Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/17363/2015

THE IMMIGRATION ACTS

Heard at FIELD HOUSE
Determination Promulgated
On 17 January 2017
On 30 January 2017

Before

DEPUTY JUDGE OF THE UPPER TRIBUNAL
Ms G A BLACK

Between

Mr Mohamed Azeez Ibitoye
NO ANONYMITY ORDER MADE
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms J Fisher (Counsel instructed by JCWI)
For the Respondent: Mr C Avery (Home Office Presenting Officer)

DECISION AND REASONS

1. The appellant in this matter is Mr Ibitoye who is a citizen of Nigeria. I shall refer to the parties as the "appellant" and the "Respondent". I consider whether or not there is a material error of law in the decision the First-tier Tribunal (Judge Hodgkinson)("FtT") promulgated on 14th January 2016 in which he dismissed the appellant's human rights appeal under paragraph 276ADE(vi), Article 3 and Article 8 outside of the Rules.

Background

2. The appellant came to the UK as a student in 2009, was married with 2 children from a previous relationship. He applied for leave to remain under paragraph 276ADE (vi) arguing that there would be "very significant obstacles" to his "integration" in Nigeria because he suffered from severe and enduring mental ill health and would not receive adequate treatment or otherwise be able to integrate in Nigeria. His condition would deteriorate such that he would be destitute.

3. The FtT made clear findings of fact which are unchallenged and were set out at [30-36 & 49 & 54]. The FtT [35] gave reasons for finding that he would be able to integrate in Nigeria. He was in remission at the date of hearing due to the care he was receiving. He had lived in Nigeria all his life and there were no language difficulties. Irrespective of his mental illness he would have no problem integrating in Nigeria.

4. The FtT found that Articles 3 and 8 and on medical grounds were not engaged. The FtT accepted that he would suffer a relapse in Nigeria with little or nothing by way of support available or accommodation and that he was not capable of employment. In the light of there being some basic medical facilities and certain medications available in Nigeria and having regard to " N" and "D", the FtT concluded that the high threshold was not met because the appellant was not currently critically ill such that Article 3 was engaged. Article 8 private life was engaged based on the length of residence in the UK and his care package which included contact with his sister and his wife. The FtT found that the UK had not accepted responsibility for the appellant in terms of health care. GS (India) & others v SSHD [2015] EWCA Civ 40 [86-87] was cited and the FtT considered the appellant's mental health in its assessment of proportionality. The FtT found that the evidence failed to show a disproportionate interference with Article 8 [69]. Thereafter reference was made to Nagre and SS (Congo) and the FtT found no compelling or exceptional circumstances.

Preliminary issue

5. Ms Fisher indicated that amended grounds of appeal dated 20.10.16 did not appear to have been before Mr Justice Edis. Those grounds sought to argue the Article 3 point that had been raised in the FtT. In addition she wished to rely on the recent ECHR judgment on 13.12.2016 of Paposhvili v. Belgium (Application no 41738/10) [183] which arguably altered the law as to the threshold required for Article 3 medical cases to be engaged.

6. Mr Avery having had the opportunity to consider the further papers argued that the terms of the JR were clear. The only issue to be considered was paragraph 276ADE and that Article 3 was outside the remit. Whilst acknowledging that Ockelton J had granted permission "in general terms", it was the 276ADE point that was pertinent.

Decision re preliminary issue

7. I granted leave for the amended grounds to be relied on and pursued. I accepted that Article 3 ought to be considered, given that it had been raised before the FtT and given that permission had been granted in general terms. I proceeded on the basis that the respondent would be allowed time in which to prepare submissions on P following the error of law hearing.

Amended Grounds for permission to appeal

8. Ground 1 contended that the FtT failed to consider under paragraph 276ADE(vi) whether the appellant's severe mental health issues would be very significant obstacles to integration given its findings at [47, 48 and 54]. The findings were completely at odds with the reasoning as to why the appellant could not meet the Rules. The FtT failed to take into account that the appellant was in remission only because of the treatment and support given to him.

9. Ground 2 contended that it was irrational for the UT to conclude that the FtT's consideration of Article 8 outside the rules was correct. The appellant had family life because his ties were beyond the normal emotional ties. The FtT misapplied GS(India) by failing to take into account the appellant's dependency on family members together with his ability to form relationships and develop personally.

10. Ground 3 argued that the threshold in medical cases is arguably met having regard to that fact that the appellant will be destitute and without support and the deterioration in his mental health would lead to acute suffering and anguish.

