Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/04917/2015

THE IMMIGRATION ACTS

Heard at Manchester
Decision & Reasons Promulgated
On 4th August 2016
On 9th August 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE M A HALL

Between

nedhal j ali
(ANONYMITY DIRECTION not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr J Holt of Counsel instructed by Latitude Law
For the Respondent: Mr G Harrison, Senior Home Office Presenting Officer

DECISION AND REASONS
Introduction and Background
1. The Appellant appeals against a decision of Judge Ransley of the First-tier Tribunal (the FtT) promulgated on 20th July 2015.
2. The Appellant is a female national of Iraq born 5th July 1948 who appealed to the FtT against the Respondent's decision to refuse her application for leave to remain based upon her human rights. That refusal was dated 9th October 2014, and on 14th October 2014 the Respondent made a decision to remove the Appellant from the United Kingdom.
3. The FtT heard evidence from the Appellant, her son and her daughter-in-law, and dismissed the appeal under the Immigration Rules, and on human rights grounds and humanitarian protection grounds.
4. The Appellant applied for permission to appeal to the Upper Tribunal relying upon two grounds.
5. Firstly it was contended that the FtT had erred in law in her treatment of the medical evidence. It was contended that the FtT erred in paragraph 11 by stating;
"Mr McIndoe also confirmed that the Appellant's appeal on Article 8 grounds does not rely on her medical/health conditions."
6. It was contended that the Appellant's legal representative had confirmed the Appellant's medical needs were not relied on in relation to Article 3, but her health was a relevant factor when considering the necessity and proportionality of her removal pursuant to Article 8. It was therefore submitted that the FtT erred in failing properly to attach due weight to the medical evidence.
7. It was contended that the FtT had erred at paragraph 28 by observing that the Appellant, at the hearing, did not appear to have any mobility problems, observing that the Appellant moved around the courtroom and went in and out with relative ease and without any need for aid/support. It was submitted that the FtT's failure to refer to medical evidence in the course of reasoning, and offering an impression of the Appellant's mobility, was indicative of a failure to give weight to material evidence.
8. The second ground related to the Article 15(c) aspect of the case. The Appellant's home in Iraq is in Anbar Governorate and it was submitted that the FtT ought to have taken notice that the current situation in that area was unstable. The FtT had drawn an adverse inference from the fact that Captain Tharwat had submitted a letter of support, but made no mention of the Appellant's house in Iraq having been seized. It was contended that it would have been very difficult for the Appellant to provide independent evidence that her house had been seized, and the FtT had imposed a requirement for corroboration of this aspect of the Appellant's claim.
9. Permission to appeal was granted by Designated First-tier Tribunal Judge Zucker in the following terms;
1. This application is in time. First-tier Tribunal Judge Ransley dismissed the Appellant's appeal, against the decision of the Respondent to remove her from the United Kingdom. This application is in time.
2. It is arguable that the judge erred in her approach to the medical evidence and it is further arguably Robinson obvious that there is an error of approach generally given the guidance in AA (Article 15(c)) Iraq CG [2015] UKUT 00544 (IAC), of which the judge could not have been aware when she decided the case.
10. Following the grant of permission the Respondent lodged a response pursuant to rule 24 of the Tribunal Procedure (Upper Tribunal) Rules 2008. In summary it was contended that the FtT had not erred in law and had taken into account the medical evidence. The FtT was entitled to comment on the Appellant's presentation at the hearing.
11. The FtT had considered the country guidance which was in force at the date of hearing, and was entitled to conclude that the claim for humanitarian protection had not been made out. The decision in AA (Iraq) was not promulgated until approximately three months after the FtT decision.
12. Directions were subsequently issued making provision for there to be a hearing before the Upper Tribunal to decide whether the FtT decision should be set aside.
The Appellant's Submissions
13. Mr Holt relied and expanded upon the grounds contained within the application for permission to appeal. Mr Holt submitted that the FtT was factually incorrect in recording at paragraph 11 that the appeal on Article 8 grounds did not rely upon the Appellant's medical/health condition. I was asked to note there was reference in paragraph 12 of the skeleton argument which was before the FtT, to the Appellant needing daily care. I was also asked to note the medical evidence contained within the Appellant's bundle that was before the FtT.
14. With reference to the Appellant's bundle that had been prepared for the Upper Tribunal hearing, Mr Holt confirmed that the reference to admission of further evidence pursuant to rule 15(2A) of the 2008 Procedure Rules, did not relate to the error of law hearing. It was not suggested that fresh evidence should be considered at the error of law hearing, which had not been before the FtT. That would be relevant if the FtT decision was set aside.
15. Mr Holt submitted that there was very little reference to medical evidence within the FtT decision, because the FtT wrongly believed that the Appellant did not rely upon her medical condition.
16. In relation to Article 15(c) Mr Holt pointed out that Anbar is now a contested area, although at the date of the FtT hearing, which is the relevant date, it was not. However, credible evidence had been submitted to the FtT which pointed to the risk of Anbar falling to ISIS. Mr Holt submitted that the FtT had imposed a requirement of corroboration when considering this issue which was an error of law.
