HU/06816/2019

• Status of case: Unreported
• Hearing date: 22 Jul 2022
• Promulgation date: 18 Aug 2022
• Publication date: 18 Jul 2024
• Last updated on: 18 Jul 2024

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/06816/2019


THE IMMIGRATION ACTS


Heard at Field House, London
Decision & Reasons Promulgated
On Friday 22 July 2022
On Thursday 18 August 2022


Before

UPPER TRIBUNAL JUDGE SMITH


Between

MR SAID ESSAOUINI
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent


Representation:
For the Appellant: Mr A Mackenzie, Counsel instructed by Birnberg Peirce and Partners
For the Respondent: Mr S Whitwell, Senior Home Office Presenting Officer


DECISION
BACKGROUND
1. By a decision promulgated on 17 December 2021, I found an error of law in the First-tier Tribunal (Judges J Bartlett and Beach) itself promulgated on 13 July 2021. The First-tier Tribunal dismissed the Appellant’s appeal against the Respondent’s decision dated 29 March 2019 refusing his human rights claim. That claim is based on the Appellant’s Article 8 ECHR rights, specifically his private life, and the obstacles he says he would face on return to Morocco because of his mental health problems and the removal of his support network in the UK. I found there to be an error of law in the First-tier Tribunal’s decision on the basis that, when considering whether there would be very significant obstacles to the Appellant’s integration in the UK, the Tribunal failed to have regard to the difficulties which the Appellant has in participating in society, be it in the UK or Morocco, because of his health problems and the impact which removal would therefore have in that regard (see [40] of the error of law decision appended hereto for ease of reference).
2. The factual background is largely uncontentious and is set out at [2] and [3] of the error of law decision. I do not need to repeat it. I will however enlarge upon the facts relevant to my assessment when considering the further evidence below.
3. In relation to evidence, I had before me the Appellant’s bundles as before the First-tier Tribunal ([AB/xx]), a supplementary bundle filed for the hearing before me ([ABS/xx]) and the Respondent’s bundle as well as a bundle of core documents relating to the appeal. Mr Mackenzie filed a helpful skeleton argument for this hearing, and I also had his skeleton argument as prepared for the error of law hearing and the skeleton argument of Mr Simon Cox which was before the First-tier Tribunal. I have considered all the documents but refer only to those relevant to my consideration.
4. Although the Appellant has now provided a detailed witness statement signed 3 May 2022 ([ABS/25-36]), he was not called upon to give oral evidence. I have a psychiatric report from Dr David Bell dated 26 April 2022 ([ABS/2-24]) in which he opines that, although the Appellant has capacity to participate in the appeal to the extent of understanding the procedures and providing instructions, he would not be fit to give oral evidence ([ABS/22-23]). Mr Whitwell did not challenge that assessment and indicated that he was content to proceed without cross-examination of the Appellant. Even though I did not hear oral evidence from the Appellant, I have borne in mind when considering his own evidence and evidence about him that he is a vulnerable person on account of his mental health diagnosis. I have adopted an approach to his written evidence in line with the guidance given in AM (Afghanistan) v Secretary of State for the Home Department [2017] EWCA Civ 1123. In any event, there are few inconsistencies in the evidence and the main issue is how the facts and evidence are to be assessed in the context of the legal framework which applies.
5. The Appellant had intended to call Dr Bell to give oral evidence and arrangements were made to do so remotely to his convenience. Mr Whitwell indicated however at the outset of the hearing that he did not need to cross-examine Dr Bell. Accordingly, the hearing proceeded on submissions only.
LEGAL FRAMEWORK
6. This is a deportation case. In order to succeed in his appeal, the Appellant must either fulfil the exceptions to deportation set out in the Immigration Rules (“the Rules”) or demonstrate that there are very compelling circumstances over and above those exceptions. That test and the exceptions in the Rules are essentially the same in content as the exceptions set out in section 117C Nationality, Immigration and Asylum Act 2002 (“Section 117C”) and I therefore consider the appeal in that context. The Appellant relies only on the private life exception and/or whether there are very compelling circumstances over and above that exception.
7. Section 117C provides as follows so far as material:
“117C Article 8: additional considerations in cases involving foreign criminals
(1) The deportation of foreign criminals is in the public interest.
(2) The more serious the offence committed by a foreign criminal, the greater is the public interest in deportation of the criminal.
(3) In the case of a foreign criminal (“C”) who has not been sentenced to a period of imprisonment of four years or more, the public interest requires C's deportation unless Exception 1 or Exception 2 applies.
(4) Exception 1 applies where—
(a) C has been lawfully resident in the United Kingdom for most of C's life,
(b) C is socially and culturally integrated in the United Kingdom, and
(c) there would be very significant obstacles to C's integration into the country to which C is proposed to be deported.
(5) …
(6) In the case of a foreign criminal who has been sentenced to a period of imprisonment of at least four years, the public interest requires deportation unless there are very compelling circumstances, over and above those described in Exceptions 1 and 2.
…”
8. There can be no dispute that Section 117C applies to the Appellant. He was sentenced to a term of imprisonment of twelve months for the latest in a long line of offences. Although Section 117C (6) on its face does not apply to the Appellant as he was not sentenced to at least four years, the Court of Appeal in NA (Pakistan) v Secretary of State for the Home Department [2016] EWCA Civ 662 at [24] to 27] of its judgment held that this applied equally to “medium offenders who fall outside Exceptions 1 and 2”. This means that, even if the Appellant does not meet Exception 1, I am still required to consider whether “there are very compelling circumstances over and above” that exception in the event that I find that the exception is not met. In order to conduct that exercise I would need also to consider the extent to which the Appellant meets or does not meet the exception.
9. This gives rise a point which Mr Whitwell raised at the outset of the hearing, namely that the Appellant is subject to ongoing proceedings in relation to an alleged fraud. Those proceedings have not yet reached trial and therefore might be capable of affecting a decision to deport. However, as canvassed in discussions, if I find that Exception 1 is met, even if the Appellant is convicted, any further conviction could have no impact because consideration of that exception does not involve any balance between the public interest and interference (unless of course there were any changed factual evidence arising from what is said or decided at that trial). It would be only if I were to find for the Appellant on the basis of very compelling circumstances over and above that exception, that any change to the public interest could impact on deportation action. In the event that I reached a conclusion on that basis, it would be for the Respondent to consider whether to pursue renewed deportation action (assuming of course that I allow the appeal) in the event of any further conviction. Similarly, even if there were changed evidence about the facts, it would be for the Respondent to consider the impact of that evidence in the first instance. For those reasons, I did not consider it appropriate to adjourn consideration of this appeal and Mr Whitwell did not formally ask me to do so.
10. I deal also at this stage with the Appellant’s objection to my refusal to preserve the finding made by the First-tier Tribunal that the Appellant is socially and culturally integrated in the UK. The Appellant pointed out at the error of law hearing that the Respondent had not challenged that finding and said that, in consequence, it should be preserved. I made it abundantly clear in the error of law decision that I was not preserving any of the findings made ([43] of my decision).
11. The Appellant relies in this regard on Mukarkar v Secretary of State for the Home Department [2006] EWCA Civ 1045. That is a case decided under an earlier appeal regime (see appendix to the judgment). It pre-dates the Tribunal, Courts and Enforcement Act 2007 which is the enabling legislation which now applies to Tribunal appeals. Section 12 of that Act sets out the basis on which this Tribunal considers appeals from the First-tier Tribunal at error of law stage as follows:
“Proceedings on appeal to Upper Tribunal
(1) Subsection (2) applies if the Upper Tribunal, in deciding an appeal under section 11, finds that the making of the decision concerned involved the making of an error on a point of law.
(2) The Upper Tribunal—
(a) may (but need not) set aside the decision of the First-tier Tribunal, and
(b) if it does, must either—
(i) remit the case to the First-tier Tribunal with directions for its reconsideration, or
(ii) re-make the decision.
(3) In acting under subsection (2)(b)(i), the Upper Tribunal may also—
(a) direct that the members of the First-tier Tribunal who are chosen to reconsider the case are not to be the same as those who made the decision that has been set aside;
(b) give procedural directions in connection with the reconsideration of the case by the First-tier Tribunal.
(4) In acting under subsection (2)(b)(ii), the Upper Tribunal—
(a) may make any decision which the First-tier Tribunal could make if the First-tier Tribunal were re-making the decision, and
(b) may make such findings of fact as it considers appropriate.”
12. I accept that section 12 may be capable of permitting this Tribunal to preserve findings of fact (and I accept that the Tribunal does so not infrequently for example when only the protection element or human rights ground of appeal remains at issue in an appeal on both grounds). However, that section makes it clear that the procedure in relation to re-making is entirely discretionary. Simply because the party which won the appeal does not challenge findings made in favour of the losing party does not mean that those findings should stand.
