Tribunal decisions

The decision

IAC-FH-CK-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/05145/2020

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On the 21st July 2022
On the 18th August 2022

Before

UPPER TRIBUNAL JUDGE RIMINGTON

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

Mr Ahmed Hussain Shareef
(anonymity direction NOT MADE)
Respondent

Representation:

For the Appellant: Mr T Melvin, Home Office Presenting Officer
For the Respondent: Mr T Wellalage, Lawseth Solicitors

DECISION AND REASONS
1. The appellant appeals against a decision of the Secretary of State dated 23rd March 2020 which refused his human rights application made on 6th February 2020. The appellant is a national of the Maldives born on 24th December 1982. The refusal decision recorded that he entered the United Kingdom on 14th September 1996 with a student visa and his leave was extended serially until 31st October 2008 although there was an absence from the UK between 2001 and 30th September 2003. On 30th October 2008 he submitted an in-time application for indefinite leave to remain on the basis of ten years’ residence, but his application was refused on 24th April 2009, and he became appeal rights exhausted on 5th August 2009.
2. Thereafter, further student applications were rejected. On 10th March 2010 he submitted an out of time application for leave to remain as a Tier 4 (General) Student and that was refused with no right of appeal on 23rd June 2010. On 12th October 2012 he submitted an out of time application for leave to remain on human rights grounds, but that application was also refused on 20th May 2013 with no right of appeal. The appellant proceeded to make further applications for leave to remain in 2013, 2014, 2015 and 2016 which were refused and finally on 6th February 2020, which generated this appeal.
3. The Secretary of State’s decision outlined that it was not accepted that the appellant had lived continuously in the UK for at least twenty years; he failed to meet the requirements of paragraph 276ADE(1)(iii) of the Immigration Rules and further, he failed to meet the requirements of paragraph 276ADE(1)(vi) as there were no very significant obstacles to his integration in the country to which he would be removed, that is the Maldives. It was also concluded that there were no exceptional circumstances to justify granting leave under Article 8 of the European Convention on Human Rights. Although the appellant was said to have spent fourteen years in the Maldives, in fact he had attended primary school in Sri Lanka but entered the UK at the age of 14 in 1996 and subsequently in 2001 left to seek medical treatment. The decision stated that he had already demonstrated his ability to adapt to life in another country and that he could re-integrate into the Maldives.
4. The matter came before First-tier Tribunal Judge Knight, who allowed the appeal but on 18th January 2022 the Upper Tribunal set aside that decision. Not least, the First-tier Tribunal judge stated that he accepted the appellant’s account, but the appellant neither attended to give evidence in person nor submitted a witness statement. The judge also gave inadequate reasoning as to why he accepted that the appellant’s sister provided a significant personal and emotional support. Further, there was a failure by the judge to give reasoning in relation to the reliance placed on a medical report produced in relation to the appellant’s said mental illness, particularly a social phobia. Although the judge referred to the appellant’s conditions including depression and vitiligo there was no evidence adduced that there was a lack of treatment for his medical conditions in the Maldives and thus the judge could not have concluded that the appellant would face very significant obstacles to his return to the Maldives.
5. The documentary evidence before the Upper Tribunal for the resumed hearing consisted of the bundle which was before the First-tier Tribunal and which included a medical report from Dr Raj Persaud dated 28th January 2020 and further supplementary bundles, namely bundles 1, 2 and 3, which included the mother’s witness statement, a witness statement of the appellant’s friend Mr Don Colonne and a witness statement of Miss Aminath Hussain Shareef, the appellant’s sister, and the witness statement of Mr J Burton, the appellant’s uncle.
6. I note at this point that again there was no witness statement from the appellant himself despite criticism within the Upper Tribunal error of law decision setting aside the First-tier Tribunal decision of the lack of evidence from the appellant.
7. The history of the appellant’s case is that he was born in India and lived with his parents for six years in the Maldives and in 1988 left the Maldives and attended school in 1989 in Sri Lanka. He entered the UK in 1996 and began a degree at the University of Derby but he left the UK in 2001 when he was diagnosed with vitiligo, a skin condition, and his family made arrangements for him to receive treatment in India and subsequently Singapore, Thailand and then Sri Lanka. He received medical advice to remain in a tropical climate and he transferred his studies to the University of Colombo in Sri Lanka. He apparently re-entered the United Kingdom on 30th September 2003 and attended the University of Portsmouth to continue his studies and subsequently Regent's Business School in London. His last in-time application was submitted on 4th August 2009 and on 14th August 2009 it was refused.
