- Case title:
- Appellant name:
- Status of case: Unreported
- Hearing date:
- Promulgation date:
- Publication date:
- Last updated on:
IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2022-002514
First-tier Tribunal No: HU/52167/2021
THE IMMIGRATION ACTS
Decision & Reasons Issued:
On the 28 April 2023
UPPER TRIBUNAL JUDGE LESLEY SMITH
(NO ANONYMITY DIRECTION MADE)
SECRETARY OF STATE FOR THE HOME DEPARTMENT
For the Appellant: Ms R Akhter, Counsel instructed by Taj solicitors
For the Respondent: Ms A Nolan, Senior Home Office Presenting Officer
Heard at Field House on 8 March 2023
DECISION AND REASONS
1. The Appellant appeals against the decision of First-tier Tribunal Judge Athwal dated 29 March 2022 (“the Decision”) dismissing the Appellant’s appeal against the Respondent’s decision dated 12 May 2021, refusing his human rights claim. The claim is made on the basis that removal would breach Articles 3 and/or 8 ECHR. The Appellant relies on his private life formed in the UK, his relationships with family members in the UK and his mental health problems.
2. The Appellant is a national of Bangladesh. He came to the UK on 3 September 2005 on a work permit visa. His leave in that capacity expired on 8 August 2006 and he has overstayed since. He has made several applications based on his human rights which have all been refused with no right of appeal. His latest application was made on 31 October 2019, and, in that context, he made a human rights claim on 16 March 2021 refused by the decision under appeal.
3. Judge Athwal first considered the claim based on the Appellant’s mental health. She rejected that as reaching the threshold which applies to Article 3 ECHR claims. She also rejected the Appellant’s claim that he would be at risk of committing suicide if removed to Bangladesh. The Judge went on to consider the Appellant’s mental health also as part of his claim that there would be very significant obstacles to integration in Bangladesh. She considered also in that regard the Appellant’s background and lack of family ties in Bangladesh. She rejected the claim that removal would breach paragraph 276ADE(1)(vi) of the Immigration Rules (“Paragraph 276ADE(1)(vi)” of “the Rules”). The Judge then went on to carry out an Article 8 assessment outside the Rules, balancing the interference with the Appellant’s private and family life against the public interest. She concluded that removal would not breach Article 8 ECHR and dismissed the appeal on all grounds.
4. The pleaded grounds can be summarised as follows:
(a) The Judge irrationally rejected the mental health claim by failing to have regard to all the evidence in relation to the Appellant’s treatment.
(b) The Judge irrationally rejected the Appellant’s case that treatment would not be available in Bangladesh and, in so doing, relied on her own research rather than taking into account the background evidence on which the Appellant relied.
(c) The Judge speculated when asserting that one of the Appellant’s brothers in the UK could go back to Bangladesh with him.
(d) The Judge failed to take into account the family ties on which the Appellant relies and in so doing failed to take into account the guidance given in Kugathas v Secretary of State for the Home Department  EWCA Civ 31 (“Kugathas”).
(e) The Judge erred in her assessment whether there would be very significant obstacles to integration in Bangladesh given the family support on which the Appellant claims to rely.
5. Permission to appeal was refused by First-tier Tribunal Judge Rodger on 16 May 2022 in the following terms so far as relevant:
“... 3. In a well-reasoned decision the judge gave clear and adequate reasons for each of the findings set out in the judgment. The judge raised at the outset of the hearing that there was no witness statement from the appellant and that the appellant was not being called to give evidence but that there was no medical evidence that the appellant was unfit to give oral evidence. However, no application to adjourn was made and the appellant wished to proceed and the appellant did not give evidence but called evidence from his brother and cousin, the evidence of which was noted and taken into account by the judge.
4. The judge set out in the decision the limited medical evidence that was available and engaged appropriately with all of the available evidence and made reasonable well-reasoned findings available to her. The judge referred to the most up to date CPIN and engaged with the CPIN and her findings in respect of the availability and access to medical treatment in Bangladesh were well reasoned and open to the judge on the evidence.
5. The grounds amount to nothing more than a disagreement with the findings of the judge, findings which were properly open to the Judge on the evidence before her. The grounds disclose no arguable unfair or unreasonable assessment of the evidence or other arguable error of law.”