13. In this case, Exception 1 is formed of three component parts. There is no dispute as to the first. The Appellant has been lawfully in the UK for over half his life. However, both the second and third elements were contested by the Respondent in her decision which is under appeal. Further, they form two sides of the same coin, namely the degree of interference with the private life of the appellant in the UK because of his integration in the UK and the degree of interference with the Appellant’s private life caused by the situation he would face on return. Those are not readily separated. Although they are set out as separate components in Section 117C(4), they are in truth part of the same question. What would be the degree of interference caused by deportation? That is particularly stark in this case since the Appellant’s case is premised not only on the situation he would face in Morocco but the removal of his support network in the UK and the impact that would have on his reintegration. It would therefore be wholly artificial to consider one part of the exception and not the other. Finally, I have to consider the situation as it is at the date of hearing before me. Although I accept that there is unlikely to have been significant change in the position relating to integration in the UK between the two hearings, it is at least possible that there might be some factors which no longer apply or, conversely, factors which did not exist before but do now.
14. In relation to the test which applies in relation to the third component of Section 117C(4), both parties accept that the guidance set out by the Court of Appeal in Secretary of State for the Home Department v Kamara [2016] EWCA Civ 813 (“Kamara”) is relevant. At [14] of the judgment, Sales LJ (as he then was) said this:
“In my view, the concept of a foreign criminal's ‘integration’ into the country to which it is proposed that he be deported, as set out in section 117C(4)(c) and paragraph 399A, is a broad one. It is not confined to the mere ability to find a job or to sustain life while living in the other country. It is not appropriate to treat the statutory language as subject to some gloss and it will usually be sufficient for a court or tribunal simply to direct itself in the terms that Parliament has chosen to use. The idea of ‘integration’ calls for a broad evaluative judgment to be made as to whether the individual will be enough of an insider in terms of understanding how life in the society in that other country is carried on and a capacity to participate in it, so as to have a reasonable opportunity to be accepted there, to be able to operate on a day-to-day basis in that society and to build up within a reasonable time a variety of human relationships to give substance to the individual's private or family life.”
15. Before moving on to consider the evidence, I deal finally with one further point raised by the Appellant in relation to the law. The Appellant’s case is founded in large part on his mental health problems. He does not claim that his mental health condition gives rise to an Article 3 ECHR claim. He does not say that he will experience inhuman or degrading treatment as a result of removal. More precisely, he does not say that he will suffer a “serious, rapid and irreversible decline in his ..state of health resulting in intense suffering”, or will face “a significant reduction in life expectancy” as referred to by the Supreme Court in AM (Zimbabwe) v Secretary of State for the Home Department [2020] UKSC 17 (“AM (Zimbabwe)”) (by reference to the Grand Chamber’s judgment in Paposhvili v Belgium [2017] Imm AR 867).
16. However, the Appellant prays in aid, by analogy, the judgment in AM (Zimbabwe) in relation to burdens of proof. He points in particular to [33] of the judgment where the Supreme Court made reference to “the returning state” being “better able to collect evidence about the availability and accessibility of suitable treatment in the receiving state”. I dealt with this argument in some detail at [13] to [18] and at [23] to [31] of the error of law decision. As I pointed out at [30] of the decision, the reference at [33] has to be read in context of what is said at [32] and the entirety of [33] of the judgment in AM (Zimbabwe). If this were an Article 3 ECHR case, the Appellant would bear the burden of establishing a “prima facie” case. It is only if he established that case that the burden would shift to the Respondent to dispel any doubts about the situation in the receiving state. The legal position is also now set out in the Tribunal’s guidance in AM (Art 3; health cases) Zimbabwe [2022] UKUT 00131 (IAC). This remains an Article 8 claim in any event. However, for those reasons, I reject the Appellant’s argument that, by analogy, the Respondent bears the burden of showing that there would not be very significant obstacles to his integration in Morocco. It is for the Appellant to show that such obstacles exist.
17. For the avoidance of doubt, therefore, the position is as set out at [18] of my error of law decision. It is for the Appellant to establish the nature and degree of interference with his private life. It is then for the Respondent to show how that interference is lawful, justified and proportionate. As I there said, however, all of that now has to be assessed via the statutory scheme and in particular Section 117C(4) which sets the threshold level for when interference will be accepted to be disproportionate in relation to an individual’s private life (in the deportation context).
EVIDENCE
Witness Evidence
18. I begin with the Appellant’s own evidence. His statement is at [ABS/25-36]. The Appellant is now aged forty-eight years. He was born in Morocco and lived there until he came to the UK aged twelve years. His mother was already in the UK. The Appellant was therefore looked after to that point by his grandmother. He is an only child. He has never had contact with his father.
19. In the UK, the Appellant lived initially with his mother, stepfather and stepsister, Fatima (now aged twenty years). He was educated in the UK to sixth-form level. Although the Appellant accepts in his statement that his English and spelling was not good (perhaps to be expected given the age he was when he came to the UK), his education was disrupted by a serious motorbike accident which appears to have been the start of his mental health problems and put an end to his studies.
20. The Appellant has worked in the UK. He had jobs in the retail and construction sectors. However, he soon turned to crime. The PNC report shows his earliest crime being a conviction in December 2007 (when the Appellant would have been aged twenty-three) for common assault. Although the Appellant also has other convictions for crimes involving violence (which he puts down to behavioural issues connected to the accident), his criminal offences mainly consist of burglaries. He says in his statement that he always burgled commercial premises but recognises now that those were not victimless crimes as he thought at the time. He was sentenced to a term of imprisonment for twelve months on 29 November 2017 (for six separate offences). Although he has a subsequent conviction on 12 April 2018 for one offence of burglary, that is, as I understand it, for an offence committed before the twelve-month sentence was imposed. He says that he has not offended since the crimes for which he was sentenced in November 2017 . I have already noted that there are ongoing proceedings against the Appellant for fraud. Mr Whitwell informed me that the trial is listed for November 2022. The fraud is connected with a claim arising following the Grenfell fire.
21. That then brings me to the other major plank of the Appellant’s case concerning his relationship with his wife, Israa. The Appellant says that he met Israa in November 2014 and they formed a relationship. The Appellant provides a very detailed picture of the development of that relationship at [5] to [22] of his statement but I refer only to the core of what he there says. I have taken into account the details he there sets out. In short summary, the Appellant says that Israa became close to his family. The Appellant also knew Israa’s family, particularly her mother. Israa lived in Grenfell Tower. The Appellant lived in Catford and then Bruce Grove. The Appellant says that Israa lived with him but also lived in Grenfell. The Appellant also stayed in Grenfell and says that he and Israa had intended to move there together. He had started to make arrangements to move to Grenfell immediately before the fire.
22. The Appellant says that he and Israa entered into an Islamic ceremony in 2017. He says this was in March or April. I am somewhat surprised that he cannot remember the exact date given how important this event must have been to him. There is also no copy of any document confirming the event. The Appellant says that the paper he was given was destroyed in the fire and that he has been unable to find the Imam who married them. The ceremony was attended by the Appellant’s family and Israa’s mother. That Israa was married to or in a relationship with the Appellant is disputed by her brother (see [41] of the Appellant’s statement). That dispute appears to be at the heart of the fraud investigation. I say no more about that as it is the subject of ongoing criminal proceedings and in any event, I have no evidence other than the Appellant’s about this event. I observe in passing that the police initially closed the fraud investigation without charge but then re-opened it.
23. On the night of the Grenfell Tower fire, the Appellant was on a tour of mosques and was in the Manchester area. Israa died in the fire as did her mother and one of her brothers. The Appellant was shunned by Israa’s other brother who, as I have already noted, does not accept that the Appellant was in a relationship with Israa as the Appellant claims.
24. Since the fire, the Appellant says that he lives on his own in a council-owned flat. He says he does not go out much apart from visiting Israa’s grave and to see his “Grenfell friends”, Nicholas and Nabil and attend Grenfell meetings. He sees a counsellor once or twice a week. He also receives support from the Citizens’ Advice Bureau although he does not say what for.
