Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/31838/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 4 April 2017
On 28 April 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE HUTCHINSON

Between

miss portia mwayera
(ANONYMITY DIRECTION not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr C. Mupara of Counsel
For the Respondent: Mr C Avery, Senior Home Office Presenting Officer

DECISION AND REASONS
Background
1. The appellant in this case is a citizen of Zimbabwe who was born on 18 December 1967 and first entered the UK as a visitor in January 2004. She overstayed on expiry of her visa and claimed asylum in 2009, such application being rejected. The appellant made three further submissions to the respondent which were all refused with no right of appeal. The appellant applied on 6 February 2015 for leave to remain on human rights grounds. That application was refused on 15 September 2015. In a decision promulgated on 4 October 2016, following a hearing on 20 September 2016, Judge of the First-tier Tribunal Widdup dismissed the appellant’s appeal.
2. The appellant who was unrepresented before the First-tier Tribunal submitted grounds for permission to appeal to the Upper Tribunal prepared by her then legal representatives (whom I note also submitted her leave to remain application and her grounds of appeal to the First-tier Tribunal). In these grounds it was argued that the Tribunal had erred in law in its approach to the assessment of the appellant’s Article 8 case.
3. In granting permission Judge of the First-tier Tribunal Andrew indicated that it was an arguable error of law that the judge did not give anxious consideration to the report of Dr Obiadi, particularly in light of the guidance from the European Court of Human Rights in Paposhvili v Belgium (App No.41738/10).
Discussion
4. Mr Mupara before me attempted to broaden the grounds to include a consideration of Article 3 and indeed Mr Mupara’s skeleton argument addressed only Article 3 and referenced the fact that the appellant was not represented before the First-tier Tribunal.
5. The appellant’s grounds of appeal to the First-tier Tribunal did mention Article 3 which the judge dealt with at [24] of the decision and reasons where the judge found that ‘the case law shows that the only realistic way an appeal of this sort can succeed is under Article 8' and indicated that he was concentrating on Article 8 “rather than Article 3”. Although the appellant appeared unrepresented before the First-tier Tribunal she was legally represented up to and after that hearing. It was open to the appellant’s then representatives to challenge the First-tier Tribunal’s finding in the grounds for permission to appeal to the Upper Tribunal. They did not do so, querying only the judge’s treatment of Article 8. It was not established before me that there were exceptional circumstances (albeit that there must be an element of elasticity within such a concept) which would merit an enlargement of the grounds on which permission were sought at this stage (HS (Afghanistan) [2009] EWCA Civ 771 and DK (Serbia) [2001] WLR 1246 applied). I therefore consider only the original grounds in relation to Article 8.
6. Mr Mupara submitted, with regard to Article 8, that the error was in relation to the judge’s consideration of compelling circumstances. Dr Obiadi, it was submitted, had found that the appellant’s condition was serious and life threatening and that if her treatment was withdrawn she was unlikely to survive. The grounds of appeal argued that the judge had not fully taken into consideration the 19 September letter and refer to the fact that the judge found that there was a lack of clarity in this letter as it said on the one hand that the appellant had been referred to the heart transplant unit but on the other hand had said that the appellant was unlikely to receive treatment. The judge went on to state that he did not know whether the last comment referred to some statistical element to the effect that only a minority of those referred to Harefield are assessed as suitable for transplant and go on to receive a transplant.
7. There was no material error in this approach. The judge accepted Dr Obaidi’s evidence, including that the appellant’s conditions was serious and life threatening. The judge further accepted that treatment for the appellant’s condition was not available in Zimbabwe and identified the key elements of Dr Obiadi’s evidence taken together with the evidence of Dr Chikwanda which were that the appellant “will not receive any treatment suitable for her condition in Zimbabwe whereas in London she at least had some chance of receiving a transplant and will in the meantime be monitored appropriately”. The judge also took into consideration that it was Dr Obiadi’s opinion that she is currently unfit to travel to Zimbabwe.
8. I note that the letter of 19 September 2016 is a replica of Dr Obiadi’s letter of 6 July 2015 other than a change in the dates. However no issue appears to have been raised before the First-tier Tribunal and I take none here.
9. The judge took into account all the relevant factors in considering Article 8 outside of the Immigration Rules. Although Mr Mupara also suggested that the judge had erred in his approach to paragraph 276ADE and insurmountable obstacles, the judge correctly noted that 276ADE does not apply in this case as the appellant does not meet the suitability requirements (at [25] of the decision and reasons).
10. In relation to Article 8 generally the judge directed himself that the correct approach was to take into consideration the Razgar approach and that he was to decide whether or not there were compelling factors where it would be appropriate to allow the appeal on human rights grounds. The judge accepted that the appellant had acquired a private life in the UK and that the most important aspect of that was the medical treatment that she received and therefore that Article 8 was engaged. In considering the proportionality test the judge directed himself that a proper balance must be struck between the interests of the appellant and the public interest and the judge took into account Section 117B of the 2014 Act and that he could attach little weight to her private life. The judge took into consideration that the appellant had entered the UK lawfully but had overstayed and that over five years later she made an asylum claim which was refused and not appealed. Her illness was diagnosed at a time when she was an overstayer and therefore the main element of her private life was established at a time when she was living unlawfully in the UK and that she had received expensive treatment which she was not entitled to by reason of her lack of status. However the judge also took into consideration, in the appellant’s favour, that there was no evidence or suggestion that she had come to the UK as a health tourist. The judge accepted the medical evidence in relation to the appellant. In addition the judge did not attach much weight to the appellant’s argument that the respondent chose not to remove her because of circumstances in Zimbabwe, as this did not amount to anything more than a forbearance until such time as removals could recommence.
11. The judge accepted that the healthcare system in Zimbabwe was poor but properly took into account the guidance in the Tribunal case of Akhalu (health claim: ECHR Article 8) [2013] UKUT where it was found that:
“The consequences of removal for the health of a claimant who would not be able to access equivalent health care in their country of nationality is relevant to the question of proportionality, but when weighed against the public interest in ensuring that the limited resources of this county’s health service are used to the best effect for the benefit of those for whom they are intended, those consequences do not weigh heavily in the claimant’s favour but speak cogently in support of the public interests in removal.”
12. I was not pointed to anything in the European Court of Human Rights judgment in Paposhvili (which appertains, in the main, to Article 3) which might undermine the First-tier Tribunal’s findings in relation to Article 8. There was nothing irrational in those findings. Notwithstanding the medical evidence, which was accepted, the First-tier Tribunal gave adequate reasons for finding, in a carefully reasoned decision, that in this case the public interest outweighed the private interests of the appellant.

Notice of Decision
13. There was no material error of law disclosed and the decision of the First-tier Tribunal must stand.
No anonymity direction was sought or is made.

Signed Date: 26 April 2017

Deputy Upper Tribunal Judge Hutchinson