the appellant and understandably did not find that much assistance had been given by the experts. That seems to me to be an overall conclusion which the Judge was entitled to come to in all the circumstances.

34. The Judge directed consideration to the crucial issue at paragraph 38 of the determination in these terms:-

"38. If the appellant were to succeed in respect of her physical health in this case, then it would be because of the difficulty and complexity of the interaction between the HIV, diabetes and other issues. I am not persuaded that this is the case. She has had and been treated for diabetes for many years. The present treatment of HIV is successful and can, insofar as I can tell from the information before me, continue in Malawi either publicly or privately. Her CD4 count can indeed, I find, be monitored in her homeland. I remind myself that on the information available to Judge White, he found that her physical medical condition fell well below the high threshold set out in the case N v UK. I do not find there to be such new circumstances put before me which would persuade me to depart from this finding.

39. I turn now to the worrying issue of the appellant's mental health. The respondent dealt with this at paragraph 43 etc. of the decision. Firstly it reminds me that there are therapeutic drugs available for mental health problems in Malawi and that there are alternative antidepressants available at a primary level. The respondent accepted 'that your mental health condition has been exacerbated in light of your HIV diagnosis as well as duty or continued detention' but her case was said not to be exceptional. The respondent knew that the appellant had expressed suicidal thoughts. I have given due regard to the case of Y (Sri Lanka) [2009] EWCA Civ 362. The respondent was not aware that the appellant had previously self-harmed, but this appears to have been an episode in 2010, according to the appellant's evidence when she took an overdose. No information was before me as to how that came about or how she was presented to the medical authorities, but she was treated without the need for any form of detention under the Mental Health Act and simply received a month's follow-up in the community, according to her own evidence."

The Judge recognised it was a sad case but was not persuaded, looking at the conditions as a whole, that they were so exceptional for the purposes of Article 8 and Article 3 that the appeal must be allowed. The Judge looked at the wider context for the purposes of Article 8.

35. The reality in this case is that there was evidence before the Judge that the appellant was responding to HIV treatment and her viral load for her CD count had improved. There were drugs available to the appellant, particularly two that she was currently using. There was no indication in clear terms as to what was the consequence to her if darunavir was not used. He noted only one suicide attempt for whatever reason was not clear and found that the psychiatrist had exaggerated that issue. In any event he had considered the leading case on the subject. There seemed to be some monitoring of her diabetes.

36. As the Judge recognised, for matters to succeed in relation to Article 3 there has to be a really dire situation facing the appellant upon return as set out in the decision in D. The Court of Appeal have recently in the case of GS (India) and Others v SSHD [2015] EWCA Civ 40 considered with some care this very issue of return for those who have serious conditions. It considered the case of six individuals, most of whom were suffering from major kidney diseases and one from HIV, looking at the treatment that was available and the likelihood of treatment in the country of removal. The case of N was considered as also was the case of D. Although it could be said that the physical conditions of all those that came before the Court of Appeal were serious and likely to deteriorate without further treatment or if removed, it was not considered such as to meet the high threshold of Article 3. I find therefore that even if the medical reports had been accepted at face value without criticism there had been insufficient evidence to lead to the conclusion that removal to Malawi would in the circumstances be an infringement of Article 3.

37. I can find no material error of law in the approach taken by the Judge and, in any event, on the quality of the evidence as presented the appellant could not have succeeded under Article 3. The assessment of Article 8 is in the circumstances one which was properly conducted and correctly decided upon.

38. In the circumstances therefore the appeal against the decision of Judge Herwald is dismissed. The decision therefore stands and the appellant's appeal under Articles 2, 3 and 8 ECHR remains dismissed.

Signed Date 14 June 2016

Upper Tribunal Judge King TD