The decision

Extempore decision

Case No: UI-2022-005470
First-tier Tribunal Nos: HU/57903/2021


Decision & Reasons Issued:
On the 28 April 2023






For the Appellant: Ms S Cunha, Senior Home Office Presenting Officer
For the Respondent: Mr J Peer of Peer & Co

Heard at Field House on 27 February 2023

1. This is an appeal by the Secretary of State. However, for convenience I will refer to the parties as they were designated in the First-tier Tribunal.
2. The appellant is a citizen of South Africa born on 20 November 1985. He has been in the UK since 2001 and was granted indefinite leave to remain in 2003. He has a long history of offending, although none of his offences have given rise to a sentence of imprisonment exceeding twelve months.
3. In the light of the appellant’s persistent offending the respondent made a decision to deport him. She then rejected his argument that removing him to South Africa would breach both Article 3 ECHR and Article 8 ECHR. The appellant appealed to the First-tier Tribunal where his appeal came before Judge of the First-tier Tribunal Dixon (“the judge”). In a decision made following a hearing on 6 July 2022 the judge allowed the appeal.
Decision of the First-tier Tribunal
4. When assessing the appellant’s contention that removing him from the UK would violate Article 8 ECHR, the judge applied the framework in Section 117C of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”).
5. The judge found that the appellant met the definition of a foreign criminal in Section 117D(2) of the 2002 Act because he is a persistent offender.
6. The judge then considered Exception 1 as set out in section 117C(4) of the 2002 Act. This provides as follows:
“Exception 1 applies where –
(a) C has been lawfully resident in the United Kingdom for most of C’s life,
(b) C is socially and culturally integrated in the United Kingdom, and
(c) there would be very significant obstacles to C’s integration into the country to which C is proposed to be deported”.
7. The judge found - and it was not disputed at the hearing - that the appellant has been lawfully resident in the UK for most of his life.
8. The judge also found that the appellant is culturally and socially integrated into the UK. The reasons given were: (i) that the time he had spent in prison was relatively little compared to his overall residence in the UK; (ii) that he has been in the UK since he was a child (aged 15); and (iii) that he has relationships with his mother and ex-partner which are characterised by a “very close bond and mutual emotional dependence”.
9. The judge then considered the third condition in Exception 1: the question of whether there would be very significant obstacles to the appellant’s integration into South Africa. The judge undertook a detailed assessment of this issue in paragraphs 64–68, where he made the following findings:
(a) The judge found that the appellant left South Africa when he was still a child and his only family members in South Africa are elderly grandparents who would be unable to offer him any meaningful support and with whom he does not have any contact (although his mother has contact with them). The judge stated that the appellant would be returning to South Africa without family members there to support him.
(b) The judge found that the appellant would have limited knowledge of the life and culture in South Africa considering how long he has been outside of the country.
(c) The judge found that the appellant’s mother and ex-partner would not be in a position to provide him with financial support from the UK given their circumstances.
(d) The judge found that the appellant would become “seriously dysfunctional” in South Africa because of the absence of the support he depends on from his ex-partner and mother, whose support enables him to maintain a reasonable level of functionality.
(e) The judge found that the appellant has very significant mental health needs. The judge stated the following in paragraph 68:
“Mr Malcolm asserted that there would be treatment and facilities available for the appellant in South Africa. I am not persuaded that this is necessarily the position. However, even if treatment and facilities are available in principle, it would still leave the appellant without the key emotional and stabilising support of his mother and ex-partner. His situation in the UK is precarious in terms of his mental health and that is factoring in the support which he does have from those two individuals in particular. His situation in South Africa would be significantly aggravated and in my judgment his condition would deteriorate significantly even with professional support available. In particular, there is a real risk that he would not have the capacity to access any support due to the likely deterioration and the lack of family support. When I use the term ‘family support’, I mean not only that of his mother but also of his ex-partner who described their relationship as closer than family members and I accept that that is a reliable characterisation. By the same token, I do find that it is likely that he would be able to obtain employment due to his mental fragility. I do not consider he would be able to build up a viable private life within a reasonable time”.
10. The judge then concluded that the appellant satisfied the private life exception to deportation in Section 117C(4) of the 2002 Act. The judge went on to consider whether, in any event, there were very compelling circumstances and concluded that there were.
11. The judge then turned, in the final paragraph of the decision (paragraph 72), to consider the question of whether removing the appellant would breach Article 3 ECHR. The judge concluded that it would given the real risk that the appellant would commit suicide. The judge reached this conclusion on the basis of the evidence of the appellant, his mother and ex-partner, all of which he accepted and found credible; as well as the psychiatric report by Dr Bagalkote. The judge stated in paragraph 72:
