(Immigration and Asylum Chamber) Appeal Number: HU/24822/2018
THE IMMIGRATION ACTS
Heard at: Field House
Decision and Reasons Promulgated
On: 12 August 2019
On: 03 September 2019
Deputy Upper Tribunal Judge Mailer
Miss C U O
anonymity direction made
secretary of state for the home department
For the Appellant: Mr M Ume-Ezeoke, counsel, instructed by Chris Solicitors
For the Respondent: Ms S Jones, Senior Home Office Presenting Officer
DECISION AND REASONS
Rule 14: 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 them 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.
1. Both parties agreed at the error of law hearing on 26 June 2019 that the decision of the First-tier Tribunal promulgated on 1 February 2019, should be set aside and re-made. I re-make the decision.
2. Permission was given to the appellant to file and serve any additional evidence. The appellant's solicitors produced a further bundle of evidence consisting of some 50 pages.
3. At the commencement of the hearing I was shown a letter, dated 6 August 2019, addressed to the appellant from Barnet, Enfield and Haringey Mental Health Trust. This confirmed an appointment for her at the Haringey Community Services Farrell Unit scheduled for 19 August 2019 with an intended duration of 60 minutes.
4. The appellant's brother attended the hearing and gave evidence. He adopted his witness statement signed and dated 30 July 2019 - pages 5-7. He confirmed that the contents are true and correct.
5. He is the "biological senior brother" of the appellant. He resides at [~], Tottenham. He is a lawyer, working with [~] Solicitors in Hackney.
6. He is a British national and is resident in the UK. He is the "sole carer" of his sister and she lives with him. He cooks food for her; he shops for her; he administers and supervises her compliance with medication. He provides all domestic assistance for her. In the event of a crisis he contacts the ambulance team. He takes her to hospital appointments.
7. His sister relies on him and feels relaxed when he is around her. He supports her emotionally and financially. His other siblings also make 'little contributions' towards her care.
8. The appellant has suffered from mental illness when she was still ill in Nigeria but it was not serious then. She became known to the mental health services in the UK in December 2013. That is when her illness became serious and she was diagnosed with paranoid schizophrenia.
9. The symptoms of her illness include paranoia, persecutory delusions, grandiose delusional beliefs and religious references, visual and auditory hallucinations, stressful voices, response to external stimuli and not eating properly. She also has disturbed sleep.
10. She currently receives medical treatment from a psychiatrist, Dr Shamin Ahmad, to assist her mental health recovery. He referred to the psychiatric report of Dr Ahmad, produced in the bundle at pages 24 to 29.
11. If the appellant were to be returned to Nigeria there would be nobody to take care or support her, as all her biological family members are resident in the UK and Ireland. His sister will have nobody to return to in Nigeria and will find it very difficult to adjust and it would cause serious detrimental effect to her mental health.
12. Their only surviving parent, their mother, is permanently resident in the USA. She is a 72-year-old woman who suffers from medical problems herself. She is being looked after in the US by her sister, [BO]. She is unable to care for the appellant on account of her age and other health conditions. He referred to a medical letter to that effect from her doctor, Dr Borgman, dated 7 August 2019, produced at page 29 in the bundle.
13. He contends that the appellant will suffer from stigma if she is to return to Nigeria due to the misconceptions and 'misbelieve' (sic) about mental illness by Nigerian citizens. The general belief of the cause of mental illness is that of supernatural forces, evil spirits, witches and gods of the land. People therefore isolate from themselves those with mental illness and violently attack them by flogging them in the context of their beliefs that it will chase out the evil spirits.
14. His sister will not be able to access free medication and may not be able to have treatment if she is to return to Nigeria due to poor mental health facilities for treatment and lack of personal treatment. The cost of medication is high, assuming that it is available.
15. In reply to supplemental questions, he said that the appellant came to the UK in 2008 to study. She completed a Masters in accounting. After that she started working in 2009 for two years.
16. He referred to letters from the appellant's younger brother and from her younger sister, dated 30 July 2019 in which they state that they are unable to attend the hearing.
17. He said that the he, the appellant and two sisters are in the UK. Another two elder brothers also live in the UK. There are accordingly four brothers and three sisters. There are no other brothers or sisters in Nigeria. His mother is in the USA and lives with her younger sister.