8. I make clear that at the hearing before me three witnesses attended, that being Mr Jonathan Burton, Mr Don Colonne and Miss Aminath Hussain Shareef. The appellant did not attend.
9. In his submissions Mr Melvin relied on the refusal notice. He considered this to be an extraordinary appeal by an appellant who had refused to make a statement or appear before the Tribunal. This was the seventh or eighth application made, and all had been refused. It was quite clear that the family travelled to and from the Maldives on a regular basis. He found Mr Burton to be a credible witness and although he alluded to the requirement to be a practising Muslim to operate in the Maldives there was no evidence raised by the solicitor as to this point or before the Tribunal. He submitted that this would make no difference whatsoever as there were numerous family members in the Maldives with considerable assets and connections to his appellant and his family. In relation to Miss Shareef, I was urged to treat her evidence with caution, particularly that the appellant’s family, that is the appellant’s older brother and mother had removed to Dubai. The only evidence of that was the entrepreneurship visa and it was clear that the family could return to the Maldives to give the appellant support if required.
10. The evidence showed that the family enjoyed considerable financial resources of which the appellant partook; there was evidence of large projects undertaken by the family in the Maldives.
11. The production of the psychiatric report with only a three-line letter from the GP saying that the appellant was depressed was inadequate. There was no evidence before the Tribunal for the last two years and I was urged to reject the suggestion that the appellant had merely resisted the idea of treatment. The psychiatric evidence was clearly a last-ditch attempt by the appellant to remain in the UK and there had been no medical issues raised before in the many years of litigation. Mr Melvin made reference to HA (expert evidence, mental health) Sri Lanka [2022] UKUT 111 (IAC) , specifically [148] because Dr Persaud had failed to cross-refer to medical records.
12. There were no significant obstacles under paragraph 276ADE(1)(vi) to the appellant returning to the Maldives. The fact that he could speak English and was financially independent were neutral factors. It was clear that the mother could travel to see him. The appellant’s claim could not succeed outside the Immigration Rules.
13. Mr Wellalage submitted that the appellant had lived outside the Maldives for 33 years and had been brought up in Sri Lanka and the next nineteen years in the UK. I asked Mr Wellalage whether there was any evidence that the appellant was actually in the United Kingdom, and he referred to the witnesses’ oral evidence. It was correct he had a social phobia, which was in line with his psychiatric findings. It was accepted the mother had no permanent status to stay in Dubai and that the appellant did not have a close connection with his mother. Mr Wellalage submitted that there was both family life with the sister and private life established by the appellant in the UK. The appellant had been taking steps to regularise his stay in the UK and had paid application fees and it was clear that he had psychological depression.
14. Mr Wellalage confirmed that he was no longer relying on Article 3.
Analysis
15. I questioned the absence of any witness statement from the appellant, particularly in view of the criticism made previously of the weight placed by the First-tier Tribunal on evidence in relation to the appellant when he had not even appeared before the First-tier Tribunal. The appellant also failed to appear before the Upper Tribunal. Mr Wellalage confirmed that it was difficult for the solicitors to take instructions (it appeared the appellant would not co-operate) but he, the representative, had been told that the solicitors should nonetheless continue to represent him at court. He also confirmed that there was no medical evidence since 2020. His sister, who produced evidence of a degree in psychology but produced no actual qualifications of being a practising psychologist, opined that the appellant was depressed but there was no up-to-date evidence of the appellant’s mental health.
16. The medical evidence was limited. There was a letter from what appeared to be a private medical practice, the Harley Grove Medical Centre, dated 21st February 2020 signed by Dr Ahmed, GP, referring to a ‘mixed anxiety and depressive disorder’ with merely a prescription of sertraline once daily. It did not indicate how long the doctor had been treating the appellant and merely stated ‘the above patient [the appellant was seen in clinic on 10/2/2020’. It was not clear whether this was the only occasion this GP had seen the appellant. The letter was also dated and for this reason I place limited weight on the contents.
17. The only other medical report was that of Dr Persaud which included the same paragraph on the “Expertise of Author of Report” as that criticised in HA (Sri Lanka). I make a number of further criticisms of the report. First, there is a heavy emphasis on the immigration background of the appellant. Secondly, it does not appear to acknowledge the fact that his vitiligo was successfully treated over twenty years ago as confirmed by the witness Mr Don Colonne. Thirdly, there is no reference to any GP reports. Fourthly, he saw the appellant just once and appeared to rely almost wholly on the appellant’s evidence. Fifthly, he speculated that the appellant was likely to make a suicidal act when in fact the evidence from the sister was that he had not done so and had never suggested he would self-harm, particularly as Dr Persaud stated it was a high risk. Lastly, the examination did not include any report from direct observation of the appellant himself. I therefore attach little weight to this psychiatric report.
