Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/00057/2015

THE IMMIGRATION ACTS

Heard at: Birmingham Civil Justice Centre
Decision & Reasons Promulgated
On: 22nd February 2019
On: 26th February 2019

Before

UPPER TRIBUNAL JUDGE BRUCE

Between

Secretary of State for the Home Department
Appellant
and

HK
(anonymity direction made)
Respondent

For the Appellant: Mrs Aboni, Senior Home Office Presenting Officer
For the Respondent: Ms Norman, Counsel instructed by Bassi Solicitors

DECISION and REASONS

1. The Respondent is a national of India born in 1985. On the 28th September 2017 her appeal was allowed by First-tier Tribunal Judge Parkes on human rights grounds. The Secretary of State now has permission to appeal against that decision.

The Scope of the Grant of Permission

2. Permission was granted in limited terms by First-tier Tribunal Judge Norton-Taylor. The Respondent was refused permission to argue that the determination contained contradictory findings as to whether HK would have the support of her family should she be returned to India. Before me the Respondent did not seek to renew that aspect of his grounds.

3. Permission was granted to the Secretary of State to argue that the determination was flawed for an insufficient clarity as to the legal framework of the appeal, or the basis upon which the appeal was allowed. The grant would also appear to extend to the Secretary of State's complaint that the medical evidence was not capable of establishing a case under Article 3.

Error of Law

4. I am satisfied that if the First-tier Tribunal purported to allow this appeal simply on the grounds that HK is unwell, either with reference to Articles 3 or 8, it erred in so doing. It is trite human rights law that a case can only succeed on health grounds where the evidence demonstrates that a very high threshold of harm has been reached, and there is insufficient reasoning in the determination to support such a finding.

5. I am further satisfied that the Secretary of State is entitled to complain that the structure of the determination is unclear. There is no clear delineation between the consideration of the applicable rule (276ADE(1)(vi)) and Article 8 'outside of the rules'. Insofar as it might be thought that the Tribunal found for HK in respect of the latter, then any such analysis would be flawed for a failure to weigh in the balance the public interest factors set out in section 117B of the Nationality, Immigration and Asylum Act 2002

6. I am not however satisfied that any errors in this determination are such that it should be set aside. That is because at paragraph 22 the First-tier Tribunal makes this finding: "in the circumstances there would be very significant obstacles to her reintegration in India that could not be overcome". Although she agreed that this would amount to a finding that the requirements of paragraph 276ADE(1)(vi) were met, Mrs Aboni submitted that this finding was unsupported by reasoning.

7. Setting to one side Ms Norman's complaint that this was an impermissible variation of the grounds, it is a submission without merit. The basis of the decision is clear. At paragraph 19 the First-tier Tribunal finds that this is a young woman who would not have the support of her family should she return to India. At paragraph 21 (and indeed throughout the determination) the Tribunal makes reference to her exceedingly fragile mental health, and to the fact that she is emotionally withdrawn and dependent upon her cousins in the United Kingdom, to whom she is close. The background to those matters was not lost on the Tribunal: 6 years of domestic violence including coercive and controlling behaviour by her in-laws, and HK facing the 'blame' for the fact that she did not fall pregnant during the currency of her marriage.

8. The reasoning was therefore clear, and having had an opportunity to read the medical evidence that was before the First-tier Tribunal I find it was manifestly open to the Tribunal to reach the conclusions that it did. Consultant Psychiatrist Dr Jayaprakash Rajendran, in his detailed report, diagnoses a severe episode of clinical depression and expresses a concern that even thoughts of her parents may not be a sufficient 'protective factor' to prevent KH committing suicide. The conclusions of the Psychiatrist Dr Rajendran are borne out by the GP notes which detail repeated referrals for depression, anxiety, stress, self-harm and indeed the domestic violence which formed the backdrop to HK finding herself her current predicament. That HK is emotionally (as well as practically) reliant on her cousins in the United Kingdom does not appear to have been contested. Nor does the Secretary of State appear to have submitted at any stage that this extremely vulnerable young woman would be able to 'integrate' in India without family support there.

9. For that reason I do not set the decision of the First-tier Tribunal aside.

Anonymity

10. Having regard to the facts in this case, involving a vulnerable appellant with mental health concerns, I am prepared to make the following direction for anonymity, pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 and the Presidential Guidance Note No 1 of 2013: Anonymity Orders.

"Unless and until a tribunal or court directs otherwise, the Appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify her or any member of her 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".

Decision

11. The decision of the First-tier Tribunal is upheld.

12. An anonymity order is in place.

Upper Tribunal Judge Bruce
22nd February 2019