Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/09796/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 5 April 2017
On 27 April 2017

Before

THE HON. MRS JUSTICE MCGOWAN
DEPUTY UPPER TRIBUNAL JUDGE LATTER

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

mrj
(ANONYMITY DIRECTION made)
Respondent

Representation:
For the Appellant: Mr P Duffy, Home Office Presenting Officer
For the Respondent: Ms E Lanlehin, Counsel

DECISION AND REASONS

1. This is an appeal by the Secretary of State against a decision of the First-tier Tribunal (Judge Traynor) allowing an appeal by the applicant against a decision of 31 July 2015 that as a result of his criminality his deportation was considered to be conducive to the public good and that he was liable to deportation under s.3(5)(a) of the Immigration Act 1971 following a decision of 21 October 2015 refusing further leave on human rights grounds . In this decision we will refer to the parties as they were before the First-tier Tribunal, the applicant as the appellant and the Secretary of State as the respondent.

Background

2. The appellant is a citizen of Sierra Leone born on 30 June 1972. He came to the UK in either 1988 or 1990 (the date is not clear from the appeal papers) with his parents as a minor. He studied at school for a year and then for two years at college but when he went to university he was unable to finish his course because he became mentally unwell. On 28 February 2001 he applied for indefinite leave to remain on the basis of long residence. Initially, his application was refused but he was then granted exceptional leave to remain. The respondent later realised that this was an error and he and his family were granted indefinite leave to remain on 12 May 2003. The appellant has not returned to Sierra Leone since then.

3. On 1 May 2007 the appellant was convicted at Snaresbrook Crown Court on offences directed at his mother, one count of threats to kill, two of criminal damage and one of burglary. He was sentenced to a hospital and restriction order pursuant to ss.37 and 41 of the Mental Health Act 1983. He was discharged from hospital on 22 April 2015 and on 31 July 2015 he was served with notice of liability for deportation. The appellant sought leave to remain on human rights grounds but this application was refused on 21 October 2015.

The hearing before the First-tier Tribunal

4. The appellant appealed to the First-tier Tribunal. The judge heard oral evidence from the appellant and his sister. The history of the appellant’s mental illness, subsequent treatment and discharge from hospital is set out in the medical reports dated 31 December 2014, 16 April 2015 and 2 July 2015. These reports confirm that he suffers from treatment-resistant paranoid schizophrenia and polysubstance misuse. However, he has responded to increased doses of medication and has behaved appropriately with his leave and when engaging with the mental health team. Following a hearing before the Mental Health Tribunal on 22 April 2015 he was discharged into the community under the care of the Waltham Forest Community Recovery Team.

5. The judge set out his analysis of the evidence and his findings under articles 3 and 8 in [73]–[89] of his decision. He reminded himself that the appellant’s article 3 rights were absolute. It was not disputed that he suffered from treatment-resistant paranoid schizophrenia and polysubstance misuse. He had been under the supervision of hospital authorities for some years and the evidence showed that he had been free from substance abuse since at least 2013 and that his current mental health was stable. He had been discharged into a supervised community setting where he resided in accommodation which was closely monitored and subject to very stringent conditions imposed by the Mental Health Tribunal.

6. The judge reminded himself that there was a very high threshold when considering article 3 and that where the appellant was suffering from mental health problems, he needed to be satisfied at the very least that the appellant would have access to necessary medication and psychiatric treatment if removed, although not necessarily comparable with the level of care and support that he received in the UK. The judge found that this was an entirely exceptional case which could properly be distinguished from the cases of N v Secretary of State [2005] UKHL 31 and from the ECtHR decisions in Bensaid v UK (44599/98) [2001] ECHR 82 and N v UK (26565/05) [2008] ECHR 453.

7. The judge went on to consider article 8. He did not accept that the appellant enjoyed a family life in this country but found that his private life rights were engaged. He considered the provisions of s.117C of the Nationality and Immigration Act 2002 as amended and noted the weight to be given to the public interest in deporting foreign criminals. He was satisfied that the decision to deport the appellant would in his particular circumstances be disproportionate to the legitimate aim pursued. The appeal was therefore allowed under both articles 3 and 8.

The Grounds and Submissions

8. In the respondent’s grounds it is argued that the judge erred in law in his assessment of what was considered to be “unduly harsh” and that he failed to identify what would be so exceptional or compelling about the appellant’s position if removed to Sierra Leone that it would outweigh the public interest in deportation. The appellant was apparently at a point in his treatment whereby his symptoms were managed with the help of medical professionals and medication and the proportionality exercise should have been performed taking into account a clear indication by one of the doctors that it was thought possible to transfer the appellant’s care to another set of medical professionals and more specifically those in Sierra Leone. It is then argued that the judge failed to give adequate weight to the public interest in deporting the appellant: the crimes he had committed had been violent and unpredictable and the duty to protect the general population was a high one and insufficient consideration had been given to this issue.

