Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: HU/04796/2020
HU/04797/2020

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 20 June 2022
On the 14 July 2022

Before

UPPER TRIBUNAL JUDGE NORTON-TAYLOR

Between

shola musa (first appellant)
a O (second appellant)
(anonymity directioN NOT MADE)
Appellants

and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the appellant: Ms E Harris, Counsel, instructed by Barnes Harrild & Dyer
For the respondent: Mr E Tufan, Senior Home Office Presenting Officer

DECISION AND REASONS

Introduction
1. The appellants are both citizens of Nigeria; the first is the mother of the second. The first appellant was born in 1974 and the second in 2011. They came to the United Kingdom as visitors in early 2015 and then overstayed. Their human rights claims were essentially based on the problems said to exist if they had to return to Nigeria. In particular, the second appellant suffers from epilepsy and, it was said, had been the subject of “traditional treatments” to “ward off” perceived “witchcraft” (in fact, seizures resulting from his neurological condition). This type of societal attitude, together with claimed difficulties in obtaining relevant medication, were put forward as a basis for being permitted to stay in United Kingdom on Article 8 grounds.
2. This is now the re-making of the decision in their appeals following the error of law decision, promulgated on 17 January 2022. By that decision, I concluded that the First-tier Tribunal had erred in law by (a) failing to take relevant considerations into account, or failing to give adequate reasons and (b) failing to have regard to evidence relating to the availability of particular medication in Nigeria. Two particular findings from the First-tier Tribunal’s decision were preserved: the second appellant does in fact suffer from epilepsy; the second appellant had been subjected to the “traditional treatments” referred to above (see [31] of the First-tier Tribunal’s decision and [16] and [24] of the error of law decision). The error of law decision is annexed to this re-making decision and the two should be read together.
The “new matter” issue
3. Very shortly after the error of law hearing, the second appellant accrued seven years residence in United Kingdom, thereby becoming a” qualifying child” within the meaning of section 117D(1)(b) of the Nationality, Immigration and Asylum Act 2002 “the 2002 Act”). I issued a direction for the respondent to confirm whether she regarded this development as a “new matter” and, if she did, whether she consented to it being considered at the resumed hearing.
4. By a response dated 3 February 2022, Mr Tufan confirmed that the seven years issue probably was a “new matter” and that the respondent did give consent.
The issues in these appeals
5. In the event, the second appellant’s status as a qualifying child leads into what is now the core issue in this appeal, namely whether it would be reasonable to expect him to leave the United Kingdom, with reference to section 117B(6) of the 2002 Act. If it would not be reasonable, the first appellant would succeed in her appeal. There is no suggestion by the respondent that, if this were the case, the second appellant should not also succeed under Article 8.
6. In so far as Appendix Private Life to the Immigration Rules is concerned, the second appellant’s seven-year residence in the United Kingdom does not assist him because of the temporal cut-off point relating to the date of application (i.e. the human rights claim), which in this case was back in February 2020 when he had only been in this country for some five years.
7. It is not been argued on the first appellant’s behalf that she has a free-standing Article 8 case sufficiently strong to succeed, absent the circumstances of her son.
The evidence
8. I had rather expected that updated evidence would have been provided in these appeals, given the nature of the live issues. In the event, the appellants rely on the consolidated bundle, indexed and paginated 1-68, prepared for the error of law hearing in January 2022.
9. Mr Tufan provided me with a copy of the CPIN on medical treatment and healthcare in Nigeria, version 4.0, published in December 2021.
10. The first appellant attended the hearing and gave oral evidence. She adopted her two witness statements and answered questions from Ms Harris, Mr Tufan, and one or two from myself by way of clarification. That evidence is a matter of record. I will deal with salient aspects of it when setting out my findings of fact, below.
11. In brief summary, the first appellant stated that the second appellant had seizures approximately twice a month and was having hospital check-ups at three-month intervals. She had not enquired about accessing appropriate treatment in Nigeria. Nor had she asked whether a different combination of medication would be appropriate for her son. She would not be able to turn to anyone in Nigeria for meaningful financial assistance. She has no funds or other assets herself.
Submissions
12. Mr Tufan reminded me that this was not an Article 3 medical case. He acknowledged that the CPIN suggested that one of the two medications taken by the second appellant was subject to “supply problems”. Despite this, the first appellant had not sought to find out whether any alternative combination of medications would be appropriate for the second appellant. It was likely that there would be treatment for epilepsy in Nigeria. The second appellant was doing well in school and had no other difficulties. The adult children in Nigeria should be able to assist, at least at some point in the future. On balance, it would be reasonable for the second appellant to leave the United Kingdom.
13. Ms Harris relied on the skeleton argument provided for the First-tier Tribunal hearing. She relied on the two preserved findings of fact and submitted that although the first appellant had now had experience of relevant treatment in the United Kingdom, on return to Nigeria she and her son would have to face wider societal attitudes. She would have to trust others in treating the second appellant if he had a seizure when she was not around. There was a danger that general prejudices would prevent relevant assistance, or at least make it more difficult. The situation would be very different from that encountered in this country. She submitted that it was unclear whether relevant medication would be accessible on return, even if it was in theory available. The first appellant was destitute in the United Kingdom and did not have financial assistance from either her adult children or her elderly mother. The first appellant’s employment prospects were not good and there was no evidence to show that relevant medication for epilepsy would be provided free of charge.
14. Ms Harris submitted that the second appellant’s best interests clearly lay in remaining with his mother in the United Kingdom.
Findings of fact
15. I have considered the evidence and submissions (oral and written) before me in the round and in the context of the burden of proof resting with the appellants to establish the primary facts in support of their case.
16. I find that the appellants both arrived in the United Kingdom at the beginning of 2015 and have resided here ever since, with the great majority of that residence being unlawful. The question of whether the first appellant ever intended to leave this country at the expiry of the visit visa has not been explored before me. The first appellant was 40 years old on arrival, and second appellant was 3.
