Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/06989/2017

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On the 11 May 2022
On the 18 August 2022

Before

UPPER TRIBUNAL JUDGE PITT

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Appellant
and

SS
(ANONYMITY DIRECTION MADE)
(BY HIS LITIGATION FRIEND HEIKE LANGBEIN)
Respondent

Representation:

For the Appellant: Mr E Tufan, Senior Home Office Presenting Officer
For the Respondent: Mr D Chirico, Counsel, instructed by Duncan Lewis Solicitors

DECISION AND REASONS

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the respondent is granted anonymity. No-one shall publish or reveal any information, including the name or address of the respondent, likely to lead members of the public to identify the respondent. Failure to comply with this order could amount to a contempt of court. This order is made with consideration to the medical history of SS.
1. This is a remaking of SS’s appeal on Article 3 and Article 8 ECHR grounds brought against a decision dated 1 June 2017 refusing leave to remain.
2. For the purposes of this decision I refer to SS as the appellant and to the Secretary of State for the Home Department as the respondent, reflecting their positions before the First-tier Tribunal.
Background
3. SS is a citizen of India. He was born on 4 February 1975 and is now 47 years old.
4. The appellant indicated in his application for further leave to remain made on 29 November 2016 that he came to the UK in 2006. This was also his evidence in his statement dated 10 April 2018 and the date put forward in the skeleton argument submitted on his behalf for a First-tier Tribunal hearing in April 2018. It was pointed out at the hearing before me that the social work report of Mr Peter Horrocks dated 3 April 2020 refers in paragraph 3.6 to the appellant coming to the UK in 2004. There is also a reference in paragraph 3.45 of the psychiatric report of Dr Satinder Sahota dated 7 June 2020 to the appellant leaving his home in 2002. The weight of the evidence, and certainly the evidence of the appellant himself, however, is that he came to the UK in 2006.
5. The appellant has stated that he came to the UK illegally and has never had any form of leave. He explained in his statement dated 10 April 2018 that he came to the UK to “make a better life”. He found various forms of casual work, as a builder and in a fish and chip shop, living in a shared house with relatives and friends.
6. In November 2010, very sadly, SS had a stroke. After a 6 month period in an intensive rehabilitation unit, he moved to a nursing home in November 2011 and has been resident there ever since.
7. On 29 November 2016 SS applied for leave to remain outside the Immigration Rules maintaining that his medical and care needs meant that he would face a breach of his rights under Article 3 and Article 8 ECHR if he returned to India. In support of the application he provided a letter from his GP dated 28 September 2016 which stated:
“Mr [SS] suffers from left-sided weakness and poor balance associated with lack of social awareness and poor comprehension.
He is able to mobilise with the help of a walking stick but only short distances.
He needs help with personal care on a daily basis. He is unable to manage this independently.”
8. The application was also supported by a care assessment dated 26 January 2017. The assessment stated that the appellant was fluent in Punjabi and had sufficient English to communicate his needs effectively. He liked watching TV and reported enjoying interacting with staff and residents at the centre. A “cousin/friend” visited regularly. He did not need nursing care. He needed help taking medication three times a week as opening the packaging was difficult for him. He experienced pain from the shunt that was placed in his brain at the time of his stroke. He also felt pain in the right side of his body. He could not use his left hand but could do simple things with his right hand. Meals had to be prepared for him. He could eat but sometimes needed hard food cutting up for him. His meals were placed next to him. He managed his toileting independently. He needed support to wash and groom himself and to dress. He could walk with the aid of a tripod. He managed transferring from a chair to a bed and vice versa, independently but slowly. He spoke to his brother in India regularly. He could use public transport if accompanied. He was not able to work. In order to be safe he needed someone else available in his home during the day and night in case something happened to him.
9. The respondent refused the appellant’s application for leave in a decision dated 1 June 2017. The respondent found that the appellant could be expected to reintegrate in India as he had lived there until the age of 31 and had family members there. India had a functioning healthcare system and he would be able to access appropriate treatment. The claim did not reach the high threshold required for an Article 3 or Article 8 ECHR claim based on medical issues.
10. The appellant appealed against the refusal of leave to the First-tier Tribunal. In a decision issued on 20 April 2018 First-tier Tribunal Judge Sweet allowed the appeal on Article 8 ECHR grounds, the appellant conceding, at that time, that an Article 3 ECHR claim could not succeed.
11. The Secretary of State appealed against the decision of the First-tier Tribunal. In a decision issued on 2 August 2019 the Upper Tribunal found an error of law in the decision of the First-tier Tribunal and set it aside to be remade. The error of law decision followed a concession by the appellant that the First-tier Tribunal had failed to engage with evidence concerning the appellant’s circumstances on return to India, in particular the material on the availability of care and support there, which, had it been considered, might have led to a different outcome. There was also a concession that the First-tier Tribunal had failed to apply the correct legal approach to the Article 8 medical claim.
12. Following the error of law decision, concerns about the appellant’s mental capacity were investigated and it was confirmed that he required a litigation friend. Since 2020 the appellant has been represented in these proceedings by a litigation friend, currently Ms Heike Langbein who was appointed on 11 January 2022. The Covid-19 pandemic and withdrawal of the original litigation friend were factors in the lengthy delay between the error of law decision and the remaking of the appeal.
13. The respondent accepted that for the remaking of the appeal the grounds should be varied to include an assessment of whether the appellant faced a breach of his Article 3 ECHR rights on return to India as well as an assessment of his Article 8 ECHR claim.
14. Following the hearing on 11 May 2022 for the remaking of the appeal, a reported case concerning Article 3 ECHR medical claims was issued, AM (Art 3; health cases) Zimbabwe [2022] UKUT 00131 (IAC) (referred to in this decision as AM (UT)). The Upper Tribunal directed that the parties could make written submissions on that case if they wished and the appellant did so on 14 July 2022.
The Law
15. Article 3 ECHR provides protection against inhuman or degrading treatment. Where that mistreatment is said to arise on medical grounds, the case of Paposhvili v Belgium (Application no.41738/10)(13 December 2016) sets out the correct approach at [183]:
“ The Court considers that the ’other very exceptional cases’ within the meaning of the judgment in N. v. the United Kingdom (§ 43) which may raise an issue under Article 3 should be understood to refer to situations involving the removal of a seriously ill person in which substantial grounds have been shown for believing that he or she, although not at imminent risk of dying, would face a real risk, on account of the absence of appropriate treatment in the receiving country or the lack of access to such treatment, of being exposed to a serious, rapid and irreversible decline in his or her state of health resulting in intense suffering or to a significant reduction in life expectancy. The Court points out that these situations correspond to a high threshold for the application of Article 3 of the Convention in cases concerning the removal of aliens suffering from serious illness.”
16. In AM (Zimbabwe) v SSHD [2020] UKSC 17 (referred to in this decision as AM(SC)) the Supreme Court confirmed that this was the correct approach in Article 3 ECHR medical cases. At [32], the Supreme Court set out that the burden was on an appellant to adduce evidence demonstrating “substantial grounds” for believing that a “very exceptional case” was made out because of “real risk” of treatment contrary to Article 3 ECHR arose. The Supreme Court confirmed that there remained a “high threshold” to be met in Article 3 ECHR medical cases, as identified in Paposhvili.

