Tribunal decisions

The decision

IAC-AH-KRL-V2

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/27670/2015

THE IMMIGRATION ACTS

Heard at Stoke
Decision & Reasons Promulgated
On 17th January 2017
On 09th March 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE D N HARRIS

Between

mr OUE
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms F Clarke, Counsel
For the Respondent: Mr A McVeety, Home Office Presenting Officer

DECISION AND REASONS
1. The Appellant is a citizen of Nigeria, born on 21st February 1972. The Appellant claims to have arrived in the United Kingdom in August 1999 but did not claim asylum until 31st October 2007. That application was refused on 26th October 2010 and an appeal was lodged which was allowed on 20th January 2011. The Appellant was then granted three years’ discretionary leave to remain expiring on 11th February 2014. On 23rd January 2014 the Appellant submitted a further application for further leave to remain based on his family and private life. That application was refused by Notice of Refusal dated 16th July 2015.
2. The Appellant appealed and the appeal came before Judge of the First-tier Tribunal Butler, sitting at Birmingham on 1st June 2016. That appeal was dismissed in a decision and reasons promulgated on 27th June 2016.
3. The Appellant lodged Grounds of Appeal to the Upper Tribunal on 7th July 2016. Those grounds contended:-
(i) that the First-tier Tribunal Judge fell into error at paragraph 56 in the decision and reasons in his consideration of proportionality as he had failed to consider adequately the Appellant’s wife’s support as a major factor to the Appellant’s recovery from his mental illness;
(ii) that the First-tier Tribunal Judge failed to consider the objective information adequately in regard to the access to mental health services available to the applicant on his return to Nigeria;
(iii) that the judge fell into error at paragraph 59 and that the finding therein was perverse.
4. On 24th November 2016 First-tier Tribunal Judge P J M Hollingworth granted permission to appeal. After five paragraphs setting out the history of this matter Judge Hollingworth concluded thereafter that it was arguable that the judge had made an insufficient analysis of the relationship between the support offered to the Appellant’s wife by friends and the level of support offered by the Appellant’s wife to the Appellant. Further he considered that it was arguable that the judge had made an insufficient analysis of the role of the Appellant’s wife on a return of the Appellant to Nigeria in the light of the medical services available there and the evidence concerning the role of the Appellant’s wife in the United Kingdom. In the absence of a full analysis as to the role which the Appellant’s wife could continue to perform in Nigeria having left the United Kingdom. He considered it was arguable that the judge should have conducted such analysis, including these features of the case in the context of the absence of the support of the community psychiatric nurse on departure from the United Kingdom set against the question of the extent of the available facilities and necessary treatment in Nigeria. He also considered that perhaps the judge should have conducted a fuller analysis of the relationship between the extent of the available medical services in Nigeria and the extent of available support in Nigeria whether from the Appellant’s wife or others.
5. On 14th December 2016 the Secretary of State responded to the Grounds of Appeal under Rule 24. The Rule 24 response contends that the determination is comprehensive and that the judge considered all of the evidence presented and the factual matrix of the case. It noted that the Appellant has a Nigerian partner and that she has an outstanding application made outside the Rules. The couple have a Nigerian child. The judge considered the best interests of the child and applied the ratio of guiding case law to the Appellant’s mental health issues. It concludes by submitting that the judge gave cogent and adequate reasons for dismissing the appeal.
6. It is on that basis that the appeal comes before me to determine whether there is a material error of law in the decision of the First-tier Tribunal Judge. The Appellant is represented by his instructed Counsel, Ms Clarke. Ms Clarke is very familiar with this matter. She appeared before the First-tier Tribunal and she is the author of the Grounds of Appeal to the Upper Tribunal. The Secretary of State appears by her Home Office Presenting Officer, Mr McVeety. I decided in this instance that this was a suitable case for an anonymity direction to be made and the case is subsequently anonymised for the purpose of this decision.
Submission/Discussion
7. Ms Clarke starts by taking me to paragraph 6 of the grant of permission, namely that the judge had made an insufficient analysis of the relationship between the support offered to the Appellant’s wife by friends and that offered by the Appellant’s wife to the Appellant. She cross-references this submission with paragraph 44 where the judge accepted the evidence of the Appellant’s friend Mr U and the evidence set out at paragraph 8 of Mrs ARE’s (the Appellant’s wife) witness statement. That paragraph refers to the Appellant’s nightmares. She also refers me to the letter from Miss D, the community psychiatric nurse and the evidence therein, contending that the Appellant’s mental state would in her view deteriorate significantly in the event of the Appellant’s wife and son being returned to Nigeria.
8. Ms Clarke challenges paragraph 55 of the decision relating to the evidence given by Mr S which the judge found did not support the notion that Mr S too was put “on call” when the Appellant needed him.
9. Ms Clarke then turns to the level of medical services available and the comments expressed by the judge granting permission at paragraph 7 of the permission. She takes me to paragraph 72 of the decision and the judge’s finding that the Appellant’s illness has not reached the critical stage and therefore the high threshold set out in the decision in N v SSHD has not been reached. She asks me to consider paragraphs 73 and 74 and submits that the Appellant comes within the exception to be found in GS (India) and Others v SSHD. She submits that the failure to consider the psychiatric nursing availability in Nigeria is relevant and points out that there is no community care available in Nigeria and this is an aspect that the judge should have considered. She asks me to allow the appeal.