17. I find that whilst in Nigeria, the first appellant ran a small shop, which supported her family. I accept that some point in time after she left, the shop closed.
18. It is a preserved finding that the second appellant suffers from epilepsy. The specific diagnosis stated by the Consultant in Paediatric Neurology at Kings College Hospital is described in the letter dated 23 December 2020 as “epilepsy with prolonged nocturnal seizures with onset aged one.” The letter confirms that the second appellant was being prescribed Buccal Midazolam for seizures lasting more than 5 minutes and that Lamotrigine was to be restarted at 12.5mg daily, with gradual increases up to a dose of 50mg twice daily. It is stated that the second appellant was generally doing well, but continued to have “prolonged episodes of shaking his arms and legs with his eyes opening up at night, lasting for between 15 and 20 minutes, on average on a monthly basis.” The first appellant was administering the Midazolam. The school was said not to have had any concerns about learning, behaviour, or attention, and he did not require additional support.
19. Unfortunately, I have not been provided with any updated medical evidence.
20. The first appellant’s evidence on her son’s epilepsy is somewhat problematic. In her witness statement of 14 May 2021, she stated that since starting the medication regime, the second appellant’s seizures had “almost stopped”. She confirmed that they were “under control and only happen every few months.” There was no suggestion of any new difficulties in either the management, nature, or frequency of seizures.
21. However, in her oral evidence (there not being any updated witness statement), the first appellant told me that her son was having seizures twice a month, with the last one being in early May. She did not clarify whether the seizures were occurring at night or during the day (in fairness to her, she was not asked that particular question). I note that she did not claim that the frequency and/or severity of the seizures had increased in recent months.
22. The Consultant’s letter from December 2020 is clear as to the frequency at that time (at least what had been reported, presumably by the first appellant): on average once a month. This frequency was in the context of the first appellant not having been on Lamotrigine since October 2020. The first appellant’s witness statement evidence is consistent with the restarting and increased dosages of Lamotrigine between the end of 2020 and May 2021: it decreased from about once a month to once “every few months”. In the absence of updated medical evidence and any clear indication from the first appellant as to a significant increase in the frequency of seizures (on her evidence, doubling), I find that the first appellant has, to an extent, exaggerated her evidence in respect of the seizures.
23. It is also unclear as to whether the seizures occur during the night or the day, or a mixture of both. Again, updated medical evidence might well have assisted.
24. There is no new evidence from the first appellant’s school, the last letter being dated May 2021. That letter said nothing about daytime seizures. That state of affairs was consistent with what is stated in the Consultant’s letter from the previous December.
25. Even bearing in mind the fact that the first appellant was not specifically asked about when seizures took place, I do not accept (if indeed it was her assertion) that all or indeed the majority of seizures take place during the day. It is more likely than not that the opposite is true: the great majority of seizures probably occur at nighttime.
26. I accept that the first appellant is able to administer the Midazolam as and when required, which appears to be during the course of a seizure. Thus, this particular medication does not appear to prevent seizures from occurring. Rather, it has some effect on recovery. There is no evidence to explain second appellant not having Midalozam.
27. In summary, I find that the second appellant’s epilepsy is well managed, that his seizures are infrequent, and that for the significant majority of the time occur at nighttime.
28. The second preserved finding relates to the appellants’ experiences whilst they were still in Nigeria. I find that the first appellant had had no experience of epilepsy prior to her son’s first seizure. Perhaps understandably, she turned to relatives, specifically her former partner’s family, for advice. The First-tier Tribunal found that the second appellant had not had a diagnosis or relevant treatment because his father had effectively prevented this. Instead, he had required the second appellant to be subjected to “traditional treatments” by his paternal grandmother in order to get rid of “witchcraft”. There was said to have been a claim that unidentified children had discriminated against the second appellant (it is somewhat difficult to understand what was meant by “discrimination” in the context of such young children). I find that the second appellant’s epilepsy was undiagnosed and therefore untreated whilst he was in Nigeria. I also find that the second appellant was effectively denied access to possible treatment by his father and that side of the family. Meaning no criticism of the first appellant, she was in a difficult position and it is highly likely that she felt compelled to follow the “advice” provided to her.
29. Paragraph 10.1.2 of the CPIN suggests that antiepileptic and epilepsy drugs are available in “public and private pharmacy facilities in Nigeria.” It is agreed by the parties that Lamotrigine is available in Nigeria. There is a dispute as to the availability of Buccal Midazolam. The CPIN states in Annex A that “Midazolam” is available but that there are “supply problems”. Although the title “Buccal” is missing from the description, in the absence of any clear evidence to the contrary, I am satisfied that it relates to the same medication presently prescribed to the second appellant in the United Kingdom.
30. It is difficult for me to assess what is meant by “supply problems”. That could have related to the situation at the time of the source evidence (2019); it could be an ongoing situation; there may be no such problems at present. The lack of evidence from the appellants’ side has certainly not assisted. In addition, it is apparent from the first appellant’s evidence that the treating clinicians in the United Kingdom had not been asked whether a different medication would/could be appropriate for the second appellant. Nor has there apparently been any enquiry as to whether Buccal Midazolam could be sent from the United Kingdom to Nigeria. The appellant has adduced no evidence in respect of the potential cost of any epilepsy medication.
31. On balance, I find that Buccal Midazolam is available in Nigeria on an appropriately consistent basis. I cannot speculate as to the actual cost of this particular medication, but, in the absence of any positive evidence from the appellants, I am not prepared to find that it would, on any reasonable view, be prohibitively expensive. The same applies to Lamotrigine.
