Tribunal decisions

The decision

IAC-AH-KRL-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/20928/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision sent to parties on
On 17th January 2017
On 7th February 2017

Before

UPPER TRIBUNAL JUDGE GLEESON

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant

and

Kashif Ali
(no anonymity order made)
Respondent

Representation:

For the Appellant: Mr N Bramble, a Senior Home Office Presenting Officer
For the Respondent: Ms S Gokhool, instructed by S G Law, solicitors

DECISION AND REASONS

1. The Secretary of State appeals with permission against the decision of the First-tier Tribunal, allowing the claimant's appeal against her refusal to grant further leave to remain on the basis of family and private life, that decision being taken on 31 January 2015.
2. In 2011, the claimant came to the United Kingdom as a visitor and applied for leave to be extended for private medical treatment, which his brother has funded. He was here with leave on that basis until February 2015 and it is to be noted that all his applications for leave to remain were made in time and that he has not had any period of intentional overstay.
3. Before coming to the United Kingdom, the claimant lived with his mother and three sisters, one of whom is also schizophrenic. His mother is now 70 years old and struggling to cope with the claimant's schizophrenic sister. His illness was not well controlled there and he spent periods in state-run psychiatric institutions in Pakistan where he was not well treated, where he was beaten, and where he was unsafe, on one occasion taking apart an electrical appliance and exposing live wires which could have done him or other people harm.
4. The application for leave to remain made on 31 January 2015 was refused on 1 April 2015 on the basis that the drugs which the claimant receives are available in Pakistan and that there is treatment there for schizophrenia. The Secretary of State considered that the claimant could be supported by family in Pakistan, but the evidence which the First-tier Tribunal Judge accepted, was that while in Pakistan he was effectively supported by the brother with whom he now lives in London and who supervises him all day, takes him to work with him, makes sure he dresses, makes sure he eats, makes sure he takes his medication and so forth. The claimant's brother runs a dry cleaning business: the claimant presses clothes and helps out a bit, but has no customer interaction.
5. The Secretary of State did not appear or arrange representation for the First-tier Tribunal. The evidence adduced by the claimant, being witness evidence from himself and his brother and a medical report from Dr Amir Bashir, MBBS, MRCPSYCH, DPM, DPP, DAB, consultant psychiatrist at the London Psychiatric Clinic was not cross-examined or challenged by her. The First-tier Tribunal Judge accepted the evidence as credible and found that, on the particular facts of this appeal, there were 'very significant obstacles' to the claimant's return to Pakistan. He allowed the appeal.
6. The Secretary of State now invites the Upper Tribunal to reopen the finding of fact by the First-tier Tribunal that there are very significant obstacles to the claimant's reintegration into Pakistan. The Secretary of State puts her case thus:
"It is asserted that such a finding is irrational, given that the [claimant] has spent 37 of his 42 years in that country, speaks the language and has family there to accommodate and support him. In terms of the [claimant's] schizophrenia, the judge finds that there is a functioning mental health system in Pakistan. Although the judge finds that the [claimant] is at risk of expressing anti-Islamic views in Pakistan if he does not take his medication [60], there is no explanation as to why he would not take this medication with the support of family and mental health professionals. A finding of very significant obstacles was not open to the judge on the evidence".
7. Before the Upper Tribunal can interfere with a finding of fact by the First-tier Tribunal, particularly in circumstances where no representative of the Secretary of State appeared to challenge the evidence at the hearing or advance contrary arguments, it is necessary to meet the standard set out in R (Iran) v Secretary of State for the Home Department [2005] EWCA Civ 982 at [90] by Lord Justice Brooke, in which he identified a narrow range of circumstances where interference with a finding of fact could be made on appeal to the Upper Tribunal: perversity, Wednesbury unreasonableness, failure to make findings which accord with the evidence such that they are not supported at all by the evidence or unintelligible to the reviewing Judge.
8. In this case the evidence before the judge was set out at [43]-[55], and the findings of fact therefrom, at [56]-[61]. In short, the Judge found that the claimant lived in Pakistan until the age of 43, and had outpatient and residential medical treatment there for his schizophrenia, being supported by the brother with whom he now lives in the United Kingdom. The claimant's mother has the misfortune to have two schizophrenic children and is now about 70 years old and not coping particularly well with the claimant's sister, who is also schizophrenic. The Judge found that she would not be in a position to take on the intensive care which the claimant requires, and that he would deteriorate in Pakistan rapidly. His brother's input is the most important part of management of his chronic illness. During a brief period where he had to sleep in the brother's shop, the claimant deteriorated because he was not sufficiently under his brother's eye.
9. The evidence which the claimant's brother gave, which the First-tier Tribunal Judge accepted, was that before coming to the United Kingdom, the claimant had several times ended up in psychiatric institutions in Pakistan where he was ill-treated and unsafe. Because the claimant's schizophrenia causes him, when not properly treated, to make anti-Islamic statements and to challenge the religious orthodoxy of Pakistan, the brother's evidence, which Dr Bashir supported, was that he would be at particular risk on return as he is ill-equipped for self-protection.
10. The unchallenged evidence medical evidence from Dr Bashir is that, even with the level of support now provided by his brother in the United Kingdom, which amounts to 24-hour supervision, sometimes the claimant does not take his medication and has difficulty. Dr Bashir's opinion is that if the claimant returns to Pakistan he is highly likely to stop his medication, his acute psychotic symptoms will reappear and he will live aimlessly, be in company of antisocial components of society, become eccentric, get into the use of illicit drugs and petty crimes and end up in a long stay state run mental institution, where he will be ill-treated and unsafe again.
11. I remind myself that the Secretary of State was not represented before the First-tier Tribunal and that the claimant's evidence, and that of his brother, was not challenged. On the unchallenged evidence before the First-tier Tribunal, I am satisfied that it was unarguably open to the judge to take the view that this particular claimant could not be easily reintegrated into Pakistan and that there were very significant obstacles, not the least of which is that in this case his psychotic symptoms include religious expressions which are likely to be treated as anti-Islamic in Pakistan and put him in danger of at least disapproval and discrimination and possibly worse.
12. I decline to interfere with the finding of fact that the claimant had discharged the burden upon him of showing that there were 'very significant obstacles' to his reintegration in Pakistan if he were returned there. The R (Iran) standard is not met: the First-tier Tribunal's decision is neither perverse, Wednesbury unreasonable, contrary to the unchallenged evidence, or unintelligible to me.
13. I dismiss the Secretary of State's appeal.

Signed: Judith A J C Gleeson Date: 6 February 2017
Upper Tribunal Judge Gleeson