18. Save for the sister’s evidence, which I found would be partial, there was no explanation of why the appellant could not even produce a witness statement even if he did not attend at court, bearing in mind the gravity of the appeal. I say this in particular because Mr Colonne confirmed that the appellant assisted him with his travel agency in designing websites and coming up with strategies and the appellant was clearly able to instruct the solicitors himself, I was informed directly, to continue with his representation in the appeal.
19. The fact that the appellant is not prepared to attend court in these circumstances or even give a witness statement weighs heavily against him.
20. In relation to very significant obstacles should he be removed to the Maldives, the Court of Appeal in Secretary of State v Kamara [2016] EWCA Civ 813 held that "integration" calls for a broad evaluative judgment of whether the individual will be enough of an insider in terms of understanding how life in that other country is conducted and a capacity to participate in it, and have a reasonable opportunity to be accepted, operate on a day-to-day basis and to build up within a reasonable time a variety of human relationships. I consider the answer to these questions is ‘yes’.
21. What was abundantly clear from the evidence given by the three witnesses was that the appellant’s family have extensive properties in the Maldives and extensive resources and connections. Indeed, the bank statement of the appellant himself shows that he had a very healthy bank balance. Mr Burton, the appellant’s uncle, married to the appellant’s mother’s sister, confirmed that he regularly visited the Maldives, that was two or three times a year and indeed, he had projects there in connection with his wife’s construction projects because he was an architect. He confirmed that the appellant could not read or write in the Maldivian language but acknowledged that since 1980 education in the Maldives was taught in English and the majority had an adequate knowledge of English. He confirmed that in the capital English would be spoken but outside the local language would be spoken. He confirmed that his wife had property there and she travelled there on a regular basis. Mr Burton also confirmed that there was a large extended family in the Maldives and that the appellant had six to eight cousins of a similar age group in their 30s and 40s and two further uncles and two aunts living in the Maldives.
22. He also confirmed that there is a social network conducted on Viber and all the family were on that system although on that social network they would be unlikely to discuss mental health. Mr Burton confirmed that he in fact lived in Geneva and thus he had minimal contact with the appellant who would isolate himself on the basis that he was concerned he would be deported at any moment. He confirmed the appellant was able to speak some of the Maldivian language and he was able to use computers fluently. He added that the appellant was a non-practising Muslim and would be vulnerable on that basis. I found Mr Burton’s evidence to be frank and credible although for reasons I give below I was not persuaded that the appellant would be unable to reside in the Maldives because of him being a non-practising Muslim.
23. What was clear, however, was that there is an extended family in the Maldives. Although the appellant may have left the Maldives when he was 6 years old, he has until recently been regularly and consistently in close contact with his family and their culture, and there is no reason to suppose that he would fail to understand the customs and traditions of Maldivian society, bearing in mind his family’s regular contact and immersion within that society. Indeed, his sister, whom it was represented that he lived with, in fact had a Maldivian husband who was also a non-practising Muslim who resided and had resided since their marriage in the Maldives.
24. Mr Colonne confirmed that the appellant had had treatment for vitiligo in 2003 and he was not aware that he had had any treatment for that since. (This evidence further undermines the report given by Dr Persaud, who maintains that his mental health problems were a result of his vitiligo). In his witness statement Mr Colonne confirmed that the appellant was an asset to his travel agency and stated that he had good ideas in business and good ideas for his company’s website, web design and business strategy and he would assist in holidays to the Maldives. He confirmed that this was an active travel agency. He also confirmed that the appellant lived on his own in the flat and most of the time his sister lived in the Maldives, and he had seen her for the first time at court for many years. The last time he saw her was four to five years ago. He saw the appellant ‘from time to time’ and would travel once a month before Covid but since the onset of Covid (March 2020) not so much. I give some weight to this witness’ evidence save that I am not persuaded of the regularity of his contact which appeared to have dwindled somewhat since Covid.
