Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: HU/00823/2015
ia/19418/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 28 February 2017
On 12 April 2017

Before

THE HONOURABLE MRS JUSTICE ELISABETH LAING DBE
UPPER TRIBUNAL JUDGE BLUM

Between

Ms Kumba Fatty Wigger
(anonymity direction NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms J Fisher of Counsel, instructed by Lawrence Lupin Solicitors
For the Respondent: Mr T Melvin, a Home Office Presenting Officer

DECISION AND REASONS
Introduction
1. This is an appeal from a decision of the First-tier Tribunal (“the FtT”) promulgated on 2 September 2016. The FtT consisted of Judge Shand QC (“the FtJ”). FtJ Robertson gave permission to appeal on part of ground 1 in the appellant’s grounds of appeal. He refused permission on grounds 2, 3 and 4. The application for permission to appeal was not renewed to this Tribunal. As a consequence the appellant is confined to the limited grant of permission to appeal by FtJ Robertson.
2. On the appeal this morning the appellant has been represented by Ms Fisher of Counsel and the Secretary of State by Mr Melvin, a Home Office Presenting Officer. We are grateful to both representatives for their helpful submissions.
The Decision of the Secretary of State
3. As the FtT said in its decision, on 29 May 2015 the Secretary of State refused the appellant’s application for leave outside the Rules with detailed reasons. The appellant had not met the requirements of Appendix FM of the Immigration Rules HC 395 (as amended) (“the Rules”). She did not meet the requirements of paragraph 276ADE of the Rules. She was over 25 years old and had not lived in the United Kingdom for more than twenty years. Her son did not meet the requirements of that paragraph because while he was less than 18 years old he had not lived in the United Kingdom for more than seven years. To require the appellant to leave the United Kingdom would not breach Articles 2, 3 or 8 of the European Convention on Human Rights (“the ECHR”). Her condition did not meet the high threshold described in the authorities. The Secretary of State noted a letter from the appellant’s GP which said that the appellant’s condition was moderate. Suitable medicines were available in Gambia as alternatives to citalopram.
4. The Secretary of State said that she had taken into account the need to safeguard and promote the welfare of the appellant’s son in accordance with Section 55 of the Borders, Citizenship and Immigration Act 2009 (“the 2009 Act”). The appellant’s son had been living in the United Kingdom since he was born but he would be going to Gambia with the appellant, who would support him while he adjusted to life there. At paragraph 33 of the decision letter the Secretary of State considered the appellant’s claim to be suffering from PTSD. The Secretary of State said that this condition was not life-threatening. Treatment for the condition was available in Gambia according the objective evidence. The appellant’s family was there and there was nothing to suggest that they would not support and help her. In paragraph 33 of the letter the Secretary of State said: “While it is accepted that you are suffering from severe PTSD and depression, it has been decided that this does not constitute exceptional circumstances.”
The Grounds of Appeal to the FtT
5. The appellant’s lengthy grounds to the FtT, also described as a Statement of Additional Grounds, were dated 21 May 2016. They were drafted by the appellant’s solicitors. The grounds said that the solicitors had tried to send through supporting medical evidence but that it had not been considered by the Secretary of State. They submitted that evidence for the attention of the FtT and of the Secretary of State. The solicitors said that the Secretary of State had failed to recognise that the appellant had a genuine human rights claim. Her rights and her son’s would be “breached severely” if they were sent to Gambia. The appellant’s solicitors submitted that “at the heart of this application is the question of the right of access to the courts …”. This is not further developed or explained in any intelligible way.
6. Ground 2 was that the appellant had arguable human rights claims. To remove her to Gambia would breach her rights under Articles 2, 3, 4, 5, 6, 8 and 14. The strong human rights issues under Articles 2, 3 and 8 had not been considered substantively. The appellant’s precarious immigration status was exacerbating her already fragile mental health. Her history of engagement with professionals was summarised. An extract from the report dated 26 January 2012 by a clinical psychiatrist was set out as was an extract from a report dated 28 February 2012 from a Ms Martin. Among other things the Secretary of State, it was said, had failed to take into account that the appellant depended on 40 milligrams a day of citalopram. Without that her PTSD and depression would “inflame”. It was asserted that there was an Article 2 and an Article 3 risk and that it would not be in the best interests of the appellant’s son for them to go to Gambia.
