Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/37520/2014

THE IMMIGRATION ACTS

Heard at Stoke
Decision promulgated
on 27 March 2017
on 29 March 2017

Before

UPPER TRIBUNAL JUDGE HANSON

Between

E M
(anonymity direction made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr A Mahmood instructed by Burton and Burton Solicitors (Dale Street)
For the Respondent: Mr C Bates Senior Home Office Presenting Officer

DECISION AND REASONS
1. On 12 May 2015 First-tier Tribunal Judge S J Pacey dismissed the appellant’s appeal under the Immigration Rules but allowed the appeal on human rights grounds. The Secretary of State sought and was granted permission to appeal the decision leading to an Error of Law hearing before Designated Judge Garratt at Stoke on the 12 September 2016. The Designated Judge found that the First-tier Judge had erred in law material to the decision to allow the appeal in relation to the human rights issue only. The Designated Judge directed that the findings of fact previously made regarding the human rights element should stand but thereafter gave further directions, following an indication by the appellant’s representative that a further medical report was to be commissioned.
2. A directions hearing took place before me on 14 November 2016 with provision being made for a ‘For Mention’ hearing on 9 January 2017 although, as the medical report had been made available in the interim, that hearing was vacated and the case listed for a Resumed hearing before the Upper Tribunal on 27 March 2017.
Background
3. The appellant is a national of Pakistani born on 20 August 1990. It is not disputed that the appellant entered the United Kingdom on 11 December 2011 lawfully with entry clearance valid to 14 February 2013. On 19 March 2013, the appellant was granted an extension of his leave to remain as a student valid to 4 January 2015, although on 4 July 2013 his leave was curtailment so as to expire on 2 September 2013. In August 2013 the appellant made and in time application for leave to remain as the spouse of a person present and settled in the United Kingdom. It is not disputed that the appellant is married to a British citizen, born on 7 September 1978. It is further accepted that the appellant has relatives including siblings and his parents in Pakistan. It was not disputed before the First-tier Tribunal that the appellant and his wife were having fertility treatment in the UK.
4. The First-Tier judge made a number of findings when considering the Article 8 ECHR element of the appeal which can be summarised as follows:
i. That the appellant and his wife have a family life recognised by article 8 ECHR [14].
ii. That the appellant and his wife are lawfully married to each other [14]
iii. That the decision under appeal will interfere with the right to respect for family life although the decision has been made in accordance with the law and in pursuit of a legitimate aims set out in Article 8 (2) leaving the issue that proportionality [14].
iv. The appellant’s spouse is a British national who has lived all her life in the UK [15].
v. The appellant’s wife has visited Pakistan but has no roots their and her family and her work are in the UK [15].
vi. The parties are undergoing fertility treatment in the UK and any interruption caused by the appellant having to return to make a fresh application would be significant [18].
vii. The appellant’s wife had a miscarriage in March 2015 [18].
5. The situation has moved on considerably since the date of the First-tier hearing as set out by the appellant and his wife in their supplementary appeal bundle prepared for the purposes of the hearing before the Upper Tribunal. In their statements both the appellant and his wife confirm that they continued with the fertility treatment and, as a result of such treatment, the appellant’s wife is now pregnant.
The expert evidence
6. The Tribunal has been greatly assisted in relation to this matter by a report prepared by Dr Y Saleem, a Consultant Forensic Psychiatrist, who also attended to give oral evidence and to be cross-examined. The report is written following consideration of a number of documents relating to the appellant’s wife and is a report upon the appellant’s wife’s psychiatric presentation.
7. Dr Saleem spoke at length about the different factors in the appellant’s wife’s life that contributed to her self-harming, the combination of factors that provided support to her in dealing with the difficulties that she faces, and his opinion on the various options available to the Secretary of State.
8. Although the First-tier Tribunal decision was not anonymized the decision of the Upper Tribunal has been. The appellant’s wife shall hereafter be referred to as 'W'.
9. The report contains two important sections, the first relating to background history, the second containing opinion or recommendation within which there are paragraphs headed ‘summary’, ‘diagnosis’ and ‘recommendations’. To understand the decision in this matter it is important that these sections are set out in full, albeit it is accepted this will add considerable length to this decision.