25. I give limited weight to the evidence given by Miss Shareef. Initially she stated: “I live in London here”. She then stated she travelled often to the Maldives because currently she managed properties there which she and her siblings, which included the appellant, had inherited from their father and they were selling them. She stated that she paid the rent by transfer but as the properties were owned jointly by the siblings, I do not accept that it is the appellant’s sister who is solely responsible for the funds for the flat, particularly with the size of the bank balance that the appellant had. The sister then confirmed that her husband lived in the Maldives and that was his permanent address. He did not have British citizenship and he was Maldivian. For the last few years she had not been working and in fact she was in the Maldives initially looking after her father and looking after the properties and, as she stated, she was lucky to have the flexibility not to work at the moment. As such, I do not accept that she was living with her brother in the United Kingdom. She confirmed that the appellant had considerable resources as the father had “a lot of properties in the Maldives” which were of very high value, and which were inherited by her and her two siblings. She confirmed that there were a lot of relatives in the Maldives but that they were not close, they merely said ‘Happy Birthday’ to each other and nothing more than that. Having first stated in her that oral evidence that she lived in the United Kingdom, she then stated that over the last three years she had in fact been living most of the time in the Maldives.I find that the sister spends the bulk of her time in the Maldives with her husband.
26. In view of the lack of reliable medical evidence I am not persuaded by the sister’s further evidence that the appellant failed to attend merely because of his stress levels, particularly as there is no indication of him currently having treatment. She confirmed that her brother was intelligent and a strong person and wished to contribute to society. He had hitherto been gregarious as confirmed by Mr Burton and the appellant’s sister confirmed that in fact it was his immigration status which had affected his mental health. Once that is resolved there is no reason to suppose that he will need further treatment and indeed, it is clear that he does not access medical treatment for his mental health issues (save for the minimal reports placed before me and some anti-depressant medication) even though that is available to him in the United Kingdom. She confirmed that he had never threatened to harm himself in any way and that he found ways to manage his depression and she kept an eye on him and spoke to him daily. There is no reason this support could not continue wherever the appellant is and indeed if he were to relocate to the Maldives he can rely on her there for more direct support.
27. I do not accept that the mother has relocated permanently to Dubai. There was clear evidence that her visit visa predated a medical consultation in Dubai and indeed, there was no evidence that she was unfit to fly. The appellant’s sister confirmed that the mother had long-standing medical conditions and notwithstanding those conditions had been able to make long flights to Dubai and to and from the UK. Indeed, the sister confirmed that she was a very independent person.
28. Although the appellant’s sister made reference to the fact that the family were political, as Mr Melvin pointed out, the father’s death certificate indicated that he was in fact a civil servant and as the sister confirmed that the appellant was not involved in politics and there was no indication in any of the witness statements that there was any political difficulty for the family I do not accept that he would encounter any significant obstacles in connection with any political persuasion.
29. In terms of the vulnerability of the appellant raised because he was a non-practising Muslim, I note that the appellant’s sister’s husband was confirmed as a non-practising Muslim. There was no indication that he found any difficulties on this account, and I was not told of any spousal application for settlement in the United Kingdom, bearing in mind the sister is British citizen and able if necessary to support her husband here.
30. I did question whether the appellant was actually in the country, bearing in mind that the solicitor confirmed that he had been trying to book appointments with the appellant, but the appellant did not turn up or co-operate and he had not been seen by the representative who attended court and only by another solicitor earlier in the year. I do not accept that this is attributable to any mental health concerns owing to the lack of medical evidence.
31. Overall, I find that there are no significant, let alone very significant obstacles to the appellant’s integration in the Maldives. I accept that he has not been to the Maldives for many years, but he had experience of the Maldives when very small, had experienced global travel, had education in Sri Lanka and has a sister who clearly resides there with a husband for whom there has been no spousal application made to bring him to the United Kingdom; there is no indication that the mother lives permanently in Dubai.