32. In terms of the first appellant’s approach towards treatment if she and her son were to return to Nigeria, I find that it is highly likely that there would be a significant difference from what had occurred in the past. They would clearly not be engaging with the second appellant’s father’s family again and there is no realistic possibility of them being in some way found and subjected to the traditional practices. Rather, it is more likely than not that the first appellant will feel able to use the experience gained whilst in United Kingdom to seek medical treatment. Whilst the country information in the appellants’ bundle indicates difficulties in healthcare provision in general and that there are negative societal attitudes towards those with actual or perceived mental health conditions, I am not satisfied that second appellant would be denied treatment by public or private institutions.
33. I accept that the first appellant has been acknowledged as being destitute in the United Kingdom. It is highly likely that this is predominantly because she is not entitled to work. Whilst there is no specific preserved finding in respect of the provision of any income from property in Nigeria, taking the evidence as a whole I do accept that there is no such source of funds. I accept that the first appellant has no savings or assets in this country, or in Nigeria.
34. Having said that, the evidence as a whole does not demonstrate that the first appellant would be unable to seek and obtain reasonable employment in Nigeria. From a subjective perspective, she clearly spent the great majority of her life in that country and, despite having been educated only up to secondary school level, she was able to establish and run a small business for herself. It appears as though that business only ceased to operate after she left the country. There are no health-related issues which would prevent the first appellant from being employed or self-employed on return.
35. On an objective basis, country information does make reference to high levels of unemployment in Nigeria. I readily accept that the country does suffer from a relatively significant problem in this regard. Yet it cannot reasonably be said that Nigeria is in a state of humanitarian crisis or experiencing such economic problems as to make the possibility of the first appellant earning a reasonable living remote. It is, I find, more likely than not that she would be able to find employment or establish herself in self-employment within an appropriately short period of time.
36. If it were to be said that the preceding paragraph is simply too speculative, the short answer is that there is, to a greater or lesser extent, always a degree of speculation involved in Article 8 assessments where individuals currently reside in the United Kingdom but would be removed to their country of origin. Every case is fact-specific.
37. The first appellant has two adult children in Nigeria: her daughter is a graduate and her son (who is 23 years old) had to cease his education at some stage. The evidence is that neither are currently working and that it is the first appellant who is “sometimes” helping them with money from funds she receives in this country. It was said that their father (who is not the second appellant’s biological father) also helps. I have taken account of the email from the first appellant’s daughter, dated 21 June 2021. Aside from being a year old, this does not add to the first appellant’s evidence.
38. Ms Harris has submitted that I must consider their position as of now and should not speculate as to whether they would be able to obtain employment in due course. In the first instance, I take issue with that submission to the extent that, whilst I am considering the evidence as of today, this can involve reasonable inferences drawn therefrom. I find that both adult children are educated - the daughter more so than the son - and that both are able and willing to seek employment in Nigeria. It is, I find entirely reasonable to infer from the evidence that it is more likely than not that one or both of them will indeed obtain employment in the short-term. This, combined with ongoing support from their father, is likely to provide a source of at least some financial support for the appellants as regards the acquisition of relevant medication in Nigeria.
39. Alternatively, my finding as to the ability of the first appellant to find employment or establish herself in self-employment means that any financial support from the adult children is not necessary.
40. I have no evidence from the first appellant’s mother or aunt. It is said that they are both “very poor”. The first appellant has not explained how they are supported. She did state that her mother depended on the aunt for at least some financial support (the other source being the sister who resides in the United Kingdom). This implies that the aunt has an income of one sort or another. In the absence of a fuller evidential picture, I conclude that, if necessary, the aunt would be able to provide at least some financial contribution to the appellants. Even without that source, my overall finding on the ability to fund relevant medication would be the same.
41. Although the first appellant’s sister did not attend the hearing, I am prepared to accept that she was attending a hospital appointment on the day. Documentary evidence confirming this was received day after the hearing (Mr Tufan had had no objection to such evidence being admitted). The sister had previously provided a witness statement. In essence, this stated that she was a widow and single mother of two children and was not in a position to financially support the first appellant in this country or in Nigeria. This evidence has not been specifically challenged by the respondent. I am prepared to place weight on it. I am satisfied that there would not be sufficient financial support from the sister in respect of overall living needs for the appellants in Nigeria. Whilst it may in theory be possible to suggest that some funds good be contributed towards the cost of medication for the second appellant, that would in my view be too speculative, having regard to the sister’s own financial circumstances in what are, on any view, difficult times for low earners in this country, and the need for relatively consistent financial support if access to relevant medication were to be an ongoing reality.
42. There has been no evidence to show that it would not be feasible for a supply of the current medication prescribed to the first appellant to be taken to Nigeria if removal were affected. Whilst clearly not a medium to long-term solution, it would nonetheless be of material assistance. Again, this possibility is not central to my overall conclusion.
43. I turn to the second appellant’s educational and social circumstances in the United Kingdom. I find that he is now 11 years old and is currently in Year 6 at primary school. In light of the school letter from May 2021 and the absence of updated evidence, there is no reason to indicate that he is doing anything other than very well at school. I accept that he has established a number of friendships at school.
44. The first appellant’s evidence has said very little about any social or community ties outside of the school setting. I am prepared to assume that he is well-settled within society in general.
Conclusions
45. For the purposes of this decision, the two leading authorities on the reasonableness assessment are KO (Nigeria) [2018] UKSC 53, [2019] Imm AR 400 and now NA and Others (Bangladesh) [2021] EWCA Civ 953, [2021] Imm AR 1521 (which includes analysis of other relevant judgments from the Court of Appeal). Having regard to the guidance set out therein, I direct myself as follows:
(a) the reasonableness assessment under section 117B(6) of 2002 Act involves the hypothetical question of whether it would be reasonable for the child in question to have to leave the United Kingdom;