17. The approach set out in Paposhvili was confirmed by the Grand Chamber in Savran v Denmark (Application no.57467/15)(7 December 2021). The ECtHR stated at [131] of Savran, when considering Paposhvili:

“The Court stressed in the above connection that the benchmark was not the level of care existing in the returning State; it was not a question of ascertaining whether the care in the receiving State would be equivalent or inferior to that provided by the healthcare system in the returning State. Nor was it possible to derive from Article 3 a right to receive specific treatment in the receiving State which was not available to the rest of the population (ibid., § 189). In cases concerning the removal of seriously ill persons, the event which triggered the inhuman and degrading treatment, and which engaged the responsibility of the returning State under Article 3, was not the lack of medical infrastructure in the receiving State. Likewise, the issue was not one of any obligation for the returning State to alleviate the disparities between its healthcare system and the level of treatment existing in the receiving State through the provision of free and unlimited healthcare to all aliens without a right to stay within its jurisdiction. The responsibility that was engaged under the Convention in cases of this type was that of the returning State, on account of an act - in this instance, expulsion - which would result in an individual being exposed to a risk of treatment prohibited by Article 3 (ibid., § 192). Lastly, the Court pointed out that whether the receiving State was a Contracting Party to the Convention was not decisive.”
18. In AM (UT) an Upper Tribunal panel, after considering the preceding caselaw, provided the following guidance, set out in the head note:

1. In Article 3 health cases two questions in relation to the initial threshold test emerge from the recent authorities of AM (Zimbabwe) v Secretary of State for the Home Department [2020] UKSC 17 and Savran v Denmark (application no. 57467/15):

(1) Has the person (P) discharged the burden of establishing that he or she is “a seriously ill person”?
(2) Has P adduced evidence “capable of demonstrating” that “substantial grounds have been shown for believing” that as “a seriously ill person”, he or she “would face a real risk”:
[i] “on account of the absence of appropriate treatment in the receiving country or the lack of access to such treatment,
[ii] of being exposed
[a] to a serious, rapid and irreversible decline in his or her state of health resulting in intense suffering, or
[b] to a significant reduction in life expectancy”?

2. The first question is a relatively straightforward issue and will generally require clear and cogent medical evidence from treating physicians in the UK.

3. The second question is multi-layered. In relation to (2)[ii][a] above, it is insufficient for P to merely establish that his or her condition will worsen upon removal or that there would be serious and detrimental effects. What is required is “intense suffering”. The nature and extent of the evidence that is necessary will depend on the particular facts of the case. Generally speaking, whilst medical experts based in the UK may be able to assist in this assessment, many cases are likely to turn on the availability of and access to treatment in the receiving state. Such evidence is more likely to be found in reports by reputable organisations and/or clinicians and/or country experts with contemporary knowledge of or expertise in medical treatment and related country conditions in the receiving state. Clinicians directly involved in providing relevant treatment and services in the country of return and with knowledge of treatment options in the public and private sectors, are likely to be particularly helpful.

