Tribunal decisions

The decision

IAC-AH- -V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/09369/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 12 January 2017
On 16 January 2017

Before

UPPER TRIBUNAL JUDGE KAMARA

Between

AM
(ANONYMITY DIRECTION made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms G Pentcheva, solicitor, Duncan Lewis & Co Solicitors
For the Respondent: Mr C Avery, Senior Home Office Presenting Officer

DECISION AND REASONS

Introduction
1. This is an appeal against the decision of First-tier Tribunal Judge Reid, promulgated on 6 June 2016. Permission to appeal was granted by Upper Tribunal Judge Gleeson on 1 December 2016
Anonymity
2. No direction has been made previously, however owing to the appellant's undisputed vulnerability, a direction is set out below.
Background
3. The appellant entered the United Kingdom as a visitor on 25 December 2000. He subsequently claimed asylum on 14 May 2001. That application was refused on 21 June 2001 however the appellant was granted exceptional leave to remain in the United Kingdom owing to the civil war in Sierra Leone. He did not appeal that decision. On 25 January 2006, the appellant was granted indefinite leave to remain.
4. The appellant was convicted of arson during 2013 and was sentenced to a hospital order under sections 37 and 41 of the Mental Health Act 1983. He has no other criminal convictions.
5. The respondent notified the appellant of his liability to deportation under section 5(1) of the Immigration Act 1971 and in response, representations were made on his behalf which resulted in a decision dated 13 October 2015 to refuse his human rights claim. In the said decision, the respondent rejected the claim that the appellant's removal to Sierra Leone would result in a breach of Article 3 owing to inadequate health care for his mental disorder. It was not accepted that there was a complete absence of treatment in Sierra Leone nor that the United Kingdom had a positive obligation to provide him with care. While no Article 8 claim was made, the respondent considered this aspect in accordance with paragraph 398 of the Rules. It was noted that the appellant had neither a partner nor child in the United Kingdom and his circumstances were not considered to be very compelling. The Secretary of State considered there to be a significant public interest in deporting the appellant because of his conviction for reckless arson and the possibility that he could relapse and pose a risk to the public.
The hearing before the First-tier Tribunal
6. At the hearing before the First-tier Tribunal, the appellant and his treating doctor gave evidence. Submissions were made on Article 3 and 8 grounds. The judge found that there was a risk that the appellant would not comply with treatment and without it he would relapse and might commit other offences. It was accepted that the appellant's antipsychotic medication (Paliperidone) was not available in Sierra Leone, but that alternatives were. The judge did not accept that the appellant would face ill-treatment as a psychiatric patient in Sierra Leone. He considered that the appellant's adult daughter could provide him with limited support in Sierra Leone. Consequently, the judge found that Article 3 would not be breached by the appellant's removal to Sierra Leone and that there were no compelling circumstances which outweighed the public interest in his deportation.

The grounds of appeal
7. The grounds of appeal in support of this application were firstly, that the judge made a misdirection of law on a material matter and secondly, he failed to take relevant considerations into account. Specifically, it was argued that the judge's findings in relation to the availability of family support in Sierra Leone were factually flawed, based on conjecture and not on the evidence. The judge was said to have misdirected himself in relation to the appellant's ability to afford to access medical treatment; undertaken a flawed risk assessment and failed to consider the appellant's psychological problems.
8. Permission to appeal was granted on the basis that there was "arguably insufficient consideration of the appellant's private and family life in the United Kingdom with his mother and other relatives, and in Sri Lanka, Sierra Leone, or wherever his daughter actually lives. Nor is there any detailed consideration of the medical evidence or the other evidence advanced on the appellant's behalf." The grounds were described as arguable.
The Rule 24 response
9. The respondent's Rule 24 response, received on 15 December 2016, indicated that the appeal was opposed and that the judge directed himself appropriately. It was argued that the judge clearly considered the medical evidence in detail and had regard to the oral evidence of the appellant's doctor. The focus of the judge's decision was said to be on the medical evidence as this was how the case was argued. It was said to be untenable to argue that the medical evidence was inadequately dealt with when there had been meticulous consideration of the various forms of medication available to the appellant in Sierra Leone.
10. It was further argued that the grounds did not take any real issue with the judge's findings on the appellant's private and family life in the United Kingdom; the focus being on the lack of support for the appellant in terms of taking his medication and his mental health issues. The judge's mistake in relation to the location of the daughter was said to be immaterial given that wherever she was, she would be separated from the appellant. The gist of the judge's findings was that monitoring of the appellant can continue at a distance. In addition, the case for the appellant did not appear to have been argued on the basis that he has family life with any of his family. It was noted that none of the appellant's relatives attended the hearing to give oral evidence, choosing only to send letters of support.
11. Even taking the appellant's case at its highest, it was argued that it was bound to fail. It was contended that it could not sensibly be argued that his was an Article 3 case in the terms of D and N and that there was no example of a successful Article 8 claim in a mental health case since Bensaid in 2001. Owing to this being a deportation case with the public interest this imported, there was said to be no prospect of the appellant succeeding on any medical basis.

