Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/00848/2016

THE IMMIGRATION ACTS

Heard at Manchester Civil Justice Centre
Decision & Reasons Promulgated
On 2nd November 2018
On 29th November 2018

Before

DEPUTY UPPER TRIBUNAL JUDGE JUSS

Between

DN
(ANONYMITY direction MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr M Karnik (Counsel)
For the Respondent: Mr A McVeety (Senior HOPO)

DECISION AND REASONS
1. This is an appeal against the determination of First-tier Tribunal Judge Bradshaw, promulgated on 6th June 2018, following a hearing at Bradford on 22nd May 2018. In the determination, the judge allowed the appeal of the Appellant, whereupon the Respondent Secretary of State, subsequently applied for, and was granted, permission to appeal to the Upper Tribunal, and thus the matter comes before me.

The Appellant
2. The Appellant is a male, a citizen of Burundi, and was born on 5th September 1974. He appealed against the decision of the Respondent dated 25th July 2008 to deport the Appellant. However, on 5th March 2009 he was granted discretionary leave to remain to expire on 4th March 2010. It is a feature of this appeal that the Appellant, between 2004 and 2008, was convicted and sentenced to imprisonment for twelve weeks in 2004 and for eight months in 2005 and for four weeks in 2008. The offences involved shoplifting and were generally considered not to be of a serious nature.
The Appellant's Claim
3. The essence of the Appellant's claim, as considered by Judge Bradshaw, at the hearing before her on 22nd May 2018, was the Appellant's medical condition. There was a report from Dr Ghosh from 2009, stating that his condition was a serious one, such that he would commit suicide if he was returned to Burundi and did not have access to the treatment that was deemed essential for him. A previous appeal determination by Judge Williams, had been promulgated on 15th January 2009 and this had found against the Appellant. It was accepted that the Appellant was suffering from severe psychotic illness (see paragraphs 12 and 13 of the determination of Judge Williams) and this most likely arose from a bipolar affective disorder. There was a high risk of self-harm and risk to others. The risk of suicide was "extremely high" (see paragraph 24 of the decision of Judge Bradshaw).
4. On the other hand, however, the Appellant's GP records were "somewhat thin given the Appellant's long history of mental health problems" (paragraph 25 of Judge Bradshaw). Dr Raffi, who, as consultant psychiatrist, gave his report on 19th August 2011, was of the view that the Appellant's main issues surround his chronic alcohol misuse. He did not find any symptoms that suggested mental disorder during his assessment of him. The Appellant was fairly guarded with respect to any symptoms (see paragraph 26 of Judge Bradshaw).
5. As recorded by Judge Bradshaw in her determination, Dr Raffi "did not see evidence of low mood and despite the Appellant saying that he had previously felt suicidal, he currently had no suicidal thoughts" (paragraph 26). What swayed Judge Bradshaw to allow the appeal, however, was the diagnosis of there being a very high risk of suicide to the Appellant.
Grounds of Application
6. The grounds of application by the Respondent Secretary of State, was to the effect that the appeal had been allowed under Article 3 ECHR, but this required a very high threshold, as long established in the case of N v Home Secretary [2005] 2 AC 296. Given the indeterminate nature of the Appellant's precise condition, the judge had not been able to explain how it was that the Appellant met this high threshold.
7. On 4th September 2018, permission to appeal was granted on this basis. It was said that although the judge took as her yardstick the earlier 2009 decision of Judge Williams, which had referred to the diagnosis of severe psychotic illness and the risk of suicide as being extremely high, in the human rights appeal the position had to be considered as it was at the date of the hearing. At that particular point in time, there was no evidence that the Appellant was indeed suffering in the manner indicated, or that his removal back to Burundi would place him in a position whereby his Article 3 rights were violated.
8. A Rule 24 response was entered by Mr Karnik thereafter of twenty paragraphs, which set out in considerable detail why the decision reached by Judge Bradshaw was one that was open to her.
Submissions
9. At the hearing before me on 2nd November 2018, Mr McVeety, submitted that there was one very simple reason why this appeal by the Respondent Secretary of State should succeed. This was that Article 3 had a very high threshold for success. The Appellant was not in receipt of any medical treatment in this country. He was using self-medication. This involved the use of alcohol and cannabis. Therefore, if the Appellant were to be removed to Burundi, and even if he were to be denied the treatment in Burundi which will have been available to him in this country, there was nothing to suggest that he could not continue self-medication himself in the same manner. He does not currently access any treatment in the UK. He would be in the same position in Burundi. Therefore, the appeal should be allowed on this basis.
10. Second, the Rule 24 response by Mr Karnik raised matters which were not directly relevant to this appeal. For example, it was not the case that no permission had been granted to the Secretary of State on Article 8 grounds because there had been no such application by the Secretary of State. Mr McVeety submitted this was misconceived. What the grant of permission said was that all grounds were arguable.
11. Moreover, a reference to EB (Kosovo) [2008] UKHL 41 was also misconceived because this was not an Article 8 appeal but one which involved a removal on the basis of the Appellant's criminality. In the same way the reference to TM (A Minor) [2018] UKUT was also not relevant because this was not an ordinary case, but one where the Appellant had been found guilty of criminal offences, and his removal was required on that basis.