18. In cross-examination he said that his sister is still having medical treatment. She takes medication, including antipsychotics. He referred to the appellant's care plan produced in the report of Dr Ahmad dated 21 June 2019. He states at p. 27 that the appellant will benefit from an injectable form of antipsychotic medication and he proposes to prescribe her Abilify Maintena Depot injection, to be administered once a month. Before that she has to take this medication in oral form for at least two to three weeks before they could arrange administration in depot form.
19. Dr Ahmad notes that he has had a discussion with her brother to monitor the medication which he has understood. He has given her FP 10 for Aripiprazole 10mg once daily. He requests that her GP repeats this medication and sends copies of her blood results done over the last six months. He will review her in three to four weeks for a follow up. She has an appointment with the mental health trust scheduled for 19 August 2019.
20. He works full time in a law firm. He is qualified as a barrister/solicitor in Nigeria in 2002. He came to the UK in September 2008. He has a Masters from the UK. He was called to the Bar in Nigeria. He practised there for between three and four years.
21. He administers medication to his sister each day, in the morning. He lives alone with the appellant. She takes 10mg of the medication prescribed each day.
22. Ms Jones asked why she would not be able to take this medication if she were alone in Nigeria. He said she has refused to take medication in the past. When she stopped taking it, she had 'bizarre behaviours'. She responds to various voices talking to her. She claims that she hears noises and that threats are made. He however cannot hear it.
23. The routine is that when he goes to work each day, she goes to the library near the house and draws the whole day. He calls her from time to time on the phone to confirm her 'wellbeing'.
24. She does not eat during the day. He gets her to eat vegetables in the morning. She purchases biscuits near their house. She eats 'this junk food' during the day. She shows him the work that she has done. She does not read books.
25. Ms Jones asked whether she can get up and go to the library herself. He said she cannot. He follows her to the library and drops her there. On some days she goes on her own. He then calls her in order to confirm that she is in the library. She shows him the artwork that she has done, which confirms that she has been in the library.
26. He sometimes goes there from work and he sees her there. He goes by bus from work to the library, which takes 20-25 minutes. He arrives at his work between 9.30 and 10am and leaves the house at about 8am. He drops her off at 8.10am. She remains in the library between 8.20am and 5.30pm.
27. He said that there is no comparable facility available in Nigeria. The appellant has also become religious. This has taken her over. There are 'loads of her paper writings' on the table.
28. When Ms Jones asked why the appellant could not go to the church in Nigeria where she could spend the day, he said that not all churches are open all day, or indeed every day. Some are only open at scheduled times, such as during main services on a Sunday.
29. If there is a library, it is located in the city and it would take about two hours to go there. She attends church on Sundays. She goes in the morning and returns at about 5pm or 6pm.
30. Ms Jones referred him to a passage of Dr Ahmad's psychiatric report at page 26, page 3 where he stated that during his assessment it became obvious that she was not eating very well. She had become vegetarian and had lost weight. She complained of her food smelling bad even if she had cooked it herself. She complained of water smelling bad as well as drinking only flavoured water from a bottle.
31. He also noted that her sleep was also disturbed but had no fixed pattern and sometimes her sleep was disturbed by voices saying that "they will attack her." Her sister noticed that she was praying excessively and reading the Bible, sometimes for the whole day. She was going to church on a regular basis and sometimes was noticed talking to herself.
32. He said that the appellant lived in Tottenham. He has been there once. She moved with her children from his house where they stayed until they could find their own house. They left about two years ago. He has not been to see them apart from on the one occasion.
33. He last went to Nigeria about three years ago. He has a British passport.
34. Ms Jones put to him that he has four flats in a building in Nigeria. He said his late father owned this property which was passed on to his mother. He died in about 2002. His mother owns it now. The property is looked after by the caretaker. His mother receives the rental payments.
35. The appellant can wash herself and is able to get dressed. He washes her clothes.
36. Ms Jones asked whether the appellant attends courses. He said she does not. She did her Masters in 2008 until 2009. She has never divorced her husband. Her husband became 'unreasonable' when she shouted at night.