2.0 BACKGROUND HISTORY
2.1 W told me that she is one of five children to her parents [MA] and [PA]. Her father, [M], is aged 59 and is said to be a part time taxi driver in Nottingham. Her father is said to be suffering from cardiac disease. The details are not available. Her mother, [P], is a diabetic with kidney problems, aged 58 and is said to be a housewife.
2.2 She has three sisters and a brother. Her brother, [DA] is 35 and works as a full time taxi driver. He is married with children and lives in Nottingham. She has three sisters, [HA], is 24, [AK] is 30 and [ZA], aged 31. Each of them are married with children. [H] and [Z] live in Nottingham, whilst [A] lives in Leeds.
2.3 W told me that her sister, [Z], suffers from bipolar affective disorder and is undergoing treatment. She has been admitted to hospital, i.e., Highbury Hospital in Nottingham. She is said to be on Lithium therapy and has been sectioned in the past. She told me that [Z] is known to a Community Psychiatric Nurse (CPN) and is also regularly followed up by the community team.
2.4 There is no history of alcoholism or drug abuse in the family. There is also no history of offending the family.
2.5 She told me that she had a good relationship with both her parents. She said that her relationship with her sisters is “Okay” and with her brother, “Alright, but he keeps to himself”. She said that she is not very close to her siblings as, “I’m quiet, I can’t share my thoughts with my sisters, I’ve always been like this. My experiences have made me worse. I have suffered quite a lot and I have become more isolated and keep to myself.”
2.6 She told me that her parents are happy with each other but said “when I was younger my parents used to argue and fight I suppose, but as I grew, things settled, they’re fine. I’ve never seen them being nasty or horrible to each other. They have a happy marriage.”
2.7 Discussing her childhood, she told me that she was a very quiet child and lonely, but insisted that her childhood was “not really happy”. She said, “as soon as I turned fourteen, they sent me to Pakistan and I had to leave schooling and I was essentially kept in Pakistan between the ages of fourteen and sixteen. As soon as I became sixteen, they got me married against my wishes. As soon as I was of age they got me married. It was a forced marriage. They didn’t ask me. I couldn’t do anything about it. I was married to my cousin [MI]. I was married to him for seventeen years. He came to the UK. Between the ages of sixteen and thirty-three I was married to him but I didn’t have children. I had two miscarriages. I divorced him. He wanted children. We tried, but we didn’t succeed. He treated me really badly. He started to object to my suggestion that we should seek fertility treatment. He didn’t believe in that sort of thing and he went on a holiday to Pakistan and got married. I didn’t even know about it for well over a year or so. This happened in 2009. When he came back in 2010, I didn’t know he was already married. It had been a year since he had been married. I found out that he had a son. The news came to me through a family friend. He was living with me as if nothing had happened. I confronted him and he would not admit it. There were arguments. He sold the house when I was away on a holiday in 2012 in Pakistan. When I was gone to my sister’s wedding, he sold the house to some people, and when I came back, my cousins brother came to pick me up at the airport which I thought was a bit suspicious. I was essentially shocked when I came back to see some other people living in my house. My parents were in Pakistan at the time. They came back because of my situation. I went to the police station. For six months there was no news. We didn’t know where he was and the police told us that they can’t tell us where he was. It was a very traumatic experience in 2012. It was a rough time. I couldn’t walk, I couldn’t work, I couldn’t do anything. Eventually he gave me a Pakistani divorce in July 2011 but the English divorce only took place finally in 2013 in April. Then I met [EM] in 2012. I met him through family friends and got married in May 2013. My parents supported me but the official marriage happened in June 2013. This was my choice. He is unemployed. He can’t work because he doesn’t have a Visa. He looks after me and he is 27 years old.”
2.8 In terms of discussing her personal history, she told me she was born four weeks premature. She told me that she was born through a normal delivery. She achieved the developmental milestones without any problem. However, she said that she walked late at around two and a half years. She did not report any other developmental delays.
2.9 She told me that she was born in Nottingham. She attended primary and part of secondary school in the UK. Her family lived in Leeds when she was aged between seven and nineteen. She went to primary and secondary school in Leeds. However, as mentioned above, her schooling was interrupted at fourteen and she was sent away to Pakistan. She had no further education.