4. It is only after the threshold test has been met and thus Article 3 is applicable, that the returning state’s obligations summarised at [130] of Savran become of relevance – see [135] of Savran.
19. In HA (expert evidence; mental health) Sri Lanka [2022] UKUT 00111 (IAC), at [182], a Presidential panel confirmed the established principle that the same threshold identified for Article 3 ECHR cases applies to Article 8 ECHR claims brought on medical grounds:
“So far as concerns Article 8, the Court of Appeal has recently reiterated that Article 8 is not in this contest to be regarded merely as Article 3 with a lower threshold: SL (St Lucia) v SSHD [2018] EWCA Civ 1894. An appellant cannot succeed under Article 8 simply because of their mental ill-health and suicide risk, if those are insufficient and meet the high Article 3 test set by Paposhvili and (now) explained by Savran.”
20. The appellant also maintains that because of his health and the situation he will face on return to India he would experience material deprivation on return that would amount to inhuman and degrading treatment. In that regard he relies on Ainte (material deprivation – Article 3 – AM (Zimbabwe)) [2021] UKUT 00203 in which the Upper Tribunal confirmed that the extension of the Article 3 threshold provided in Paposhvili and AM (SC) also applied to destitution/material deprivation cases.
Article 3 ECHR

The Appellant’s Medical and Care Needs
21. The most recent evidence on the appellant’s health and his care needs was set out in a care plan dated 25 April 2022 prepared by staff at his nursing home. The extracts from the care plan set out below are verbatim.
22. The care plan refers on page 5 to the appellant’s “ability in understanding information to make a decision and communicate any decision made.” The plan notes “No cognition impairment since last reviw”. Pages 5 and 6 of the care plan identify that the appellant is continent and does not need continence care, being totally independent in that regard. Pages 6 and 7 set out that SS has a “Low Need” for support with feeding. His meals had to be prepared for him and sometimes he needed his food cutting up for him. The care plan indicates that “[SS] can eat and drink independently”.
23. The care plan indicates on page 9 that:
“[SS] continue to engage in social activities. He continue to be supported in making his own lifestyle choices. He love spending a good amount of time watching bollywood movies or listening bollywood music. He also enjoys doing physical exercises walking up and down the corridor with his walking stick.”
The care plan also addresses the appellant’s mobility issues on pages 11 to 13. The appellant is recorded as stating:
“I am independent at mobility; however, I require the use of equipment (quadropod, walking stick) to move around the home.
I have a history of falls; indoors, daytime, and night time because of the left-sided weakness in my body.
I have medical conditions that can affect my movement such as stroke, brain injury, and CVA.”
The care plan goes on to identify that staff should let the appellant carry on doing as much as much for himself as possible, make sure his call bell was in reach and keep his surroundings clean and tidy to allow him to move around more safely. He should be encouraged to take rests to avoid risk of falling. The section on mobilisation concludes on page 13:
“[SS] has restricted mobility. Continue to use a walking stick for short distances and a wheelchair for long distances. He s maintaining the ability to mobilise without assistance. However, his mobility is assessed daily and if any changes to be referred to PT/OT for advice and support, in order to maintain his independence. Staff to provide [SS] with suitable clothes and footwear. Room to be always tidy and clutter free.”
24. The appellant’s oral health needs are set out on page 13. He was found to wholly independent in that regard.
25. Page 14 of the care plan assesses the appellant’s pain and need for medication. He is identified as having a moderate need for pain medication and as being able to tell others when he is feeling pain. This section concludes:
“[SS] continue to self administrate his medication under nurse supervision. He remain compliant with care and treatment. Able to swallow the tablets in solid form with a glass of water or juice. Pain management in place. Nil pain or discomfort reported lately. Liaise with the GP/pain nurse if his main management loose its efficiency.”
26. The appellant’s personal care and dressing needs are addressed on page 15. The appellant reported that he could “manage my own person hygiene with minimal help from staff members” but needed “assistance from one staff member in terms of showring, washing my hair, and dressing.” This section concludes:
“[SS] is maintaining his capability of taking care of himself. Staff to allow [SS] time to choose his own clothes. However, he remain dependent on staff with personal care such as shower, bathing, grooming due to his weakness in his left arm; His skin integrity is checked on a daily basis and body cream is applied. Staff to make sure his clothes are clean and appropriate. Room to be maintained, tidy and bedding is to be changed on a regular basis.”
27. The appellant’s physical health needs are set out on page 16. The care plan identifies that his level of need is “1 – Low Need”. The plan identifies that the appellant is at risk of having an epileptic fit but that he is on appropriate medication for this. The plan identifies that staff should be aware of signs of a possible epileptic attack and monitor the appellant for those signs by day and by night. The appellant should not leave the home on his own because of the risk of an epileptic fit. The section concludes:
“[SS]’s medical condition seems to be stable since last review. No episodes of hypertension or epilepsy; Continue with the same medication regime; His BP is monitored regularly; Nil signs or symptoms reported or noticed. He is able to recognise and report any physical health changes. Liaise with GP/other specialists if his health is deterioreting.”
28. Page 17 of the care plan sets out the appellant’s safety needs. It indicates that he is checked during the day and night by staff. He uses his quadripod walking stick to mobilise. He gets in and out of bed independently and is able to move around. Staff should check that his call bell is within reach, that he is wearing appropriate footwear and that his room is kept clutter free. His level of need is assessed as being “0 – Independent”. The review note indicates:
“Staff is aware that [SS] is at high risk of falls due to his poor balance, therefore daily visual assessments are done in order to maintain his safety. Room remain clutter free and additional support is given when [SS] is walking long distances. Suitable clothing and footwear; Nil incidents involving [SS]’s safety have been reported since last reviw.”
29. The care plan identifies on page 19 that the appellant’s skincare is at “0 – Independent” level. The appellant is reported as indicating that he needs minimal support. The section concludes:
