Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number HU/01375/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision and Reasons Promulgated
On 20th December 2017
On 17th January 2018

Before

DEPUTY UPPER TRIBUNAL JUDGE PARKES

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
And

F N
(ANONYMITY DIRECTION MADE)
Respondent

Representation:
For the Appellant: Ms N Willocks-Briscoe (Home Office Presenting Officer)
For the Respondent: Mr S Abbas (Counsel, instructed by Imperium Group Immigration Specialists)

DETERMINATION AND REASONS
1. In this decision to avoid confusion with the First-tier Tribunal decision the term Appellant will be used to refer to FN and Respondent will refer to the Secretary of State. The Appellant's appeal against the decision of the Secretary of State was heard by First-tier Tribunal Judge Housego at Hatton Cross on the 30th of March 2017 and allowed in a decision promulgated on the 10th of April 2017.
2. The Appellant's immigration history was set out in paragraph 2 of the decision. Substantive consideration of the Appellant's case began at paragraph 22 on page 11 of the decision with the discussion of the circumstances from paragraph 55. The Judge allowed the appeal and that is now contested by the Secretary of State.
3. The Appellant's credibility was not in dispute and the facts that were found are set out at paragraphs 40 to 53. The Appellant had suffered with a brain tumour and following treatment in the UK developed a palsy that was not transient, headaches, became deaf in her right ear, eyesight and balance problems. Although well qualified the discrimination suffered by the Appellant in Pakistan meant that she could not work and she had lived as recluse between 2006 and 2011. The discrimination suffered extends to her own family and friends.
4. In the discussion and conclusion at paragraph 55 to 69 the Judge found that the balance in this appeal lay with the Appellant and not with the Secretary of State when considering the Appellant's circumstances against the public interest in immigration control. The Appellant's circumstances would not pass the threshold for article 3, paragraph 70 and the Appellant was not assisted by the delay.
5. The Secretary of State sought permission to appeal in grounds of application of the 18th of April 2017. It was argued that the Judge had misapplied the reintegration test from paragraph 276ADE, the evidence did not show that if returned the Appellant would be in any different position now than she had been in the past. With regard to article 8 the Judge had not considered the Appellant's precarious status in the UK and had not compared her situation against that which she would face in Pakistan. In losing direct contact with family in the UK she would return to her family in Pakistan. It was only in respect of employment prospects that the situation would be significantly different. there was no basis for finding that the obstacles were insurmountable or exceptional.
6. Permission was granted by First-tier Tribunal Judge Grimmett on the 11th of October 2017. She stated that it was arguable that the Judge had failed to take into account the Appellant's precarious position in the UK and her ties to family in Pakistan.
7. At the hearing both representatives made submissions in line with their respective positions, these are set out in full in the Record of Proceedings and referred to where relevant below.
8. The essential difference between the Appellant's circumstances in the UK and in Pakistan is that in Pakistan the Appellant, as the Judge found, would live as a recluse for the reasons given. The Judge found that the Appellant could not be expected to wear a Niqab never having done so before which is essentially a point arising out of the reasoning in HJ (Iran) [2009] EWCA Civ 172.
9. Despite the extensive recitation of law the Judge did not say the obvious point that this case is about the physical and moral integrity of the Appellant. In Nasim and others (Article 8) [2014] UKUT 25 (IAC) the headnote reads as follows: "The judgments of the Supreme Court in Patel and Others v Secretary of State for the Home Department [2013] UKSC 72 serve to re-focus attention on the nature and purpose of Article 8 of the ECHR and, in particular, to recognise that Article's limited utility in private life cases that are far removed from the protection of an individual's moral and physical integrity."
10. The difference between the Appellant's circumstances in Pakistan, where it is not challenged she lived, and would in future would live, as a recluse compared to the open life she lives in the UK have not been challenged. Those are fundamental matters that go to her physical and moral integrity and are directly related to the medical conditions which are not in dispute. The facts of this case can properly be said to be unique and the decision of Judge Housego cannot be taken to lay down any general principle. On the facts which were not disputed the Judge was entitled to find that the public interest in the Appellant's removal was outweighed by the Appellant's own highly unusual and distressing personal circumstances. Whilst the decision could have been better expressed, and I have made some further observations below, it was open to the Judge for the reasons given.
11. There is guidance from the Court of Appeal on the approach of reviewing courts to the approach to be taken but which also contains observations on First-tier Tribunal decisions. Burnett LJ in EA v SSHD [2017] EWCA Civ 10 at paragraph 27 gave made the following observations: "Decisions of tribunals should not become formulaic and rarely benefit from copious citation of authority. Arguments that reduce to the proposition that the F-tT has failed to mention dicta from a series of cases in the Court of Appeal or elsewhere will rarely prosper. Similarly, as Lord Hoffmann said in Piglowska v Piglowski [1999] 1 WLR 1360, 1372, "reasons should be read on the assumption that, unless he has demonstrated the contrary, the judge knew how he should perform his functions and which matters he should take into account". He added that an "appellate court should resist the temptation to subvert the principle that they should not substitute their own discretion for that of the judge by a narrow textual analysis which enables them to claim that he misdirected himself". Moreover, some principles are so firmly embedded in judicial thinking that they do not need to be recited. For example, it would be surprising to see in every civil judgment a paragraph dealing with the burden and standard of proof; or in every running down action a treatise, however short, on the law of negligence. That said, the reader of any judicial decision must be reassured from its content that the court or tribunal has applied the correct legal test to any question it is deciding."
12. Albeit not material to the decision itself paragraphs 12 to 19, covering pages 4 to 11 fall foul of the first line of the guidance cited above and the further quotes in paragraphs 63 and 64 do not add to the decision. Given that credibility was not in issue in this case the effective part the decision started only at paragraph 40 on age 16. The decision would have benefitted from a robust summary of the salient facts followed by a discussion applying the balancing exercise. The Judge also did not make clear that this was a physical and moral integrity case although that is the only basis on which the appeal could succeed. As I have indicated the decision was open to the Judge for the reasons given but the decision was flawed in ways that did not assist its being understood.
CONCLUSIONS
The making of the decision of the First-tier Tribunal did not involve the making of an error on a point of law.
I do not set aside the decision.
Anonymity
The First-tier Tribunal made an order pursuant to rule 45(4)(i) of the Asylum and Immigration Tribunal (Procedure) Rules 2005.
I continue that order (pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008.)
Fee Award
I make no fee award, this was an appeal by the Secretary of State and so question of a fee award does not arise.

Signed:

Deputy Judge of the Upper Tribunal (IAC)

Dated: 15th January 2018