(b) the provision operates in one direction only, namely in favour of an individual parent. If the provision is not satisfied, a wider proportionality exercise under Article 8 should still be undertaken to the extent necessary;

(c) in conducting the reasonableness assessment, the conduct of the parent(s) is irrelevant;

(d) the best interests of the child in question remains a primary consideration, although not a determinative factor;

(e) it is important to consider the “real world” position, including whether the parent(s) have leave to remain in the United Kingdom;

(f) there is no presumption that the parent of a “qualifying child” should be granted leave to remain, nor is there a presumption in the opposite direction.
46. For the avoidance of any doubt, there is clearly a genuine and subsisting parental relationship between the first and second appellants.
47. I assess the second appellant’s best interests as resting in remaining both with his mother and in United Kingdom. He is settled in this country and has resided here for a relatively important part of his young life; between the ages of 3 and 11. He is at a stage of his education just prior to the transition from primary to secondary schooling. It is unlikely that he will have much, if any, recollection of life in Nigeria. He has (absent the lack of any status) a stable environment here, including the regular provision of medication for his epilepsy. He has established social ties.
48. I place the best interests assessment into the evaluation of reasonableness as a primary consideration.
49. It is a fact that both appellants are Nigerian citizens and neither have any leave to remain in this country. The real world scenario is that the second appellant would accompany his mother to Nigeria. There is no indication whatsoever that the first appellant is anything other than a loving and devoted mother.
50. It is clear that the first appellant will have retained strong cultural and social ties with Nigeria; she has only resided in the United Kingdom for a little over seven years and left there at the age of 40. This is relevant to the question of reasonableness because the second appellant would have the support of a loving and, importantly, culturally and socially aware mother on return.
51. There are other siblings living in Nigeria, namely the first appellant’s two adult children. There is no evidence to suggest that they would not seek to support the second appellant in whatever way possible, even if financial assistance was not possible. There would also be the presence of a grandmother and grand aunt. Thus, it would not be situation of the second appellant returning to Nigeria with his mother but having no other family members there.
52. English is an official language in Nigeria. There is a functioning educational system there. The second appellant has not yet entered his teenage years and is not, for example, on the brink of undertaking a GCSE course. There are no behavioural or developmental difficulties.
53. I have considered the second appellant’s epilepsy and its treatment in detail, above, and I do not propose to repeat them here. In summary, I have found that the relevant medication will be available in Nigeria and that it will be accessible, for reasons already set out.
54. On the evidence and my findings, the second appellant’s condition has not had a detrimental impact on his education or indeed his general social life in this country. I have found that, on return, there would not be any need for interaction with the father’s side of the family. Thus, there is no realistic possibility of the second appellant being subjected to further traditional practices.
55. I have considered the country information on wider societal attitudes towards those with actual or perceived mental health conditions. I have already found that these would not result in a denial of treatment by medical professionals. In terms of the general population, I accept that prejudices do exist (having regard in particular to what was said in the now-deleted country background note on Nigeria, version 2.0, January 2020, and the abstract from the article in Epilepsy and Behaviour, dated March 2020, included in the appellants’ bundle - the entire article is not viewable without payment). The second source found that many respondents to the study thought that epilepsy related to evil spirits or “God’s will”. Having said that, two thirds believed that condition was treatable and there was “generally” a positive attitude towards people living with epilepsy in Lagos (which is where the appellants would be likely to reside on return).
56. I certainly do not seek to underestimate the prejudices held by sections of the wider community. Yet every case is fact-specific. Here, I have found that the majority of the second appellant’ seizures occur at nighttime and would therefore be away from the public’s gaze. Further, the medication regime has had a very beneficial impact on the condition. On my findings, that regime is more than likely to continue. In this way, the risk of significant discrimination and/or risk of actual harm is in my judgment low.
57. Nigeria does suffer from poverty and the overall standard of living is, in the context of this case, likely to be less than in the United Kingdom. I factor that into my assessment.
58. I of course have regard to the obvious upset which the second appellant would feel as result of a relocation to Nigeria. Although I have no evidence from him (and I make no criticism about that), such a response would be wholly understandable.
59. The fact that the second appellant has resided in this country for over seven years does not simply make him a “qualifying child” for the purposes of section 117D of the 2002 Act, but also weighs as a significant factor in his favour under the reasonableness assessment. As made clear by NA and Others (Bangladesh), it does not, however, create a presumption in favour of his mother being granted leave to remain: put another way, there is no presumption that expecting the second appellant to leave the United Kingdom would not be reasonable.
60. Having weighed all relevant factors discussed above in the balance, I conclude that the appellants have failed to show that it would not be reasonable for the second appellant to leave the United Kingdom with his mother. I have not reached this conclusion by a particularly significant margin, but that is, it seems to me, the nature of things in most cases: there are invariably competing factors and a child (or children) at the heart of the matter.
61. In summary, the first appellant cannot succeed under section 117B(6) of the 2002 Act.
62. I turn to consider the second appellant’s Article 8 rights on a wider basis: the reasonableness assessment does not constitute the endpoint, as pointed out in NA and Others (Bangladesh).
63. Whilst the second appellant clearly enjoys family life with his mother, there would be no interference with that protected right because the two would be returned to Nigeria together.
64. As regards his private life, removal would clearly interfere with this.
65. With regard to proportionality, I take into account all I have said in respect of his best interests, as set out in paragraph 47, above. That is a primary consideration.
66. Whilst I accept that proportionality exercise does not necessarily equate precisely with the reasonableness assessment, the factors I have already discussed in respect of the latter come into play once again. There has been no submission that any additional factors in the second appellant’s favour not already considered in respect of section 117B(6) are present in this case. For my part, I cannot see that any exist.
67. On the respondent side of the balance, mandatory considerations under section 117B(1) and section 117B(4) apply. The maintenance of immigration control represents a significant factor. The second appellant has established virtually all of his private life in United Kingdom whilst here unlawfully. Even accounting for his minority and according more weight to his private life than would otherwise be the case, this nonetheless represents a factor in the respondent’s favour.
68. I find that the economic independence and English language considerations are of neutral value in this case.
69. Bringing everything together, I conclude that the second appellant’s removal from the United Kingdom (together with his mother) would be proportionate.
70. It follows that the second appellant’s appeal fails on the wider Article 8 assessment.
71. Finally, I turn to the first appellant’s Article 8 claim, as it stands independent of the second appellant’s circumstances. As mentioned earlier in my decision, no arguments were put forward on this basis, but I have decided to deal with it for the sake of completeness.
72. Her family life with the second appellant would not be interfered with because the two would be removed to Nigeria together.
73. I accept that the first appellant has established a private life in this country. There is evidence in her bundle to show that she has worked as a volunteer at a community hub since 2019 and at a food bank and holiday club. It is likely that she has established some friendships over the course of time as well.
74. I accept that removal would interfere with the private life.
75. I conclude that removal of the first appellant would clearly be proportionate in all the circumstances. Her relatively short residence in the United Kingdom has been almost entirely unlawful and there are no compelling features which would justify attaching anything other than “little weight” to her private life. She has clear ties with Nigeria. Her community work is certainly to be applauded and respected, but it comes nowhere near tipping the balance in her favour. The maintenance of effective immigration control is plainly an important factor weighing against her.
76. As with the second appellant, the financial independence and English language considerations are neutral.
77. Accordingly, the first appellant fails in respect of the wider Article 8 proportionality exercise.
Anonymity

