Tribunal decisions

The decision

IAC-AH-CO-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/01475/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 8 March 2017
On 15 March 2017

Before

DUPTY UPPER TRIBUNAL JUDGE MONSON

Between

MR LAwRENCE ASIeDU
(anonymity direction NOT MADE)
Appellant

and

Secretary of state for the home department
Respondent

Representation:
For the Appellant: In person
For the Respondent: Mr T Wilding, Senior Home Office Presenting Officer

DECISION AND REASONS
1. The appellant appeals from the decision of the First-tier Tribunal (Judge Jessica Pacey sitting at Shelton Court, Birmingham on 20 May 2016) dismissing his appeal against the decision of the Secretary of State to refuse his claim under Article 3 ECHR, which was brought on medical grounds, and to refuse his claim under Article 8 ECHR, which was brought on family and private life grounds. The First-tier Tribunal did not make an anonymity direction, and I do not consider that an anonymity direction is required for these proceedings in the Upper Tribunal having regard to the requirements set out in Rule 14(2) of the Tribunal Procedure (Upper Tribunal) Rules 2008.
Relevant Background Facts
2. The appellant is a national of Ghana, whose date of birth is 1 October 1973. He came to the United Kingdom in the year 2000 with valid entry clearance as a visitor until 3 February 2001. He is recorded as having first sought to regularise his status by an application for leave to remain as a spouse, which he made on 27 June 2008. This application was rejected. On 28 July 2008 he applied for leave to remain as an unmarried partner. The application was refused, but he was granted discretionary leave to remain until 27 October 2012. This was on the basis of his relationship with a woman who originated from Somalia, “HS”. On 30 January 2010 the appellant was issued with a certificate of approval enabling him to marry HS.
3. On 9 May 2013 the appellant applied for leave to remain as a partner and parent under the 10-year route. In their covering letter, his legal representatives said that his immigration history was complicated. The appellant been through a lot of issues with HS. There had been infidelity and unreasonable behaviour, sometimes violent behaviour. The “rather irate” HS had reported to the Home Office that the marriage was over.
4. For the last two years, the appellant had been in a genuine relationship with a new partner, “MA”. She had indefinite leave to remain in the UK. She had three children by a previous relationship. Their intention was to get married. The appellant was now divorced, and his partner was waiting for her decree absolute.
5. The appellant had quite serious medical issues which needed on-going treatment, and it would not be within his Article 3 rights to remove him from the care he was receiving in the UK. He suffered from a brain tumour and sickle cell disease. These were under control, but he needed ongoing specialist treatment. He took a carefully worked out drugs regime for his conditions. Healthcare standards were not equivalent in terms of neurosurgery advances in Ghana compared with the UK, and there was an issue about the availability of certain drugs that he needed. He might require an operation in the future. It would be extremely harsh to deny him the treatment that would effectively save his life. So there were insurmountable obstacles to him relocating abroad, both in respect of family ties and in respect of his medical issues.
6. The appellant also had two British citizen children by his ex-wife. They were now aged 6 and 11 respectively. The first child had been born on 18 September 2003, the second child had been born on 20 May 2008. He had been actively involved in their upbringing until the marriage broke down. It was only recently that he had he been prevented from seeing them. But the Family Courts would rectify this matter.
7. On the topic of maintenance and accommodation, the appellant received Disability Living Allowance on account of his brain tumour. Prior to this, he had been in full-time work. He aimed to return to work as soon as his condition stabilised. His partner MA was not earning £18,600 per annum. So the minimum income requirement (“MIR”) was not met. But their combined income from salary, benefits and allowances was such that they had adequate funds for living expenses. It would be unfair to expect MA’s three British children to have to leave the UK and start a new life in Ghana, when they knew nothing of life there, and all their family and friends were in the UK.