25. The Appellant’s mother provided a statement for the First-tier Tribunal proceedings, signed on 6 January 2020 ([AB/43-48]). There is no supplementary statement, and she was not called to give evidence. She confirms the Appellant’s past history in terms of education and employment. She also refers to the Appellant’s previous marriages which he does not deal with in his statement.
26. The Appellant was married in Morocco “about 10 years ago” (therefore in about 2010). He continued to live in London but would visit his wife who remained in Morocco. His mother says that he would stay for “normally 4 weeks or less” up to “maximum 6 weeks”. She does not say how frequently these visits took place. The Appellant and his wife had a son, [S]. She does not say when [S] was born. The Appellant and his wife are now divorced but it is evident that the Appellant’s mother has maintained contact with her grandchild as she saw him in 2018 when she visited Morocco. [S] lives with his grandparents.
27. The Appellant’s mother confirms that she met Israa who the Appellant brought home about two years before the Grenfell fire (therefore in about 2015). Her evidence thereafter though deals with her own relationship with Israa and not the relationship between the Appellant and Israa. She says this is because the statement is “solely for the immigration appeal” and “to avoid any controversy or any matters which might be disputed”. As I say, there are ongoing criminal proceedings and that is perhaps unsurprising. However, as a result, her statement says nothing about the Appellant’s marriage to Israa or their living arrangements.
28. At the First-tier Tribunal hearing, the Appellant called two witnesses, Nicholas Burton and Mr Nabil Choucair. Neither were called as witnesses before me. However, I have their statements which appear at [AB/1-3] (undated) and [AB/80] (27 June 2021) (Mr Burton) and [AB/52] (undated) (Mr Choucair). Mr Burton lost his wife in the Grenfell fire. Mr Choucair lost his mother, sister and his sister’s family. They are members of the Grenfell community who have befriended the Appellant.
29. Mr Burton describes in his first statement how he first met the Appellant, and that the Appellant was at the time “grieving and not coping well”. He has since “gradually got more and more active and now he visits our Grenfell United premises each day and meets up with other people [who] have been affected by the fire”. He says that the Appellant is “part of the community”, and that “[e]veryone knows him”. The Appellant is said to be “involved in the community and the activities”. He also provides support to others. Mr Burton says that the Appellant continues to drink but he has never seen him with drugs. He is “only occasionally drunk”. Mr Burton is unable to attest to the Appellant’s relationship with Israa as he did not know the Appellant at the time but considers that the Appellant’s “grief is genuine”. He also says that he was able to assist the Appellant to show that at the very least he had been in Israa’s flat and had laid flooring for her.
30. In his second statement, Mr Burton says that, by June 2021, he saw the Appellant less, partly because of the pandemic and partly because Mr Burton was by then employed by the NHS. He says that he sees the Appellant “probably once every 2 weeks” but talks to him frequently. He says the following which is of relevance to the issues I have to consider:
“..4. Said is in a much better place now than he was when I made my last statement. He is coping with things a bit better. He is learning to cope with the loss of Israa however he is still suffering very much due to that loss. Also although he does still drink alcohol from time to time it is less so now.
5. When I go out with him in our local Golborne area when we are in the street or a café, frequently people greet Said. More people seem to know him than know me. When he meets people in such circumstances, even if he only has a few words with them, it gives him a psychological boost. It is really good for his mental state.
6. Where he lives he has the support of the community who have suffered the Grenfell tragedy together and in particular the support of those people who themselves have had a direct bereavement. He has people to discuss things with, to empathise with, to give him company. It is not just having this association with people, but about being with people who have gone through the same thing as him. He spends a lot of time with other bereaved. The survivors are quite a close knit group. Said is part of them and I can see that Said is accepted by them all, (other than by Abu Bakr the brother of Israa).
7. I think it will be impossible for Said to survive mentally if he had to leave the local area in which he lives. This would be whether he had to live in Morocco or indeed another part of the UK outside of London. Not only would he not be able to visit the cemetery whenever he wanted to, but in the area he lives in he is known locally by lots of people and they know about his loss.”
31. In his statement, Mr Choucair explains that the Appellant is part of a group of four bereaved persons affected by the fire who are close and provide support to one another. He sees the Appellant “very frequently” and even during the pandemic, once or twice per week. He says that the Appellant talks about Israa “all the time” and draws and writes on “the Memorial Wall” in her memory.
32. I have read the other statements and letters of support included in the First-tier Tribunal bundles. Those attest to the Appellant’s links to the Grenfell community, and his grief about Israa’s death. The Appellant’s Probation Officer in a letter dated 19 October 2018 ([AB/24]) says that the Appellant “has integrated well into the wider community despite the ongoing difficulties he faces”.
33. A statement at [AB/19-20] from a friend of Israa’s records that Israa had told her that she was in a relationship with “a Moroccan man” but she does not remember his name. She had never met him whilst Israa was alive. She recalls Israa’s mother seeking to persuade Israa to marry this man. Having met the Appellant after the fire, she says that it was “clear” to her that the Appellant was the man in question and that he appeared to her to be “genuine about this relationship”. She says however that Israa had never told her that she had married the man although she accepts that she did not speak to Israa frequently. She ends the statement by saying that she would not be willing to give evidence as she knows Israa’s brother who is in dispute with the Appellant, and she does not wish to take sides. I can therefore give little weight to this evidence.
34. There is also evidence from the Appellant’s neighbours at the property he lived in at the time of the fire and from where he said he was moving ([AB/21-23]). Both confirm that the Appellant was in a relationship. One of them knew the Appellant’s partner as Israa. He says that “they were cohabiting and were extremely close”. Another neighbour says that she stayed “very often”. The other neighbour says she “sometimes stayed” but he considered them a couple. However, the Appellant moved into this flat only in early 2017 and therefore the neighbours can only attest to the relationship for a very short period. Text messages at [AB/25-27] appear to show texts passing between the Appellant and Israa which suggest that they were in a romantic relationship at the time (May to June 2017).
Medical Evidence
35. I begin with the evidence which was before the First-tier Tribunal.
36. Dr John Prentice, CPsychol, AFBPsS, Clinical Psychologist and Neuropsychologist, provided a report dated 26 October 2019 ([AB/5-8]). This followed a referral for psychotherapy on 20 December 2018. The report records a psychiatric assessment by Dr Anwar, Consultant Psychiatrist on that date which diagnosed recurrent depressive disorder, symptoms of PTSD, mental and behavioural disturbance due to harmful use of alcohol and cocaine and possibly dependent and emotionally unstable personality disorder. The Appellant had been prescribed Venlafaxine.
37. Following an initial psychological assessment on 2 May 2019, the Appellant attended five appointments in the course of 2019. He missed four appointments. Psychometric tests carried out during the initial assessment indicated severe depression, severe anxiety and significant functional impairment in terms of his work, home management, social leisure, private leisure and personal or family relationships. Dr Prentice recommended continued psychotherapy.
38. Dr Prentice provided a Treatment Program Review dated 8 April 2021 and a Psychological Progress Report dated 17 December 2020 ([AB/53-59]). By 1 April 2021, the Appellant had attended 41 out of 44 sessions approved for him. The scores for the tests carried out in April 2021 showed the Appellant still to suffer from moderately severe depression, moderate anxiety and continuing significant functional impairment. Obstacles to recovery included his immigration proceedings and flashbacks and reminders of the Grenfell fire.
39. In his assessment of the Appellant as at December 2020, Dr Prentice records “some improvement” in the Appellant’s mental health. He is said to have reduced alcohol consumption and is not using substances. “With varying success”, he is said to be trying to maintain contact with his social network. However, he is said to remain “depressed, very anxious and vulnerable” and continues to suffer sleep disruption, nightmares and flashbacks associated with the Grenfell fire. He continues to “feel unsupported and betrayed by the system”. He withdraws when he feels depressed and “becomes socially isolated”.
40. The Appellant is also seen by Ms Amina Hajjaj Thomson, MA, Child and Adolescent Psychotherapist working for “Heartfulness – The Sacred Space”. She has provided reports dated 7 January 2020 ([AB/9-16]) and 18 June 2021 ([AB/64-69]). Ms Thomson has studied psychotherapy and counselling for twenty years and has practised as a psychotherapist since 2005. She has an MA in Integrative Child and Adolescent Psychotherapy and Counselling (although that is of no relevance to this case since the Appellant is neither).