“[SS]’s methodes of maintaining a good skin integrity were proven to be efficient in the past month. His skin remains intact although vulnerable and prone to injuries. [SS] continue to need extra support from staff to apply ointments cream on daily basis in order to avoid dry skin. Clothes and foot wear to be maintained clean and dry. Nursed on foam mattress – if mobility is deterioreting, consider an aer mattress. He is self repositioning in bed.”
30. As well as the 2022 care plan I had two reports from Mr Peter Horrocks, an Independent Social Worker. The first report is dated 3 April 2020 and was prepared after Skype meetings between Mr Horrocks and the appellant and the nursing home manager, Mr Peter Bharj, because of the Covid-19 pandemic. Paragraphs 3.11 to 3.16 set out as follows:
“3.11 Peter said that [SS] is one of the longest residents in the home and he has been there since 11.11.11. He has a range of health conditions as a result of the brain injury he suffered. He has left-sided paralysis, which affects his mobility significantly and he is unable to use his left arm at all. He walks in the building with his mobility aid and he tries to move around as much as possible. They never allow him to go out on his own and when he goes out it is generally in a wheelchair, because he is unable to walk any distance. He can walk around the temple. He has had ten falls in total since moving into the home and on one occasion he fell out of his bed. In 2019 he had further surgery to rectify a dip in his head caused by the brain haemorrhage. He also suffers from epilepsy, although he does not suffer from fits, he has tremors, which are generally controlled by medication.
3.12 Peter said that [SS] needs support with all aspects of his practical care needs such as cooking, shopping, laundry and cleaning. He does his own toileting. He needs help to take a shower and to dress himself, such as putting on his shirt, his trousers and his underwear. He can put his own slippers on. He feeds himself with one hand, but he needs his food to be cut up for him. He can make basic decisions for himself, such as deciding on a day-to-day basis what he will do but when he is faced with a complex decision he becomes confused. He also becomes forgetful. He needs help with his medication and uses a range of different medications on a daily basis.
31. In paragraph 4.9 Mr Horrocks gives the following opinion:
“[SS] lacks the physical abilities to meet his own practical care needs and without some form of ongoing specialist case and support, he will suffer harm to his physical health because his dietary needs and other aspects of his practical and health care needs will not be met.”
32. Mr Horrocks’ concerns for the appellant if he is returned to India that are set out in paragraphs 4.10 to 4.12 are based on family circumstances there which have changed since 2020 and are therefore of limited assistance.
33. The appellant also sought to rely on Mr Horrocks’ view that he will face further difficulties because he has been in a nursing home for ten years and is institutionalised. This is set out in paragraph 4.7 and again at paragraph 4.13 of the April 2020 report. Mr Horrocks comments:
“For [SS] there is a further factor at play, the effects of living in an institution for ten years, where he has had all aspects of his care needs met to a high degree and where he will have become dependent on the institution itself. If he was to move to India, he would need to undergo a process called Deinstitutionalisation – a political and social process directed towards transition from institutional care to independent living. It involves the closing down of institutions and development of quality, personalised community based care (Mburu [2016]). This research summarises a complex, multifaceted, ongoing and staged approach to supporting people moving from an institutional environment to more community based living. Just to remove [SS] after ten years from his current environment and to return him to India and to expect him to get on with his life is an impossible expectation. Whereby there is no question that the outcome would lead to him suffering significant harm to his physical and his mental health.”
34. Mr Horrocks’ addendum report of 11 March 2022 was very much in line with the April 2020 report. Where it addressed the changed family situation in India, this is considered below. Mr Horrocks sets out in paragraphs 3.8 and 4.3 of the 2022 report some additional details from a nurse from the appellant’s nursing home on his need for medication. In paragraph 3.8, for example:
“He requires three different medications for his blood pressure and has medication for his epilepsy twice daily. If he wasn’t given his medication, his blood pressure would go high and he could have a seizure or a stroke at any time. It is vital that he takes his medication”
And in paragraph 4.3:
“She said that if [SS] was in India with no one to look after him, he would deteriorate rapidly. [SS] lacks the capacity to survive, where he is living, if he has inadequate care. His failure to take his medication at the right time would pose a very high risk to his health, because he suffers from serious health conditions.”
35. Mr Horrocks also stated in his 2022 report at paragraph 3.2 that SS had experienced depression during the Covid-19 pandemic because of the difficulties experienced in the nursing home. He also set out concerns in paragraph 4.4 as to the effect on the appellant’s mental state if he returned to India as SS was afraid of the circumstances he would face there and was obviously a vulnerable individual.
36. Dr Sahota confirmed in paragraph 4.4 of his psychiatric report that there was no diagnosis of any mental illness. SS could make decisions about day to day matters but became confused when faced with a more complex decision. Dr Sahota indicates in paragraph 4.14 that the stroke left SS with a cognitive deficit which was unlikely to improve. Dr Sahota expressed concern that return to India might destabilise SS’s mental state. In paragraph 3.55, Dr Sahota identifies that SS has a diagnosis of high blood pressure, epilepsy, eczema and hay fever and that he is on mediation for these conditions.
37. There is therefore consistent evidence from a number of professional sources as to the appellant’s medical and care needs. He needs care to manage aspects of his day to day to life. He needs help to wash and dress. Food needs to be prepared for him and he sometimes needs help cutting it up. He needs someone nearby in case he falls albeit the evidence was that in the 9 years to 2020 he had had only ten falls in the home and there was no reference to any serious injuries when that happened. He needs help making complex decisions. He needs medication for his high blood pressure, epilepsy, eczema and hay fever and would be at risk of another stroke or an epileptic fit if he did not take that mediation regularly. A return to India would be hard for him to adjust to because of his subjective fears and because he has become institutionalised since going to a nursing home in 2011.