Permission to appeal

11. Permission to appeal in general terms was granted by UTJ Ockelton following an application for Judicial review ("JR"). Mr Justice Edis found that ground 1 was arguable, namely, that in refusing permission the UT had acted irrationally in concluding that there was no error of law in the FtT's approach under paragraph 276ADE. It was arguable that the FtT's approach to integration was too narrow and given the findings made as to his future in Nigeria, failed to explain adequately why the appeal was dismissed under the Rules.

Submissions

12. Ms Fisher relied on her skeleton argument in which she summarised the undisputed facts. Principally it was accepted that the appellant suffered from a severe and enduring mental illness requiring a considerable degree of support in the community with medication and sheltered accommodation. It was accepted that there was no equivalent accommodation for him in Nigeria and that he would not be able to access the same treatment or support in Nigeria. The medical evidence established that his condition would deteriorate if he went to Nigeria as he would not have access to his medication and was not compliant with taking medication.

13. Ms Fisher relied on the recent decision of Kamara as to the meaning of integration and GS(India) [44] as to the scope of private life. Her main argument was that the FtT acted perversely to the extent that on the facts as found it concluded that the appellant would not face very significant obstacles to integration in Nigeria. The FtT focussed on the fact that the appellant was well and in remission at the date of hearing, and would initially be able to reintegrate in Nigeria where he previously lived. Ms Fisher argued that the appellant would not be able to obtain the treatment available to him in the UK and the absence of the same treatment precluded his integration in Nigeria having regard to the serious nature of his illness. The medical evidence stated that in the absence of his injections (which were administered monthly), the appellant would face relapse with significant deterioration. In short he would be destitute in Nigeria. Article 3 was engaged as this amounted to "intense suffering" (AA (Uganda) [2008] UKAIT 00090).

14. Mr Avery argued that the FtT conducted a thorough and careful analysis under paragraph 276ADE. Re-integration was to be assessed in the light of the degree to which a person had established or integrated in the UK, the extent to which a person was distanced from the possibility of re-integration in the home country. He argued that the approach taken by the FtT looking at the circumstances at the date of hearing was entirely reasonable. There was no suggestion that the appellant's health would instantly deteriorate. He had only spent a short time living in the UK. At the point of return he would be well and able to integrate. Mr Avery argued that Ms Fisher was in fact pursuing a mental health medical point and not re-integration. There was insufficient evidence to show any engagement of Article 8 private life.

15. Ms Fisher responded that the appellant had lived on the UK since 2009. Article 8 was engaged as he lived in the UK for 7 years. The threshold was low. He was well when he lived in Nigeria and his health problems started in the UK. There was no access to sheltered accommodation or to medical treatment in Nigeria. The appellant was found not to be capable of employment. There were other factors that engaged private life such as his family relationships and his close relationship with his care coordinator in the community.

Discussion and conclusion

16. I find that there was a material error of law by the FtT in its approach to paragraph 276ADE in considering what amounted to "very significant obstacles to integration" in Nigeria. The FtT carried out a careful and full assessment of all the evidence including the medical evidence in reaching clear findings of fact. However, I take the view that the FtT erred in its analysis and application of those findings when considering what amounted to very serious obstacles to integration. I accept Ms Fisher's submissions that the guidance in SSHD v Kamara [2016] EWCA Civ 813 advocates a balanced approach; "The idea of integration calls for a broad evaluative judgment to be made as to whether the individual will be enough of an insider in terms of understanding how life in the society in that country is carried on and a capacity to participate in it, so as to have a reasonable opportunity to be accepted there, to be able to operate on a day to day basis in that society and to build up within a reasonable time a variety of human relationships to give substance to the individual's private life or family life."[14] I also accept her argument that on the evidence and facts Article 8 is capable of engagement following GS(India). I do find it perverse that the findings made by the FtT as to the appellant's mental ill health and the findings made as to his future circumstances in Nigeria were found by the FtT not to meet the Rules. The FtT appeared to view his mental health as having only very limited impact on the ability to integrate. The FtT failed to give reasons why it reached the decision that it did given the findings that clearly detail the very significant obstacles to integration. There is a difference as between the requirements of rules and the engagement of Article 8 ECHR on medical grounds. For the FtT to focus on the point of return for its assessment indicates that it took a very narrow approach to the issue of integration which in my view inevitably must involve a wider assessment.