41. Whilst some of what Ms Thomson says in her reports about the Appellant’s upbringing and experiences may help to explain the Appellant’s offending and mental health problems now, I did not find her report useful when considering the issues which I have to assess. Her reports are unstructured and appear to be based entirely on the Appellant’s own self-reporting as to his current condition. She includes little reasoning in support of her conclusions. For example, I could find no reasoned basis for her conclusion that deportation would make the Appellant “more susceptible to emotional, psychological and physical abuse” ([AB/23]). She opines that mental health care would be “less accessible and far more costly” ([AB/66]) without pointing to any evidential basis for that conclusion.
42. Ms Thomson also appears to jump to conclusions based on the Appellant’s self-reporting which she appears to unquestioningly take at face value. For example, she refers to the Appellant saying that he cut his arm when cutting fruit and that “if his friend had not stopped him, he would have continued harming himself”. She takes that at face value and concludes based on one remark in a previous session that, “if he was to be deported, he wouldn’t think twice about taking his life because he would have no support system”. That conclusion stands in stark contrast to the more considered view of Dr Bell to whose report I refer below. I can place little weight on Ms Thomson’s reports, and I found them of little assistance.
43. I turn then to the psychiatric report of Dr Bell ([ABS/2-24]). He is a retired Consultant Psychiatrist, previously at the Tavistock Clinic and specialising in the assessment and management of severe psychiatric disorder/personality disorder. His CV is impressive. His report is based on one remote examination on 7 March 2022 and an assessment of various documents. He did not apparently have the Appellant’s GP records although those might have been of little assistance as most of the Appellant’s treatment involves counselling rather than medication.
44. Having set out what the documents show about the Appellant’s condition and the Appellant’s own account of his background and symptoms, Dr Bell offers his conclusions and diagnosis at [ABS/18] onwards. He considers that the Appellant suffers from “severe mental disorder” and “satisfies the diagnostic criteria for Post-Traumatic Stress Disorder”. Given the length of time that his symptoms have persisted, Dr Bell is of the opinion that a more appropriate diagnosis is “chronic severe traumatised state”. He also diagnoses severe depressive disorder. Dr Bell refers to “symptoms typical of psychosis such as paranoid ideation and some degree of thought disorder” but concludes that these are part of the traumatised state and not a separate diagnosis of psychosis. He considers it likely that the Appellant has suffered psychological problems for “a very long time” and possibly since his adolescence. They may have been exacerbated by the motorbike accident. The Appellant has not recovered from the loss of Israa. The “psychiatric picture” is “entirely consistent” with the account provided by the Appellant and Dr Bell does not consider the Appellant to be either feigning or exaggerating his symptoms.
45. In terms of treatment, Dr Bell does not consider that medication is the answer but says that the Appellant should continue with his current medication as to interrupt it may be harmful. The Appellant told Dr Bell that he was taking antidepressants and “3 or 4 other medications”. Dr Bell goes on to say this:
“The most important part of his ‘treatment’ is provided by the social context in which he lives. I refer here to the closeness of his relationship with his family, particularly his mother and the network of close friendships that are part of the Grenfell support group. In both these contexts, that is helping his mother and supporting his friends who suffered bereavements in the Grenfell fire, the fact that he is able to provide some help for others acts as an important factor providing some degree of self-esteem and this acts to support him and prevent further deterioration. The importance of these relationships should not be underestimated.
…
Psychiatric conditions such as this are highly sensitive to alterations/disruptions in the external social context. This is already apparent in the deterioration in his condition as a result of the pandemic lockdown, which decreased very dramatically the possibility of his meeting with family and close friends.”
46. Dr Bell deals in detail with what he sees as the potential consequences of deportation of the Appellant to Morocco. As indicated in the foregoing passage, he considers that the change in social context “would act as a major external stressor”. The “breaking” or even anticipation of disruption of his support group “would be experienced as a violently traumatic event, sufficient in itself to cause immediate breakdown”. The Appellant would be further traumatised by an inability to visit Israa’s grave. In terms of how the Appellant would cope in Morocco, Dr Bell says this:
“..(v) As I understand it, Mr Essaouini has no family members in Morocco who would be able to provide him with support and care. He would thus be very likely to feel abandoned and alone. Even if he did have extended family in Morocco it is clear to me that, given his deteriorated state, he would not be in a position to develop new intimate and trusting relationships with those who have been uninvolved with him in the past…
(vi) Mr Essaouini is clearly highly acculturated to British society. Although he has visited Morocco he does not feel a sense of belonging there. His current psychiatric state would make it extremely difficult for him to be able to adapt to a new cultural/social environment, and this would be very much more so, given the deterioration in his psychiatric state consequent upon his being removed from the UK.”
In Dr Bell’s view, therefore, as expressed again at (vii) of the section at [ABS/20-22], the Appellant’s “capacity to form new relationships is extremely limited as a result of his psychiatric disorder” (Dr Bell’s emphasis). Although Dr Bell refers to the possibility of mental illness being stigmatised in Morocco, as I will come to, I have insufficient evidence to justify any finding in that regard.
47. Dr Bell also provides an opinion on suicidal ideation. He considers the risk to be mild at the current time because of the support the Appellant has from friends and family. He opines that “in the deteriorated psychiatric state consequent upon, and following, his removal to Morocco, the risk of suicide would rise from mild to moderate/high”. That has to be read however in the context of what the Appellant is recorded as saying at [ABS/15] (that suicide is a sin in his religion, and he would be concerned that he would not see Israa in the afterlife if he killed himself). Dr Bell goes on in any event to advocate careful management of any such risk including possible medical treatment.
48. I have had regard to the other evidence in the Appellant’s supplementary bundle concerning treatment available in Morocco. The statistics provided by the World Health Organisation at [ABS/40-42] indicate that Morocco does have a mental health plan. There are a limited number of mental health professionals, but the picture is improving (see graph at [ABS/41]). Patients are not required to pay for services and mental health treatment is included in national health insurance. The document at [ABS/43] indicates that although coverage was at that time incomplete (2016), there is a scheme to provide insurance for those with disabilities who are unable to work or those with insufficient resources to meet the costs of medical care, either of which might apply to this Appellant.
49. I did not find of assistance the document from AXA Mental Health at [ABS/44-55]. The author’s credentials and methodology are not set out. It is not therefore clear when, for example, the survey leading to the results reported at [ABS/49] took place. That shows only in any event that the attitudes of relatives of patients are sometimes adverse and that some of the family members concerned reported some societal stigma. Mental health appears from this document to be prevalent in Morocco. The figures relating to numbers of psychiatrists is difficult to square with the statistics provided by the WHO. They may be historic. The article refers to a mental health plan of 2012-16 whereas the WHO report shows that there is a later plan (2019).
50. Neither did I find of any assistance the documents at [ABS/56-81] and [ABS/82-133]. Both appear to be dissertations written by university students in the US. The basis of the findings there set out is limited. For example, the first paper appears to be written by a student in the Department of Humanities and Arts based on her experience in one psychiatric hospital in Fes where she spent “several days”. The paper is undated. Some of the interviews were with people whose identity is anonymised. The qualifications and experience of the student and those interviewed are in any event not set out. The paper appears to be written with a view to supporting the student’s own hypothesis about the system. I can place no weight on it. The qualifications and experience of the student who authored the second paper are not set out. The paper is once again undated. The facts relied upon are largely unsourced or out of date (see reference to WHO statistics from 2006). I can place no weight on either document.
51. Although the paper at [ABS/103-133] offers source material for its views, the experience and qualification of the author (also it appears from a US university) are not set out. Again, the paper is undated. Although the methodology of the surveys is explained, when the comparison between the responses from the US and Morocco is carried out and appears to undermine the conclusion which the author seeks to draw, a comment is made that “this result is [probable/likely] under the null hypothesis” without any explanation of that conclusion. I can place no weight on this document.