38. The respondent did not argue that the medical and care evidence failed to show that the appellant was seriously ill for the purposes of Article 3 and Article 8 ECHR. I accept that he is seriously ill and that it is therefore necessary to make an assessment of his circumstances on return to India and what access he would have to support and treatment there.

Are there substantial grounds for believing that there would be an absence of appropriate treatment or lack of access to such treatment in India?
39. My assessment of whether the appellant will be able to access adequate treatment in India begins with consideration of the evidence concerning the family situation to which he will be returning. The appellant has been generally consistent that he has maintained contact with his family in India whilst he has been in the UK. The care assessment dated 26 January 2017 stated that the appellant “phones his brother in India regularly and has a very good relationship with him” and had “regular contact with his brother in India”; see F10 and F16 of the respondent’s bundle. The comment in the statement dated 10 April 2018 that “I do not speak to my Brother and my Father only speaks to me on some occasions” is at odds with all of the other material of the appellant’s contact with his family.
40. The appellant provided Mr Horrocks with details about his family. The 2020 social work report indicates in paragraphs 3.1 to 3.5:
“3.1 [SS] said that he was born in the Punjab in India. He is a Sikh and speaks Hindu, Urdu and some English. He was the youngest of four children in his family. One of his brothers died of a brain tumour in 2012. His sister is married and lives with her husband and he has no contact with her. His other brother continues to live in the Punjab, in the village where he was born. His father was a farmer and his mother was a housewife. She died in 2010 following a brain haemorrhage.
3.2 [SS] said that his father lives alone, he was originally born in Pakistan. He is now age 75 and is a diabetic. He lives in the same village as his brother and sister-in-law and they provide him with food. His brother and sister-in-law have adult children, who are now living in Australia. His brother is age 55 and suffers from a range of health conditions including problems with diabetes, his liver, jaundice and asthma. He is too unwell to work and is cared for by his wife. She also looks after the daughter of his deceased brother. The daughter is aged about 19 and is studying. She stays with his brother and sister-in-law.
3.3 [SS] said that his sister-in-law cares for both his father and his brother. She is responsible for providing his father with food, washing his clothes and cleaning. His father continues to live on the family farm, which produces a small income from the two crops per year, one crop of wheat and one of rice, which is cultivated by day labourers. The income supports his father and his brother.
3.4 [SS] said that neither his brother nor his father are able to look after him, because of their own health conditions. They need looking after themselves and his sister-in-law has too many responsibilities, because she is already caring for three people. She would be unable to care for him as well.
3.5 [SS] said that the income from the farm just covers their basic living costs for food, clothing and medicines for his brother and father. His brother has a lot of medical costs. They also have to pay the school fees for his niece. Currently they are just about surviving on the income they receive. The farm used to be bigger, but they lost a lot of land during partition. It is now a small farm. His deceased brother used to be a driver for a dairy and in order to support his own family, whereas his other brother and father received the income from the farm. His family would be unable to support him financially if he was to return.”
The appellant also told Mr Horrocks in 2020 that “he has contact with his family in India weekly, when they speak on the phone”; see paragraph 3.8.
41. In his most recent report dated 11 March 2022 Mr Horrocks updated the appellant’s family circumstances. He set out in paragraphs 3.4 to 3.6:
“3.4 [SS] said that previously one of his brothers in India had died and about two months ago, his second brother died linked to diabetes. His father is still alive, he is aged about 75 or 80 and is quite elderly and unwell. The wife of his recently deceased brother looks after his father’s food. He is also diabetic. His father lives separately in the equivalent of a shack in the middle of the fields, where there are some cows. His sister-in-law used to look after his brother until his death. Occasionally, maybe every couple of months, when he speaks to his father, he will also speak to his sister-in-law, but they do not have a close relationship. His father does not like speaking on the phone.
3.5 [SS] said that he couldn’t go to India and live with his father, because his father is not well. He couldn’t go and live with his sister-in-law, because she is already distressed and in mourning after the death of her husband. He has nowhere to go in India and he can’t go to his father’s shack. He is afraid of going to India, it would be hard for someone like him to live there. At least he is getting care here. He couldn’t work and earn his living in order to eat in India. The system in India is not the same, for example if he needs to go to hospital, here he can go by ambulance.
3.6 [SS] said that he requires medication two times per day, the medication is to control his blood pressure and his epilepsy. He will die if was sent to India, he is not well. His sister-in-law is in mourning and distressed and she continues to care for [SS]’s father. The income from his father’s farm goes to pay for the education of his sister’s children. A lot of money was spent on his brother, when he fell ill, he went to hospital before he passed away. [SS] can’t work and his father barely manages to support himself, let alone someone else.”