8. On 19 June 2015 the Secretary of State gave her reasons for refusing the appellant’s application to vary his leave to remain. He might have a genuine and subsisting relationship with his partner, MA. But, MA was not a person who had been living together with him in a relationship akin to a marriage or civil partnership for at least two years prior to the date of application. Although he claimed to have been in a relationship with her since January 2013, he had failed to produce acceptable evidence to confirm this. So, he failed to fulfil the requirement of E-LTRP.1.2 with reference to GEN.1.2 of the Rules.
9. It was accepted that he met the suitability requirements, and that he “may meet the requirements of EX.1(b), due to the fact of your current partner’s children’s nationality”, but he failed to meet the eligibility requirements contained in paragraph R-LTRP.1.1(d)(ii), and so he could not benefit from EX.1.
10. With regard to his own children, he did not have sole parental responsibility for them, and he also did not have contact with them. So, he failed to qualify for leave to remain under the parent route by virtue of E-LTRPT.2.4 of Appendix FM.
11. A decision had been made on whether there were exceptional circumstances. He currently did not have contact with his own children and he had provided no evidence to show that he had started official contact proceedings. Their needs and welfare were currently met by their mother, and there was no reason why this could not continue. He said that he played an important role in the lives of his three stepchildren. However, their needs had been met by his current partner before their relationship began, and there was no reason why this could not continue if he was to return to Ghana.
12. With regard to his medical condition, he had supplied a large number of NHS and doctors’ letters covering the period 7 July 2008 to 19 May 2014. In summary, it was noted that he had sickle cell disease and a pituitary gland tumour. Article 3 ECHR did not oblige contracting states to provide individuals with medical treatment that was lacking in their home country.. The Secretary of State was not satisfied that the appellant’s circumstances were sufficiently severe as to constitute a breach of Article 3 ECHR. Adequate healthcare in Ghana would be available to him, even if medical facilities in Ghana were inferior. The difference in treatment available to the appellant in the UK compared to that which was available in Ghana would not be substantial enough to cause serious harm to his physical and moral integrity. The Secretary of State had given careful consideration to the fact that medical treatment might not be free at the point of delivery in Ghana, and the appellant might not be able to afford to pay for treatment in Ghana. But that did not make his circumstances exceptional, and it did not entitle him to remain in the UK.
The Hearing Before, and the Decision of, the First-tier Tribunal
13. At the hearing before Judge Pacey, the appellant appeared in person. The respondent was represented by a Home Office Presenting Officer. The Judge received oral evidence from the appellant and MA.
14. In her subsequent decision, she found that the appellant was not a credible witness. Firstly, the appellant had provided a letter, apparently from his GP, which was written in support of an application for benefits. It was not credible in her view that a GP would write a letter in capitals and mostly in turquoise ink. Also, the letter did not, as was common, give details of the medications referred to, such as the dosage. Secondly, the appellant’s account of his relationship with his partner was inconsistent. His claim that she had obtained settlement on 26 January 2014 as the spouse of her now ex-husband meant that she could not have been living with the appellant since January 2013, a year earlier. At the hearing, he said that his partner and her ex-husband were separated by the time she had obtained settlement as his spouse. If that was the case, then MA must have misrepresented the state of her marriage in her settlement application, which would have required her to state that her marriage was subsisting. Thirdly, the Judge noted that the appellant was in receipt of Employment Support Allowance and Personal Independence Payment. It was unclear, given his lengthy periods in the UK without leave, how and why these benefits had been awarded.