7. There is no reference in the grounds of appeal to the concession made in paragraph 33 of the Secretary of State’s decision letter, which we have already referred to, nor do the grounds of appeal assert that there was no up-to-date medical evidence because Legal Aid for any such report or reports had been refused on grounds that the Secretary of State had conceded that the appellant suffered from PTSD or depression.
8. This point, however, is made in paragraph 10 of the skeleton argument which the appellant submitted for the purposes of the appeal to the FtT. That paragraph reads:
“There is no updated medical evidence as the Legal Aid Agency has three times refused funding on the basis that the defendant accepts that the appellant is suffering from depression and PTSD and thus updated medical reports are unnecessary.”
The Decision of the First-tier Tribunal
9. The decision recorded that the appellant was born on 12 September 1974. She is a citizen of Gambia. She is the mother of Kawsu Bilal Wigger. He was born on 11 March 2010. The appellant entered the United Kingdom on 16 June 2000 on a dependent spouse visa. That was valid until 16 June 2001. On 30 April 2002 she submitted an application for leave to remain (“LTR”) outside the Rules. That application was rejected on 28 May 2002. On 20 June 2002 she made a domestic violence application. That was refused with no right of appeal in 2007. She was served with form IS.151A on 22 May 2007. She made a further application under Articles 3 and 8 of the ECHR on 18 July 2012. That was refused with no right of appeal on 10 February 2015.
10. The appellant threatened to bring an application for judicial review. In short, that dispute was settled on the basis that the Secretary of State agreed to give her a right of appeal to the FtT. As the FtT recorded in its decision, the appellant contended on the appeal that her removal from the United Kingdom would breach Articles 2, 3 and 8 of the ECHR. She had a history of depression and PTSD. She had received medical treatment for those and had been prescribed citalopram. Her medical needs could not be met in Gambia. She would be shunned in the Muslim community in Gambia for having a child out of wedlock. To expose her son to a culture with which he was not familiar would affect him mentally and physically. She relied on Section 55 of the 2009 Act.
11. The FtT then summarised the Secretary of State’s Reasons for Refusal Letter. The FtT noted that the grounds of appeal were in essence identical to a Section 120 Statement of Additional Grounds. The FtT said that there were two appeals by the appellant which had been linked because they were related to one another. The FtT set out the relevant law at paragraphs 18 to 24. That exposition has not been criticised in her submissions by Ms Fisher.
12. In paragraph 21 the FtT referred to the decision of the House of Lords in N v Secretary of State for the Home Department [2005] 2 AC 296, 304, to the decision of the European Court of Human Rights in N v the United Kingdom (2008) 47 EHRR 885 (paragraph 44) and to GS (India) v The Secretary of State for the Home Department [2015] EWCA Civ 40. The FtT referred to Sections 117A and 117B of the 2002 Act. It bore them in mind when assessing the public interest. The FtT also took into account Section 55 of the 2009 Act.
13. The FtT summarised the appellant’s evidence. Emma Bird, a support worker at the appellant’s son’s school, also gave evidence. She was an attendance and welfare officer. She had no medical qualifications and she did not claim to be familiar with life in Gambia. Dr Emma Ramsden also gave evidence. She was not a medical doctor. She described herself in correspondence as a “practitioner-researcher”. She was registered with the Healthcare Professions Council as an arts therapist. Her PhD was about children as co-researchers of therapeutic process. She was an in-house therapist at the appellant’s son’s school offering support to children and parents. The appellant had been going to sessions once a week since January 2016. Dr Ramsden gave her psychodynamic therapy. She did not claim to be familiar with life in Gambia.
14. The FtJ said she had taken the welfare of the appellant’s son as a primary consideration (paragraph 38). The FtJ described the appellant’s Article 3 claim in paragraph 39. She had a history of mental health issues. She was taking citalopram. She would be unlikely to get that in Gambia. Without medication and support from the school she would be at risk of suicide. The FtJ said that Article 3 did not impose an obligation to provide medical treatment which was not available in a person’s home country even if that would considerably shorten a person’s life. Only in a “very exceptional case where humanitarian grounds against removal were very compelling” could Article 3 prevent removal in a medical case. The European Court of Human Rights noted in N that after D v The United Kingdom (2 May 1997) the European Court of Human Rights had not in any case held that removal breached Article 3 in a medical case.