32. That said, even without the sister or the mother I conclude that the appellant has an extended family network with whom he could have contact. There is a social media network of all the family whereupon they wish each other Happy Birthday, which does suggest some form of closeness. There is no shortage of funds, and the appellant can speak a limited amount of the local language, albeit that in the capital Mr Burton confirmed that he was able to speak English when on business. The appellant was described variously throughout the course of the appeal hearing as intelligent and strong and he clearly has sought no regular medical help or treatment for any form of depression (save for the one dated prescription for sertraline of 2nd March 2020) and his vitiligo, said to be part of the cause, had been treated. Once his immigration position is regularised, that too may alleviate his anxiety. As Mr Burton stated, there was not an absence of mental health treatment in the Maldives, merely that it was in the Maldives, and thus said to be inadequate. There was no independent objective medical evidence that it was inadequate but moreover there was no persuasive evidence before me that the medical could not seek treatment if required it is quite clear that the family have the ability to resort to private means to secure appropriate treatment, which they have done in the past.
33. Nothing put before me suggested that there were any significant obstacles to the appellant’s return and integration in the Maldives, where he has family, resources and homes. I acknowledge that maintains that he has lived here for a considerable period of time but even so, at the age of nearly 40 years old has had experience of other cultures.
34. In terms of Article 8 I turn to consider the five-stage test encapsulated in Razgar v SSHD [2004] UKHL 27. I do not accept that appellant has developed family life in the United Kingdom. The sister has been living in the Maldives and both Mr Burton and Mr Colonne referred to the appellant’s social phobia and their infrequent contact with him. The solicitors suggested that he had been seen once during the course of his instructions. It is not clear on the documentation that the appellant has been living in the UK continuously over the last few years.
35. I do not accept that he has family life in the UK with his sister because it is clear that she effectively lives in the Maldives. Mr Burton lives in Geneva and Mr Colonne lives in the North and none of these showed the hallmarks of the ‘Kugathas test’ which is effective, real or committed support, Kugathas v Secretary of State for the Home Department [2003] EWCA Civ 31; [2003] INLR 31. I realise there is no requirement to show exceptional dependence.
36. Even if he were to have a private life in the UK, although I accept that the threshold for breaching that private life is low, the Secretary of State has applied paragraph 276ADE(1)(vi) in accordance with the law and the application would be necessary for the protection of rights and freedoms of others in the maintenance of an effective immigration system.
37. Turning to proportionality I factor in my findings above. The appellant is clearly financially independent, and I am not persuaded that he has significant current mental health difficulties, because despite the evidence of the witnesses, there was a total lack of medical evidence over the last couple of years or currently. There was no evidence before me that there was inadequacy of treatment in the Maldives for medical conditions that the appellant currently experiences and I refer above to my findings.
38. It was suggested to me that the appellant has lived in the UK continuously for nearly twenty years which I note but there was a distinct lack of documentary evidence within the bundle to that effect. Even if that were the case, taking into account the above findings, there were no unjustifiably harsh consequences explained to me in connection with the appellant’s removal. Owing to the lack of medical evidence to affirm current mental health difficulties preventing his attendance, I would expect the appellant to attend court to explain any significant obstacles to his return to the Maldives. His failure even to submit a witness statement, bearing in mind he has been active in terms of his friend’s business, sharply undermines the evidence of the witnesses either that there are any very significant obstacles to his return or that there are any unjustifiably harsh circumstances in relation to his relocation.
39. I must take into account Section 117B of the Nationality, Immigration and Asylum Act and note the appellant can speak English and is financially independent but those are neutral factors. Under Section 117B(5) ‘Little weight should be given to a private life established by a person at a time when the person’s immigration status is precarious’. I acknowledge that the appellant entered the UK lawfully, in 1996 when young at the age of 14 on a student visa, but his private life was always predicated on that basis, and his immigration status has thus always been precarious. Further he was absent for a period between 2001 and 2003 and his application to remain on the basis of 10 years residence was refused in April 2009 and he was appeal rights exhausted having had an appeal dismissed in July 2009. Since August 2009 he has had no leave and was clearly fully aware of his status because of the number and regularity of the applications made subsequently; all of them were refused.
40. Overall, I find that the decision to refuse the appellant’s application for leave to remain was a proportionate response and I dismiss the appeal.
Notice of Decision

The appeal is dismissed.

No anonymity direction is made.

Signed Helen Rimington
Date 8th August 2022

Upper Tribunal Judge Rimington

TO THE RESPONDENT
FEE AWARD

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

Signed Helen Rimington Date 8th August 2022

Upper Tribunal Judge Rimington