6. Following renewal of the application for permission to appeal to this Tribunal on essentially the same grounds, permission to appeal was granted by UTJ Owens on 24 November 2022 in the following terms so far as relevant:
“... 2. In general, the grounds are rambling and poorly drafted, nevertheless it is arguable that the judge failed to take into account material evidence; namely evidence of the difficulties of the appellant accessing mental health treatment in Bangladesh. At  the judge refers to a 110-page bundle uploaded on 28 February 2022 containing 74 pages. The 110-page bundle was in fact uploaded on 20 January 2022 and the 74-page bundle referred to by the judge as being uploaded on 28 February 2022 was a supplementary bundle. The initial bundle arguably contained material evidence including evidence of where the appellant resided in Bangladesh (contrary to the judge’s assertion at ); a google map with the distance the appellant would need to travel for treatment; evidence about the availability of treatment as well as submissions in the skeleton argument about the difficulties of travelling for treatment. The GP evidence, although not contemporaneous with the hearing, was only 3 months old and it is arguable that the judge erred at  when he stated that he had not been provided with any medical evidence that establishes the appellant’s current mental health situation and treatment.
3. The grounds in respect of Article 3 ECHR are weaker, nevertheless permission is granted on all grounds.”
7. The Respondent filed a Rule 24 Reply on 19 December 2022 seeking to uphold the Decision. She fairly accepted that the Judge “appeared to have overlooked the evidence in relation to the appellant’s home area and the asserted distance to a treatment centre” but submitted that this was not an error because the Appellant had failed to make out his case under Article 3 ECHR as to the need for treatment.
8. I had before me the core documents relating to the appeal, the Respondent’s bundle before the First-tier Tribunal and the Appellant’s initial bundle and supplementary bundle before the First-tier Tribunal. Given the significance placed on documents in the initial bundle, I refer to various pages in that bundle below as [AB/xx]. Ms Akhter also produced a skeleton argument for the hearing before me.
9. Having heard submissions from Ms Akhter and Ms Nolan, I indicated that I would reserve my decision and provide that in writing with reasons which I now turn to do.
DISCUSSION AND CONCLUSIONS
10. Ms Akhter relied on the grant of permission by UTJ Owens which she said was “correct”. As such, she adopted the theme that Judge Athwal had not recognised that she had two bundles from the Appellant and had thereby ignored relevant evidence.
11. As Ms Nolan accepted, there did appear to be some confusion in relation to the documents which were before Judge Athwal as set out at  of the Decision. However, I reject Ms Akhter’s submission that the Judge did not have regard to documents in the initial bundle for the following reasons.
12. I begin with evidence about the Appellant’s treatment. I drew Ms Akhter’s attention to this Tribunal’s guidance in AM (Art 3; health cases) Zimbabwe  UKUT 00131 (IAC). As the guidance makes clear it is for an appellant to show the need he or she has for treatment and, at least initially, that such treatment is not accessible or affordable in the appellant’s home country.
13. Ms Akhter directed me first to  and  of the Decision where the Judge said this:
“59. I have considered the Appellant’s medical records, which were printed at the GP’s surgery on 17 February 2022. The first reference to any mental health issues is recorded on 31 January 2020. The GP notes record the following, ‘ has been suffering for anxiety, gets angry easily, waking up with bad dream’. He was prescribed seven 5mg Diazepam tablets, one to be taken daily.
60. The Appellant returned to his GP in February and August 2020 but there is no further reference to any mental health issues or suicide attempts. I attach significant weight to this because I was told by the witnesses that it was during this period that the Appellant attempted to commit suicide and they sought medical treatment for him.”
14. Ms Akhter said that this extract and in particular the words “no further reference” showed that the Judge had failed to take into account more recent evidence. She drew my attention in particular to a letter dated 17 June 2021 at [AB/41] and one dated 20 December 2021 at [AB/33] which she submitted had not been considered.
15. The difficulty with that submission is that the Judge very clearly had regard to both letters. The December 2021 letter is cited in full at  of the Decision. Similarly, the June letter is set out in full at  of the Decision. Neither letter appears in the Appellant’s supplementary bundle. The Judge must therefore have had regard to evidence in the Appellant’s initial bundle.
16. Faced with that difficulty, Ms Akhter then submitted that what the Judge said at  of the Decision in particular was inconsistent with the Judge’s recording of the 20 December letter. There had indeed been “further reference” in the evidence to mental health problems.