15. The FtJ recorded a concession by the appellant’s representative that the Article 3 threshold was not met. She argued that the appeal was based on the risk of suicide arising from the appellant’s mental health condition (paragraph 43). The FtJ referred to J v Secretary of State for the Home Department [2005] EWCA Civ 629. The Court of Appeal held that the test is whether there is a real risk that removal would cause an appellant to take his or her own life.
16. The FtJ was not satisfied that there was such a risk in this case. She described the appellant’s history in some length in paragraphs 46 to 50. The appellant’s PTSD related to abuse by her former partner. The FtJ concluded in paragraph 51 that the evidence did not show that the appellant’s PTSD was ever severe. In 2009 the diagnosis was that she was showing some features of PTSD but not that she had all the symptoms. She again had some symptoms in 2012. A treatment had stopped in 2012. It can reasonably be assumed that the symptoms of PTSD were not interfering significantly with her day-to-day functioning. Her depression had never been more than moderate in intensity. There was no medical evidence, the FtJ said, that the appellant satisfied a diagnosis of ongoing depression. The fact that she received a repeat prescription did not show that. There was no evidence that she was seen or examined by a doctor in order to get that prescription.
17. But, the FtJ said, even if the appellant did still fulfil such a diagnosis the evidence did not establish a real risk that if she were removed to Gambia she would commit suicide. There was no evidence that she had ever been at a real risk of suicide even though she had harmed herself before she had become pregnant with her son. After he was born she was able to care for him even when her mood was low. The fact that she had received no treatment from psychiatric or psychological services since 2012 was consistent with her mental health condition not being severe enough to give rise to a real risk of suicide. The appellant had not given evidence that she felt suicidal or that she feared she would become suicidal on her return to Gambia with or without her medication. The appellant was currently taking citalopram but there was no medical evidence that without it or a substitute for it she would become suicidal. There were other medicines for treating depressive symptoms. There was no evidence that the alternatives were not available in Gambia and evidence that citalopram was available “at a price”. The FtJ dismissed the Article 3 claim.
18. The FtJ considered next the appellant’s claim under the Rules. The FtJ rejected the appellant’s claim that she had lost touch with her family in Gambia. She gave cogent reasons for that which were grounded in the evidence (paragraphs 56 to 60). In short, the appellant still had several family members in Gambia including her first son and her two sisters in whose care the appellant had left him. In any event, even if she had lost touch with her family the FtJ was not satisfied that the appellant would face significant obstacles to reintegration in Gambia. She explained why in paragraph 66 at some length. She was resourceful. She had done various jobs in different parts of the United Kingdom. She wanted to work. She spoke the language (Mandinka) and English was also spoken in Gambia.
19. The FtJ recorded that the appellant had relied, in the context of paragraph 276ADE, on her mental health condition (paragraph 67). The FtJ did not accept that the availability of medicine was relevant to the test of “very significant obstacles” but even if it was the appellant had not shown that it interfered significantly with her day-to-day functioning. Her PTSD and depression were only ever moderate. They had improved from 2012 to the extent that she did not need specialist psychiatric or psychological help. She had not shown that she could not get citalopram or a substitute for it in Gambia.
20. The FtJ next considered Article 8 of the ECHR and Section 55 of the 2009 Act. She referred to the cases which suggest that it is difficult to think of a mental health case which could fail under Article 3 but which could nevertheless succeed under Article 8 (paragraph 69). At paragraph 70 she said that the appellant had no family life in the United Kingdom other than with her son. Unless he had a right to stay in the United Kingdom independently of her there was no question of separating him from her. Both would return to Gambia together.