17. Mr Holt submitted that the Robinson obvious point mentioned in the grant of permission, related to paragraph 4 of the headnote to AA (Iraq) which for ease of reference I set out below;
4. In accordance with the principles set out in Elgafaji (C-465/07) and QD (Iraq) v Secretary of State for the Home Department [2009] EWCA Civ 620, decision-makers in Iraqi cases should assess the individual characteristics of the person claiming humanitarian protection, in order to ascertain whether those characteristics are such as to put that person at real risk of Article 15(c) harm.
18. Mr Holt explained that it was accepted that AA (Iraq) had not been published when the FtT decision was made, but the approach in taking into account the individual characteristics of the person claiming humanitarian protection, already existed prior to the publication of AA (Iraq). I was asked to accept that the FtT had not taken into account the Appellant's individual characteristics and therefore this amounted to an error of law.
The Respondent's Submissions
19. Mr Harrison relied upon the rule 24 response and submitted that the FtT had not erred in law. I was asked to note that the FtT had in fact found against the Appellant on credibility and I was referred in particular to paragraphs 18 and 21 of the FtT decision on that point.
My Conclusions and Reasons
20. Dealing firstly with the consideration of medical evidence, I find no material error of law disclosed in the FtT decision.
21. I am satisfied that the Appellant's representative did make the comment that the claims pursuant to Articles 3 and 8 did not rely on medical grounds. The FtT has recorded this in the Record of Proceedings, and would not have done so had this not been stated.
22. I note that there is no specific reference to the Appellant's medical condition in the Grounds of Appeal submitted to the FtT, and the only reference in the skeleton argument is at paragraph 12 which makes reference to the Appellant being helped with her daily care needs.
23. I am however satisfied that the Appellant in her evidence made reference to her medical condition, and that there is medical evidence contained within the Appellant's bundle which was before the FtT.
24. I find no error at paragraph 28 of the FtT decision. In this paragraph the FtT makes specific reference to medical evidence, that being a letter from the Appellant's GP dated 8th January 2013 and sets out an extract from that letter. The FtT was clearly aware of the medical evidence because in the same paragraph, there is reference to "subsequent GP letters" containing the same information. I do not find that the FtT erred in making an observation that the Appellant did not appear to have mobility problems at the hearing, as this comment was qualified by the FtT stating, "I am not medically qualified and I do not propose to make clinical judgment."
25. The weight to be attached to evidence is decided by the judge hearing the case. I do not find in this case, that the FtT has disregarded relevant medical evidence, and I am satisfied, reading the decision as a whole, that the FtT has considered the medical evidence.
26. It is relevant, that the FtT made adverse credibility findings in relation to the Appellant and her son. At paragraph 21 the FtT made the following findings;
21. In the light of the above, I find that the Appellant and Mr Al-Rahman have not told the truth about her family ties in Iraq. They gave the distinct impression that they tried to minimise her family connection in her home country.
27. At paragraph 32 the FtT made reference to a letter from Captain Tharwat in which he made no mention of the Appellant's house in Iraq having been seized. This was not a requirement of corroboration. The FtT was entitled to note the absence of any reference to the house being seized in the letter of support. The FtT also found the Appellant had in fact a teacher's pension and the financial support of her son, and found that the Appellant has a married sister with a son and daughter living in the Appellant's home area in Iraq, and the Appellant has maintained contact with this sister. The FtT was not satisfied that the sister and her children would be unable or unwilling to provide practical support to the Appellant on her return, including taking her into their home if that should be necessary.
28. The FtT therefore found that the Appellant would have accommodation, and financial and practical support, and did not disregard the medical evidence.
29. I do not find that the FtT erred in considering Article 15(c). The FtT applied the country guidance case law that was in force at the date of hearing. I do not accept the submission that the FtT failed to take into account the individual characteristics of the Appellant.
30. In my view, it is clear that the FtT did not accept that the Appellant had been entirely truthful about her circumstances in Iraq. There has been no challenge to the credibility findings made by the FtT. The FtT was clearly aware of the Appellant's age and that she would be returning as a single woman, but found as previously stated, that she would have access to financial and family support and accommodation. It was not suggested that she would be unable to access any medical treatment.
31. The grounds display a disagreement with the findings made by the FtT, but they do not disclose any material error of law. If the country guidance case law and background objective evidence indicates that the situation in the Appellant's home area has now changed, then that may give rise to a further claim, but the FtT has to consider the evidence as at the date of hearing, and did not err in law in doing so.

Notice of Decision

The FtT did not materially err in law. I do not set aside the decision. The appeal is dismissed.

Anonymity

No anonymity direction was made by the FtT. There has been no application for anonymity made to the Upper Tribunal and I see no need to make an anonymity order.

Signed Date 5th August 2016

Deputy Upper Tribunal Judge M A Hall

TO THE RESPONDENT
FEE AWARD

The appeal is dismissed. There is no fee award.

Signed Date 5th August 2016

Deputy Upper Tribunal Judge M A Hall