Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: HU/06213/2015
HU/06214/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 5 April 2017
On 28th April 2017

Before

THE HON. MRS JUSTICE MCGOWAN
DEPUTY UPPER TRIBUNAL JUDGE LATTER

Between

SAPANA GURUNG
BINOD GURUNG
(ANONYMITY DIRECTION not made)
Appellants
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellants: Mr R Layne, Counsel
For the Respondent: Mr P Duffy, Home Office Presenting Officer

DECISION AND REASONS

1. The appellants appeal against a decision of the First-tier Tribunal (Judge L Murray) dismissing their appeals against the respondent’s decision of 4 September 2015 refusing them further leave to remain.

Background

2. The appellants are both citizens of Nepal born on 21 September 1990 and 24 July 1983. The second appellant (“the appellant”) first came to the UK on 17 January 2010 with leave to enter as a student until 28 February 2011 and his leave in this capacity was extended on two occasions to 6 April 2014 and then 13 May 2015. His wife, the first appellant, arrived in the UK on 8 July 2011 with leave to remain to the same date as her husband.

3. Unfortunately, in early 2011 the appellant was diagnosed with an acute medical condition, renal vascular disease, and on 1 May 2015 the appellants applied for further leave to remain under article 8 on medical grounds. The respondent was not satisfied that the appellants could meet the requirements of the Immigration Rules and whilst it was accepted that he was at the end stages of renal failure and in need of continuous treatment and medication, his GP had said that he could travel between dialysis treatments but that it would be essential for his continued wellbeing that the appropriate level of treatment and medication was continued immediately on return to his home country.

4. The respondent found that inpatient, outpatient and follow-up treatment for kidney disease was available in Nepal and that the appellant’s circumstances did not constitute exceptional circumstances which, consistent with the right to respect for private and family life, might warrant consideration of a grant of leave outside the Rules. In the decision letter of 4 September 2014 the respondent noted that the appellant had claimed to be in fear of returning to his country of origin due to his own serious health issues and the recent earthquake in Nepal but this amounted to a request for international protection. To qualify for such protection he would need to show that he had a well-founded fear of persecution or would be subject to treatment contrary to article 3 and that all such claims must be made by making the appropriate application.

The Hearing Before the First-tier Tribunal

5. The appellant appealed against the respondent’s decision relying on article 8. At the hearing before the First-tier Tribunal it was conceded on behalf of the appellant that his return would not be in breach of article 3 in the light of the judgment of the Court of Appeal in GS (India) v Secretary of State [2015] EWCA Civ 40. The judge therefore considered the appeal under article 8. She found that he had established private life ties but they were not particularly strong. She considered the medical evidence produced, noting that the appellant received haemodialysis three times a week, that there was no cure for end stage renal disease and that his only hope was for a kidney transplant. The evidence from the consultant nephrologist was that he would be able to travel between his dialysis treatments but he could not guarantee that he would be able to receive adequate dialysis in Nepal and his life might be in danger if he did not receive it on arrival. When assessing proportionality, the judge commented that there was a strong public interest in the economic well-being of the country as the UK could not be the world’s hospital. Treatment was available in Nepal although there was no evidence as to the actual cost, save an opinion by one of the doctors that it would be prohibitive. The judge accepted that it may not be affordable and that the effect may be life shortening. She found that, although the appellant had been in the UK lawfully since 2010, his toehold on article 8 was not strong and the need for medical treatment could not in itself give rise to a claim. She acknowledged that decisions in these cases were very hard but concluded that the public interest in the economic well-being of the country outweighed the appellant’s private life claims.

6. The appellants were refused permission to appeal by the First-tier Tribunal but they renewed their application to the Upper Tribunal and it was granted by UTJ Rintoul on the following basis:

“As is averred in renewed grounds (but not the initial grounds), it is arguable in the light of Paposhvili [2016] ECHR 1113 that First-tier Tribunal Judge L Murray erred in her assessment of the article 3 claim”.

He added that all grounds were arguable.

7. The grounds argue firstly that the judge had failed to take account of relevant evidence and in particular to engage with the fact that one of the doctors specifically advised against travel as a delay in treatment might be life threatening. It is argued secondly that the judge misdirected herself in relation to article 8 by failing to acknowledge that the article was engaged in the case by the fact that the appellant’s medical treatment would be prejudiced. Thirdly, it is argued that the approach to article 3 cases has been changed or clarified by the Grand Chamber decision in the ECtHR in Paposhvili v Belgium (41738/2010) [2016] ECHR 1113.

