Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/31488/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision and Reasons Promulgated
On 5 April 2017
On 18 April 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE HUTCHINSON

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Appellant
and

MR YLLI NDREVATAJ
(NO ANONYMITY ORDER MADE)

Respondent

Representation:

For the Appellant: Mr T. Wilding, Senior Home Office Presenting Officer
For the Respondent: Mr D. Jones, Counsel

DECISION AND REASONS

1. This is an appeal by the Secretary of State against the decision of the First-tier Tribunal allowing the appeal of Mr Ylli Ndrevataj, a citizen of Albania, against the Secretary of State’s decision to refuse his application for leave to remain in the UK.
2. For the purposes of this decision I refer to the parties as they were in the First-tier Tribunal where Mr Ylli Ndrevataj was the appellant.

3. Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/269) I make no anonymity order. There were no issues before me that might warrant such an order.

Background

4. The appellant was born on 6 November 1982. He entered the United Kingdom in November 2006, it is unclear exactly when and how although it was not disputed that he has never had any leave to enter or remain in the UK. He has been convicted on two occasions in relation to the possession/use of false documents. The appellant applied to regularise his status in the UK in an application under cover of letter dated 22 August 2014, the refusal of which was the subject of his successful appeal to the First-tier Tribunal, on Article 3 grounds.

5. Judge of the First-tier Tribunal L. Nolan allowed the appeal under Article 3 in a decision promulgated on 10 October 2016. Permission to appeal to the Upper Tribunal was sought by the respondent on the grounds that the judge materially misdirected herself in law as the leading judgments in this area impose a high threshhold. Although the judge made reference to the jurisprudence it was argued that she failed to apply the principles. This is not a deathbed case and it was noted that the appellant was functioning and able to do some DIY work. It was asserted that the judge had failed to identify circumstances that made this an exceptional case, particularly give what was said in GS (India); EO (Ghana); GM (India); PL (Jamaica); BA (Ghana) and KK (DRC) v SSHD [2015] EWCA Civ 40. It is clear from the authorities that the appellant cannot claim any entitlement to remain in the UK to be treated and that the factors in D v United Kingdom (1997) 24 EHRR 423 and N v UK Application ECHR 26565/05 and in GS (India), were the factors the judge engaged with, the severity of the condition and the availability of treatment in Albania, but she chose to depart from the leading authority without adequate reasons.

6. The appeal came before me. Mr Wilding relied on the grounds and submitted in summary that the recent Grand Chamber ECHR case of Paposhvili v Belgium (2016) (Application no 41738/2010) was not binding as this was a Belgian case and the comments made in relation to health cases were obiter as the ECHR was concerned with procedural violations of Articles 3 and 8. Mr Jones relied on his detailed Rule 24 response and submitted that the Secretary of State’s interpretation of Paposhvili was incorrect, including when considered in light of CK, HF, AS v Republic of Slovenia (Case C-578/16 PPU).

7. At the end of the hearing I indicated that the decision of the First-tier Tribunal would stand. For the reasons set out below I have concluded that there is no material error of law in Judge Nolan’s decision such that it should be set aside.
Error of Law discussion

8. The decision is closely and carefully reasoned. The Tribunal’s findings of fact and reasons which run from paragraph [20] to [43] begin with the judge properly directing herself. She reminded herself that although the evidence showed that the appellant was well regarded in his local community, that was not the test in the appeal before her.

9. The judge then set out the leading judgments at the time and reminded herself that the test in medical cases was whether the claimant’s medical conditions had reached such a critical state (i.e. the claimant was dying) that there were compelling humanitarian grounds for not removing him to a place which lacked the medical and social services which he would need to prevent acute suffering while dying. She noted that the fact that the appellant would be deprived of medical treatment which would otherwise prolong his life was not the main consideration. N v UK held that Article 3 only applied in very exceptional circumstances and she set out paragraph 42 of that case which held that:

‘A decision to remove an alien who is suffering from a serious physical or mental illness to a country where the facilities for treatment of that illness are inferior to those available in the Contracting State may raise an issue under Article 3 but only in a very exceptional case where the humanitarian grounds against the removal are compelling.’

10. The First-tier Tribunal went on to remind itself that GS (India) confirmed that someone whose life would be shortened by the progress of natural disease if he was removed did not fall within the paradigm of Article 3 and that such a case could only succeed if it fell within the exception articulated in D v UK. The First-tier Tribunal went on to consider how the law applied to Article 8 including that the circumstances must be truly exceptional before such a breach could be established.

11. The Tribunal reviewed the medical and other evidence and made findings that Mr Ndrevataj was suffering as claimed (and such has not been disputed) from a disease described by his consultant neurologist as unusual and rare and life threatening for Mr Ndrevataj whom Dr Clough was of the opinion require ongoing and specialist expert treatment from a specialist centre. The judge accepted this evidence but reminded herself that even such a condition was not, of itself, sufficient to satisfy the Article 3 threshhold.