15. At paragraph [20], she said that, given her findings as to the appellant’s lack of credibility, she did not accept his account and she found that he had not discharged the burden of proof. Even if she had found him to be credible, he could not succeed in any event. Under GEN 1.2(iv), the couple had to have been living together for at least two years before the date of application; and this was not the case. She also found that the appellant could not qualify under the parent route.
16. The Judge went on to address the question of whether it was proportionate for the appellant to return to Ghana to make an application for entry clearance. The Presenting Officer had helpfully provided a Home Office document indicating that 98% of visa applications from Ghana were processed within 90 days. In her view, this was not an unreasonably lengthy time for the appellant and his partner to have to wait. She cited Chen -v- SSHD [2015] UKUT 189.
17. At paragraph [27], the Judge referred to a letter from Milton Keynes Council dated 29 July 2014. This letter made reference to his partner’s children having a number of aunts and uncles in Milton Keynes who could provide care for them during her absence in Ghana. Therefore, the Judge found, these relatives would be able to look after the partner’s children while she was out at work, and while the appellant was in Ghana applying for a visa to return to the UK.
18. At paragraph [29], she found that the current arrangement was that the appellant saw his own children every other month for a weekend at a time. His application for a Child Arrangement Order requested contact for one weekend each month. This, however, had not yet been granted. As the visa application process in Ghana would take between two and three months, his contact with his own children would only be minimally affected, if he returned to Ghana on a temporary basis.
19. She accepted from the documentary evidence provided that the appellant had health issues. But he had provided no independent evidence that healthcare standards in Ghana were so poor as to meet the high threshold set out in GS (India) -v- SSHD [2015] EWCA Civ 40, such that Article 3 ECHR was engaged. On the contrary, she accepted the independent evidence provided by the Presenting Officer that there were healthcare facilities in Ghana which catered for the appellant’s medical conditions. It was therefore clear that healthcare was available to the appellant in Ghana.
20. At paragraph [31], she cited Singh [2015] EWCA Civ 74 in support of the proposition that, “there is no need to conduct a full separate examination of article 8 outside the Rules where, in the circumstances of a particular case, all the issues have been addressed in the consideration under the Rules.”
The Reasons for the Grant of Permission to Appeal to the Upper Tribunal
21. On 25 January 2017 Upper Tribunal Judge Pitt gave her reasons for granting permission to appeal on a renewed application for permission to the Upper Tribunal:
It is arguable that the FTTJ erred in failing to put to the appellant her concerns that a forged letter from a GP had been provided, particularly where the respondent does not appear to have questioned the genuineness of the medical evidence and that she failed to take into account another GP letter dated 1 April 2016, provided in response to the Tribunal’s request for up-to-date medical evidence and, albeit the threshold of medical claims remains high, the ratio of Paposhvili -v- Belgium (application number 41738/10) may be material.
The Hearing in the Upper Tribunal
22. At the hearing before me to determine whether an error of law was made out, I heard from the appellant and his partner, MA. The appellant’s benefits had been stopped last summer. He no longer received a PIP or employment support allowance. I reviewed both the GP letter dated 7 January 2016 and the letter dated 1 April 2016 referred to by Judge Pitt. This is not in fact “another GP letter”. It is a letter from a Consultant Physician in diabetes and endocrinology at Milton Keynes University Hospital.
23. Mr Wilding addressed me on Paposhvili -v- Belgium. He submitted that this authority was no assistance to the appellant, as his condition did not meet the minimum level of severity such as to engage Article 3 ECHR.