42. This evidence shows that the appellant’s family own land from which they have an income which has supported a number of family members. That income has been sufficient to support his elderly and unwell father and cover his medical costs. It also supported his deceased brother and that brother’s wife. The family income covered the medical expenses of his brother which cost “a lot of money”. This expenditure is no longer required due to the brother’s sad death earlier this year. The family income also supports the adult daughter of another brother who died in 2012. She is still living in the family home with the appellant’s sister-in-law. The appellant has also indicated that the income from the family’s land is also used to pay for the education of “his sister’s children”. It is not clear if this can be a reference to the children of his full sister given that the appellant claims to have had no contact with her since she married. It may be a reference to the niece who is living in the family home with his sister-in-law or possibly to his brother’s children who are living in Australia.
43. The family’s income has therefore been sufficient to support at least four adults, including their medical costs, and pay for the education of at least one young adult. It appeared to me that the only possible conclusion was that some part of this income would be available to pay for medication for the appellant and for some personal care. The family are no longer paying for the high medical costs of the brother who died this year. The family have also had sufficient excess income to pay for the education of at least one relative and those funds could also be made available for him on return if needed, albeit I accept that may be a decision the family would prefer not to have to make.
44. The appellant has remained in regular contact with his family in India. He was in regular contact with his brother who died a few months ago. He is still in contact with his father and also speaks to his sister-in-law on the telephone occasionally, although they are not close. The appellant’s sister-in-law continues to care for his father, providing him with food and washing his clothes and cleaning. She and her husband also looked after a niece who is now an adult and continues to live in the family home. When he spoke to Mr Horrocks in 2020 the appellant was concerned that his sister-in-law could not care for him as well as for his father and brother. She no longer has to care for his brother and there is also an adult niece also living in the family home. I accept that he may not be close to his sister-in-law. He has been away for 15 years and they are not biological relatives. The evidence shows that this is a family who look after each other, however. If the appellant’s sister-in-law is continuing to cook, clean and do the laundry for his father, it is reasonable for some support of that kind to be extended to the appellant. Nothing in the evidence indicates that the appellant could not live in the family home if his father’s accommodation is not suitable.
45. It is therefore my conclusion that the appellant can expect some practical and financial support from his family when he returns to India. They can be expected to help with his food, laundry and cleaning. If he is living in the family home with two adults he can expect help in obtaining his medication and they can put it out for him and make sure that he has taken it. They can check on whether he has fallen and, on occasion, help him mobilise outside of the home. Some finance is available so that if it is preferable for someone outside the family to assist the appellant with the limited intimate care he needs such as showering and dressing this could be considered. There is finance for medication if he has to pay for this or whilst he waits for access to free medication. His relatives can assist him with complex decisions as and when they arise.
46. I have no hesitation in accepting that the appellant will not have the same level of care as that he currently receives in his nursing home. There will be the additional difficulties of readjusting to life in India and to living in the family home rather than a care home where he is looked after to a high standard. I accept that returning after such a long time and to very different conditions to those he has experienced for the last 10 years will be a shock and will be hard. I have thought carefully about Mr Horrocks’ concerns about institutionalisation. I did not find that they showed that the high Article 3 ECHR threshold was met, however. The appellant’s fears are subjective and, objectively, on return there will be two adult relatives who can provide some care and support and who have access to funds to pay for more support and for the appellant’s medications and some medical treatment. He will not undergo a staged period of adjustment as advised by Mr Horrocks but he will not be in a position of having no care or support. The adjustment will be great and I accept that he may never achieve the peace of mind or standard of living that he currently has in the UK. It remains my conclusion that the appellant would have access to sufficient care and treatment on return to India and that, therefore, there would not be a real risk of a serious, rapid and irreversible decline resulting in intense suffering or significant reduction in life expectancy.
47. It was not suggested for the appellant that the medication he needs for his high blood pressure and epilepsy and other conditions, is not available in India, either privately or provided by the state. The appellant did rely on a country expert report from Dr Livia Holden provided under a covering letter dated 12 May 2021 as showing that a breach of Article 3 ECHR would arise, however.