78. The First-tier Tribunal made an anonymity direction, as did I at the error of law stage. With some hesitation, I took that course of action on the basis of the second appellant’s minority.

79. Since then, Guidance Note 2022 No. 2, Anonymity Orders and Hearings in Private, has been issued. Having reflected on this and the particular circumstances of this case, I have concluded that an anonymity direction is no longer justified. The second appellant is still a child, but that not of itself, sufficient warrant anonymity. I have not provided the second appellant’s name, nor any other identifying information relating to his school or suchlike. The public interest in open justice is significant.

Notice of Decision

80. The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law and that decision has been set aside.

81. I re-make the decision by dismissing both appeals.

Signed: H Norton-Taylor Date: 22 June 2022

Upper Tribunal Judge Norton-Taylor

TO THE RESPONDENT
FEE AWARD

I have dismissed the appeal and therefore there can be no fee award.

Signed: H Norton-Taylor Date: 22 June 2022

Upper Tribunal Judge Norton-Taylor

ANNEX: ERROR OF LAW DECISION

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: HU/04796/2020
HU/04797/2020
(V)

THE IMMIGRATION ACTS

Heard remotely from Field House
Decision & Reasons Promulgated
On 13 January 2022

…………………………………

Before

UPPER TRIBUNAL JUDGE NORTON-TAYLOR

Between

s a (first appellant)
a m (second appellant)
(anonymity directioN MADE)
Appellants

and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, I make an anonymity order. Unless the Upper Tribunal or a Court directs otherwise, no report of these proceedings or any form of publication thereof shall directly or indirectly identify the appellant or members of their family. This direction applies to, amongst others, all parties. Any failure to comply with this direction could give rise to contempt of court proceedings.

The hearing was conducted on Microsoft Teams

Representation:
For the appellant: Ms S Iengar, Counsel, instructed by Barnes Harrild and Dyer
For the respondent: Mr E Tufan, Senior Home Office Presenting Officer