52. In relation to the availability of healthcare in Morocco and specifically for mental health, I found of considerably greater assistance the Home Office’s Country Information Note on Morocco dated July 2021 (“the CPIN”). Mr Whitwell produced this at the hearing itself. As I and Mr Mackenzie pointed out, for some reason this CPIN appears to be unpublished. Nonetheless, Mr Whitwell having shown Mr Mackenzie the relevant section of it electronically, Mr Mackenzie did not object to me having regard to it and Mr Whitwell filed and served it after the hearing. I do not need to set out what it says (which appears at section 7). Suffice it to say, although the position in relation to availability of healthcare in Morocco is improving, it is still not at a high standard. There is some publicly funded healthcare access to which is increasing but still not sufficiently to cover all those who need it. There are mental health facilities but the system is “unable to meet the demand for treatment, due to the increasing prevalence of mental health problems in Morocco”. The main treatment is medication and counselling is only available in the private sector ([7.2.2]).
53. Having reviewed all the evidence, I now turn to consider the relevant issues against that evidence.
DISCUSSION AND CONCLUSIONS
Exception 1: Section 117C(4)
54. I start by recording that there is no dispute that the Appellant has lived more than half his life lawfully in the UK. He was granted indefinite leave to remain following his entry into the UK in 1996, then aged twelve years. He is now aged forty-eight years.
55. I next need to consider whether the Appellant can be said to be socially and culturally integrated in the UK.
56. The Appellant has lived in the UK for about thirty-six years. He was educated here from the age of twelve until his studies ceased after the motorbike accident. He has also worked in the UK for a time. Although his English is said by the Appellant himself not to be good (and I could not judge that for myself as he did not give evidence) his statement was not translated to him and there is no indication in any of the statements of his friends or those treating him for his mental health problems that he converses other than in English. He may well still speak Arabic but I accept that he is integrated in the UK to the extent of speaking English. The Appellant’s family are also all in the UK to the extent that he maintains contact. His mother, stepfather and stepsister are here. There is no information about his grandmother (who looked after him as a child). She may be in Morocco still but there is no evidence that the Appellant has travelled to Morocco in recent years. The Appellant says he has never had contact with his father. Therefore, his immediate family are in the UK.
57. There is little information about any historic friendships which the Appellant has had in the UK. However, since the Grenfell fire, the Appellant has become part of the Grenfell community. I accept the evidence of Mr Burton and Mr Choucair that they have formed a close association with the Appellant. I also accept their evidence that when they go out with him, the Appellant is known by those in the community. He is supported by them and he in turn provides support to some of them. I note Dr Bell’s view that the Appellant is “highly acculturated to British society” and does not feel a sense of belonging in Morocco.
58. Against that, the Respondent prays in aid that the Appellant, when looking for a wife, went to Morocco (in about 2010) to marry. That may be due to his religious belief and wish to marry someone with the same cultural upbringing. I note in that regard that Israa was a practising Muslim and that they are said to have married in an Islamic ceremony. In any event, the Appellant married his first wife about twelve years ago. The Appellant left Morocco when he was young. Although his first wife continued to live in Morocco with their son and the Appellant visited them, the evidence is that he did so only for weeks at a time. The relationship must have broken down relatively quickly in any event if the Appellant’s testimony about the date when his relationship with Israa began is to be believed.
59. The Respondent also points to the Appellant’s criminal offending as evidence that he is not socially and culturally integrated. Whilst that might be relevant as an indication that he is not socially integrated, it is not relevant in my view to cultural integration. Whether offending breaks social integration is a matter of fact. I accept that the Appellant has a string of offences committed over a period of about ten years. However, the first of his convictions is in 2007 which is over ten years from the date when he entered the UK. By that time, as I say, the Appellant had been in education in the UK and was living with his family members here. There is then a gap of about six years before his next conviction. I also note that the Appellant had (and perhaps still has) problems with alcohol and substance abuse. That too is a factor weighing against social integration.
60. This case is finely balanced. However, given the length of time that the Appellant has spent in the UK, his ties formed through education and working here, his family ties and the friendships he has formed since the Grenfell fire, by virtue of which he is a well-known member of that community, I accept that the Appellant is socially and culturally integrated in the UK.
61. I turn then to the question whether there are very significant obstacles to the Appellant’s integration in Morocco.
62. If this was simply a question of returning a man with mental health problems to a country he has not lived in or visited for a number of years, possibly nearly a decade, I would not find that there would be very significant obstacles to his integration in Morocco. The Appellant lived in Morocco until he was aged twelve. There is no evidence that he does not still speak Arabic. Indeed, he married a woman who remained living there in about 2010. His ex-wife and son still live in Morocco albeit I accept that he does not have continued contact with them. His grandmother with whom he lived may still live in Morocco. I have no evidence either way. The Appellant’s mother is said still to visit Morocco to see her grandson. The Appellant is a practising Muslim. The Appellant would in that sense and for the foregoing reasons still be enough of an insider to understand how society works (to quote from Kamara).
63. Although I accept that the evidence shows that treatment for mental health is not at the standard it is in the UK, there is evidence that treatment does exist. I accept that the evidence shows that counselling is only available in the private sector. However, there is evidence that the Appellant has used remote means to access therapy in the UK. He did so when meeting with Dr Bell. He must have done so during the pandemic. There is no reason why he could not continue to access therapy with Ms Thomson from Morocco (although I accept that he could not do so via the NHS if that is the way in which treatment is being funded presently). There is however also no evidence from the Appellant regarding the cost of counselling in Morocco and that the Appellant could not afford that, if necessary with financial assistance from family and friends. Although I accept that the Appellant has not worked in the UK in recent years (although there is little evidence about how he has maintained and accommodated himself in the absence of work), he has worked in the past in the retail and construction sector and could do so again if his mental health permitted him to do so. However, as the Court of Appeal made clear in Kamara, the concept of integration into the country of return is not merely about an ability to find a job or “sustain life” in that other country.
64. Integration has at its heart the issue of an individual’s private life. As the Court of Appeal made clear in Kamara, private life is also about an ability to build up relationships which give substance to that private life. It is in this context that I consider the Appellant’s ability to integrate is particularly impacted by his mental health problems.
65. I accept that the Appellant has been able to make new friendships in the UK since the Grenfell fire. He is said by his Grenfell friends to be well known within the Grenfell community. That though has to be seen in the context of the loss which the Appellant feels following Israa’s death which is shared with those in that community. He shares their grief. As Dr Bell says, therefore, it is the Appellant’s ability to support others in that community and to receive their support which is the basis of those relationships ([45] above). Whatever the factual position concerning the nature and extent of the Appellant’s relationship with Israa, his grief for her loss is considered by all who know and treat him to be genuine.
66. Dr Bell says that deportation to Morocco would for reasons of the withdrawal of the Appellant’s support network “act as a major external stressor”. That is of course more directly concerned with the impact on the Appellant’s mental health which is a factor but not as I have already observed a decisive one. However, in the context of the formation of relationships, Dr Bell opines that the Appellant’s ability to form any new relationships in Morocco would be “extremely limited” as a result of the impact on his mental health occasioned by deportation and the removal of the Appellant’s support network. It is the impact on the Appellant’s ability to form relationships in the context of the effect of deportation on his mental health and removal of the support network, friendships and associations in the UK which constitutes the very significant obstacle to the Appellant’s integration when coupled with the other factors which I have identified above.
67. For those reasons, I accept that there are very significant obstacles to the Appellant’s integration in Morocco. For the foregoing reasons, the Appellant meets the exception in Section 117C(4).
Article 8 ECHR
68. Since I have concluded that the Appellant meets Section 117C(4) and this is a case of a medium offender, the Appellant is entitled to succeed on that basis. I do not need to go on to consider Article 8 and whether there are very compelling circumstances above the exception.
Conclusion
69. The Appellant meets the exception under Section 117C(4). I allow the appeal on that basis. Deportation would breach the Appellant’s human rights under section 6 Human Rights Act 1998 as it would breach the Appellant’s Article 8 rights.
DECISION
The Appellant’s appeal is allowed on human rights grounds (Article 8 ECHR)