Discussion
24. In the letter of 1 April 2016, the consultant provides an update on the appellant’s medical conditions and his prognosis.
25. He has a tumour in his pituitary gland. Although this is benign, it needs ongoing medical treatment. With appropriate long-term treatment, this condition is not life-threatening.
26. He has obstructive sleep apnoea for which he needs ongoing follow-up and continuous positive airways pressure. Left untreated, it can result in significantly high blood pressure and also extreme fatigue resulting in an inability to function with regard to daily activity.
27. He has type 2 diabetes mellitus which is associated with long-term communications. However, with appropriate management, many of these complications can be either delayed or avoided.
28. He has sickle cell disease which can result in a sickle crisis associated with infection. He has also had seizures which have resulted in hospital admission.
29. In Paposhvili v Belgium, the Court held inter alia as follows:
181: The Court concludes from this recapitulation of the case law that the application of Article 3 of the Convention only in cases where the person facing expulsion is close to death, which has been its practice since the judgment in N -v- United Kingdom, has deprived aliens who are seriously ill, but whose condition is less critical, of the benefit of that provision …
183. The Court considers that the “other very exceptional cases” within the meaning of the judgment of N -v- United Kingdom (paragraph 43) which may raise an issue under Article 3 should be understood to refer to situations involving 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 correspondent to a high threshold for the application of Article 3 of the Convention in cases concerning the removal of aliens suffering from serious illness.
30. I do not consider that the decision of the Court in Paposhvili -v- Belgium casts doubt on the soundness of the First-tier Tribunal’s conclusion on the appellant’s Article 3 claim. On the basis of the medical evidence made available to the Secretary of the State, and to the First-tier Tribunal, the appellant was not and is not “a seriously ill” person, as defined in paragraph [183] cited above. Substantial grounds have not been shown for believing that the appellant 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 state of health resulting in intense suffering or to a significant reduction in his life expectancy. Moreover, the appellant has not sought to demonstrate that the Judge was wrong to find that the appellant would be able to access adequate healthcare facilities in Ghana for the treatment of his various conditions.
31. The Judge’s adverse credibility finding on the GP letter is not material to the outcome of the Article 3 claim, as the Judge accepted other documentary evidence pertaining to the appellant’s health issues. Accordingly, there is no error of law in the Judge’s finding that the claim under Article 3 ECHR on medical grounds is not made out.
32. The adverse credibility finding on the GP letter is also not material to the assessment of the Article 8 claim. It is understandable that the Judge was troubled by this letter, for the reasons which she gives in paragraph [15] of her decision. As she says, the letter appears on its face to have been partly cut and pasted from another document, and while the letterhead is in black type, the body of the letter is in turquoise. It was open to the Judge to find that the letter did not display the professionalism which one would reasonably expect from a GP. The Judge highlighted the fact that the body of the letter is entirely written in capital letters. Mr Wilding also drew my attention to the chatty and informal language which is used. Although it is addressed: “To whom it may concern”, the letter closes as follows:
HE IS QUITE AN UNWELL CHAP AND I WONDER IF YOU WILL CONSIDER REVIEWING YOUR DECISION REGARDING HIS BENEFITS IN LIGHT OF MY ACCOMPANYING LETTER.
MANY THANKS FOR ANY HELP YOU CAN OFFER.
BEST WISHES,
YOURS SINCERELY
There is then a ‘squiggle’, and underneath the squiggle there is the name of the doctor at Wolverton Health Centre who purportedly signed the letter.
33. For the purposes of the hearing before me, the appellant obtained a letter of confirmation from Dr Ali confirming that he was the signatory of the letter of 1 April 2016. But the appellant has not performed the same exercise with regard to the doctor who purportedly signed the GP letter of 7 January 2016.
34. It is arguable that the Judge ought to have explored her concerns about the GP letter with the appellant at the hearing, if this was not a matter upon which he was cross-examined by the Presenting Officer. However, having taken all relevant matters into account, I am not persuaded that the Judge’s adverse credibility finding on the GP letter has led to material unfairness such that the appellant can be said to have been deprived of a fair hearing in the First-tier Tribunal.
35. The main reason for the Judge finding against the appellant under Appendix FM was the apparent stark inconsistency between, on the one hand, his claim to have resided with his partner in a relationship akin to marriage since January 2013, and, on the other hand, his statement that in January 2014 (a year later) his partner had obtained indefinite leave to remain as the partner of someone else. This stark inconsistency provided a sufficient reason in itself for finding that the appellant had not shown that he had resided in a relationship akin to marriage with his partner for at least two years prior to the date of application.
36. MA explained to me that in fact she had not been granted ILR on the ground of a subsisting marriage to her ex-husband. She said that she had obtained indefinite leave to remain as the victim of domestic violence. She added that she had started cohabiting with the appellant in February 2013 - not January 2013 as claimed by the appellant. I asked her whether any documents relating to her grant of ILR on the grounds of being a victim of domestic violence had been before the First-tier Tribunal. She said that she had not produced these documents for the hearing before Judge Pacey, and she could not produce them now, as she had left them at home.
37. The evidence which I received from MA indicates that the First-tier Tribunal Judge may have made a mistake of fact. But an error of law is not thereby disclosed because the mistake of fact, if there is one, arises from inaccurate information given by the appellant.
38. In summary, the appellant has not made out a case that the First-tier Tribunal Judge erred in law in not finding in his favour that he had cohabited with MA for at least two years prior to the date of application.
39. As Mr Wilding confirmed in the course of oral argument, it is open to the appellant to make a fresh application for leave to remain as a partner under Appendix FM. It will be easier for him to demonstrate that MA meets the definition of the partner, as the mandatory two year period of cohabitation will run back from the date of the fresh application. Provided he makes his application within 28 days of his appeal rights being deemed to be exhausted, he will not be treated as an overstayer.

Notice of Decision
The decision of the First-tier Tribunal does not contain an error of law, and accordingly the decision stands.
This appeal to the Upper Tribunal is dismissed.
I make no anonymity direction.

Signed Date March 2017

Judge Monson
Deputy Upper Tribunal Judge