Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/11793/2015

THE IMMIGRATION ACTS

Heard at Birmingham
Promulgated & Sent to parties
On 7 April 2017
On 18 April 2017

Before

UPPER TRIBUNAL JUDGE HEMINGWAY

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

MR HARDEV SINGH
(Anonymity DIRECTION NOT MADE)
Respondent

Representation:

For the Appellant: Mr M Mills (Senior Home Office Presenting Officer)
For the Respondent: Ms E Rutherford (Counsel)

DECISION AND REASONS

1. The appellant before the Upper Tribunal is the Secretary of State for the Home Department (hereinafter “the Secretary of State”). The respondent is Mr Hardev Singh (“the claimant”) who was born on 10 June 1951 and who is a national of India. The Secretary of State has appealed to the Upper Tribunal, with permission granted by a judge of the First‑tier Tribunal, from a decision of a different judge of the First‑tier Tribunal (hereinafter “the Judge”) to allow the claimant’s appeal against the Secretary of State’s decision of 6 November 2015 refusing his human rights claim.

2. By way of brief background, the appellant has health difficulties and, in particular, he has Bipolar disorder. He has been treated and on occasions hospitalised in India. He has only limited family in that country because his parents and his wife are sadly deceased. He does, though, have other relatives in India who have afforded him a degree of assistance. However, his contention before the Judge was to the effect that his primary carer is his son Mr Sandeep Singh and his son’s wife both of whom reside in the UK.

3. The claimant has visited the UK on a number of occasions to be with Sandeep Singh and his family and arrived most recently as a visitor in March 2015. Rather than returning to India he applied, with the assistance of his family, for leave to remain so that he could be looked after by and could live with his son and his son’s family on a permanent basis. The Secretary of State, though, refused the application concluding that the requirements of the Immigration Rules were not met and that there were no exceptional circumstances such as to justify a grant of leave to remain under Article 8 of the European Convention on Human Rights (ECHR). That was despite the content of a medical report which the claimant had relied upon and which had been prepared by one Professor Eleni Palazidou, a Consultant Psychiatrist. That report confirmed the appellant’s medical condition. It was indicated therein, amongst other things, that the claimant has poor insight into his illness, that he experiences severe manic and depressive episodes and that he is not always compliant with his medication. It was said that when depressed he feels hopeless and entertains suicidal thoughts.

4. The appeal was heard by the Judge on 17 August 2016. The claimant was represented by Ms E Rutherford of Counsel who also represented him before me. The Secretary of State was not represented. The Judge heard oral evidence from the claimant and Sandeep Singh. In his determination he recorded Sandeep Singh’s evidence that the claimant would be unable to cope without his support and that whilst some help had been provided by his siblings (that is the claimant’s siblings) in India that had been at a time prior to some recent deterioration in his condition. It was also recorded that Ms Rutherford had not sought to persuade the Judge that the requirements of Article 3 of the ECHR were met “given the high threshold in Article 3 medical health cases” but that she had instead relied upon Article 8. The Judge, in fact, went on to allow the appeal under Articles 2, 3 and 8. In explaining why he was doing so he said this:

“ 11. I find that the Appellant discharges the burden of proof for two specific reasons. First, the Appellant succeeds under Article 3 of the ECHR. This was on the basis of the expert report of Professor Eleni Palazidou. He makes it quite clear that, “Mr Singh has a major problem with compliance with medication both for his mental and his physical health and both deteriorate when he stops taking his drug treatment” (see A36 of paragraph x). The appellant clearly has problems with taking medication. The issue then is what the consequences of this are. Professor Palazidou addresses this (at A35, paragraph viii) when he states that, ‘without further modifications to his drug treatment, his condition is unlikely to improve …’. He also notes that Bipolar Disorder is associated with diabetes and cardiovascular disorder and that ‘death rates in people with Bipolar Disorder are higher than the general population not only because of suicide in depressed state or reckless behaviour when manic but also because of the physical health problems …’ (page A35, paragraph (vii)) at another place Professor Palazidou refers to the fact that ‘both the manic and depressive episodes are severe’ (A34, paragraph (v)). Accordingly, Professor Palazidou’s expert witness evidence is that there is a very real risk that the Appellant’s health will deteriorate significantly if he is removed. He has poor insight into his condition. He is likely to stop taking his medication. He will become ill. He suffers from depressive and manic episodes. These are severe and could significantly affect his quality of life. There is also a risk of suicide. Professor Palazidou is quite clear that the Appellant is at risk of very significant deterioration in his health if he is removed and that this will place him at a risk of suicide. I find that Articles 2 and 3 of the ECHR are engaged and are at risk of being violated should the Appellant be removed from the UK where he is currently being looked after by his son and daughter‑in‑law.