9. Permission to appeal was granted by the First-tier Tribunal for the following reasons:

“The situation has now been overtaken by the case of Paposhvili in which the ECtHR has taken a less rigorous stance on health issues under article 3. A burden appears to shift to the Secretary of State. The judge did not have evidence that psychiatric assistance would not be available or that his treatment would have to change. It is not clear that a different result would follow but the correct approach should be adopted. The grounds are arguable and permission to appeal is granted.”

10. When granting permission, the judge commented at [2] of his decision that the judge at the hearing had rejected a claim based on article 8 but this was a misreading of the original decision as the appeal was allowed on article 8 grounds.

11. Mr Duffy in his submissions relied on the grounds of appeal. He accepted that the grounds were more consistent with a challenge to the judge’s findings under the Immigration Rules and article 8 and disclosed at best an oblique challenge to the article 3 decision but he submitted that the errors relied on also undermined the decision on article 3 grounds. Ms Lanlehin submitted that the judge had properly identified all the relevant issues and reached a decision properly open to him on the evidence in respect of both articles 3 and 8.

Assessment of whether there is an Error of Law

12. We must consider whether the judge erred in law such that the decision should be set aside. In so far as the grounds raise issues relating to undue harshness, the assessment of proportionality and the public interest in deporting the appellant in the light of the crimes he committed, they have no direct bearing on whether his removal would be in breach of article 3. That is essentially a question of fact to be considered in the light of the evidence as a whole. We are satisfied firstly that the judge properly directed himself on the law, reminding himself that there was a high threshold and that there needed to be very exceptional circumstances to engage an individual’s article 3 rights in a case based on physical or mental health. We are also satisfied that the judge took all the relevant evidence into account. He considered with care the medical evidence and the circumstances in which the appellant had been discharged from hospital in April 2015 following his sentence in May 2007.

13. He noted that the appellant had been discharged into the community under a very carefully considered care plan which ensured he was monitored almost 24 hours a day. He took into account the argument put on behalf of the respondent that the evidence demonstrated that his health was currently stable and that when he was compliant, he was capable of functioning within the community. He considered the respondent’s submission that the medical reports were sufficient to demonstrate there would be a functioning psychiatric healthcare service in Sierra Leone to which the appellant could turn.

14. However, the judge agreed with the submissions of the appellant’s representative that in the past three years Sierra Leone had been blighted by the Ebola crisis and that many doctors who were involved in treating patients had themselves perished as a result of contracting that disease. He found that, given what was said by the appellant’s treating consultant about the need for the appellant’s medication to be constantly monitored and stabilised, he could not be satisfied that either the necessary medication or psychiatric services would be available to him at present in Sierra Leone. This finding was properly open to the judge.

15. The judge found that in the event of closely monitored supervision no longer being available, the probability was that the risks to the appellant would increase substantially. There was no up-to-date evidence of psychiatric facilities or suitable antipsychotic medication in Sierra Leone. He was presently being treated with olanzapine and there was evidence that if he were to be prescribed any other antipsychotic medication given his history of non-response in the past his mental health would in all likelihood decrease. The judge found that if he was deported to Sierra Leone then in all probability his health would not be maintained and the one person on whom he would focus was his mother, the main victim of the offences of which he was convicted in 2007, who she had returned to Sierra Leone in order to live safely there away from him.

16. We are satisfied that when these factors are taken into account together with circumstances in which the appellant has been hospitalised from May 2007 to April 2015 and is now only in the community on a carefully monitored basis that that it was open to the judge to find that this was an entirely exceptional case and accordingly, he was entitled to find that returning the appellant to Sierra Leone would be in breach of his rights under article 3. We are satisfied that he reached a decision properly open to him for the reasons he gave.

17. In these circumstances, we need not deal at any length with the position under article 8 save to comment that in the light of the judge’s findings in respect of article 3, we are satisfied that the decision on article 8 was also properly open to him for the reasons he gave.

18. Permission to appeal was granted because of concerns about whether the judge had followed the correct approach to his assessment of article 3 following the judgment of the ECtHR in Paposhvili [2016] ECHR 1113. However, that judgment was only given after the judge’s decision had been issued. His obligation under s2(1) of the Human Rights Act was to take into account any judgment of the ECtHR when determining a question in connection with a Convention right. He could not take into account a judgment which had not been given when he heard the appeal or before the issue of his decision and, in any event, the guidance in Paposhvili about the approach to the assessment of exceptional circumstances in applications based on physical and mental health is marginally less stringent than previously thought to be the case. In these circumstances, the new guidance would not have affected the outcome of this appeal.

Decision

19. We are satisfied that the First-tier Tribunal did not err in law and in these circumstances its decision stands. The anonymity order made by the First-tier Tribunal remains in force until further order.

Signed H J E Latter Date: 25 April 2017

Deputy Upper Tribunal Judge Latter