12. On 29 December 2016, those representing the appellant sent a notice pursuant to Rule 15[2A] of the Procedure Rules, requesting that the Upper Tribunal consider new evidence which included two new medical reports, two supporting letters from organisations and one from a family member.
The hearing
13. Ms Pentcheva alluded to the Rule 15[2A] notice as well as the fact that there were four further witnesses who had attended the hearing before me, however I indicated that I would consider the application to admit new evidence, once I had made a decision as to whether or not there was a material error of law.
14. Without referring to the original grounds, other than to apologise for their length, Ms Pentcheva proceeded to argue that there was a lack of reasoning in relation to the Article 8 balancing exercise and a lack of factual accuracy in relation to the appellant's family in the United Kingdom and abroad. Secondly, she argued that the judge's assessment of the Article 3 risk to the appellant was incomplete and inaccurate.
15. I was taken to references in the judge's decision to the appellant's daughter living in Sri Lanka where it should have read Sierra Leone and at [43] the judge had indicated that the daughter was in the United Kingdom and that she would be in a position to support him. Ms Pentcheva contended that there was no evidence before the judge to show that the daughter was able to do so and this was directly relevant to the risk to the appellant on return to Sierra Leone. Furthermore, the judge did not address the appellant's family in the United Kingdom and made no finding as to whether it amounted to relevant family life. She asserted that it had been argued before the judge that there was a high level of dependency between the appellant and his family. At this juncture, I asked Ms Pentcheva to identify the evidence or arguments to that effect among the material which was before the judge. She was, despite looking through the appellant's bundles for a considerable time, unable to do so but indicated that there was such information among the new material she wished to adduce. I noted that the reports she referred me to used words like support and contact when describing the appellant's relationship with his relatives in the United Kingdom and the letter from his sister made no reference to any dependency. Ms Pentcheva asked me to note that the family had intervened in 2013 by contacting mental health service when the appellant appeared unwell.
16. Ms Pentcheva argued that the judge was wrong to focus on two of the reports before him and to find that Risperidone was a suitable alternative medication for the appellant's mental disorder. Other evidence before the judge showed that Risperidone was not available in state facilities and the appellant could not afford to pay for it. The judge had not assessed whether there were very compelling circumstances and there were no concrete findings and insufficient detail as to why the appellant's removal was proportionate.

17. Mr Avery argued that the judge understood that the appellant's daughter lived in the country where he was being removed and indeed the appellant's grounds of appeal had made the same error in that there was a reference to Sri Lanka. The judge had a proper understanding of the issues. He argued that the judge looked at the medical evidence with care and the effect on the appellant's health, making detailed and fully sustainable findings; both on the basis of removal as well as remaining in the United Kingdom.
18. The judge had demonstrated at [43] that he was fully aware of the daughter's circumstances and his reference to support was in relation to emotional support and checking up rather than financial support. The judge had been entitled to find she might be able to offer this support.
19. In relation to the Article 2 and 3 case, Mr Avery argued that the judge findings on access to treatment in Sierra Leone were sustainable. His findings that the appellant's circumstances did not meet the very high threshold were sustainable in the light of the case law of N and GS. This was a deportation case, where the judge correctly found that the Rules were a complete code and made positive findings including that it was unlikely that the appellant would reoffend and that his mental state was under control [62], however after looking at the deportation Rules, he found that they were not met. The findings at [63] re compelling circumstances were brief, however this had to viewed against the findings he made elsewhere in the decision. The grounds amounted to no more than disagreement with the findings of the judge.
20. In reply, Ms Pentcheva argued that there was no exploration of the situation faced by the appellant on return to Sierra Leone including his inability to pay for medication.
21. At the end of the hearing, I announced that the arguments put forward on the appellant's behalf did not establish that the judge made a material error of law and I, accordingly, upheld his decision. My reasons are below.
Decision on error of law
22. Permission to appeal was granted on the basis that there was arguably insufficient consideration of the appellant's private and family life with relatives in the United Kingdom and elsewhere. As indicated above, there was never any claim that the appellant enjoyed family live relevant for these purposes with his relatives in the United Kingdom. There was no submission that he was dependent upon these relatives in any way as can be seen from [8] of the decision and reasons. Furthermore, the skeleton argument, reports and supporting letter made no such claim. The evidence before the judge went no further than stating that the appellant's relatives kept an eye on him and checked up on him. None of the relatives attended the hearing. Therefore, there was no family life in the United Kingdom for the judge to consider.
23. The judge wrongly referred to the appellant's daughter residing in Sri Lanka. As Mr Avery pointed out, the grounds of appeal made the same error.

