Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/06206/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 23rd June, 2016
Dictated 23rd June, 2016
Signed 30th June, 2016
On 11th August 2016

Before

Upper Tribunal Judge Chalkley

Between

Mr JOSHUA IDRISS SANKOH SHERIFF
(ANONYMITY DIRECTION NOT MADE)

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: M J Victor-Mazeli, Counsel
For the Respondent: Miss Brocklesby-Welles, Home Office Presenting Officer

DECISION AND REASONS

1. The appellant is a citizen of Sierra Leone who was born on 3rd March, 1992.

2. He was granted a medical visit visa from 9th September, 2007 until 9th March 2008 and arrived in the United Kingdom on 9th October, 2007. On 7th March, 2008, an application was submitted for the appellant as the child of settled parents/relatives. On 28th March, 2008, the application was refused

3. The appellant appealed that refusal but the appeal was dismissed on 24th July, 2008. On 31st July, 2008, the appellant's application for High Court review was also refused. By 19th August, 2008, the appellant had exhausted his rights for appeal.

4. On 14th August 2008, the appellant submitted a further leave to remain application as a visitor for private medical treatment. On 10th October, 2008, he was granted leave to remain until 10th April, 2009. On 9th April, 2009, he made a further application for leave to remain as a visitor for private medical treatment but this application was refused by the Secretary of State on 20th May, 2009.

5. On 27th May, 2009, the appellant made an application for leave to remain as a visitor for medical treatment and this application too was rejected on 16th June, 2009. On 23rd June, 2009, he made a further application for leave to remain for medical treatment, but that too was also refused, on 20th January, 2010 with no right for appeal. On 14th April, 2010, the appellant submitted a request for reconsideration and on 30th November, 2010, that application was considered and the original decision was maintained. On 21st February, 2011 the appellant's MP expressed an interest in his case and on 21st March, 2011, the Home Office responded to that letter.

6. The appellant was served with form IS151A notifying him of his immigration status as an overstayer and his liability to detention and removal from the United Kingdom, on 12th February, 2014. On 23rd December, 2014, further representations were made by the appellant and on 23rd January, 2015, a decision was made to refuse the application.

7. The appellant appealed to the First-tier Tribunal and his appeal was heard by First-tier Tribunal Judge Davidson at Taylor House on 13th August, 2015. At paragraph 3 of the determination the judge noted that the appellant claimed that removing him to Sierra Leone would breach his rights under the Human Rights Act 1998, and he claimed that the Secretary of State had failed to consider his length of residence and the fact that he has made a private and family life in the United Kingdom and has a medical condition.

8. The judge considered the appellant's Article 3 appeal by considering medical reports and other evidence before him. The appellant adopted his statement and was simply asked by his barrister to confirm that he lived in Sierra Leone for the first fifteen years of his life. The appellant said that he had gone to the Gambia for over a year. At that stage the appellant's Counsel asked no further questions.

9. The judge noted all the evidence before him and the fact that the appellant' suffered with epilepsy. Having examined the evidence, the judge concluded that the circumstances of the appellant did not meet the high threshold for an Article 3 claim as laid down in the case of N v Secretary of State for the Home Department [2005] UKHL 31. He noted that there was no evidence that the appellant's removal would result in fatal relapse or that there will be no adequate treatment or support on the appellant's return to Sierra Leone. He dismissed the appeal under Article 3.

10. The judge noted that no submissions had been made to him in respect of Article 8. The judge concluded that undoubtedly the appellant had private life in the United Kingdom, having been in the United Kingdom since 2007, but found that he did not meet the requirements of Rule 276ADE(iii), because he had not been resident for twenty years. The judge noted that the appellant was an adult who was unmarred and not in a durable relationship. He has no children and in the absence of any exceptional circumstances which might be interpreted as family life, he does not have any family life capable of being respected. As to the appellant's private life, the judge accepted at paragraph 30 of the determination that having been in the United Kingdom for some eight years he did enjoy private life. However, the judge found that the appellant did not satisfy the requirements of paragraphs 276ADE(iii) and dismissed his appeal under the Rules.

11. The judge went on to consider the appellant's circumstances outside the Rules and concluded that there was nothing about the appellant or his circumstances which would amount to a disproportionate interference with the appellant's private life such as would justify the appellant being granted leave to remain on the basis of his Article 8 rights outweigh the Immigration Rules. He concluded that the appellant's removal would not be a disproportionate interference and that the appellant had been in the United Kingdom at all times illegally apart from two short periods. He has since May 2009 remained notwithstanding the dismissal of his applications.

12. Before me today Counsel urged me to find that the judge had erred in law by failing to consider whether the appellant might meet the requirements of paragraph 276ADE(vi) of the Immigration Rules.