Signed: L K Smith Dated: 16 August 2022
Upper Tribunal Judge Smith
APPENDIX: ERROR OF LAW DECISION



Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/06816/2019


THE IMMIGRATION ACTS


Heard at Field House, London
Determination promulgated
On Wednesday 17 November 2021
……17 December 2021…………


Before

UPPER TRIBUNAL JUDGE SMITH


Between

MR SAID ESSAOUINI
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent


Representation:
For the Appellant: Mr A Mackenzie, Counsel instructed by Birnberg Peirce and Partners
For the Respondent: Mr S Whitwell, Senior Home Office Presenting Officer


DECISION AND DIRECTIONS
BACKGROUND
1. The Appellant appeals against the decision of the First-tier Tribunal (Judges J Bartlett and Beach) promulgated on 13 July 2021 (“the Decision”). By the Decision, the Tribunal dismissed the Appellant’s appeal against the Respondent’s decision dated 29 March 2019 refusing his human rights claim. The decision is made in the context of a decision by the Respondent to make a deportation order against the Appellant.
2. The Appellant is a national of Morocco. He came to the UK in around September 1996 then aged twelve years. He was granted indefinite leave to remain as I understand it as the dependent of his mother who was and remains in the UK. The Appellant has been convicted of a string of offences committed between 2007 and 2017. He was sentenced to twelve months in prison for the last offences (being six counts of burglary and theft). He had been sentenced to earlier short periods of imprisonment but the latest was the trigger for deportation action which was commenced in January 2018. The Appellant’s partner died in the Grenfell Tower fire. The Appellant was a participant in the inquiry dealing with the fire and for that reason deportation action was paused in May 2018 but recommenced thereafter with the decision being taken to refuse the Appellant’s human rights claim which is under appeal.
3. The Appellant’s human rights claim is based on his Article 8 ECHR rights. He has mental health problems. It is claimed that he cannot access the necessary treatment in Morocco (although the claim is not put on the basis that deportation would breach his Article 3 rights for that reason). The Appellant’s family are in the UK. It is said that he has no family or connections to Morocco. He claims that there will for those reasons be very significant obstacles to his integration in Morocco and that therefore paragraph 399A of the Immigration Rules (“the Rules”) is met. More generally, he relies also on those matters but also on the connections he has formed with others who were bereaved as a result of the Grenfell Tower fire.
4. As this is a deportation case, the Tribunal first had to determine whether either of the exceptions within the Rules were met as also reflected in section 117C Nationality, Immigration and Asylum Act 2002 (“Section 117C” of “the 2002 Act”). If those exceptions were not met, the Tribunal had to go on to consider whether there were very compelling circumstances over and above those exceptions.
5. The Tribunal had before it medical evidence. It had before it no evidence from the Appellant. He did not give oral evidence due to his mental health state but neither did he provide any written statement. The Tribunal heard evidence from two members of a group of four who were bereaved as a result of the Grenfell Tower fire, Mr Nicholas Burton and Mr Choucair.
6. The Tribunal accepted that the Appellant had spent more than half his life lawfully in the UK ([30(i)] of the Decision). As a result of his education in and family ties to the UK and links with the Grenfell Tower bereaved “niche group” as well as his length of residence in the UK, the Tribunal accepted that he was culturally and socially integrated in the UK ([30(viii)] of the Decision). However, for the reasons set out at [31] of the Decision, the Tribunal did not accept that there were very significant obstacles to integration in Morocco. Outside the Rules, the Tribunal balanced the interference with the Appellant’s rights against the public interest at [35] to [37] of the Decision but concluded that the public interest outweighed the interference.
7. The Appellant appeals on two grounds. First it is said that the Tribunal misdirected itself in relation to the burden of proof. Second, it is said that the Tribunal failed to consider whether the Appellant’s psychiatric and personality conditions themselves give rise to very significant obstacles to his integration in Morocco.
8. Permission to appeal was granted by First-tier Tribunal Judge Adio for the following reasons:
“..3. This [the first] ground does not raise any arguable error of law. The Immigration Rules on deportation and Exceptions in Section 117 are such that the burden of proof lies on the Applicant to show that he comes within the Rules, or the Exceptions under Section 117(c) [sic] of the 2002 Act. The judges noted that the Applicant did not give evidence and did not provide a witness statement and went out to draw certain inferences based on the evidence before them. It therefore follows that by stating that the burden of proof was on the Applicant it does not in itself amount to an error of law. The judges stated the correct position of the law in respect of burden of proof. Furthermore, this is a Non-EEA deportation appeal.
4. However, Ground 2 does give rise to an arguable error of law. The grounds argue that the judge’s failure to consider whether an Applicant’s psychiatric and personal conditions themselves give rise to very significant obstacles to his integration in Morocco. Paragraphs 8 to 16 are arguable. In view of the evidence of Dr Prentice, a clinical psychologist, whose most recent report of 7th April 2021 showed that the Applicant had 41 sessions with the Applicant the findings of the clinical psychologist are such that the judges have erred in categorising the Applicant’s situation as going through a negative, normal human experience which does not of itself create a very significant obstacle to integration.
5. It is arguable that the observation and findings of the Judges on this issue is not the Applicant’s specific assessment required of the judges for the Applicant with the particular condition he has. The categorisation that the Applicant’s situation is high enough to suppress his immune systems functioning and that the assessment by Dr Prentice indicates significant functional impairment in terms of work, home management, social leisure, private leisure and personal and family relationships is such that it raises the point as to whether the judges gave this issue adequate consideration in considering whether the Applicant can return to Morocco without very significant obstacles to his integration there. I find that Ground 2 gives rise to an arguable error of law.”
9. The Respondent filed a Rule 24 Reply dated 15 October 2021 seeking to uphold the Decision.
10. The appeal comes before me to decide whether there is an error of law in the Decision and if I so conclude to either re-make the decision or remit the appeal to the First-tier Tribunal for it to do so.
11. I had before me a core bundle of documents including the Respondent’s bundle. I also had the Appellant’s bundle before the First-tier Tribunal running to 51 pages (referred to hereafter as [AB/xx]) and supplementary bundle before the First-tier Tribunal running to 80 pages ([ABS/xx]). Mr Mackenzie filed a skeleton argument for the hearing before me.
DISCUSSION AND CONCLUSIONS
Ground 1
12. Although Judge Adio indicated that this ground had no arguable merit, he did not expressly refuse permission to appeal on this ground. Accordingly, and in accordance with the guidance given by this Tribunal in Safi and others (permission to appeal decisions) [2018] UKUT 00388 (IAC), the grant of permission is to be construed as one granting permission on all grounds. Mr Whitwell did not argue otherwise and addressed this ground in his submissions. Although Mr Mackenzie’s skeleton argument and oral submissions focussed on the second ground, the first ground was not abandoned and it is therefore necessary for me to deal with it. However, I agree with Judge Adio that this ground has no merit for the reasons which follow.
13. The Tribunal directed itself as to the applicable burden of proof at [17] of the Decision as follows:
“In this appeal the burden of proof is on the appellant to show that he comes within the Immigration Rule applicable (namely paragraph 398) and the standard of proof is the normal civil standard of a balance of probability. Insofar as the appellant seeks to say that leave should be granted on the basis of human rights outside the Immigration Rules under common law relating to Article 8 the burden of proof is also on the appellant to show that he has family life and/or private life such as to engage Article 8, that the family life and/or private life will be interfered with by the decision herein and in the case of private life such interference will harm his physical and/or moral integrity, and that that interference would be disproportionate to the lawful and legitimate aims of the Secretary of State in maintaining immigration control, preventing harm to the public and deterrence. The standard of proof is also a balance of probability. The burden on the respondent is to establish that her decision is justified, necessary and proportionate.”
14. The error pleaded is neatly encapsulated at [4] of the Appellant’s grounds. It is two-fold. First, it is asserted that the Tribunal erred by finding that the Appellant bore the burden of proving the facts to show that there are very significant obstacles to his integration in Morocco (whether that is within the Rules or the 2002 Act). Second, it is submitted that the Tribunal erred by failing to direct itself that the burden of proof on this issue lies on the Respondent because it is an aspect of showing that deportation is justified and proportionate. This argument is developed at [5] to [7] of the grounds and at [27] to [30] of the skeleton argument.
15. There is a very straightforward answer to this ground, reached via the prism of the Supreme Court’s judgment in KO (Nigeria) and others v Secretary of State for the Home Department [2018] UKSC 53 (“KO (Nigeria)”). Neither party drew my attention to this judgment. I accept that the Supreme Court was there dealing with the family life exception and not the private life exception. Nevertheless, its analysis of the general scheme is relevant to this ground as pleaded. Having set out the background and history relating to the introduction of the Rules relating to Article 8 ECHR, at [14] and [15] of the judgment, Lord Carnwath went on to explain the general purpose of the scheme which culminated in part 5A of the 2002 Act (which includes Section 117C) as follows:
“14. Part 5A of the 2002 Act takes that process a stage further by expressing the intended balance of relevant factors in direct statutory form….
15. I start with the expectation that the purpose is to produce a straightforward set of rules, and in particular to narrow rather than widen the residual area of discretionary judgment for the court to take account of public interest or other factors not directly reflected in the wording of the statute…”
16. Having dealt with the general purpose of the scheme, Lord Carnwath went on to deal with the individual elements of it. At [20] to [22] of the judgment, he said this:
“20.              Turning to section 117C the structure is not entirely easy to follow. It starts with the general rules (1) that deportation of foreign criminals is in the public interest, and (2) that the more serious the offence the greater that interest. There is however no express indication as to how or at what stage of the process those general rules are to be given effect. Instead, the remainder of the section enacts specific rules for two categories of foreign criminals, defined by reference to whether or not their sentences were of four years or more, and two precisely defined exceptions. For those sentenced to less than four years, the public interest requires deportation unless exception 1 or 2 applies. For those sentenced to four years or more, deportation is required ‘unless there are very compelling circumstances, over and above those described in Exceptions 1 and 2’.