24. At [43] of the decision, the judge also referred to an adult daughter in the UK. Despite these errors, the judge noted the respondent's submissions at [7] that the daughter was in fact in Sierra Leone and at [42], when discussing the expert evidence of the ill-treatment of mental health patients in Sierra Leone by their relatives; it is clear that the judge was aware of the daughter's whereabouts, given that he found that she was the only relative in Sierra Leone and that there was no suggestion that she would ill-treat her father. Furthermore, the error made as to the country of residence of the daughter, which I consider to be no more than typographical errors, are immaterial given that at [43] the judge accepted that any support likely to be given by the her would be "relatively limited given her age and given that she is currently living with her mother." When read as a whole, the decision and reasons adequately reflects and addresses the evidence and arguments adduced.
25. The grounds argue that the judge made findings relating to likely future family assistance to the appellant which were unsupported by the evidence before him. This ground was not touched upon by Ms Pentcheva. In any event, the judge did not err in finding at [43] that family members in the United Kingdom "can still support him in medication compliance from a distance particularly if they liaise with the appellant's daughter." Given that this was the extent of family involvement in the United Kingdom, according to the evidence before the judge, these were findings the judge was entitled to make. Furthermore, the judge has not found that this support would be available to the appellant but merely that it could potentially be. This was a sustainable conclusion based on the evidence before him. I was directed to no further factual errors in the decision and reasons.
26. The grounds are wrong to say that the judge based his findings on the medical treatment available to the appellant on out of date material. In particular, the judge made multiple references to the report of Mr Vandi, a clinical team leader who volunteered in Sierra Leone during the Ebola crisis in 2014 and who was involved in developing a comprehensive mental health service for Ebola survivors and their families.
27. There is a reference in the grounds to the judge's apparent failure to consider the appellant's psychological problems. Again, this point was not mentioned or developed by Ms Pentcheva. However, an examination of the report in question reveals that these symptoms were "mild" and linked in part to the appellant's "paranoid conditions." This appears to be a reference to the appellant's primary diagnosis of paranoid schizophrenia. The judge did not materially err in failing to refer to this evidence, given that he has referred to the report and indeed heard oral evidence from the author of that report. Furthermore, the appellant's mild symptoms of psychological disturbance were given no separate attention in the submissions on his behalf.
28. Paragraph [8-10] of the grounds overlook the fact that the judge did indeed consider the issue of the circumstances likely to greet the appellant in Sierra Leone; that he had originally sought asylum and the existence of compelling circumstances. Again, Ms Pentcheva did not allude to these matters in her submissions.
29. While the grant of permission said that there was no detailed consideration of the medical evidence, Ms Pentcheva did not address this in her submissions nor expand upon the grounds of appeal. It is manifestly not the case that the judge failed in this regard. From [23] to [29] the judge considered the appellant's medical treatment since his conviction, with multiple references to the medical evidence in the appellant's bundles. At [30] to [46], the judge considered the risks posed by the appellant both with and without medication and made many references to the medical reports in doing so. From [38] to [46], there was detailed consideration of the availability of medical treatment in Sierra Leone as well as an assessment of risks from those with hostile attitudes to mental health patients. All the findings of the judge are supported by references to evidence mainly submitted on the appellant's behalf.
30. In a very detailed decision, the judge came to the sustainable conclusion that medical treatment was available for the appellant in Sierra Leone and that his rights under Articles 2 and 3 would not be breached for that or any other reason. I heard no submissions from Ms Pentcheva which suggested that the appellant's circumstances met the high threshold, referred to in D, N or GS (India) & Ors [2015] EWCA Civ 40.
31. It is not in dispute that the appellant is unable to meet any of the exceptions to deportation set out in paragraphs 399a 399b or 399A of the Rules. The circumstances relied upon which are said to be compelling relate only to the appellant's mental state, which the judge considered under his consideration of Articles 2 and 3 of the ECHR. Given what was said in GS at [86];
"If the Article 3 claim fails (as I would hold it does here), Article 8 cannot prosper without some separate or additional factual element which brings the case within the Article 8 paradigm."
32. No separate or additional factual element was brought to the attention of the judge who heard this appeal. Ms Pentcheva attempted to argue, referring to the fresh evidence which was not admitted, that the appellant was dependent upon his family members in the United Kingdom. I have, accordingly, had regard to MM (Zimbabwe) [2012] EWCA Civ 279 at [23] as follows;
"The only cases I can foresee where the absence of adequate medical treatment in the country to which a person is to be deported will be relevant to Article 8, is where it is an additional factor to be weighed in the balance, with other factors which by themselves engage Article 8. Suppose, in this case, the appellant had established firm family ties in this country, then the availability of continuing medical treatment here, coupled with his dependence on the family here for support, together establish 'private life' under Article 8. That conclusion would not involve a comparison between medical facilities here and those in Zimbabwe."
33. It may well be that there is now available evidence of the dependency of the appellant on his relatives in the United Kingdom but this evidence was not adduced before the judge and he cannot be criticised for failing to make findings on non-existent evidence. It remains open for those representing the appellant to make a fresh human rights application, relying on this new evidence.

Conclusions

The making of the decision of the First-tier Tribunal did not involve the making of an error on a point of law.

The appellant's appeal against the decision of the First-tier Tribunal is dismissed.

Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008

Unless and until a Tribunal or court directs otherwise, the appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of their family. This direction applies both to the appellant and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Signed Date 21 June 2021

Upper Tribunal Judge Kamara