DECISION AND REASONS

Introduction
1. The Appellants are citizens of Nigeria who came to the United Kingdom in early 2015 and have resided here ever since. The first Appellant is the mother of the second, a minor born in 2011. They appeal against the decision of the First-tier Tribunal, promulgated on 19 July 2021, by which it dismissed their linked appeals against the Respondent’s refusal of their human rights claims. The essence of these claims was as follows. The second Appellant has, since the age of one, suffered from epilepsy. As a result of this neurological condition, he had been subjected to traditional “treatments” by relatives in Nigeria and was perceived to be a witch, or at least under the influence of witchcraft. Following diagnosis in the United Kingdom, the second Appellant was put onto a particular medication regime consisting of two drugs, Lamotrigine and Buccal Midazolam. The Appellants asserted that, on return to Nigeria, they would be discriminated against, the second of the two mentioned drugs would not be available and, in all the circumstances, they would not be able to re-integrate into Nigerian society in any reasonable fashion. In addition, it was said that the Appellants would be placed in a position of destitution on return and this would compound the difficulties relating to the epilepsy and consequent perception of witchcraft.
The decision of the First-tier Tribunal
2. It was common ground that the second Appellant suffered from the condition described and was taking the relevant medication. The Appellants accepted that there case did not rest on Article 3, either in terms of any protection issues or the existence of a purely medical claim.
3. The judge appeared to accept that the second Appellant had been subjected to invasive and inappropriate acts (described at paragraph 31 as “traditional treatments”) by his paternal grandmother and had been the victim of stigmatisation from members of the community at large. It was accepted that, on the basis of country information, a belief in witchcraft was commonplace in Nigeria. At paragraph 37, the judge stated that:
“While I find there is academic evidence of witchcraft and discrimination against individuals in Nigeria, including those who suffer from mental health and neurological conditions, I also have to find that the actual direct evidence presented of those alleged incidents is limited and largely involves individuals who the Appellants have not had contact with during their time in the UK.”
4. In respect of the availability of relevant medication, the judge stated at paragraph 34 and 46 that medical treatment for epilepsy “is available”.
5. The Respondent accepted that the Appellants were currently destitute in United Kingdom, but disputed the assertion that they would be so on return to Nigeria. The judge dealt in some detail with this issue at paragraph 24-30, concluding that there was contact with relatives in Nigeria and that the Appellants would not in fact be destitute on return. This was based on a conclusion that there was property in Nigeria subject to a trust from which the first Appellant would be able to derive income.
6. The judge went on at paragraphs 39-41 to consider the first Appellant’s case in the context of paragraph 276ADE(1)(vi) of the Immigration Rules, concluding that there would be no very significant obstacles to her re-integration into Nigerian society.
7. In undertaking the wider Article 8 proportionality exercise, the judge dealt briefly with the second Appellant’s best interests, stating at paragraph 44 that these interests rested with being raised by his mother, receiving an education, and having access to treatment for his epilepsy. Paragraph 46 reads as follows:
“I have found the Appellants have family within Nigeria who the first Appellant has been in contact with during her time in the UK. I also find there is nothing in the Appellants’ evidence to suggest the second Appellant would be prevented from receiving an education in Nigeria. The Appellants now understand the medical reason for the second Appellant’s seizures and I have found that medical treatment for epilepsy is available in Nigeria. The second Appellant, in particular, has two siblings in Nigeria who, although young adults, it would be in his interest to continue his relationship with them.”
8. Having then directed himself to what was said in Agyarko [2017] UKSC 11; [2017] Imm AR 764 and again referring to the best interests consideration, the judge concluded that the Respondent’s decisions were proportionate and therefore lawful.
The grounds of appeal and grant of permission
9. The grounds of appeal can be summarised as follows. First, it is said that the judge failed to place the evidence and findings on witchcraft in the context of the Appellants’ cases. Second, the judge failed to address and/or provide reasons in respect of the unavailability in Nigeria of one of the two drugs taken by the second Appellant. Third, the judge’s conclusion that the Appellants would not be destitute on return to Nigeria was irrational or at least was not by clear findings and/or adequate reasons.
10. Permission to appeal was granted on an unlimited basis.
The hearing
11. Both representatives appeared remotely. There were no technical difficulties and I was satisfied that the hearing proceeded in an entirely fair manner.
12. Ms Iengar relied on the grounds of appeal and expanded thereon. Mr Tufan maintained the Respondent’s opposition to the challenge in all respects. The oral submissions are a matter of record and I do not propose to set them out here.
13. At the end of the hearing I reserved my decision.
Conclusions on error of law
14. I have reminded myself of the need for caution before interfering with a decision of the First-tier Tribunal. I am not seeking anything approaching perfection in the judge’s decision. I am not requiring each and every aspect of the evidence to be specifically addressed, or that reasons be provided for reasons, as it were. I have of course considered the decision holistically.
15. In my judgment, the Appellants’ first two grounds of appeal are made out.