12. Second, and no less importantly, the Appellant succeeds under Article 8 of the ECHR. It is often said that the relationship between adults must be such that there needs to be evidence of ‘more than normal emotional ties between them’ but this is an over‑simplification. The case of ZB (Pakistan) [2009] EWCA Civ 834 makes it clear (at paragraph 42) that,

‘… the AIT did not examine the relationship between this 59 year old mother and her daughters upon the correct basis. I accept that when considering family life for Article 8 purposes, where a court or tribunal is analysing the relationship of a parent and adult children, something more than normal emotional ties between them has to be shown. But where, as here, the focus is on the parent, the issue must be: how dependent is the older relative on the younger ones in the UK and does that dependency create something more than normal emotional ties?’

13. It is clear, both from the evidence that I have heard, as well as from the expert statement of Professor Palazidou, that the Appellant is entirely dependent upon his sponsoring son and daughter‑in‑law in this country for his day‑to‑day living, and in particular for taking medication, which he refuses to do, and the consequences of so doing, which he does not understand. The Appellant has been receiving treatment in India, where he is under the care of Dr. A K Gupta, a consultant psychiatrist since 14 July 1998. What he does need, however, is constant supervision from reliable family members and a letter dated 23 May 2015 from Dr. Gupta now confirms this.

14. It is a matter of fact that the Appellant receives care and supervision from his son and daughter‑in‑law. From then he continues to take his medication. He has assistance that he needs from them. It is clear he cannot live alone. He needs someone to care for him. Even when the Appellant was in India, the role played by his son, Sandeep Singh was a pivotal and central role in that, on every occasion that he went, going at least back to 2014, the Appellant was hospitalised because his son considered it advisable to do so, and that can only suggest that the care he was receiving was inadequate as it stood with the relatives around him, and the medical facilities that were being made available to him.

15. It is because Sandeep Singh, the sponsoring son has played such a distinctive role in the care of his father that he has brought him here so that he can look after him personally in this country in circumstances where the Appellant’s condition is not likely to improve, and may well worsen as Dr. Palazidou makes clear.

16. In these circumstances, I find that Article 8 is satisfied as well and there can be no better authority for such a conclusion than the case of ZB (Pakistan) [2009] EWCA Civ 834.”

5. There followed an application for permission to appeal. It was contended in the grounds, in summary, that the Judge had erred in failing to have in mind the high threshold with respect to Article 2 of the ECHR insofar as it applies to suicide risk and Article 3 insofar as it applies to health cases. As to Article 8, it was argued that the Judge had erred in failing to consider the appeal “through the lens of the Rules” and in failing to deal with the question of whether there were compelling circumstances not dealt with in the rules in considering the appeal under Article 8. It was also asserted that certain of the findings were irrational and unreasoned.

6. Permission was granted on unlimited grounds. In response to the grant of permission Ms Rutherford provided a Rule 24 response. Essentially, she contended therein that it had been open to the Judge to allow the appeal under Article 3 and that the threshold for so doing on health grounds was not as high as had previously been thought in consequence of the judgment in Paposhvili v Belgium – 41738/10 (merits and just satisfaction): Court (Grant Chamber) [2016] ECHR 1113 (13 December 2016). The Judge had been entitled to rely upon the evidence contained in the report of Professor Palazidou. As to Article 8, the case had been advanced not solely on health grounds but also, more broadly, in relation to family and private life. The Judge had been entitled to conclude that the claimant was reliant upon his UK based family and that the care provided by his son, in particular, was pivotal. The Judge had also properly concluded that any care network in India was inadequate.