12. For his part, Mr Karnik submitted that this was not a deportation case. It was accepted it involved criminality. However, the deportation matter had ended in 2009. Second, the Appellant's medical condition had actually worsened since 2009. This was clear from the evidence. Third, it was accepted that the Appellant may well get the same treatment in Burundi, which he could access in this country, but the main issue here was a very high risk of suicide, which made this case very different, because if the Appellant was removed to Burundi he may well not live. Mr Karnik then carefully took me through the determination of Judge Bradshaw, signposting the various ways in which the judge had carefully taken into account all the relevant aspects of the appeal. For example, Section 117D had been taken into account (at paragraph 13). It was noted that this was a very high risk of suicide case (see paragraph 24). The Appellant is currently in a precarious state of mind, which is more so than in 2009 because his mental health is fluctuating "and he is at a very serious risk of suicide" in circumstances where the "Appellant has developed a mistrust of the medical profession" (paragraph 39).
13. The judge had also taken into account the case of N (at paragraph 41) and had properly directed herself. If she had done so, then it was difficult to argue that her conclusion was irrational, given the direction had been a proper one made to herself. A feature, however, of this Appellant's condition was that he suffered from "command hallucinations telling him to kill himself which made him a very serious suicide risk" (paragraph 31). The conclusion of the 2009 medical report by Dr Ghosh had not been undermined in any way by later evidence.
14. Finally, as far as Article 8 was concerned, the Secretary of State had known that the Appellant was a very vulnerable individual, and yet had waited for more than six and a half years before making a decision, and this was an egregious delay, such that it went directly to Article 8, in a way that this appeal should have been allowed under Article 8 as well.
15. In reply, Mr McVeety submitted that be that as it may, the basic facts could not be ignored. These were that the Appellant was a criminal. He was not a British citizen. Different considerations applied in a removal case of such a person. Second, Dr Ghosh's report was relied upon throughout the case made for the Appellant. However, what Dr Ghosh had said back in 2009 was that if this Appellant did not get the medical treatment that was deemed necessary for him in this country then he would commit suicide. However, this had not happened. In fact the Appellant had gone on to use alcohol and cannabis to treat himself. He did not commit suicide. Third, the judge found in this case that the Appellant would not be able to access the relevant treatment he needs in Burundi, but he was not accessing such treatment in this country either. He was therefore not at risk of any Article 3 violation if he was returned. Nothing whatsoever had happened since 2009.
Error of Law
16. I am satisfied that the making of the decision by the judge involved the making of an error on a point of law (see Section 12(1) of TCEA 2007) such that I should set aside the decision and re-make the decision. I come to this conclusion notwithstanding Mr Karnik's very determined efforts to argue the Appellant's case before me in as able a manner as possible. However, the following facts are necessary to bear in mind.
17. First, the very suggestion that the Appellant is having "command hallucinations telling him to kill himself" arises from the report of Dr Ghosh in 2009. That is the same report that stated that the Appellant needed to access medical facilities in this country in order to avoid the very high risk of suicide which applied to him. However, that has not happened. The Appellant is under no medical treatment. He is taking no prescribed drugs. He is subject to no medical regime. There is no evidence that he continues any longer to have these command hallucinations on the basis of the latest medical reports.
18. Second, this is an Appellant who has not done himself any favours in refusing to actually co-operate with the medical authorities. His own GP found it difficult to provide any detailed support to the Appellant because the medical reports of the GP are "somewhat thin" (paragraph 25). The net effect is that Judge Bradshaw herself found herself concluding that, "I accept there is no clear or definitive diagnosis of the Appellant's mental health, the Appellant has been variously diagnosed with symptoms of bipolar affective disorder, schizophrenia, PTSD and alcohol problems ..." (paragraph 34). I note that Mr Karnik has argued that be that as it may, and that no particular label properly encapsulates the Appellant's complex medical condition, nevertheless he is at severe risk of committing suicide. This, however, is something that is not borne out by the evidence.
19. Third, this is because the later consultant psychiatrist's report of 9th August 2011 from Dr Raffi, observes that "the Appellant's main issues surround his chronic alcohol misuse" and that "he did not find any symptoms suggestive of mental disorder during his assessment of him". Dr Raffi also "did not see evidence of low mood and despite the Appellant saying that he had previously felt suicidal, he currently had no suicidal thoughts" (see paragraph 26 of the determination by Judge Bradshaw. Indeed, the action from the GP notes covering the period 2016 to 2017 went on to note that the Appellant "had no plans to harm himself" (paragraph 27 of the determination by Judge Bradshaw).
20. In the circumstances, therefore, the high threshold of Article 3 was not met. The evidence simply did not exist to this effect. Insofar as there was earlier evidence, going back almost a decade now, to the 2009 report of Dr Ghosh, it was plain that such evidence now had to be treated with some scepticism, given how significant parts of it had simply not materialised in the manner that the expert had on that occasion indicated.
Re-making the Decision
21. I re-make the decision on the basis of the evidence before Judge Bradshaw, the decision made by her, and the submissions that I have heard today. I am dismissing this appeal by the Appellant, for the reasons that I have given.
Notice of Decision
22. The decision of the First-tier Tribunal involved the making of an error of law such that it falls to be set aside. I set aside the decision of the original judge. I re-make the decision as follows. This appeal is dismissed of the Appellant.
23. An anonymity direction is made.
24. The appeal 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 his 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

Deputy Upper Tribunal Judge Juss 23rd November 2018