16. The witchcraft issue (if I can describe it as such) was a central feature of the Appellants’ case. The judge appeared to accept that there had been past ill-treatment perpetrated against the second Appellant, although this was not set out in any detail. The judge did accept that the country information disclosed the prevalence of a belief in witchcraft and discrimination against those with what might be described as visible mental health and/or neurological conditions (which would obviously include epilepsy). Whilst not clearly set out, it would appear as though the judge accepted a connection between these two societal phenomena.
17. The first error of law rests in the judge’s failure to place the issues described in the preceding paragraph into the context of the Appellants’ particular cases, both in terms of past experiences representing an indication of what might occur in the future and, in any event, how both Appellants might be treated in the future by the community in which they were to reside on account of the second Appellant’s epilepsy. In other words, when assessing the ability of the Appellants to re-integrate into Nigerian society and re-establish themselves at a reasonable level of day to day existence, the judge failed to take relevant considerations into account, or failed to provide adequate reasons in respect of such considerations if they were indeed taken into account. These failures apply not only to the first Appellant’s case under paragraph 276ADE(1)(vi), but also in respect of the second Appellant’s best interests.
18. The second error relates to the second Appellant’s medication. It is clear that the first of the two drugs, Lamotrigine, was available, as confirmed in Annex A to the Respondent’s relevant CPIN. However, the second drug, Buccal Midazolam, did not feature in the list of available drugs. The combined medication regime was clearly stated by the Consultant in Paediatric Neurology, whose letter of 16 December 2020 was before the judge. In concluding that there was “medical treatment” available for epilepsy in Nigeria, the judge has, in my judgment, failed to address the evidence emanating from the Respondent’s own CPIN and has failed to provide an application as to why, on the facts of this case, appropriate treatment was indeed available.
19. At the hearing I did query whether the Consultant had been asked whether any alternative drugs would be appropriate for treating the second Appellant’s condition. Ms Iengar quite candidly accepted that this had not occurred. I take into account that the burden of proving the essential facts of the case rests on the individual, but, in the circumstances of this case, the absence of alternative scenarios in the evidence presented does not rectify the judge’s error or, alternatively, render any error immaterial. In short, the unchallenged medical evidence before the judge stated what the current medication regime was and that was the platform upon which the second Appellant’s case needed to be addressed.
20. Turning to the third ground of appeal, and having carefully considered paragraph 24-30 of the judge’s decision and the underlying evidence, I do have some concerns about the approach and reasoning employed. The judge’s acceptance of the Respondent’s submission that a disentitlement to property from the father’s estate did not preclude the possibility of an income being derived therefrom might appear to involve a degree of speculation. Aside from any argument as to whether “income” is simply a form of “property”, the evidence adduced by the Appellants was silent on the specific question. In addition, the judge did not appear to address the evidence provided the hearing from first Appellants sister, Ms Sarumin, who appeared to corroborate the claim that female members of the family have not been given any financial entitlement in respect of the estate.
21. Against this, the judge did undertake a fairly detailed assessment of the issue, having regard to the 2015 visa application, other documentary evidence, and the evidence of the first Appellant. Further, one aspect of the challenge in respect of this issue is that of irrationality, which represents an elevated threshold. If the challenge was predicated solely on irrationality, I would find against the Appellants. However, the grounds of appeal also assert that the judge failed to provide adequate reasons and failed to make specific findings on relevant matters. In respect of these aspects of the challenge, I agree, albeit with a degree of hesitation. In particular, there has been a failure to consider sister’s evidence and an absence of adequate reasons in respect of the first Appellant’s explanation and the evidence from the sister residing in Nigeria.
22. In light of the above, I conclude that the errors committed are material and the judge’s decision must be set aside.
23. For the avoidance of any doubt, even if I had rejected the third ground of appeal, I would nonetheless have regarded the first two errors as being material. Even if the judge had been entitled to conclude that the Appellants would not be destitute on return to Nigeria because of potential familial/financial support, the witchcraft issue and the unavailability of the particular drug constitute relevant considerations and the errors in respect of these matters would remain material to the outcome.
24. It is appropriate to retain these appeals in the Upper Tribunal and for a resumed hearing to take place in due course. All aspects of the Appellants’ Article 8 claims will be addressed. The only findings to be preserved are: first, that the second Appellant suffers from epilepsy; and second, that he experienced difficulties whilst last in Nigeria.
25. As Mr Tufan very fairly pointed out at the hearing, the second Appellant will in a very short space of time, have resided in the United Kingdom for 7 years. In principle, this gives rise to an issue under section 117B(6) of the Nationality, Immigration and Asylum Act 2002, as amended. This change in circumstances may constitute a “new matter”. The point is the subject of a direction, below.
Anonymity