17. As Ms Nolan pointed out, however, what is said at  and  of the Decision has to be read in context. The Judge was there dealing with “suicidal ideation” (see heading to that section) and dealing with the evidence of the Appellant’s family members that the Appellant had attempted suicide in the summer of 2020 (see evidence recorded at  and  of the Decision). The Judge rejected that account because the medical records did not disclose any mention of a suicide attempt at that time nor that the Appellant had been treated for mental health problems or a suicide attempt in that period.
18. Whilst it is right to note that the GP at [AB/33] does refer to the Appellant having “flash backs of suicidal intent in Bangladesh and having suicidal thoughts” (as recorded at  of the Decision) that is not the same thing as the Appellant having attempted suicide as the Appellant’s family members claimed had occurred. The Judge was therefore entitled not to accept the evidence about the suicide attempt. That is what the Judge was dealing with when referring to the medical records at  and  of the Decision. There is therefore no inconsistency as asserted.
19. Ms Akhter also submitted that the Judge had failed to deal with what was said in the December letter when dealing with the Appellant’s treatment in December 2021 at  of the Decision. However, again, that paragraph has to be looked at in context. The Judge was there dealing with the medical records and not the GP’s letter.
20. Ms Akhter also said that the Judge failed to take into account that the Appellant had been referred to Talking Therapies. She referred me to an appointment letter dated 11 January 2022 at [AB/31]. First, that submission is not sustainable since the Judge did mention that referral at  of the Decision. Second, that shows in any event that the Appellant was referred for a 45 minute telephone appointment “to determine whether the services …[were] appropriate to meet [the Appellant’s] needs”. Ms Akhter was unable to point me to any evidence that the Appellant had even attended that appointment, still less that he had been accepted for treatment. As Ms Nolan pointed out (and as Judge Rogers also referenced) the Judge had made the point to the Appellant’s legal representative (as recorded at  of the Decision) that the Appellant had not himself provided a statement but that there was no medical opinion that he was unfit to give evidence. The Appellant’s representative confirmed that he wished to proceed notwithstanding the indication as to the lack of corroborative medical evidence.
21. I am satisfied therefore that the Judge did not err when considering the medical evidence about the treatment which the Appellant was receiving in the UK and the level of treatment which he would therefore need on return to Bangladesh. The Judge was entitled to reach the findings she did that there was no real risk that the Appellant would attempt suicide if removed () and that there was no evidence establishing the Appellant’s “current mental health situation and treatment” () or evidence showing that the Appellant’s mental health would deteriorate so as to meet the Article 3 threshold ().
22. Those findings are sufficient to dispose of the Article 3 claim. However, since I heard from Ms Akhter as to the remaining findings and I also have to consider the Article 8 assessment to which the Article 3 findings are a background, I turn to the findings about the treatment available in Bangladesh. The Judge dealt with this issue at  to  of the Decision.
23. Ms Akhter accepted that the Respondent’s Country Policy and Information Note: Bangladesh: Medical and Healthcare Issues (Version 1: May 2019) (“the CPIN”) was the most up-to-date background evidence available to the Judge. I confess to not understanding the Appellant’s pleaded case in this regard. It is suggested that the Judge undertook her own research but also accepts that the CPIN was included in the Appellant’s bundle at [AB/80-81]. It is difficult to suggest that the Judge ignored [9.1.1] of the CPIN when it is clearly cited at  of the Decision. The Judge had to consider the whole of the relevant section not just the part which suits the Appellant.
24. Ms Akhter also submitted that what was said by the Judge at  of the Decision was internally contradictory. That reads as follows:
“I have in any event considered whether there is an absence or lack of access to appropriate treatment in Bangladesh. I will deal firstly with whether treatment is available in Bangladesh. I have considered the Country Policy and Information Note Bangladesh: Medical and Healthcare issues, version 1 published May 2019. I have considered the country information provided by the Appellant but it is not up-to-date and I therefore prefer the CPIN…”
25. Although I accept as I have already recorded that the Appellant had provided the CPIN in his bundle, as I read  of the Decision what the Judge was rejecting was the other background evidence relied upon (see [AB/70-99]). For example, Ms Akhter sought to direct my attention to [AB/86] concerning the number of beds per 100,000 of population for mental health treatment but that forms part of a World Health Organisation document dating back to 2007.
26. I turn then finally to the error which the Respondent accepts exists in relation to where the Appellant lives in Bangladesh. There is a “Google” map extract at [AB/107] which shows that from Sylhet (from where the Appellant emanates) to “Mental Hospital Pabna” is a distance of 414km and takes about 10 ½ hours to drive.