12. The First-tier Tribunal considered the evidence in relation to medical treatment in Albania and found on the basis of both the medical evidence and the background country information that although there is some medical treatment available the respondent had not been able to provide any evidence at all that there would be treatment available in Albania for the appellant’s very specific and rare condition which needs to be managed, monitored and treated by expert clinicians. The Tribunal found therefore that there would be effectively no treatment available for a person with Mr Ndrevataj’s condition in Albania and that he would be ‘for all practical purposes without any medical care’ ([34]). That finding has not been challenged. Although the grounds for permission to appeal submitted that the appellant could be financially supported by those who support him in the UK and had family still in Albania, the judge, again at [34], found that even if he were to be sent money from the UK (and she made no findings that such would be the case) in any event he would be unable to access the necessary drugs and care. That was a finding that has not been challenged.

13. On that basis the First-tier Tribunal found that if returned Mr Ndrevataj would not be able to continue his current mycophenolate treatment and consequently if he is untreated, or not treated properly it was reasonably likely that this would lead to ‘imminent deterioration and death’, due to the risk of further brain haemorrhages and seizures. The Tribunal considered Lord Hope’s opinion at paragraph 50 of N v SSHD [2005] UKHL 31:

‘What the court is in effect saying is that the fact that the treatment may be beyond the reach of the applicant in the receiving state is not to be treated as an exceptional circumstances. It might be different if it could be said that it was not available there at all and that the applicant was exposed to an inevitable risk due to its complete absence.’

14. The First-tier Tribunal found that what makes this case exceptional, in the sense envisaged by Lord Hope was not the difference in medical treatment and benefits, but rather the complete lack of availability of any treatment for the appellant’s very rare medical condition in Albania. In so doing the judge applied Laws LJ guidance in GS (India). The judge correctly identified that although the inability to continue with his UK medication and treatment will affect his prognosis and life expectancy, the current approach, as confirmed in
N v UK and approved in GS (India), confirmed that such an individual does not fall within the paradigm of Article 3.

15. The judge proceeded to set out her rationale, in clear terms, at [39] to [41] for finding that Mr Ndrevataj’s case was exceptional. She acknowledged that he is responding reasonably well to treatment and is able to undertake small DIY jobs in the community due to the medical input, supervision and high level of support he receives. The judge gave adequate reasons, based on the medical evidence, for finding that the stress of an enforced return would potentially exacerbate his condition (the evidence pointing to the management of the condition being almost as dangerous as the condition itself). What she found to be a lack of support from his family and the withdrawal of necessary medical treatment and support meant that it was reasonably likely that he would become critically ill very quickly, would have no family (as she found he would have to reside in Tirana to access any medical care, such finding not being challenged) and no support of any kind. It was open to the judge to find that in these circumstances Mr Ndrevataj would very quickly become a ‘deathbed case’ due to the ‘rare and serious nature’ of his condition.

16. It was not a misdirection on the part of the judge to find that in such circumstances Mr Ndrevataj’s case was exceptional as (at [41]):

‘there were substantial grounds for believing that there was a real risk that he would be alone in Tirana without even the most basic support and would be subject to inhuman and degrading treatment or punishment by reason of his medical condition and the sever and likely fatal consequences of the lack of any specific and appropriate treatment for that condition in Albania and thee lack of any social support available to him during that period of deterioration leading to critical illness and then death’.

17. There was no error that approach as it was not a case of the Tribunal departing from the leading authorities; it was not the lack of availability of treatment per se that made the case exceptional in the Tribunal’s findings but the combination of circumstances that in the Tribunal’s findings would make the appellant’s case ‘very quickly a deathbed case’. There was therefore no misdirection, even without the recent guidance from the Grand Chamber in Paposhvili.

18. Even if Mr Wilding is correct and the guidance in Paposhvili was obiter, the approach in Paposhvili (which was subsequently endorsed in CK, HF, AS including at paragraph 68) merely clarified the proper reading of ‘other very exceptional cases’ within the meaning of N v UK which should be understood to refer to (at paragraph 183 of Paposhvili ):

‘situations involving the removal of a seriously ill person in which substantial grounds have been shown for believing that he or she, although not at imminent risk of dying, would face a real risk, on account of the absence of appropriate treatment in the receiving country or the lack of access to such treatment, of being exposed to a serious rapid and irreversible decline in his or her state of health resulting in intense suffering or to a significant reduction in life. The Court points out that these situation correspond to a high threshold for the application of Article 3 of the Convention in cases concerning the removal of aliens suffering from serious illness’.

19. The Grand Chamber went further therefore than the Tribunal in the instant case as it was not the lack of treatment in itself which the Tribunal found would lead to a breach of Article 3, but rather the cumulative circumstances that the appellant would be exposed to which would result in a ‘deathbed case’. Whilst Mr Jones understandably draws comfort from the guidance in Paposhvili, which must at the very least be persuasive, I am of the view that the Tribunal’s decision is irreproachable, even without that guidance, which was not available to the Tribunal, coming as it did after the decision was promulgated.

20. Given the lack of any challenge by the Secretary of State to the Tribunal’s findings of fact, that there was a real likelihood of no available medical care for the appellant’s rare and specific condition in Albania and that Mr Ndrevataj would endure isolation with no support on return, the stress of such return in itself, in her unchallenged findings, being likely to hasten critical illness and death, it is difficult to see how the Secretary of State could properly point to any error, material or otherwise.

Decision:

21. The making of the decision of the First-tier Tribunal did not involve the making of an error on a point of law and shall stand.

Signed: Dated: 12 April 2017

Deputy Upper Tribunal Judge Hutchinson