The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/01356/2016


Heard at Field House
Decision & Reasons Promulgated
On 31 October 2017
On 20 November 2017




the Secretary of State for the Home Department

[F O]
(anonymity direction not made)

For the Appellant: Mr Melvin, Home Office Presenting Officer
For the Respondent: Ms K Reid instructed by Signature Law LLP

1. In these proceedings we shall refer to the appellant as "the Secretary of State" and the respondent as "the appellant" as she was before the First-tier Tribunal.
2. The Secretary of State appeals with leave against a decision of First-tier Tribunal Judge Lingam promulgated on 20 February 2017. In that decision Judge Lingam allowed an appeal against the Secretary of State's decision made on 31 December 2015 refusing the appellant leave to remain in the United Kingdom and directing her removal from the United Kingdom.
3. The appellant is a citizen of Nigeria born on [ ] 1969. She entered the UK as a visitor in 1996 in order to avoid problems from her late husband's family who had blamed her for his death and who had also attempted to separate her from her son. She had previously been rejected by her family for marrying a Muslim and they refused to protect her and her son from her in-laws. She allowed a friend to adopt her son in order to protect him from them. She then accepted assistance to enter the United Kingdom from a distant relative whom she referred to as "aunt". This lady arranged in time for her to marry a much older man. When she refused her aunt turned hostile and forced her to work. She then left her aunt's with the assistance of a friend and their pastor. She worked at the church as a cleaner and with the support of the church she lived at a rented property.
4. She met her second husband in February 2010. She was abused by him and abandoned by him in 2013. She suffered mental stress and was hospitalised for treatment. She remains under the care of her GP. Her church friends have become of vital support. She has received psychiatric care and remains on anti-depressants. She is on a waiting list to see a psychologist and remains an outpatient at a psychiatric unit.
5. She has PTSD and exhibits suicidal ideation. Judge Lingam found that she would be without family or non-family support in Nigeria. While it was not suggested that she would not have access to medical services in Nigeria the Judge found that as someone suffering with PTSD with no family or other social network she might suffer very significant obstacles in Nigeria. She might in the heightened state of worry ignore her personal wellbeing and she could be exploited or in desperation harm herself.
6. The appeal to the FtT proceeded on two grounds. The first was under IR 276ADE. At paragraph 45 Judge Lingam was satisfied that the appellant succeeds on her appeal on private life under the Rules. Judge Lingam then went on to consider under the heading of "Exceptional and Compassionate Circumstances" Article 3 and 8 issues based on her mental health. She considered the case of Paposhvilli v Belgium (application number 41738/10, 13/12/16). At paragraph 56 of her decision Judge Lingam found that this case softened the more restrictive approach that had hitherto been followed based on the test in D v The United Kingdom and N v The United Kingdom. Applying this "less restricted test" she found that there was clear evidence that the appellant would suffer a breach of her Article 3 rights and that the appellant's infringement of her Article 8 rights on medical grounds would equally be engaged and infringed.
7. The Secretary of State's ground of appeal focuses exclusively on the Article 3 medical grounds; while the appellant might suffer hardship on return to Nigeria it was submitted that she did not engage the Article 3 medical threshold. On 4 July 2017 the appellant made a Rule 24 response pointing out that in effect the appeal was academic given the judge's findings in regard to the appeal under the Immigration Rules. Mr Melvin, recognising the difficulty that he was placed in, sought to amend the grounds of appeal to include a challenge to the findings of the First-tier Tribunal in relation to the private life of the appellant under 276ADE of the Immigration Rules.
8. Having heard from Mr Melvin and Ms Reid in response, we refused that application. No reason had been advanced for making the application at this late stage and we did not accept Mr Melvin's submission that this was effectively the same argument as contained in the ground of appeal.
9. Mr Melvin maintained his ground of appeal. Ms Reid conceded that the reasoning of Judge Lingam on Article 3 could not be supported.
10. In Paposhvilli the European Court of Human Rights set out the test for the "other very exceptional cases" which may raise an issue under Article 3 in considering the removal of a seriously ill person. The court held that Article 3 would be engaged where there were substantial grounds for believing that, although not at imminent risk of dying, the applicant 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 pointed out that these situations correspond to a high threshold for the application of Article 3.
11. Having regard to the appellant's medical circumstances set out above and to the finding that there was appropriate treatment available in Nigeria, albeit that she may suffer very significant obstacles in accessing such treatment, we are in no doubt that her circumstances fall some way short of the high threshold which would involve a breach of the appellant's Article 3 rights. Nor do we consider that the medical aspects of her Article 8 rights would be infringed by her removal to Nigeria.
Notice of Decision
12. Accordingly, we find that there is an error of law in respect of the Article 3 and Article 8 "outside the rules" parts of the First-tier Judge's decision. However, in view of the fact that the appeal before the First-tier Tribunal succeeded on private life grounds under the Immigration Rules, the error of law is not material and we decline to set aside the decision of the First-tier Tribunal allowing the appeal.
13. No anonymity direction is made.

Sitting as a Judge of the Upper Tribunal
(Immigration and Asylum Chamber)

7 November 2017