Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: HU/00099/2018
HU/00100/2018

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 11th February 2019
On 21 March 2019

Before

DEPUTY UPPER TRIBUNAL JUDGE JUSS

Between

(1) Ester [R]
(2) EDSON [C]
(ANONYMITY direction NOT MADE)
Appellants
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellants: Mr T Lay (Counsel)
For the Respondent: Miss S Cuhna (HOPO)

DECISION AND REASONS
1. This is an appeal against the determination of First-tier Tribunal Judge Andonian, promulgated on 12th September 2018, following the hearing at Taylor House on 24th August 2018. In the determination, the judge dismissed the appeal of the Appellant, whereupon the Appellant subsequently applied for, and was granted, permission to appeal to the Upper Tribunal, and thus the matter comes before me.
The Appellant
2. The Appellants are both citizens of Malawi. The first Appellant was born on 10th July 1969 and is a female. The second Appellant was born on 11th June 1963 and is a male. He is the dependant of the first Appellant. Both had applied for the regularisation of their immigration status on the basis of family and private life which was refused by the Respondent on 2nd December 2017 and 3rd November 2017 respectively.
The Judge's Determination
3. In a long and protracted determination (running into 81 paragraphs) the Judge concluded that the Appellants could not succeed on a balance of probabilities. There were no exceptional circumstances allowing them to qualify to remain in this country under Article 8. The decision to refuse the human rights claims was a lawful decision. There would be no great consequences as a result of the refusal of the human rights claim. The Appellants had indicated that they can live in Zimbabwe. The first Appellant could go to Zimbabwe from Malawi on his own passport. The second Appellant had gone to the extent of asking for his passport back as he had the intention of returning to Zimbabwe. But had then changed his mind. Both have a number of relatives in Zimbabwe. (Paragraph 81).
Grounds of Application
4. The grounds of application state that the conclusion that the Appellants could return to Zimbabwe was contrary to the case law. They also state that the judge failed to understand the medical condition of the first Appellant. The judge had also placed reliance upon an outdated country of origin policy.
5. On 21st December 2018, permission to appeal was given by the Upper Tribunal on the basis that
"Much of the decision of the FTTJ is a rehearsal of the Respondent's reasons for refusal letter. It is therefore difficult to separate findings or conclusions made by the judge from the views of the Secretary of State. It is unclear whether the findings and conclusions at paragraph 81 are the only conclusions reached by the judge himself?" (at paragraph 3).
Submissions
6. At the hearing before me on 11th February 2019, Mr Lane, appearing on behalf of the Appellant, made the following submissions. First, that the Respondent based his position on the fact that the 2012 country information indicated that dual nationality could not be held by Malawi nationals. That was the position as reiterated in the Respondent's 2017 country information note. This was a case where the Appellants had entered the UK on Malawi passports. They were to be treated as from Malawi. Judge Andonian, however, did not deal with the central issue of return to Malawi. The question was whether they would face very significant obstacles to integration within paragraph 276ADE(vi). There were no clear findings as to whether it was accepted, for example, that one or both of the Appellants had a very limited connection to Malawi owing to the fact that the first Appellant was indeed born in Malawi and had spent her life there, but that the second Appellant had moved to Zimbabwe aged 6 months and stayed there after that, including a long stint in government service, and that they had family members in Zimbabwe at least until recently. The judge had indeed made adverse findings as to credibility of the Appellant's claim that they have no family in Zimbabwe (see paragraphs 70, 74, and 81) but there were no findings as regards connections to Malawi.
7. Secondly, submitted Mr Lay, there was no engagement with the obstacles to any proposed return to Zimbabwe. First, this could have been done on the basis that the Appellants are Malawi nationals. It was not clear upon what basis the judge was assuming that they would have the right to return to Zimbabwe, having left fifteen years ago, although they had previously lived in that country on some unspecified basis. Secondly, however, it is settled policy of the Zimbabwean government not to grant emergency travel documents to individuals who did state that they are willing to return and the Respondent could not lawfully require someone to tell officials at the Zimbabwean Embassy that he or she agrees voluntarily to return to Zimbabwe: see JM (Zimbabwe) [2017] EWCA Civ 1669.
8. The third submission that Mr Lay had before me was that the assessment of the suicide risk within the well-established case of J v SSHD [2005] EWCA Civ 629 and the case of Y (Sri Lanka) [2009] EWCA Civ 362, was tainted by the misconstruction of the first Appellant's medical condition and the reliance on outdated country information. This was because there were two medical reports by Dr Magda Czerwinska. The first report was dated 31st October 2012. The relevant report from the expert was the one which referred to recent evidence of a risk to relapse, self-harm, and the causal link to return (see page 92 of the bundle). This report stated that, "I am concerned that if she is forced to go back to her homeland, her mental health will deteriorate quickly, she will lose all her support and care and she will most likely have a psychotic relapse". The judge nowhere refers to this. Although the judge does refer (at paragraph 55 of the determination) to a letter by Dr Magda Czerwinska, this appears to be referring to the much older report of 16th May 2017 (which appears at page 100 of the bundle). These errors, in relation to the use of the wrong medical report, are compounded by the judge's reliance on the older country information report on Malawi (at paragraph 47) when the Respondent's own country information note was updated in December 2017. Instead, however, the judge quotes from the previous information note dated 31st October 2012.