“The appellant says that he would kill himself. I am acutely aware of the need to take such statements from appellants in this sort of situation with a great deal of caution but in this particular case I find it is a genuine and serious statement. It is corroborated by the concerns of his mother and ex-partner that he would not be able to cope. They gave credible evidence as to his being very vulnerable there (his likely mental fragility on removal corroborates the cogency and reliability of his stated intention). ... It is also supported by the opinion of Dr Hemant Bagalkote (paragraph 7.14 of the September report) that his mental health is likely to worsen if deported and that his ability to access mental health services in South Africa would be significantly compromised”.
Grounds of appeal and submissions
12. There are three grounds of appeal. However Ms Cunha pursued only the first, which concerns the judge’s assessment of Article 3 ECHR. The challenge to the judge’s Article 3 assessment comprises of two elements. First, it is argued that the judge fell into error by relying on Dr Bagalkote’s assessment of the risk to the appellant in South Africa when this was outside of his expertise. Second, it is argued that the judge fell into error by failing to consider the treatment that would be available to the appellant in South Africa. In her submissions, Ms Cunha argued that the approach taken by the judge indicates a failure to follow authoritative case law on assessing suicide risk. She also submitted that the error identified in the judge’s assessment of Article 3 undermines the judge’s evaluation of Article 8 such that in the event that the respondent were to prevail in respect of her challenge to the judge’s findings on Article 3 the decision in respect of Article 8 could not stand.
13. Mr Peer argued that the judge’s assessment of Article 3 was adequate in that all of the relevant factors were considered and the judge reached a conclusion that was open to him. He emphasised that the judge’s decision on Article 3 did not depend on a finding that treatment and facilities would be unavailable to the appellant; rather, the judge found that the appellant would face difficulties accessing appropriate treatment because of the lack of support from his mother and former partner.
14. With respect to the judge’s assessment of Article 3 ECHR, the grounds submit that the judge erred by failing to recognise that it was outside of Dr Bagalkote’s expertise to comment on access to mental health services in South Africa. However, this is based on a misapprehension of what Dr Bagalkote in fact said. The relevant part of Dr Bagalkote’s report, which is referred to in paragraph 72 of the decision, is paragraph 7.14. Here he states:
“In my opinion, his mental health is likely to worsen and his ability to access mental health services in South Africa will be significantly compromised by the fact that he is expressing clear suicidal ideations and cannot see a future for himself in that country. In assessing Mr Cavanagh’s risk of self-harm or suicide in the event of a forced deportation, it is important to point out that measures taken to prevent a suicidal act (such as restraint or medication) do not address the underlying suicide risk, that they cannot be kept up indefinitely and any such physical measures do not constitute psychiatric treatment”.
15. Had Dr Bagalkote opined on the availability of facilities and treatment in South Africa I would have agreed with the respondent that he had stepped outside of his expertise. However, it is clear from paragraph 7.14 that this is not what Dr Bagalkote did. Rather, he commented on how the appellant’s mental state following separation from his support in the UK would impact on his capacity to access health services in South Africa. This was based on his assessment of the appellant’s mental health, not health facilities and provision in South Africa. Accordingly, I do not accept that in paragraph 7.14 Dr Bagalkote gave an opinion that extended beyond his expertise.
16. The other argument raised in the grounds concerning article 3 is that the judge failed to consider whether treatment would be available in South Africa. The difficulty with this argument is that the judge found that even if facilities and treatment would be available the appellant’s mental state would be so fragile and vulnerable that he would be unable to effectively access the facilities and treatment. In the light of the expert and witness evidence, this was a finding that the judge was entitled to make.
17. However, even if I am wrong, and the judge erred in respect of Article 3, this would be immaterial in the light of the judge’s findings in respect of Article 8, for the reasons set out below.
18. If the appellant falls within Exception 1 as set out in Section 117C(4) of the 2002 Act, the public interest in his deportation will not outweigh his private life and the appellant will succeed in his article 8 claim. Under Exception 1, the appellant needs to establish that he satisfies the following three conditions:
(a) that he had been lawfully resident in the UK for most of his life;
(b) that he was socially and culturally integrated in the UK; and
(c) that there would be very significant obstacles to his integration into South Africa.
19. The judge found that all three conditions were met. The respondent has not challenged the judge’s findings in respect of the first two conditions. However it argued that the judge’s assessment of the third ground cannot stand because it is undermined by the flawed assessment of Article 3. I am not persuaded by this argument. The judge gave multiple sustainable reasons for finding that the appellant would face very significant obstacles integrating in South Africa. These include the absence of family support, difficulty finding employment, and loss of contact with his mother and ex-partner upon whom he is extremely reliant. These reasons are sufficient to support the conclusion the judge reached on the third condition of Section 117C(4) and do not depend, in any way, on the article 3 assessment based on suicide risk that Ms Cunha challenged.
Notice of Decision
The appeal is dismissed. The decision of the First-tier Tribunal did not involve the making of an error of law and therefore stands.

D. Sheridan

Judge of the Upper Tribunal
Immigration and Asylum Chamber