21.              The difficult question is whether the specific rules allow any further room for balancing of the relative seriousness of the offence, beyond the difference between the two categories. The general rule stated in subsection (2) might lead one to expect some such provision, but it could equally be read as no more than a preamble to the more specific rules. Exception 1 seems to leave no room for further balancing. It is precisely defined by reference to three factual issues: lawful residence in the UK for most of C’s life, social and cultural integration into the UK, and ‘very significant obstacles’ to integration into the country of proposed deportation. None of these turns on the seriousness of the offence; but, for a sentence of less than four years, they are enough, if they are met, to remove the public interest in deportation. For sentences of four years or more, however, it is not enough to fall within the exception, unless there are in addition ‘very compelling circumstances’.
22.              Given that exception 1 is self-contained, it would be surprising to find exception 2 structured in a different way. On its face it raises a factual issue seen from the point of view of the partner or child: would the effect of C’s deportation be ‘unduly harsh’? Although the language is perhaps less precise than that of exception 1, there is nothing to suggest that the word ‘unduly’ is intended as a reference back to the issue of relative seriousness introduced by subsection (2). Like exception 1, and like the test of ‘reasonableness’ under section 117B, exception 2 appears self-contained.”
[my emphasis]
17. As that section of the judgment makes clear whether there are “very significant obstacles” to integration is a matter of fact. It is a threshold question. It is not about relative seriousness. The requirement is to show that the threshold, in other words, the degree of interference, is met.
18. I do not disagree with what is said in the grounds or skeleton argument about how interference with a qualified right is generally to be assessed. As the Tribunal in this case set out, it is for the person claiming a disproportionate interference to establish the nature and degree of the interference. It is then for the State to show how that interference is lawful, justified and proportionate. However, that legal position has now to be viewed via the statutory scheme which is intended to show how and when interference will be deemed to be disproportionate. In other words, the statutory scheme whether under the Rules or the 2002 Act already incorporates the justification and level which will be assessed to be proportionate within the public interest. The cases to which reference is made by the Appellant do not depart from what is said in KO (Nigeria) by the Supreme Court. For that reason, the Appellant is wrong to suggest as is said at [30] of the skeleton argument that the burden lays with the Respondent to show that there are no very significant obstacles.
19. Of course, within the statutory scheme which applies in deportation cases, there is a further step if neither exception is met whereby the interference with an appellant’s private and family life has to be judged against the public interest. That is within Section 117C(6). Although on the face of the 2002 Act that relates only to those sentenced to more than four years, the Court of Appeal in NA (Pakistan) v Secretary of State for the Home Department [2016] EWCA Civ 662 (“NA (Pakistan)”) explained at [26] to [27] of the judgment that Section 117C(6) avails both medium and serious offenders. The reference to NA (Pakistan) at [28] of the Appellant’s skeleton argument if anything underlines the fallacy in his argument. The two exceptions are, as is made clear in those paragraphs of the judgment in NA (Pakistan) part of the statutory scheme and not the whole of it. The need for “fall back protection” is covered by Section 117C(6). The Tribunal in this case recognised that in the final sentence of its self-direction at [17] of the Decision and the way in which it applied the statutory scheme at [34] and following of the Decision.
20. For the foregoing reasons, the Appellant has failed to identify any legal error by his ground one.
Ground Two
21. I turn then to the focus of the Appellant’s case before me. This ground is once again encapsulated in one paragraph of the grounds ([8]). It is there asserted that the Tribunal erred by “failing to consider whether [the Appellant’s] psychiatric and personality conditions themselves give rise to very significant obstacles to his integration in Morocco”. The grounds accept that the Tribunal took into account that the Appellant has “very substantial social difficulties in the UK”. Those arise from his “long-standing alcohol and substance abuse”, “lack of steady employment”, “long periods of offending” and “his violent outbursts”. The grounds also accept that the Tribunal expressly considered whether therapy would be available to the Appellant in Morocco ([12] of the grounds) What is said to be missing is a failure to consider whether the Appellant’s disorders and illnesses “themselves gave rise to very significant obstacles to his integration in Morocco, just as his behaviour in the UK had caused him substantial social difficulties”.
22. Having rehearsed the medical evidence in some detail, the Appellant’s skeleton argument develops the core argument as involving the following failures:
(1) There was “no realistic basis” for finding that the Appellant would fare any better in Morocco than he has in the UK even if treatment were available.
(2) The availability of treatment in Morocco is in any event not accepted and the Tribunal did not make a finding that it was available.
(3) The Tribunal gave no reason for finding it significant that the Grenfell fire happened four years ago.
(4) The finding that a source of the Appellant’s ill-health namely his uncertain immigration status and the ongoing proceedings would be removed if the appeal were dismissed is perverse.
(5) The finding regarding continued contact with the Grenfell support group in the UK is not a relevant factor as regards very significant obstacles to integration in Morocco.
(6) In any event the finding that the permanent separation from this support arising from deportation would be the same as a temporary separation during the pandemic is unsustainable.
(7) The reference to the normal consequences of the impact of bereavement failed to take into account the individual case.
23. Before going on to consider the submissions made on the Appellant’s behalf at the hearing, I make two preliminary observations. First, a Tribunal can only consider an appeal based on the evidence it has before it. Second, having found against the Appellant on the first ground, it follows that it was for the Appellant to show that there are “very significant obstacles to his integration in Morocco”.
24. In this appeal, it is worthy of note that, not only did the Appellant not give any oral evidence (which was understandable given his mental health) but he did not provide any written statement. The Appellant’s mother had provided a statement ([AB/43-48]) but was not called to give oral evidence. Initially, Counsel for the Appellant said that he could not explain why but then, following instruction from the Appellant, that “there was medical evidence about her condition”. There is said to be a photograph of her medication at [AB/33] (and of the Appellant’s medication at [AB/34]) but neither is readily legible or explained. Although the Appellant’s mother mentions in her statement that the Appellant “trie[s] to look after [her]”, she does not mention any specific health conditions and certainly none which would prevent her giving evidence.
25. There was some discussion at the hearing before me about the medical evidence concerning treatment available in Morocco. As I have noted at [21(2)] above, it is said not to be accepted that treatment is available in Morocco. I asked Mr McKenzie on what evidence the Appellant relied in this regard. It is perhaps helpful to summarise his submissions in this regard by reference to [19] of his skeleton argument:
“The evidence before the FTT of mental health care in Morocco appeared in the SSHD’s RFRL and was not disputed. The SSHD cited evidence that medication was available: RFRL 99,102, 104-8. She expressed the view that A would be able to find employment as a result of which he would be eligible for medical insurance: AB 103. She did not cite any evidence whatsoever that psychological therapy was available and there is no doubt that in an otherwise detailed review of the evidence known to her, she would have mentioned it if any such evidence existed (see further below as to the SSHD’s duties). The Presenting Officer did not argue that therapy was available in Morocco (cf his submissions at §15(vi)(b)); nor did the SSHD provide evidence that A would be able to secure any treatment at all if he were not able to work and were therefore ineligible for medical insurance.”
26. The reference to the Respondent’s “duties” is developed further at [21(ii)] of the skeleton argument as follows:
“ii. There was no evidence before the FTT that therapy was available in Morocco ([footnote 2 here reads as follows: ‘ For the record, it is also not correct that no argument was advanced that it was unavailable: see e.g. A’s skeleton argument before the FTT at §20: ‘None of these [ i.e. SSHD’s references to medication and outpatient clinics] would secure the social and therapeutic support and treatment that A has and needs’, and compare counsel’s oral submissions as summarised at §16(viii) of the judgment]. As pointed out above, the relevant evidence was set out by the SSHD in her RFRL and there was no dispute that this accurately and comprehensively described the treatment available to a person in A’s position. It is well established that the SSHD may not mislead the Tribunal in respect of country evidence of which she is aware (and that principle extends to evidence of which she should be aware, i.e. on the basis of reasonable enquiries): see CM (Zimbabwe) v SSHD [2013] EWCA Civ 1303, [22] onwards, citing R v SSHD ex p Kerrouche [1997] Imm AR 610 and R (Cindo) v IAT [2002] EWHC 246 Admin: and see, for a recent application of those principles, Nomi (appeals: duty of disclosure) [2020] UKUT 00088 (IAC). It follows that, unless the FTT was finding that the SSHD had misled it as to her actual or constructive knowledge of the availability of medical treatment in Morocco (which is not being alleged and for which no evidence is known), it should have worked on the basis that the evidence set out in the RFRL was both accurate and comprehensive”.
27. Footnote [3] then goes on to say the following:
“In case it is argued that the burden of proof was on A to provide evidence of the availability of medical treatment, A would point out that (a) the Supreme Court in AM (Zimbabwe) v SSHD [2020] UKSC 17 held at [33] that ‘the returning state is better able [than an individual appellant] to collect evidence about the availability and accessibility of suitable treatment in the receiving state’, and that that principle must apply equally well in the Article 8 context as in the Article 3 context; (b) in any event, if the SSHD chooses to put evidence before the FTT, as she did in this case, that evidence must be as complete and accurate as possible, on the principles in CM (Zimbabwe), Kerrouche and Cindo; and (c) the burden of proof generally is on the SSHD as regards the proportionality of removal: see A’s first ground of appeal.”
28. I have already explained why I consider the Appellant’s first ground to fail. The availability of treatment goes to the level of interference not the public interest justification for it.