21. The FtJ then considered Section 55 of the 2009 Act. The father of the appellant’s son had had nothing to do with him since his birth. The FtJ did not accept that there was any evidence which showed that the son’s father was a British citizen. He had no relations in the United Kingdom with whom he had any family life. The FtJ’s conclusion was that it was in the son’s interest to be with his mother. She was clearly a good mother. He had a half-brother in Gambia. He had spoken to him on the telephone. He had cousins and aunts and uncles in Gambia. The evidence showed that he was young enough to learn another language and in any event English is spoken in Gambia. Since his mother was Gambian it was in his interest to become familiar with his cultural roots in Gambia. Gambia has a free education system. The appellant went to school there until she was 18. The son’s education in the United Kingdom was not at a critical stage. It could be expected that he would make friends in Gambia. The FtJ concluded that it would not be a breach of Section 55 of the 2009 Act for the appellant’s son to go to Gambia with his mother. Nor did he satisfy the requirements of paragraph 276ADE. In paragraph 80 the FtJ considered whether there was any argument that the son should stay outside the Rules. There was no evidence that the appellant had any private life. She was not satisfied that Article 8 was engaged outside the Rules.
22. The FtJ then considered the five steps in Razgar in relation to the appellant and to her son. She also took into account Sections 117A to 117D of the 2002 Act in relation to both. The public interest outweighed any Article 8 considerations. Little weight should be given to any private life established while a person’s presence is unlawful, as was the presence of the appellant and her son. The appellant had not shown that she suffered from a mental health condition which needed ongoing treatment and she had not shown that any treatment would not be available in Gambia or how her day-to-day functioning would be affected without treatment. On any view she had not reached the high threshold referred to by Baroness Hale in Razgar. The FtJ said that the notice of appeal in IA/19418/2015 was invalid as there is no right of appeal against a notice of removal. If that was wrong that appeal failed for the same reasons as the appeal in HU/00823/2015.
The Grounds of Appeal
23. In the light of the limited grant of permission to appeal we need say nothing about grounds 2 to 4. Ground 1 argued in essence that the FtJ had failed to consider the expert evidence. Paragraph 20 said that while there was no up-to-date medical evidence the FtT had failed to have regard to the appellant’s skeleton argument, which argued that Legal Aid had been refused for any up-to-date medical evidence because the Secretary of State had accepted that the appellant had mental health problems.
24. Paragraph 21 asserted that the appellant had ongoing psychological issues “surround the abuse she suffered. This abuse was not even mentioned or referred to anywhere at all in the determination”. This is wrong, see paragraph 46 of the decision of the FtT. FtJ Robertson noted other incorrect statements in the grounds of appeal (paragraph 3 of his decision refers to one error and paragraph 4 to another).
The Grant of Permission to Appeal
25. FtJ Robertson granted a three-day extension of time for appealing. He said that grounds 2, 3 and 4 did not reveal arguable errors of law. He held that ground 1 was arguable but only to the extent that the FtJ had failed to refer in the decision to the Secretary of State’s concession in her decision letter that she accepted that the appellant suffered from PTSD and depression at paragraph 33 of the Reasons for Refusal Letter. FtJ Robertson said that this was a material error of law. We think that what FtJ Robertson must have meant was that it was an arguable and potentially material error of law.
Discussion
26. The point on which permission to appeal was given appears to be either that in considering the medical evidence the FtT should have made an allowance for the fact that the reason why there was no up-to-date medical evidence was because Legal Aid had been refused for an up-to-date report, or that the FtT was in some way bound by the Secretary of State’s concession that the appellant’s PTSD was severe. In short, the evidence before the FtT was that the appellant was taking 40 milligrams of citalopram a day and that that medicine and alternative medicines were available in Gambia.
27. There was a recent letter from the appellant’s GP before the FtT dated 4 February 2015. This said that the appellant was receiving 40 milligrams of citalopram on a repeat prescription and no other drugs. It referred to a history of depression and PTSD. The GP was not aware of any other significant problems. He would classify her depression as moderate, looking at her notes. He could not find much detail in the notes about why she suffered from PTSD. He enclosed the only letter he could find about that from Maudsley Hospital dated January 2012. He was not aware that any clinical psychologist or psychiatrist was involved in her care. There was no indication in her recent notes that she would need to be referred to a psychiatrist in the near future. The GP was unable to provide a short or long-term prognosis.