37. The appellant was seen by psychiatric services in 2012.
38. Ms Jones referred to paragraph 2 of page 1 of Dr Ahmad's report. With regard to her past psychiatric history, it seemed that she was living in Derby and was referred to psychiatric services which she did not attend. Full details are not available. She was seen by a psychiatrist in Nigeria in 2012 and was given some medication which she stopped due to side effects. There is no prior history of contact with psychiatric services, nor any admission to previous hospitals.
39. He said that the appellant took a BTech and then did support work for children when she completed her Master's degree.
40. He confirmed that he was present when she was interviewed by the psychiatrist, who has confirmed that her sister and brother with whom the appellant came, were helpful and provided further information which the appellant herself was hiding.
41. He said that there was a time that he called the mental health team when the appellant had a crisis. They talked to her, but after a while they stopped.
42. She saw a psychiatrist in Nigeria in 2012 as she had a breakdown. He is not aware that any family members were present when she had that breakdown in 2012. He became aware of this when she came to the UK. She had gone back to Nigeria with her husband. They later returned to the UK together. He does not know whom she stayed with in Nigeria.
43. Ms Jones referred to a medical report from Dr Garba, a consultant neuropsychiatrist at Wuse District Hospital dated 25 March 2019, at page 10 of the bundle. The report is addressed "to whom it may concern". He notes that he has been instructed on behalf of the appellant to advise on the affordability and treatment of mental health patients in Nigeria.
44. In the report, Dr Garba stated that the numerous challenges that a mental health patient goes through in "our environment" includes the high cost of medication, poor facilities for treatment and no free medical treatment. He described himself as a consultant psychiatrist. His report is written on formal hospital stationery. He does not know how the letter was obtained. Nor does he know who paid for her treatment in 2012.
45. Ms Jones asked that evidence be adduced as to the provenance of that letter. In response to that request, the appellant's solicitors sent a letter to the Tribunal dated 13 August 2019. They request that the letter be taken as confirmation that they had instructed the Health and Human Service Secretariat, Wuse District Hospital, Abuja, to provide a letter about the affordability and treatment of mental health patients in Nigeria.
46. They have also enclosed a copy of their instruction letter sent to the hospital on 4 February 2019, in which they informed the hospital that they are writing about the appellant, their client, and ask the hospital to provide a comprehensive expertise report regarding the affordability, treatment, and challenges of mental health patients in Nigeria. Dr Garba then produced his letter in response.
47. He told Ms Jones that he last saw his mother some time ago. He speaks to her on the phone. She is looked after by Mrs [BO], her younger sister. His mother is diabetic. She has not been back to Nigeria. The rental is paid to her aunt in Nigeria. His mother will call the tenants by phone. She will then check her bank account from the USA.
48. In re-examination, he said that his mother has a caretaker to look after the properties. However, he is not allowed to collect the rent.
49. The appellant started to do care work from 2009. This was through an agency. She was working for about two years at care and support homes.
50. The appellant has lived with him since about September 2018. When she married she lived in Derby with her husband. She has lived with him since she left her husband. She came back to him after she had problems. He said he thinks she has been living with him since August 2018.
51. When asked what else he does for the appellant, he said he cooks for her; he does shopping; he washes her clothes; at night he watches television with her. When she goes to her room she plays Christian music, which is sometimes loud and he has to turn the TV off as this disturbs him.
52. On one occasion he called the ambulance for her because she was unwell. She was behaving bizarrely. They took her to A&E. She was later brought back. She was advised by the team to obtain mental health assistance.
53. He took her to a psychiatrist who prescribed medication.
The appellant's assessment and her current care plan
54. I was referred to the "mental state examination" undertaken by Dr Ahmad. He found that she was not paranoid and did not have formal thought disorders, but admitted to having auditory, olfactory and gustatory hallucinations but would not elaborate much. Her insight is intact and she understands that she is suffering from mental illness and needs medication, but her compliance is poor.
55. He notes that during his assessment, he came to know that she does not have any relatives living in Nigeria. If she has to go back he stated that it will be quite difficult for her to adjust there and it would be detrimental to her mental health. Further, she will not be able to have access to free medical treatment and may not be able to have treatment due to the high cost of medication. His impression is that the medication he has proposed may not be available there.