2.10 After her return to the UK in October 1994 she worked in a sandwich factory for about nine months and then she went back to Pakistan and came back again and started doing the same job. Around this time in 1997 they moved to Nottingham. She sponsored her ex-husband and he came to the UK. She worked as an embroiderer for about a year. She fell pregnant and left the job but didn’t work between 1999 and 2009. She made several attempts to fall pregnant but this did not succeed. She had two miscarriages from her previous husband and three with her present husband.
2.11 In 2009 she went back to work.
2.12 She told me that her current husband, [EM], arrived in the UK in 2011 on a student visa. She told me that they applied for permanent residence in 2013 but was refused permanent residence. She said this was because she was not earning about £18,500. She told me that she is currently working two jobs and is earning more than the threshold, i.e., £18,500. She said, “I don’t know why my previous solicitor did not provide proper statements of my income, even though I was earning more than the threshold. It was seen as if I was not earning enough when I had been earning that money now for more than a year.”
2.13 In terms of her medical history, she told me that she has an underactive thyroid since 1998 and is currently on thyroxine 50mg a day.
2.14 She is also on metformin 150 mg a day for polycystic ovaries, which she has been suffering for a while now. This is said to be related to her infertility problems. Her medical report provided by her GP, Dr White, makes reference to her medical problems. The letter states, “W has unfortunately not been able to have any children so far. She suffered 2 miscarriages in her previous marriage. The first in 1994 when she was in Pakistan and she miscarried a naturally conceived pregnancy at 11 weeks. She then got pregnant again in 1999 and she had a missed miscarriage at 9 weeks pregnant. Her 3rd miscarriage was on 24 February 2015 after IUI assisted conception and this again was a missed miscarriage at 12 weeks gestation. Her 4th pregnancy was again assisted conception with IUI, and she unfortunately miscarried on 7 October 2015. Her 5th pregnancy was a natural conception and this terminated with a miscarriage on 2 December 2016.
"She has been under the gynaecology team and fertility team since 1995 with investigations as to why she is having multiple miscarriages and failed pregnancies. She has been diagnosed with polycystic ovaries and therefore secondary infertility.
“The last 3 pregnancies have been with her current husband and they are still under the care of the fertility team at present. He has been a huge support to her and her to him through this difficult time. She has been under our care with regards to the recurrent miscarriages but also the impact this has had on her mental health. She has been known to suffer with low mood since 2010 and this has obviously got worse after each miscarriage. She desperately wishes for a family and she has resorted to self-harm in the past to help her cope with the situation. She had her husband have been married for 4 years and she describes the relationship as a good supportive relationship and relies on him for emotional support.
“She has been diagnosed with the reactive depression she has been tried on citalopram in the past which has had no effect for her. She has also been referred for counselling in the past.
“At the moment she is not on any regular medication but partly this would be something on balance with trying to get pregnant also. She notes that she will take to her husband about it and he proves the support and makes sure she doesn’t cause any harm to herself. She worries if she wasn’t around this would cause added stress due to the fact he wasn’t there and she would be more prone to self harming or take an overdose and she worries about this a lot.
“In terms of prognosis the polycystic ovaries and the secondary infertility are ongoing and it’s very difficult to say what will happen in the future. Her depression is very closely linked to the infertility and therefore this is also very difficult to predict.
“W denies any suicidal thoughts but says that a few months ago when she was home alone she started thinking over her inability to get pregnant and her age and felt very sad. She took a knife from the kitchen and was holding it to her skin. Her husband then stopped her and talked her through putting the knife down and seeking help from ourselves.
“I hope this has provided some insight but I will be very happy to provide any further information that is needed.”
2.15 Dr Taylor’s letter addressed “To whom it may concern” also addresses her medical problems: “I am writing to request that this lady is able to continue her morning shift pattern as permanent.
“She has significant stress, having had 3 miscarriages last year (she has had 5 total) and IVF treatment.