10. Mr McVeety starts by pointing out to me that this is a case brought under Article 8 of the European Convention of Human Rights and not Article 3. He submits that the grant of permission has to be wrong. He reminds me of the findings in Akhalu (health claim: ECHR Article 8) Nigeria [2013] UKUT 00400 (IAC), as well as the decision in GS (India). He submits that this is a case of three Nigerians wishing to stay so that they can access medical facilities in the UK. He submits that it is necessary for there to be far more than this. He emphasises there is no family connection for the Appellant to the UK and that the judge has carried out a full analysis, including all the relevant factors that is necessary in order to come to his decision. He points out that every Article 8 case on medical grounds has been considered and that there is no error of law and that all the arguments amount to nothing more than simple disagreement.
11. In brief response Ms Clarke emphasises that the Appellant did not come to this country for medical treatment and that is emphasised in paragraph 65 of the decision. She maintains her previous submissions.
The Law
12. Areas of legislative interpretation, failure to follow binding authority or to distinguish it with adequate reasons, ignoring material considerations by taking into account immaterial considerations, reaching irrational conclusions on fact or evaluation or to give legally inadequate reasons for the decision and procedural unfairness, constitute errors of law.
13. It is not an arguable error of law for an Immigration Judge to give too little weight or too much weight to a factor, unless irrationality is alleged. Nor is it an error of law for an Immigration Judge to fail to deal with every factual issue of argument. Disagreement with an Immigration Judge’s factual conclusion, his appraisal of the evidence or assessment of credibility, or his evaluation of risk does not give rise to an error of law. Unless an Immigration Judge’s assessment of proportionality is arguable as being completely wrong, there is no error of law, nor is it an error of law for an Immigration Judge not to have regard to evidence of events arising after his decision or for him to have taken no account of evidence which was not before him. Rationality is a very high threshold and a conclusion is not irrational just because some alternative explanation has been rejected or can be said to be possible. Nor is it necessary to consider every possible alternative inference consistent with truthfulness because an Immigration Judge concludes that the story is untrue. If a point of evidence of significance has been ignored or misunderstood, that is a failure to take into account a material consideration.
Findings on Error of Law
14. I start by reminding myself that the issue before me is whether or not there is a material error of law in the decision of the First-tier Tribunal Judge. I am not rehearing this matter. Ms Clarke effectively makes two submissions. Firstly that the judge has given an insufficient analysis to the support available in the UK to the Appellant and secondly insufficient consideration of the medical services available in Nigeria. I find however that the submissions made amount to little more than disagreement with the decision of the First-tier Tribunal Judge and that the decision discloses no material error of law. It is important I give my reasons.
15. The decision is well constructed. Having set out the history the judge has analysed the Notice of Refusal, set out the documentation that was before him and then at paragraphs 10 to 32 gone on to recite the evidence that he heard. That evidence included not only the Appellant’s testimony but that of his wife and witnesses Mr S and Mr U. Thereafter the judge has considered the submissions made, including the objective evidence and given due consideration of Ms Clarke’s skeleton argument. This led to the judge’s extensive findings which are to be found at paragraphs 48 to 76. The submission made by Ms Clarke so far as the evidence is concerned was that Mr S was on call to give assistance to the Appellant when required. With the greatest of respect to Miss C that is nothing more than mere disagreement with paragraph 55 of the judge’s findings where the judge found that he attaches no weight to the evidence of Mr S who he did not find to be a witness of truth. That is not a bland statement. Thereafter the judge gives reasons. There is no material error of law disclosed in that statement.
16. I accept that the judge also heard evidence from Mr U and the Appellant’s wife, as well as considered the letter from Miss D and accepted at paragraph 56 that the Appellant’s wife is very supportive of the Appellant’s mental health problems. The fact that he has problems is not challenged by the Secretary of State. The manner in which the First-tier Tribunal Judge has addressed this reflects a considerable analysis of the relationship between the support offered by friends and that by the Appellant’s wife. It is quite simply not true that the judge has not given due consideration to these features and there is no material error of law disclosed.
17. Thereafter the judge has considered whether there were any significant obstacles to the Appellant’s integration into Nigeria and at paragraph 58 to 60 considers this position and makes a finding which he was perfectly entitled to that the Appellant has not satisfied the burden of proof upon him that there are significant obstacles to his return.
18. I turn next to the position with regard to the medical facilities. The judge has done a very thorough consideration when addressing this and the issue of proportionality and these are set out at paragraphs 61 to 74. At paragraphs 72 to 74 the judge has given full and detailed consideration to the relevant case law and whilst I cannot endorse the perhaps rather cynical approach of Mr McVeety in submitting that the Appellant’s wish to stay merely to access medical facilities in the UK, the position of care in Nigeria and the factual matrix of this case when looked at alongside the relevant case law has been fully addressed.
19. The fact that medical facilities may differ in Nigeria do not alone constitute a Ground of Appeal. This is a judge who has given a very detailed and thorough analysis to the issues in this case and whilst I appreciate that the decision of this Tribunal will be disappointing both to the Appellant and to his wife, I find that the decision of the First-tier Tribunal Judge contains for all the above reasons no material errors of law and the Appellant’s appeal is dismissed and the decision of the First-tier Tribunal Judge is maintained.

Notice of Decision
The decision of the First-tier Tribunal contains no material error of law and the Appellant’s appeal is dismissed and the decision of the First-tier Tribunal is maintained.
An anonymity order is made herein.

Direction Regarding Anonymity – Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008
Unless and until a Tribunal or court directs otherwise, the Appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of their family. This direction applies both to the Appellant and to the Respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Signed Date

Deputy Upper Tribunal Judge D N Harris

TO THE RESPONDENT
FEE AWARD
No application is made for a fee award and none is made.

Signed Date

Deputy Upper Tribunal Judge D N Harris