56. His impression is that she is suffering from schizophrenia. She showed a good response to antipsychotic medication, Olnzapine, however, it is becoming very clear that she will not be able to comply with oral medication. He had a discussion with her brother and agreed to the care plan, in which it is suggested that she take a depot injection.
Evidence on attitudes to mental health in Nigeria
57. I have also had regard to the reports dated 2017, regarding the knowledge of, and attitudes to, mental illness in Nigeria, starting at page 33. The conclusion is that in a country like Nigeria, where poor mental health facilities, poor health outcomes, health inequalities and disparities exist, the need for mental health literacy, and workable health policies, are vital. This will reduce the stigma and increase health seeking behaviour of the mentally ill.
58. It is noted that many Nigerians have misconceptions and misbeliefs about mental illness, hence stigmatising people with mental illness. Mentally ill persons are frequently referred to as dangerous, suspicious, unstable, unreliable, irresponsible and homicidal. The labels aggravate stereotypes, provoking further prejudices on people with mental illness.
59. The methodology of that review is set out in some detail from pages 34 onwards. There are a number of cross-sectional comparative studies collecting opinions and responses regarding attitudes to mental illness. The review was undertaken in various communities.
60. Ms Jones relied on the reasons for refusal. She submitted that the appellant's witness is not credible. This is not mere confusion. The evidence was vague because he does not know the answers. The appellant has only lived with him since about August 2018.
61. In no part of the psychiatric report is it asserted that the appellant cannot give evidence. There is no suggestion that she could not answer basic questions. She attended with her brother and sister to be assessed by the psychiatrist - page 24. She attended follow up appointments until 20 June 2019.
62. She gave evidence before the First-tier Tribunal. She has only lived with the sponsor for a little over a year. Before that she appeared to be living with her husband in Derby. She was able to get treatment in 2012. She married her husband in 2013.
63. The assertion by Dr Ahmad that there is no appropriate treatment in Nigeria is not substantiated. Ms Jones did not accept that there is no treatment available in Nigeria as the appellant did receive treatment there in 2012.
64. The appellant has siblings. There is a property which she is able to access. She referred to the decision in GS (India) v SSHD  EWCA Civ 40.
65. The family has supported the appellant financially. Dr Ahmad did not say that she is unable to work. She can function in society. She has qualifications. She receives antipsychotic medication. Moreover, Dr Ahmad relies on what was told to him.
66. Her brother has given evidence that he leaves her from 8.20am until 5.30pm during which time he calls her. Ms Jones 'challenged' the support that he claimed to give the appellant. There have been gaps in his evidence which he tried to fill. There is not even a mention in the psychiatric report that she was taken to hospital.
67. Whilst the appellant would have to go to a hospital for an injection, it cannot however be said that she is not coping. She referred to AM (Zimbabwe) v SSHD  EWCA Civ 64.
68. There is no evidence that there were no family members who attended the wedding. There may still be some family members in Nigeria who could assist the appellant where needed.
69. She referred to at page 27 of Dr Ahmad's report, where he noted that there had been non-compliance with the medication prescribed and that she stopped medication for one month without any obvious reason. If so, what her brother says about giving her medication each day is not correct and undermines his evidence. She accepts however, that she did not put any of this to the appellant's brother.
70. In summary, she submitted that it is not accepted that there are no family members in Nigeria. Even if there are none, it is not accepted that the sponsor offers such support as is material to her mental stability. She has only lived with him for just over a year.
71. On behalf of the appellant, Mr Ume-Ezeoke relied on Article 8 private life under the Rules as well as outside the Rules.
72. He was critical of Ms Jones attempt to rely on matters in respect of which there has been no cross examination and thus no opportunity given to her brother to address the matters which she raised for the first time at her submissions. There was moreover no cross examination as to how long the appellant and her husband were in Nigeria when they travelled in 2012. He referred to the stamps in the various passports at C2. The appellant and her husband could not have been there for a year. The stamps indicate that they travelled twice.
73. There are also two stamps for 21 April 2013 and 29 April 2013. There is no suggestion that anyone apart from her husband was with her in Nigeria between 2012 and 2013.
74. It has never been put to her brother when she stopped complying with the medication. However, she went back to hospital in 2013. There was a long history of taking medication.