28. The letter from the Maudsley Hospital dated 17 January 2012 said that the appellant had been feeling low that day. She had had some bad news about her son in Gambia. She was continuing to attend therapy at the PTSD service. Her sleep was poor and she felt tired during the day. She liked caring for her son and was able to care for him despite her low mood. She was given advice that citalopram should be reduced to 40 milligrams as that was the maximum dose. If her mood got worse the team would consider changing her to a different antidepressant.
29. So there was a recent letter from the appellant’s GP practice before the FtT. What that showed was that the appellant had moderate depression and a history of PTSD. The appellant was not seeing a specialist and there were no grounds for thinking she would need to. In that situation it is not clear what an up-to-date medical report would have contributed other than perhaps to speculate about what might happen to the appellant if she were to return to Gambia. We note that these two letters were sent to the Secretary of State by the appellant’s solicitors under cover of a letter dated 10 February 2015. That letter confirmed that the appellant was not under a consultant at the time and so “we cannot provide a report from them”. The appellant was getting citalopram from her GP for her depression and PTSD. She was “previously receiving counselling”. The solicitors did not say that they could not get an up-to-date medical report because Legal Aid for one had been refused.
30. The submissions from the parties were in short from Ms Fisher on behalf of the appellant that the FtT was bound by the concession made in the Secretary of State’s decision letter and that its decision was therefore vitiated by error of law because it did not refer to that concession.
31. Mr Melvin submitted that the FtT had addressed the medical evidence in some detail and had made findings on that evidence which were open to the FtT. He submitted that it was not relevant that the Secretary of State in her decision letter had taken the material submitted by the appellant at its highest. It was up to the FtT to assess the evidence which was before it, that the FtT had done that and its decision displayed no material error of law.
32. We were referred by Ms Fisher to a relatively recent decision of the European Court of Human Rights in Paposhvili v Belgium (Application no. 41738/10), a decision given on 13 December 2016. Ms Fisher relied heavily on paragraph 190 of that decision in which the court said that the authorities must consider the extent to which an individual will actually have access to care and facilities in the receiving state. That statement has to be read in the context of paragraph 183 of the decision where the court said this:
“The court considers that the ‘other very exceptional cases’ within the meaning of the judgment in N v the United Kingdom (§ 43) which may raise an issue under Article 3 should be understood to refer to situations involving the removal of a seriously ill person in which substantial grounds have been shown for believing that he or she, although not at imminent risk of dying, would face a real risk, on account of the absence of appropriate treatment in the receiving country or the lack of access to such treatment, of being exposed to a serious, rapid and irreversible decline in his or her state of health resulting in intense suffering or to a significant reduction in life expectancy. The court points out that these situations correspond to a high threshold for the application of Article 3 of the Convention in cases concerning the removal of aliens suffering from serious illness.”
This may or may not represent a movement from the decision in N v the United Kingdom but on any view the threshold that is described in paragraph 183 of Paposhvili is a threshold that is not met by the evidence that was before the FtT in this case.
33. We do not consider that the FtT was bound by what the Secretary of State had said in paragraph 33 of her decision letter. The FtT had to make up its mind on the basis of the evidence which was before it. The FtT carefully analysed that evidence and reached conclusions which were open to it on the basis of that evidence. Even if we are wrong about that and the FtT was in some way bound by the concession made by the Secretary of State, on the facts of this case that is no more than a semantic difference.
34. On the substance of the evidence the FtT was entitled to conclude and in fact bound to conclude that the high threshold for Article 3 or Article 8 was simply not met. It follows that we dismiss this appeal.

Notice of Decision
The appeal is dismissed.
No anonymity direction is made.

Signed
Mrs Justice Elisabeth Laing DBE Date: 28 March 2017

TO THE RESPONDENT
FEE AWARD
I have dismissed the appeal and therefore there can be no fee award.

Signed
Mrs Justice Elisabeth Laing DBE Date: 28 March 2017