13. She suggested that it was incumbent on the judge to carry on and consider the application of that paragraph, notwithstanding the fact that counsel who appeared on behalf of the appellant to represent him had not made any submissions on the point. She asked me to note that the appellant had adopted a witness statement which appears at pages 19 to 22 in his bundle. In it, the appellant explained that he arrived in the United Kingdom at the age of 15 with his mother seeking medical treatment for his illness. He had previously travelled to Gambia to receive surgery and he remained in Gambia for nearly eleven years. Unfortunately, his mother took him back to Sierra Leone in 2004 and the appellant suffered an attack in 2006, following which his doctors misdiagnosed him as a result of which he was in a coma for some six days. During that time his suffered irreversible brain damage. His brother-in-law made arrangements for the appellant and his mother to travel to the United Kingdom and pays for his treatment privately in the United Kingdom. Commenting on the Reasons for Refusal Letter, the appellant pointed out that according to the Home Office he had lived in Sierra Leone for the past fifteen years. He explained that for some eleven years he lived in Gambia.

14. At paragraph 13 of his statement the appellant points out that he left Sierra Leone at the age of 1. He has no family or relatives in Sierra Leone and nowhere to live there. The appellant knows no family members in Sierra Leone and the Sierra Leone community will not accept or accommodate him because they perceive his illness as being demonic. Were he to return to Sierra Leone he suggests he would suffer another attack there. Ms. Victor-Mizeli submitted that in the light of what the appellant had said in his statement, it was incumbent upon the judge to at least consider if he met the requirements of paragraph 276ADE(vi). I reserved my decision.

15. The appellant does not appear to have been best served by his Counsel at the hearing before the First Tier Tribunal. Counsel made no submissions to the judge at all in respect of Article 8.

16. Ordinarily, I do not believe that a judge who fails to consider paragraph 276ADE(vi) when not addressed by Counsel in submissions on Article 8 would make an error of law. However, in this appeal the appellant had adopted a quite detailed statement in which he makes it clear that he has not lived in Sierra Leone since the age of 1. Given that he was aged 23 at the time he appeared before the judge, I believe that the judge should have been alerted by the appellant's statement to the possibility that the appellant might quality under paragraph 276ADE(v). Paragraph 276ADE(vi) provides as follows:

"The appellant at the date of the application is aged 18 years or over, has lived continuously in the UK for less than twenty years (discounting any period for imprisonment) but there would be very significant obstacles to the appellant's integration into the country to which he would be required to go if required to leave the United Kingdom."

17. In the circumstances, I believe that the First-tier Tribunal Judge Davidson did err in law by failing to take account of the evidence which was clearly before him and considering if the appellant could satisfy paragraph 276ADE(vi). The decision cannot stand, I set it aside.

18. When the judge was considering the appellant's Article 8 claim outside the Immigration Rules, he referred to the appellant having spent the first fifteen years of his life in Sierra Leone and the Gambia. He referred to the evidence of the appellant's mother, but did not specifically refer to the appellant's adopted witness statement. It is not clear, therefore that the judge actually read it.

19. Paragraph 13 of the appellant's statement is as follows:

"As I continue to take the medication and receiving moral support from the church in the UK I have regained my right mind [sic]. I reasoned properly and able to retain information [sic] and helps me to live a better life. I cannot return to Sierra Leone as I left there at the age of 1 year and some months old. I have no family or relatives in Sierra Leone and if I am returned there I will have nowhere to live. It was mentioned that I still have family members in Sierra Leone. I do not have any family members in Sierra Leone and even if I do, I do not know their whereabouts. The Sierra Leone community will not accept or accommodate me as they perceive my illness as demonic. I would go through the same trauma I went through when I was much younger and it will get worse this time as the culture has not changed towards people who suffer this type of illness. To Sierra Leonean community it is a 'taboo' and it is contagious. The only family I have is in France, my sister and her family who take care of me financially and my niece and nephew aged 15 and 7 years respectively. I see them quite often as they visit me in the UK now and again."

20. Given that the appellant has been in the United Kingdom now for some seven years, having arrived at the age of 15 years and given also that he has no friends or relatives in Sierra Leone and he has not lived in Sierra Leone until some little time after his first birthday, I am satisfied that the appellant does meet the requirements of paragraph 276ADE and having set aside the judge's decision, I allow the appeal.

Notice of Decision

21. The decision of First-tier Tribunal Judge Davidson was wrong in law and I set it aside. My decision is that the appellant's appeal should be allowed.

Fee Award

To the extent that a fee has been paid or is payable, I make a fee award in favour of the appellant.

Richard Chalkley
Upper Tribunal Judge Chalkley