75. Significantly, however, Dr Ahmad's impression at page 27, is that the appellant suffers from schizophrenia. It is clear that she will not be able to comply with the regular taking of her medication which is needed. Her brother stated that he gives her medication to her each day. He sees to it that she complies. He said that is his duty to give her the medication as per the care plan.
76. The position today is that the appellant suffers from a severe mental illness. At page 25 of Dr Ahmad's report, he refers to her assessment in 2013. She has thus had symptoms of auditory and visual hallucinations for several years, which went away after a period of time. However, they resurfaced later on. This is not the picture of a person who would be able to survive alone.
77. It has been contended that she goes to the library alone and can go to church: she can do the same in Nigeria. However, the big difference is what happens at night? If she undertakes the day to day things, will this leave her stressed? It is only her brother who helps with her stress. It is not simply a question of taking medication.
78. The appellant comes from the Niger Delta region. The evidence relating to the barriers to mental health services in Nigeria is noted in the report from page 11. The appellant would 'suffer a stigma'. She would become isolated. She would also be liable to assault. This is clear from the report from pages 33 onwards. There are fundamental misconceptions and misinformation relating to the subject of mental illness amongst Nigerians.
79. He noted from the report referred at page 19, from BBC News, that according to the World Health Organisation, one in ten medications sold in Africa are either fake or substandard. The problem is rife in Nigeria, but the healthcare industry is trying to stop it. The Chief Operating Officer at a hospital in Lagos told the BBC that because the people who manufacture the drugs are so skilled, they are able to make it look authentic.
80. He submitted that the appellant's mother cannot return to Nigeria to assist her. She herself is looked after and cared for.
81. Nor has the appellant been alone since her illness started. She was in Nigeria for a period of time between 2012 and 2013 and lived with someone. She has always lived with someone, including living with someone in the UK until she joined her brother.
82. There would accordingly be very significant obstacles to her re-integration into Nigeria. In the circumstances there is no public interest requirement.
83. He referred to  in AM (Zimbabwe), supra. There the Court held that so far as the Human Rights Court and the Human Rights Convention are concerned, the protection of Article 3 against removal in medical cases is now not confined to deathbed cases where death is already imminent when the applicant is in the removing country. It extends to cases where "substantial grounds have been shown for believing that the applicant, 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 lack of access to such treatment, of being exposed to a serious, rapid and irreversible decline in her state of health resulting in intense suffering or to a significant reduction in life expectancy. Accordingly, the boundary of Article 3 protection has shifted to imminence of intense suffering in the receiving state which may only occur because of the non-availability in that state, of treatment which had previously been available in the removing state.
84. With regard to the submission that the appellant did not give evidence, he submitted that she was not in a position to give evidence now. No inference should be drawn. She does have severe mental health circumstances. Moreover, her brother plays a significant role in her treatment.
85. Finally, Dr Ahmad assessed that in the absence of any relatives living in Nigeria, it would be difficult for her to adjust there and it would be detrimental to her mental health. He was concerned that she may not be able to have access to free medical treatment or to have treatment due to the high cost of medication. Further, the medication he has proposed may not be available in Nigeria.
86. He submitted that significant weight should be given to his report when read together with the other background material relating to the situation for people with mental health problems in Nigeria.
87. I have considered the evidence, both oral and documentary, that has been placed before the Tribunal. I have taken into account the submissions made on behalf of both parties.
88. The First-tier Tribunal Judge accepted that the appellant has severe mental health problems and also concluded that there is discrimination against those with such problems in Nigeria. He further found that she may have very significant obstacles to her return to Nigeria.
89. There was however no clear finding by him as to whether the appellant had shown on the balance of probabilities that there would be very significant obstacles to her integration into Nigeria given the finding that she would have accommodation there.
90. Ms Jones on behalf of the respondent contended that the evidence of the appellant's brother is not credible. His evidence was vague, not because of confusion having regard to the time that has passed, but because he does not know the answers. Moreover, the appellant has only lived with him since about August 2018.
91. It is contended that the appellant has siblings in Nigeria. There is also a property which she is able to access. She would be able to receive depot injections in Nigeria and would be able to go to the library just as she has been doing in the UK.