9. For her part, Miss Cuhna submitted that there was no error of law. The outdated October 2012 country information report was not material because it would have no adverse impact upon the consideration of the Appellant's claim. This was a case where the judge had, in any event, considered the position, not just in relation to the Appellant's return to Zimbabwe, but also in relation to their return to Malawi. This was clear from what the judge stated but pointing out that, she did not want to return to Zimbabwe or Malawi" because "there is widespread poverty in Malawi and Zimbabwe" (paragraph 31). Indeed, the judge had then gone on to conclude that, given that the first Appellant was resourceful, "there was no reason why she could not use the same resourcefulness to establish her life in Zimbabwe or Malawi" (paragraph 37).
10. Second, there was also no error in the judge's determination in relation to whether the expert report of Dr Magda Czerwinska had been taken into account from 16th May 2017 (which was the older letter at page 100 of the bundle), or the more recent report of 2nd November 2017 (which appears at page 92 of the bundle). This is because the judge had addressed the very issue here of concern when he pointed out that, "it is accepted that the crisis assessment treatment team have given a probable diagnosis of psychotic depression following an overdose?" (paragraph 55). This suggested that there had been a specific consideration of the Appellant's "psychotic depression". Indeed, the judge had also given consideration to the fact that the Lister Hospital "has provided evidence to indicate that suicidal thoughts are genuine and there may be some causal link between her removal and the treatment she would inflict on herself" (paragraph 57). All in all, therefore, there could be no error.
11. In reply, Mr Lay submitted that at S1 of the Respondent's bundle, there were already findings that the Appellants must be returned to Malawi, in which they were citizens, and there was no prospect of return to Zimbabwe, such that the judge had to approach the matter on the basis of the well-established principles in Devaseelan, given an earlier determination in this regard. The judge had failed to do so. Second, it was plain, upon any consideration of the relevant paragraphs in the determination, that the judge had only had regard to the earlier expert report of 16th May 2017 from Dr Magda Czerwinska, and of the later report of 2nd November 2017, which alone expressly stated that there was a causal link between the Appellant's condition and the resultant harm that would accrue to her. The judge had not considered this.
Error of Law
12. I am satisfied that the making of the decision by the judge involved the making of an error on a point of law (such that I should set it aside) (see Section 12(1) of TCEA 2007) and remake the decision. My reasons are as follows. First, although Miss Cuhna has argued that the judge has considered the return of the Appellants to Zimbabwe and Malawi equally (by reference to paragraphs 31 to 32 and paragraph 37), it is not clear what the judge's findings are in this regard. When the judge concludes (at paragraph 37) he does so in the following terms: "it was said that the Appellant had shown resourcefulness in the UK and that there was no reason why she could not use the same resourcefulness to establish her life in Zimbabwe or Malawi".
13. This, however, appears to suggest that the judge is referring to someone else's allegation, namely, that of the Respondent, that, because the Appellant had shown resourcefulness, relocation could be realistically undertaken to Zimbabwe or Malawi. However, the next sentence then goes on to say "there should be no difficulty to integrate into Zimbabwe or Malawi society", and this does not indicate that the judge is making a finding himself, but referring to what is being alleged. The third sentence in that paragraph states "the Appellant also said that with the Malawi passport she could easily go to Zimbabwe from Malawi if need be", which now appears to be a statement from the Appellant herself, rather than the finding of the judge. In any event, as Mr Lay has submitted, the starting point for the judge in this hearing was what appeared at S1 of the Respondent's bundle, which was the express finding earlier in a determination that the Appellants are citizens of Malawi and are returnable there, so that the principles of Devaseelan could be applied. That is not the position that appears to have been taken here.
14. Second, although, as Miss Cuhna submits, there is a reference to the Appellant's "diagnosis of psychotic depression" (at paragraph 55) the judge appears to have been referring only to the first letter from Dr Magda Czerwinska of 16th May 2017, and not the later letter of 2nd November 2017, which is altogether different in terms of the causal link that the doctor is referring to.
15. Third, there was no engagement in the determination with the obstacles to any proposed return to Zimbabwe. This is important for two reasons. First, the Appellants are Malawi nationals, who left Zimbabwe fifteen years ago, and whose basis of stay in that country is unclear. Second, it is the settled policy of the Zimbabwean government not to grant emergency travel documents to individuals who do not make it clear that they are willing to return to Zimbabwe and there is no such express desire on the part of these Appellants.
Decision

The decision of the First-tier Tribunal involved the making of an error on a point of law (see Section 12(1) of TCEA 2007) such that I should set aside the decision and remake the decision. I remake the decision as follows. This appeal is remitted back to the First-tier Tribunal, to be determined by a judge other than Judge Andonian pursuant to Practice Statement 7.2(b).

No anonymity direction is made.

This appeal is allowed.

Signed Date

Deputy Upper Tribunal Judge Juss 18th March 2019