26. The First-tier Tribunal made an anonymity direction, presumably on the basis that the second Appellant is a child. I am not entirely convinced that such a direction is necessary, but this matter was not canvassed at the error of law hearing. In all the circumstances, I maintain the direction at this stage. However, this will need to be looked at again at the resumed hearing.

Notice of Decision

27. The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law.

28. I exercise my discretion under section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007 and set aside the decision of the First-tier Tribunal.

29. These linked appeals will be retained in the Upper Tribunal and set down for a resumed hearing in due course.

Directions to the parties

1. No later than 28 days after this decision is sent out to the parties, the Appellants shall file and serve in electronic and physical form a consolidated bundle of all evidence relied on. Any evidence which was not before the First-tier Tribunal must be the subject of a rule 15(2A) notice;

2. No later than 42 days after this decision is sent out to the parties, the Respondent is to confirm in writing whether she regards the second Appellant’s 7 years residence in United Kingdom as a “new matter” and, if she does, whether consent is given for the Tribunal to consider this issue at the resumed hearing. At the same time, the Respondent may file and serve in electronic and physical form any further evidence she intends to rely on;

3. No later than 10 days before the resumed hearing, the Appellants shall file and serve in electronic and physical form a skeleton argument;

4. No later than 5 days before the resumed hearing, the Respondent may file and serve in electronic and physical form a skeleton argument;

5. With liberty to apply.

Signed: H Norton-Taylor Date: 14 January 2022

Upper Tribunal Judge Norton-Taylor