29. The cases on which the Appellant places reliance in the footnote and [21(ii)] are in any event not authority for the proposition which the Appellant seeks to put forward and arise in a wholly different context. CM (Zimbabwe) was a country guidance case and as such there was a burden on both parties to put forward evidence as to the situation for those returning to Zimbabwe (as in fact occurred). The point made about disclosure arose from the late discovery of documents by the Respondent. The appeal was also concerned with risk on return under the Refugee Convention and not health issues. Nimo concerns disclosure of documents within the Respondent’s possession or power and not general background information. As was held in both Nimo and Kerrouche on which reliance is there placed, the duty of disclosure on the Respondent “cannot be put higher than that he must not knowingly mislead”. There is no assertion by the Respondent in her decision letter that the evidence on which she relied constituted all evidence which existed in the public domain or otherwise about treatment for the Appellant which might be available in Morocco. The duty not to mislead cannot sensibly be read as meaning that where the Respondent provides evidence on which she relies, the Appellant can rely on any gaps in that evidence as proving that such evidence does not exist.
30. Further, in relation to footnote [3], the reference to AM (Zimbabwe) needs to be read in context. Whilst appreciating that this case was concerned with Article 3 ECHR and not Article 8 ECHR, the Appellant appears to accept that it may be relevant in relation to the provision of evidence concerning the situation on return in health cases. If that is so, then regard needs to be had to the whole of [32] and [33] of the Supreme Court’s judgment which makes clear that it is for an applicant to provide the necessary evidence in the first instance to demonstrate a “prima facie” case. In other words, it “is for the applicant to adduce evidence ‘capable of demonstrating that there are substantial grounds for believing’ that article 3 would be violated.” If an applicant demonstrates that this threshold is met, it is then for the respondent to “dispel ‘any’ [serious] doubts raised by the applicant’s evidence”. There is no suggestion in the Supreme Court’s judgment that the Respondent bears the burden of proving that removal would breach an applicant’s human rights in this regard. Article 3 ECHR is of course an absolute right rather than a qualified one and is not directly on point. However, I refer back to the first ground in relation to my analysis of where the burden lies in relation to Article 8 ECHR
31. There is a second reason why the Tribunal was right not to place the burden on the Respondent or to view her evidence as discharging the Appellant’s burden. As Mr McKenzie accepted, the Respondent’s decision letter pre-dated much of the medical evidence in this case and certainly that relating to the Appellant’s treatment (as opposed to medication). Mr McKenzie suggested that the Respondent had ample time to make further enquiries but that misses the point. If the Appellant was putting forward a case that he could not be returned to Morocco because of a lack of or inaccessibility or unaffordability of treatment, he needed to put forward evidence. The highest Mr McKenzie can put the position relying on AM (Zimbabwe) is that there is a shared burden in relation to evidence about the situation on return. It does not excuse the Appellant’s failure to adduce any evidence. The burden was not on the Respondent to plug the gaps. The Appellant has provided no evidence in this regard (as I understood Mr McKenzie to accept). The Tribunal was entitled to proceed on the evidence it had about the treatment available in Morocco. It did not have to accept that there was no or inadequate treatment as the Appellant contended just because the Respondent’s decision letter did not identify that aspect (particularly where that decision pre-dated the evidence about the need for treatment).
32. With that somewhat lengthy introduction to set the Appellant’s case on ground two in context, I turn to the core of the complaint made by the second ground as summarised at [21] above.
33. The Tribunal dealt with the medical evidence put forward by the Appellant at [25] of the Decision as follows:
“We found the medical reports of a limited use. In particular the reports of Ms Amina Thomson are verbose and unfocused. Having considered the reports carefully we make the following findings:
(i) the appellant suffers from anxiety and depression and has PTSD symptoms. It is important to note that the appellant has been assessed as having PTSD symptoms but that he has not been diagnosed with PTSD. He may have dependent and emotionally unstable personality disorder and has behavioural disturbances due to alcohol and substance abuse;
(ii) since early 2020 both Ms Thompson and Dr Prentice note that the appellant has made limited progress and that he has had less connection with the bereaved of Grenfell due to covid-19 and the restrictions on the population;
(iii) the appellant continues to drink but has reduced his intake;
(iv) the appellant’s symptoms of post-traumatic stress disorder and depression appear to be less intense and frequent but he remained significantly anxious. It is stated that he would benefit from ongoing therapy to address his anxiety and that work is likely to move from trauma focused therapy to psychodynamic/CAT therapy.”
34. The medical evidence appears at [AB/5-17] and [ABS/53-69]. I have read the reports carefully. In general, the Tribunal’s summary of that evidence is accurate. I can understand the Tribunal’s categorisation of Ms Thomson’s evidence in particular. As Mr McKenzie submitted, the Tribunal’s reference to the diagnosis of Dr Prentice does understate the level of the Appellant’s symptoms particularly in relation to the IES-R (impact of events scale) which are within a range “high enough to suppress…immune system’s functioning”. Nonetheless, Dr Prentice does indicate some improvements in the Appellant’s condition. There is however one aspect of Dr Prentice’s report which is not expressly identified concerning the Appellant’s “significant functional impairment in terms of his work, home management, social leisure, private leisure, and personal or family relationships.”
35. Moving on then to the Tribunal’s consideration of the obstacles facing the Appellant in Morocco, the Tribunal considers at [31] of the Decision the ties which the Appellant has had in the past (including his previous marriage to a woman who lived – and lives – there even though he had moved to the UK). The Tribunal did not accept that the Appellant had no subsisting connections to that country. Given the lack of evidence, the Tribunal was entitled to reach that conclusion. The Appellant speaks Arabic.
36. The Tribunal considered the Appellant’s mental health as a potential obstacle at [31(v)] of the Decision. That is a lengthy section, but the points made can be summarised as follows:
(a) The Appellant has not attended all his therapy appointments with Ms Thomson and more recently those have been conducted by telephone. There is no evidence that therapy would not be available in Morocco.
(b) The Grenfell fire happened four years ago, the Appellant has made some limited progress since and the main factor contributing to the Appellant’s anxiety now is the uncertainty of his immigration proceedings which will be resolved once the appeal is determined.
(c) The Appellant is close to a small group of the Grenfell bereaved relatives. They are supportive to him. However, the pandemic has necessarily impacted on the level of support which he can obtain from them, and he could maintain links with them from Morocco. His need for their support will have abated in the four years since the Grenfell fire and he has been provided with coping strategies through therapy.
(d) The Appellant’s connections to the wider community of those affected by the Grenfell fire would be lost if he moved away from the area. Again, though, the pandemic has impacted on his ability to maintain those connections.
(e) The personal loss to the Appellant from the Grenfell fire “is something that occurs during many people’s lives, nobody is immune from suffering significant personal loss and distress. Going through a negative normal human experience does not of itself create a very significant obstacle to integration”.
37. I have already dealt with the issue around evidence concerning the treatment available in Morocco. Given the state of the evidence it had, the Tribunal was entitled to reach the conclusion it did at [31(v)(a)]. I accept that the medical evidence indicates that the Appellant had attended most of his therapy appointments with both Dr Prentice and Ms Thomson but given the lack of evidence that such therapy could not be accessed in Morocco, the Tribunal was entitled to have regard to this as a factor.
38. What is said at [31(v)(b)] is accurate so far as it goes. However, Mr McKenzie is right to point out that it does not take account of Dr Prentice’s report about the continuing and significant impact of the trauma on the Appellant’s mental health.
39. It is suggested in the Appellant’s skeleton argument that factors (c) and (d) were not relevant as they are part of the Appellant’s integrative links to the UK and are not relevant to the obstacles to integration in Morocco. I consider that there is some force in that argument. That however is part of the wider issue which is the failure by the Tribunal to consider how the Appellant would be able to integrate in Morocco given the functional impairment which Dr Prentice identifies in his reports. I have already alluded to the Tribunal’s failure to have regard to that factor when summarising the medical evidence.
40. I do not consider it an error for the Tribunal not to refer expressly to the case of Secretary of State for the Home Department v Kamara [2013] EWHC 959. The experienced Tribunal Judges appear to have had in mind the sorts of factors which are relevant to the overall consideration of integration. In this specific case, however, the Tribunal did not have regard to the difficulties which the Appellant has in forming relationships or, put another way, participating in society whether it be in the UK or Morocco. The medical evidence indicates that the Appellant has difficulties with interpersonal relationships in the UK due to his mental health problems. He does however have a support network in the UK, albeit limited, from which he would be removed in Morocco. It was an error for the Tribunal not to consider how the Appellant would fare once that occurred and how the withdrawal of that support network would impact his mental health and to what degree. There is no consideration whether the Appellant could replicate that support network in Morocco.
41. There is also force in the Appellant’s argument that the Tribunal’s consideration of the impact of bereavement on the Appellant ignores the specifics of his mental health difficulties.
42. I am for those reasons satisfied that there is an error of law disclosed by the Appellant’s ground two.
CONCLUSION AND NEXT STEPS
43. I am satisfied that the Decision contains an error of law. Since that error goes to the core of the Tribunal’s finding on the central issue, it is appropriate to set the Decision aside. I do not preserve any findings as it will be necessary to reassess the evidence. However, the issues in this appeal are not extensive. It is not necessary for the appeal to be remitted to the First-tier Tribunal for remaking. I have given directions below for further evidence, including for evidence from the Appellant (whether oral or written only) if he wishes to give such evidence.


DECISION
The Decision of the First-tier Tribunal (Judges Bartlett and Beach) promulgated on 13 July 2021 involves the making of an error on a point of law. I therefore set aside the Decision. I make the following directions for the remaking of the decision by this Tribunal.


DIRECTIONS
1. Within 42 days from the date when this decision is sent, the Appellant shall file with the Tribunal and serve on the Respondent, any further evidence on which he seeks to rely.
2. Within 28 days from the service of the evidence in [1] above, the Respondent shall file and serve any additional evidence on which she relies.
3. The appeal will be relisted for a re-making hearing with a time estimate of ½ day on the first available date after eight weeks from the sending of this decision on a face-to-face basis. If either party seeks a remote hearing, application should be made to the Tribunal within 14 days from the sending of this decision with reasons. If the Appellant requires an interpreter for the hearing, application should similarly be made to the Tribunal within 14 days from the sending of this decision.


Signed: L K Smith Dated: 17 December 2021
Upper Tribunal Judge Smith