48. In general, I saw no reason to question Dr Holden’s experience and expertise and parts of her evidence are consistent with the respondent’s Country Policy and Information Note (CPIN) entitled “India: Medical and Healthcare Provision” issued in October 2020. However, a great deal of what is set out in Dr Holden’s report does not relate to this appellant and the situation he will face on return and is therefore of little value. There are many examples. Dr Holden speculates in paragraph 10 of the report that the appellant will need medical interventions in future, for example revisions of his shunt which is “almost expected” during a patient’s lifetime. Dr Holden is not a medical practitioner. There is no medical evidence to support this statement or explain what would happen if the appellant did not have this procedure. The information from the appellant’s nursing home shows him to have been stable for years and nothing indicates he will need further surgery. Dr Holden repeats this unsupported statement in paragraph 24 of her report in which she also refers, mistakenly, to the appellant having diabetes. At paragraph 28 Dr Holden identifies that a 2016 report showed the availability and affordability of stroke rehabilitation services were a major problem in India. Nothing in the evidence shows that the appellant needs further rehabilitation, however, after the period he spent intensive stroke rehabilitation support in 2011.
49. In paragraphs 74 to 77 Dr Holden sets out her view that the appellant’s physical and mental health will be compromised on return because of the burden that his care will impose on his family. That statement is made without reference to the family composition, history and finances which I have set out above. In paragraphs 76 and 77, Dr Holden comments that it is “highly unlikely” that the appellant will be cared for by his family and refers to “excessive” financial strain on the family. As before, the medical and care evidence provided shows that the appellant requires some medication and some personal care rather than anything “excessive”. There is no basis for suggesting that the family cannot provide some care or pay for some care and treatment. Dr Holden refers in paragraph 78 of her report to the appellant needing specialised neurological, cardiovascular and hepatic care when there is no evidence that he is receiving that kind of treatment in the UK or will need it in future.
50. In paragraphs 39 to 44 Dr Holden sets out concerns about the difficulties of travelling for disabled people in India. The material from the appellant’s care home and Mr Horrocks does not suggest that he goes out very often at all. Dr Holden’s concerns take no account of the appellant’s sister-in-law or niece being able to assist him if he does want to go out or travel. His relatives can obtain medication and food for him. The evidence on his medical and care needs do not indicate that he will have to travel for care or treatment as Dr Holden appears to assume. In paragraph 63 Dr Holden identifies that there are welfare provisions for disabled individuals in India including economic incentives and that “financial support is provided towards the acquisitions of helping devices: e.g. artificial limbs or wheelchairs among others”. Dr Holden then states:
“However, the abovementioned welfare contributions offered by the Indian government are unlikely to support the Appellant, should he relocated (sic) away from Kapurthala, since they do not include rehabilitation therapies, medical assistance and residential care.”
As before, the appellant will not have to move away from his home area for the treatment she identifies, however. What her evidence does seem to suggest, therefore, is that the appellant will be able to access funds to pay for a wheelchair.
51. In paragraph 81 of her report, Dr Holden’s view is that the appellant could obtain a “Disability Certificate” but that this would not be issued quickly enough to allow him to receive “prompt assistance and care”. That comment does not take into account the practical and financial support the appellant can expect from his family in obtaining medication and providing basic day to day support.
52. Certainly, as Dr Holden identifies in paragraph 24 of her report, for example, healthcare appears to vary widely in quality in India. In paragraphs 32 to 38 she identifies evidence of an unimpressive level of quality of care available in the Punjab including in the appellant’s local area. In paragraphs 55 to 62 Dr Holden sets out details of a national insurance health scheme, also referred to in the CPIN, the Ayushman Bharat Yojana (ABY) scheme, introduced in 2018. There are shortcomings in this programme, including a basic lack of finance, as set out at paragraph 59 of Dr Holden’s report. In paragraph 62, however, Dr Holden still identifies that the appellant might be able to benefit from the ABY, in particular if his family are already registered. Nothing suggests that they are not registered or would not be able to negotiate the bureaucratic application process if they are eligible to apply.
53. In paragraphs 68 to 73 of her report Dr Holden identifies the discrimination that exists in Indian society towards disabled individuals. This appears to be relatively entrenched. In paragraph 72 Dr Holden refers to a “pervasiveness of the discriminatory attitude towards differently abled citizens”. Where the appellant is returning to some family support, however, it did not appear to me that the discrimination towards those with disabilities was shown to be so severe as to approach the Article 3 ECHR threshold.
54. As before, a great deal of the information in Dr Holden’s report about the general healthcare situation in India is also set out in the respondent’s CPIN, for example the shortcomings in public care. Paragraph 1.3.1 of the CPIN identifies that:
“Lack of capacity and perceived poor quality care in public facilities has resulted in the growth of private health-care systems and a continuous and steady expansion of private health-care services.”
Paragraph 1.6.2 of the CPIN indicates that:
“1.6.2 Medications on the most recent Essential Drugs List are free of charge in public health facilities, though there were sometimes shortages, while other prescription drugs are purchased (out-of-pocket) by the patient from private pharmacies.”
55. Paragraph 5.2 of the CPIN sets out the provision in India for hypertension. Paragraph 11.6.1 identifies that a wide variety of medications for epilepsy is available in India. Nothing in Dr Holden’s report suggests otherwise. The appellant is likely to be able to obtain the medication he needs. His family can assist him to pay for it, either until he can obtain free access or permanently. As before, the evidence indicates that SS’s hypertension and epilepsy have been well-controlled on standard medication over the last 10 years.