92. I found that the evidence of the appellant's brother was credible in its core aspects. He has given detailed evidence relating to the day to day care that he has provided, and continues to provide, for the appellant. It was never put to him that he is not the sole carer of the appellant, as he has contended. The appellant lives with him. He cooks food for her, shops for her and administers and supervises her compliance with medication.
93. He has given sound reasons for his contention that she would not take her medication if alone in Nigeria. This includes the unchallenged evidence that she has refused to take medications in the past. She then behaves in a bizarre fashion. Her various symptoms, including hearing noises and voices talking to her, will return.
94. Moreover, it is he who sees to it that she eats properly, otherwise she would eat junk food during the day. Mr Ahmad stated that it was obvious that she was not eating very well. She had lost weight. She complained that food which she cooked herself was smelling bad. Similarly, water smelled bad. Her sleep was disturbed. She has been praying excessively, sometimes reading the bible for the whole day.
95. Whilst Mr Ahmad did not indicate that the appellant was unable to give evidence, as she had given evidence before the First-tier Tribunal, there is also no evidence from him that she is capable of giving evidence.
96. More significantly, Ms Jones did not challenge the finding of Dr Ahmad that the appellant appears to be suffering from schizophrenia and that she will not be able to comply with the regular taking of her medication which is needed. Her inability to comply alone is substantiated by the evidence of her brother who states that he is responsible for giving her her medication each day.
97. Dr Ahmad noted that the appellant was seen by a psychiatrist in Nigeria in 2012 and was given medication which she stopped. She became known to mental health services in the UK since December 2013. Dr Ahmad referred at page 25 to her assessment in St Anne's Hospital in December 2013. After further review by Dr Cheng, the consultant psychiatrist, it became clear that she was not suffering from obsessive compulsive disorder, but she suffered from Schizophreniform psychosis. She revealed at that time that she experienced auditory hallucinations and visual hallucinations for the past four years. The symptoms are fully set out in Dr Ahmad's report at page 25.
98. I find that the appellant continues to suffer from a severe mental illness. I also find in the light of the evidence that she family life with her brother. This is evident from the extent of his daily care for her. She is also emotionally dependent on him
99. The First-tier Tribunal Judge accepted that the appellant has been receiving medical care for paranoid schizophrenia which is of some severity from late 2012. It has also been accepted by the First-tier Tribunal that there is discrimination against those with mental health problems in Nigeria. The evidence presented at the re-hearing reinforces that contention.
100. It has been contended that the appellant's mother could return to Nigeria to assist her. However, it is evident from the evidence presented to the Tribunal that she is permanently resident in the USA. She is a woman of 72 who suffers from medical problems herself. She too is looked after by her sister. This is confirmed in a medical letter to which I have referred.
101. Although contended by Ms Jones that there may be other relatives in Nigeria who would be able to assist the appellant, her brother stated in evidence that there are no other brothers or sisters in Nigeria. His mother is in the USA and she lives with her younger sister.
102. Mr Ume-Ezeoke also made point that, even assuming the appellant would be able to obtain her medication on her own and to attend to day to day matters if she were returned to the Niger Delta region, that is on the basis that the medication she requires would be available. There remains the problem regarding fake drugs which are sold in Africa. They may in addition be substandard. The problem is rife in Nigeria, albeit that the healthcare industry is trying to stop this.
103. Moreover, the evidence established that there are significant barriers to mental health services in Nigeria. In particular, she would suffer from stigma and would become isolated. There is a fundamental misconception as well as misinformation regarding the whole topic of mental illness in Nigeria.
104. Having regard to the evidence as a whole, I find that there would be very significant obstacles to her integration in Nigeria. Her mother has chosen to live in the USA. Her brother is in the UK. She would accordingly be returning to Nigeria as a person who suffers from severe paranoid schizophrenia, and has daily visual and olfactory hallucinations. She will suffer from stigmatisation and become isolated. She would not be able to access appropriate medication, even if it were available.
105. I find that the appellant accordingly meets the requirements of the Article 8 ECHR Immigration Rules. In the circumstances, there is no public interest in her removal and no balancing exercise is required.
Notice of Decision
I re-make the decision and allow the appellant's appeal.
An anonymity direction is made.
Signed Dated 28 August 2019
Deputy Upper Tribunal Judge Mailer