27. The paragraph of which complaint is made in this regard is  of the Decision as follows:
“It is not the function of the returning State to alleviate disparities between health-care systems. The country information establishes that free treatment is provided in government facilities in urban centres and metropolitan cities. The Appellant has not told me where he lives in Bangladesh. There is no evidence before me that he would be unable to travel a reasonable distance to obtain medical care.”
28. Ms Akhter was unable satisfactorily to explain to me why the Appellant was relying on the medical facility which he did in the “Google” maps. It appears from the pleaded ground in this regard that the Appellant was relying on a submission at [9(d)] of the skeleton argument before the First-tier Tribunal ([AB/7]) that this was “the only mental hospital” but it is entirely unclear on what evidence that assertion is based. Moreover, although the Judge was wrong to say that there was no evidence about where the Appellant lived in Bangladesh, read in the context of what precedes that sentence and which relies on the CPIN, any error is clearly immaterial. When I asked Ms Akhter where the nearest urban area to Sylhet was, she said that Sylhet itself was an urban area.
29. In any event, as the Judge pointed out, there was insufficient evidence that the Appellant needed treatment at a mental hospital. His treatment in the UK has been mainly primary care based and his mental health is largely treated with medication.
30. The Appellant’s case is not limited to his medical treatment. He also says that he is reliant on family support. His accessibility to medical treatment in Bangladesh is considered by the Judge in this context at  of the Decision. The Judge made the following finding:
“I turn to consider whether he could access this treatment. Mr S Ahmed told me that he regularly visited Bangladesh when his brother was alive and had not returned since his brother died in September 2021. I have not been told why it would not be possible for Mr S Ahmed to return with his brother and settle him into the family home and register him with a doctor before returning to the UK.”
31. The Appellant complains that this finding is speculative and irrational since the Appellant has no family members in Bangladesh. However, again, the finding has to be read in context. Mr S Ahmed told the Judge in evidence that he used to visit Bangladesh to see his other brother who had apparently committed suicide there. Although he said in his statement that he could not go back to Bangladesh to live, the Judge was entitled on the evidence to find that the Appellant’s brother could return temporarily to settle the Appellant in to Bangladesh and help him to access treatment. That is neither speculative nor inconsistent with the evidence.
32. Further, as Ms Nolan pointed out, the Article 3 claim fails in any event on the findings made by the Judge at  of the Decision that “[t]here [was] no medical evidence before [her] that the Appellant’s condition is so serious, or that without medication his condition would deteriorate such that he would be unable to seek medical attention if required”.
33. Moving on then to Article 8 ECHR, it is accepted that a claim based on mental health might still succeed if there are other factors which, when added to the mental health issues render the decision to remove disproportionate. The leading authority in this regard is GS (India) and others v Secretary of State for the Home Department  EWCA Civ 40 as follows:
“85. It is common ground that in cases where the claimant resists removal to another State on health grounds, failure under Article 3 does not necessarily entail failure under Article 8. In her skeleton argument at paragraph 55 Ms Giovanetti for the Secretary of State cites JA (Ivory Coast) & ES (Tanzania) v SSHD  EWCA Civ 1353, in which the appellants had been given a "de facto commitment" that they would be allowed to remain in the UK for treatment. Sedley LJ, with whom Longmore and Aikens LJJ agreed said this at paragraph 17:
‘There is no fixed relationship between Art. 3 and Art. 8. Typically a finding of a violation of the former may make a decision on the latter unnecessary; but the latter is not simply a more easily accessed version of the former. Each has to be approached and applied on its own terms, and Ms Giovannetti is accordingly right not to suggest that a claim of the present kind must come within Art. 3 or fail. In this respect, as in others, these claims are in Mr Knafler's submission distinct from cases such as D and N, in both of which the appellant's presence and treatment in the UK were owed entirely to their unlawful entry ...’