17. The appellant was well when he arrived in the UK. He became ill and was admitted to hospital under section 3 of the Mental Health Act on three occasions between 2011 and 2013. The medical evidence confirmed that he would need to continue treatment for many years to come and the stress of his removal would precipitate a relapse. It was also of significance that the appellant struggled with compliance with his medication and required ingoing support. The mental health facilities in Nigeria were almost non-existent and he would not be in a position to access treatment regardless of any cost issues. The background evidence states that there is stigma and discrimination attached to mental health issues in Nigeria.

18. In the light of the findings made by the FtT I fail to see how, given the appellant's severe and enduring condition, its profound impact on his life and the findings made as to his future in Nigeria, that taken together this did not amount to very significant obstacles to integration. I reject the submission made by Mr Avery that integration should be measured by focussing on the degree of integration in the UK. Even if that were the case it is clear that the significant aspects of the appellant's life are effected by his mental illness and that it dictates the very nature and quality of his life in the UK. He lives in sheltered accommodation (which is not available in Nigeria) and he is not complaint with his medication thus necessitating monthly injections to be administered and he is incapable of work. Further to limit the assessment the point of return when the appellant was in remission, is in my view a failure to consider the appellant's circumstances in reality and as a whole and to deny his very real and severely incapacitating illness and the impact thereof on his ability to integrate. The appellant would not be able to replicate and maintain his current level of health in Nigeria where he would have no access to the support and medication available in the UK. The meaning of integration implies connection, a fitting in with the whole, belonging or forming a part of society, it is a concept that imports the ability to develop real and meaningful connection. It is not limited to social, cultural or family considerations but requires an assessment of all the circumstances, subjective and objective, relevant to the appellant's capability to live independently and its achievability. The wording of the rules emphasises the need to consider the "integration in the country to which he would have to go". Had it been the intention to focus on the degree of integration in the UK the rules would have been drafted accordingly. Further there is no definition of "obstacles" and thus it is left open to interpretation having regard to an individuals circumstances and characteristics, and as a bare minimum would require consideration of the basic aspects of living in a society such as employment, accommodation, the ability to obtain food, education, healthcare, socialisation. In my view such factors preclude the narrow focus at the point of return.

19. To summarise the approach to integration taken by the FtT was too narrow and ought to have taken into account how his mental health would impact on his ability to integrate in Nigeria and to have taken into account his personal relationships with family members and associated to his care in the UK.

20. I find a material error of law in the approach to paragraph 276 ADE(vi). This was the only issue raised under the Rules by the respondent as it was accepted that the suitability requirements were met. I go on to remake the decision on the evidence that was before the FtT. I find that there are very significant obstacles to the appellant's integration in Nigeria. My reasons are set out above. For the same reasons I would alternatively conclude that Article 8 private life (GS (India) is engaged and that the interference is disproportionate. I am satisfied that his private life includes individual features and aspects of personal and moral integrity which necessarily incorporates his mental health which is an enduring illness. The Courts (Bensaid [47]) have already found that private life is a "broad term" and that "the preservation of mental stability is in that context an indispensible precondition to effective enjoyment of the right to respect for private life." In addition there are other factors such as his residence of 7 years and his relationships with family which engage Article 8. I do not find evidence of family life that there are emotional ties above and beyond the normal family ties, but private life is clearly established. The decision is unlawful as I have found that the Rules are met. There would be an interference as the appellant would face destitution and incarceration. Having regard to public interest factors under section 117B 2002 Act I find none that are capable of outweighing the appellant's private interests and accordingly the interference is disproportionate.

21. I indicated at the hearing that I would allow a further opportunity for the parties to make submissions on Article 3 with particular reference to the issue of the threshold for medical cases in the light of the judgment of Paposhvili. Although I indicated that a further hearing would be arranged I now take to view that such submissions can readily be made in writing.

22. Decision

There is a material error of law in the decision which shall be set aside.
I remake the decision and allow the appeal under the Immigration Rules paragraph 276ADE(vi) and under Article 8 ECHR.

23. Directions

I direct that if considered necessary up to date medical evidence is produced within 14 days of the issue of this decision to be served on the respondent and on the Tribunal within 7 days of receipt. Thereafter I direct that written submissions are produced by both parties within 14 days of the receipt of the medical evidence. The submissions, in the event that Article 3 is to be pursued in the appeal, are to deal with the matters referred to in paragraph 21. All material is to be marked for the attention of Deputy Judge GA Black.

Signed Date 27.1.2017

GA Black
Deputy Judge of the Upper Tribunal

NO ANONYMITY ORDER
NO FEE AWARD

Signed Date 27.1.2017

GA Black
Deputy Judge of the Upper Tribunal