7. When the appeal came before me Ms Rutherford acknowledged that the Judge’s assessment with respect to Article 2 had been inadequate. However, she maintained her contention that it had been open to him to allow the appeal under both Article 3 and Article 8 and that he had provided adequate explanations for so doing. The points she made orally reflected those which had been made in her Order 24 response and Mr Mills points reflected those which had been made in the grounds.

8. I have concluded, as was indicated to the parties at the hearing that the decision both with respect to Article 3 and Article 8 must be set aside on the grounds of legal error. I explain why below.

9. It is well established that in order to succeed on health grounds under Article 3 a claimant is required to surmount a particularly high hurdle. I take Ms Rutherford’s point regarding the case of Paposhvili but, as Mr Mills submits, even taking fully into account what is said therein, the threshold remains a very high one. In my judgement, whilst it was not necessary for the Judge to refer to case law so long as what he had to say demonstrated he had adopted the right approach, it is not apparent from his reasoning that he appreciated how high the threshold was. It is not apparent that he applied the correct test even taking into account any softening of the requirements in consequence of Paposhvili. It is true that he did rely upon the content of Professor Palazidou’s report but he did not explain how he had concluded that the content of that report demonstrated that the high threshold had been reached.

10. Turning to Article 8, I would accept Mr Mill’s submission that there was an absence of clear findings as to relevant matters. There were, on my reading, no clear findings as to what the precise situation would be upon return regarding care and support the claimant might receive from family members in India who had, after all, afforded some assistance in the past. There were no findings as to the prospects of, assuming the previous arrangements in place had been inadequate, better arrangements being put in place in India. There were no clear findings, though I appreciate it might be said some were implied, regarding key aspects of the claimed family and private life in the United Kingdom. I appreciate it was said that the claimant was dependent upon his son and daughter‑in‑law “for his day‑to‑day living” but there is no indication as to what was intended to be meant by that phrase. Further, there was nothing to clearly demonstrate that the Judge had looked at the Article 8 considerations “through the prism of the rules”. Nor was there any indication that he had sought to consider public interest considerations or formed a view as to the weight to be attached to such considerations as a prelude to carrying out a balancing exercise with respect to proportionality and exceptionality. I also agree with Mr Mills that the Judge ought to have given specific consideration to the requirements of the Immigration Rules concerning elderly relatives who have care needs even if an application under the Rules could nevertheless not have succeeded due to the claimant being in country and here as a visitor. It was necessary for it to be considered whether those Rules were capable of being met and if not why not as a part of the overall Article 8 evaluation.

11. I had thought it might be possible to go on to remake the decision at the same hearing. However, that proved not to be the case. I had hoped to hear oral evidence from the sponsor and the claimant. However, no interpreter had been booked for the hearing. There is a file note indicating that an application for an interpreter which had been made by the claimant’s solicitors had been refused on the basis that the hearing was an error of law hearing only. I am not sure if that is right (there are no directions on the file) but the upshot was, in any event, that matters could not proceed.

12. In light of the above and bearing in mind that the opportunity to push on and finally resolve matters on the day had been lost, and also bearing in mind that since I was preserving nothing from the determination there would be a need for some quite extensive fact‑finding, I decided to remit to the first‑tier, as an expert fact‑finding body, for a complete rehearing. Accordingly, I have set out some brief directions below which I expect will be supplemented, in due course, should that be thought necessary, by a Judge of the First-tier Tribunal.

Directions

1. There will be a complete rehearing of the appeal (with nothing preserved) which will take place at the Birmingham Hearing Centre.

2. The claimant shall be provided with a Punjabi speaking interpreter.

3. The appeal shall not be listed before the judge of the First‑tier Tribunal who had previously decided this appeal.

Decision

The decision of the First‑tier Tribunal involved the making of an error of law and is set aside.

The appeal is remitted for a complete rehearing before a different judge of the First‑tier Tribunal.

No anonymity direction is made.

Signed: Date: 12 April 2017

Upper Tribunal Judge Hemingway