86. If the Article 3 claim fails (as I would hold it does here), Article 8 cannot prosper without some separate or additional factual element which brings the case within the Article 8 paradigm – the capacity to form and enjoy relationships – or a state of affairs having some affinity with the paradigm. That approach was, as it seems to me, applied by Moses LJ (with whom McFarlane LJ and the Master of the Rolls agreed) in MM (Zimbabwe)  EWCA Civ 279 at paragraph 23:
‘The only cases I can foresee where the absence of adequate medical treatment in the country to which a person is to be deported will be relevant to Article 8, is where it is an additional factor to be weighed in the balance, with other factors which by themselves engage Article 8. Suppose, in this case, the appellant had established firm family ties in this country, then the availability of continuing medical treatment here, coupled with his dependence on the family here for support, together establish 'private life' under Article 8. That conclusion would not involve a comparison between medical facilities here and those in Zimbabwe. Such a finding would not offend the principle expressed above that the United Kingdom is under no Convention obligation to provide medical treatment here when it is not available in the country to which the appellant is to be deported.’”
34. The Appellant places reliance also in this context on his family support in the UK which would be lacking in Bangladesh. The Judge dealt with this when considering Paragraph 276ADE(1)(vi). Having repeated her findings in relation to the medical evidence and the Appellant’s mental health issues and treatment, she had regard to the lack of family in Bangladesh but repeated her finding on the evidence that Mr S Ahmed had returned to Bangladesh in the past when their other brother was still alive. She also noted that the family still had a family home in Bangladesh (). The Judge considered the witness evidence that the Appellant had never worked either in Bangladesh or the UK but rejected that as not credible. The Appellant therefore had transferable skills which would assist him on return (). The Judge had regard to the Appellant’s length of residence in the UK but found that his background and upbringing in Bangladesh would assist him to integrate there (). The Judge was entitled to reach the finding she did that there would be no very significant obstacles to the Appellant’s integration in Bangladesh.
35. Ms Akhter also said that the Judge had failed to take into account the Appellant’s mental health issues, his family support and his length of residence in the UK when assessing Article 8 outside the Rules. The Judge had of course already reached findings in relation to the Appellant’s mental health, the treatment he needed and the availability of that treatment when considering Article 3 ECHR. The Appellant’s case in relation to lack of family support and length of residence in the UK had also already been considered when the Judge made her findings in relation to Paragraph 276ADE(1)(vi). She did not have to repeat those findings.
36. In any event, she summarised those findings at  and  of the Decision as follows:
“87. I turn to consider the Appellant’s family life in the UK. I have been told that the Appellant lives with his aunt but is very close to brother and his family. The Appellant relies on his mental health condition to establish that his emotional and financial ties to his family go beyond a normal relationship. For the reasons set out above, I do not accept that the witnesses have told the whole truth about the Appellant’s financial situation and I am not satisfied on the evidence before me that the Appellant is entirely dependent on his family for his finances. The medical evidence does not establish that the Appellant’s condition is so serious that he is reliant on his family for his day-to-day care. Furthermore I have the letter from the GP dated 20 October 2020 in this the Appellant stated that he lived alone and had some friends. He did not refer to the Appellant’s family or his dependency upon them. I have considered the evidence as a whole and I am not satisfied that the Appellant has established that his family life with his brother, brother’s family, cousin and cousin’s family engages Article 8(1).
91. Weighing on the Appellant’s side is the fact that he has been in the UK for 17 years. During that time he has made friends in the UK and is close to his extended family, who have provided him emotional and some financial support. The Appellant has suffered from mental illness and states that being in the UK has provided him with a safe and secure environment which has assisted his condition. I have also taken into consideration that the Respondent has not acted expeditiously in removing the Appellant and as result his private life in the UK has strengthened.”
37. The reference at  of the Decision to the ties which the Appellant has to his family and the Judge’s findings in that regard dispose of the point in the pleaded grounds regarding Kugathas. Those findings disclose a consideration of the guidance there given and were open to the Judge on the evidence.
38. There is no failure by the Judge to take into account any of the factors on which the Appellant relies when assessing Article 8 outside the Rules. She reached findings which were open to her on the evidence. Balancing those factors against the public interest, she was entitled to conclude that the Article 8 claim could not succeed.
39. For the foregoing reasons, the Appellant has not shown that there is any error of law in the Decision. I therefore uphold the Decision with the consequence that the Appellant’s appeal remains dismissed.
NOTICE OF DECISION
The Decision of First-tier Tribunal Judge Athwal dated 29 March 2022 does not involve the making of an error on a point of law. I therefore uphold the Decision with the consequence that the Appellant’s appeal remains dismissed.
L K Smith
Upper Tribunal Judge Lesley smith
Judge of the Upper Tribunal
Immigration and Asylum Chamber
9 March 2023