56. In my judgment, therefore, the appellant will have sufficient practical and financial support on return to India such that he will not face a real risk of a serious, rapid and irreversible decline in his health resulting in intense suffering or a significant reduction in his life expectancy. I accept that his circumstances will very likely be significantly reduced compared to his life in the UK and that the adjustment will be hard for him and his family but I did not find that the evidence here showed that the high Article 3 ECHR threshold for a medical or destitution case was met.
Article 8 ECHR
57. The appellant also relies on Article 8 ECHR. He does not claim to have a family life in the UK but relies on his private life, including his physical and moral integrity.
58. As above, an Article 8 ECHR claim cannot succeed if it is only based on the same material as an unsuccessful Article 3 claim. It was submitted for the appellant that his long residence in the UK and his long period of time and institutionalisation in a nursing home created a “cumulative case” for an Article 8 ECHR claim that went beyond the issues already considered under Article 3 ECHR. I found this to be a somewhat artificial argument. The appellant has become institutionalised because of his stroke and this factor and the other difficulties arising from his stroke are part of his Article 3 ECHR claim. The issue of the appellant having become institutionalised formed a natural part of the oral submissions made on his behalf under Article 3 ECHR and I have considered this factor (and his long residence in the UK) above in my assessment of the Article 3 ECHR claim.
59. If it is accepted, for the sake of argument, that the appellant’s long residence and institutionalisation have the potential to provide an alternative basis for an Article 8 ECHR claim, it is not my view that are capable of showing a disproportionate breach on the facts here. The appellant will not be expected just to “get on with his life” in India after having received a high level of support in a care home. I have found that he can expect practical and financial support from his family in India which will allow him a minimum standard of living and quality of life. I accept that returning to India will be very difficult and disorienting for the appellant after such a long period in the UK, after having been in a nursing home for over 10 years and because of the d disabilities he now has because of his stroke. The support he will get from his family will go some way towards addressing his institutionalisation and other difficulties, however.
60. Also, the appellant does not appear to have had a private life of particular substance in the UK before his stroke, the evidence showing only that he worked, lived in shared accommodation and socialised with relatives and Indian friends here. His life has inevitably become narrower since his stroke. He is familiar with India, albeit he left 16 years ago, as he lived there until he was 31 years old. He speaks Punjabi. He has continued to express an interest in going to the Temple but this has been limited by the Covid-19 pandemic. He likes to watch Indian films and listen to Indian music. He still has family in India with whom he has remained in contact since coming to the UK. They can provide practical and financial support to a minimum standard. The changes he will face will be very difficult but he will be able to have a minimum standard of living and quality of life. Even taking the appellant’s institutionalisation and long residence into account as factors additional to his medical claim under Article 3 ECHR, the evidence does not show that a disproportionate breach of his rights under Article 8 ECHR would arise on return to India.
61. For completeness sake, I indicate here that the same reasoning means that I do not accept that the appellant will face very significant obstacles to reintegration as provided in paragraph 276ADE of the Immigration Rules. My judgment is that he would have “ a reasonable opportunity to be accepted” given the availability of family support in his home area, even after taking into account the time that he has been away, his difficulty in living outside a nursing home and the level of discrimination against those disabilities in India; the now well-known passage at [14] of Secretary of State for the Home Department v Kamara [2016] EWCA Civ 813 applied.
62. I did not find the provisions of s.117B of the Nationality, Immigration and Asylum Act 2002 played a material part in the assessment of the appellant’s private life and the proportionality of the decision to refuse leave. The appellant has always been in the UK “ precariously” and s.117B(5) provides that little weight should be given to his private life as a result. It appeared to me that the “little weight” provision might fall to be approached somewhat differently here where the appellant has been unable to take steps to do much about his immigration status and also could not continue to earn his living and so obtain some benefit from s.117B(3). It is not my view, however, that even taking those matters into account, that weight of any significance attracted to the public interest in the appellant’s favour from the s.117B factors.
63. My conclusion was, therefore, that the appellant’s Article 8 claim was, in reality, put forward on the same basis as his Article 3 claim. If there is a basis for an Article 8 ECHR claim beyond that contained in the Article 3 ECHR medical claim, it remained the case that the decision to refuse leave did not amount to a disproportionate interference with his private life and the Article 8 claim did not succeed.

Notice of Decision
64. The decision of the First-tier Tribunal disclosed an error on point of law and was set aside to be remade.
65. The appeal is refused under Article 3 and Article 8 ECHR.

Signed: S Pitt Date: 12 August 2022
Upper Tribunal Judge Pitt