Submissions

8. Mr Layne accepted that it had been conceded before the First-tier Tribunal that the appellant could not meet the requirements of article 3 in the light of the law as then understood. He submitted that the judge had erred in the way she had dealt with the medical evidence, failing to take account of the clear evidence of the dangers of travel. He submitted that, had the judge followed the approach now set out in Paposhvili, there was a reasonable likelihood that a different decision would have been reached.

9. Mr Duffy argued that the judge had not erred in law by failing to consider a matter which had been conceded. The judgment in Paposhvili had been issued on 13 December 2016, whereas the hearing before the First-tier Tribunal had been on 14 July 2016 and the decision was issued on 24 August 2016.

Consideration of Whether the First-tier Tribunal Erred in Law

10. We will deal firstly with the ground relating to the ECtHR decision in Paposhvili. There is no substance in the argument that the judge erred in law by failing to follow the approach in Paposhvili. At the time of the hearing and the issuing of the decision, the position in law was as set out in by the Court of Appeal in GS (India) v Secretary of State. The position was sufficiently clear that not only did the appellant not apply on article 3 grounds but at the hearing before the judge it was conceded that there would be no breach of article 3. The judge therefore considered the appeal solely on article 8 grounds.

11. A subsequent decision of the ECtHR cannot be treated in the same way as a judgment of a superior court in England and Wales. Such a judgment sets out what the law is (and was) and can be used as the basis for an argument that there is an error of law in a decision under appeal even if decided before the judgment of the superior court. However, courts and tribunals are not bound by decisions of the ECtHR: R v Horncastle [2009] UKSC 14, Manchester City Council v Pinnock [2010] UKSC 45 and more generally in the context of asylum and article 3 appeals AMM and others (conflict; humanitarian crisis; returnees; FGM) Somalia CG [2011] UKUT 445 at paras 97-123. The position is as set out in s.2(1) of the Human Rights Act 1998: a court or tribunal determining a question which has arisen in connection with a Convention right must take into account any judgment of the ECtHR, whenever made or given, so far as, in the opinion of the court or tribunal, it is relevant to the proceedings in which that question has arisen. At the time when the judge heard the appeal she could not take into account a decision which had not yet been made. The judge did not therefore err in law in the way she might have erred if a subsequent decision of a superior court had clarified what the law was.

12. We now turn to the first and second grounds. The first ground argues that the judge failed to consider the evidence of one of the medical doctors against travelling and that travel conditions might breach both article 3 and article 8. We are not satisfied that there is any substance in this ground. The judge has referred to the evidence relating to travel at [15], which in any event was to the effect that the appellant could travel between dialysis treatments but there was concern about whether he would be able to receive adequate dialysis on arrival and subsequently. We are satisfied that the judge looked at the evidence as a whole and reached findings properly open to her. Ground 2 argues that the judge erred in her assessment of article 8. It is submitted that she was wrong to say that the toehold on article 8 only applied to consideration of proportionality rather than giving rise to a breach of article 8. However, when referring to the toehold, it is clear that the judge was not talking only about proportionality, but also whether private life was engaged. We are not satisfied that the judge erred in law in the way she approached article 8 or that she left any relevant matters out of account when considering the various aspects of article 8. Accordingly, we are not satisfied that the judge erred in law.

13. We have reminded ourselves of the provisions of s.6 of the Human Rights Act 1998 and that the fact that it is unlawful for a public authority to act in a way which is incompatible with a Convention right. However, the issue for us is whether the First-tier Tribunal erred in law and for the reasons we have given we are not satisfied that it did. The appellants are not without remedy. It is open to them to make a further application, if so advised, relying on the judgment of the ECtHR in Paposhvili. If an application is made, it must be assessed on its own merits by the respondent and it would not be appropriate for this Tribunal to comment on whether the further guidance given in Paposhvili would affect the position.

Decision

14. The First-tier Tribunal did not err in law and it follows that the decision stands. No anonymity direction was made by the First-tier Tribunal.

Signed H J E Latter Date: 25 April 2017

Deputy Upper Tribunal Judge Latter