“She has felt very low in mood at times, with a tendency to feel like cutting herself. When she had been on morning shifts since February 2016, she has found it better for her, as her husband is able to spend more time with her, and prevent her from feeling low and having desperate thoughts. She has valued this support from work.
“She is currently low in mood and on prescribed medication. Her mental health would benefit from her being able to move to permanent morning shifts and I am grateful for your help in achieving this.”
2.16 On discussing her mental health problems she told me that she has been self harming and showed me several cuts to her arms. I examine this in further detail when she sent me WhatsApp pictures. Both arms have multiple scars which are healed. These scars are severe; at least two of these scars are up to 12 to 13 cm in length and 1 cm in width. It shows chronic deliberate self-harm on both her arms, particularly on the dorsal side. She told me that she continues to suffer low mood and has thoughts of deliberate self-harm on a persistent basis. She said, “I don’t feel like coming out, I feel like harming myself, I don’t want to see anybody, I want to cut my arm every time I see a knife. I have cut myself 12 to 14 cm sometimes. Look at this arm (she showed me the arms and then sent pictures). The police were once called by the neighbours because I think they thought I was crying and came to the conclusion that maybe something was going on and my husband had mistreated me or hit me. In actual fact I had harmed myself so the family snatched the knife away from me. I was referred to a psychiatrist and I am supposed to be getting counselling. My sleep is disturbed, I don’t eat very well. I am on Citalopram but thoughts of killing myself are always there. If I am dead, probably it would be better (became very tearful as she was explaining this part of the history). I think everybody will be fine; everything will be fine if I die. I cannot go on like this forever. I don’t want to be on my own. I haven’t seen my mum and dad even though they are just ten minutes away because of how I feel. I don’t know what to do. I don’t want to be like this … I don’t want to have any friends. I do have some friends, but I don’t even talk to them. I feel that nobody wants to talk to me. Even though my husband is a nice guy, I sometimes feel it’s better if I’m dead. It would be better if I wasn’t here. If he wasn’t here I probably would be dead definitely. He helps me a lot.”
2.17 She told me that she has been feeling depressed for the past couple of years and also being harming herself over the past two and a half years. She told me that her husband hides knives from her, snatches them away from her.
2.18 She told me that she continues to work despite all her challenges and that her manager knows about her depression and is supportive. At the time of the interview she denied thoughts of deliberate self-harm. She also denied any plans to kill herself.
3.0 OPINION AND SUMMARY
3.1 Summary
3.2 W is a 38-year-old British Asian woman living in Nottingham. She is currently employed and married. She has had a very difficult childhood. She was forcibly removed from full-time education and sent to Pakistan and subsequently married against her will. It appears that she tried to make good of her marriage and tried to live a normal life, but was unable to have children, which was very important for her. This led to a breakdown in her marriage with her ex-husband [MI]. This marriage ended in a bitter divorce. She has attempted a number of times to fall pregnant, both with her previous husband and her current husband but not succeeded. This has led to a lowering of her mood and also suffering from depression for a number of years. She has been well known to the GP who has noted her difficulties, including her depression and self-harm. She has an underactive thyroid and polycystic ovaries which have contributed to her fertility problems.
3.3 Diagnosis
3.4 In my view she has a severe form of depression which is characterised by low mood, poor concentration, poor energy levels, poor sleep patterns, poor appetite, helplessness and frequent deliberate self-harm, including suicidality.
3.5 She is being treated with citalopram, and antidepressant and has been referred for counselling.
3.7 Recommendations
3.8 I am of the view that she should continue to receive treatment for her depression and deliberate self-harm. This should include both antidepressant medication as well as talking therapy. I note that the GP has already actioned these two items. Additionally she should be followed up by a psychiatrist on an ongoing basis to supervise her treatment and risk of self-harm/suicide.
3.9 Her husband [EM] is a significant support to her. If he was removed from UK, it is my view that her mental state will deteriorate. Her depression will worsen, as will her deliberate self harm and suicidality. It should be noted that she has a significant history of deliberate self-harm and has entertained thoughts of suicide on a not so infrequent basis. She is highly likely to commit further acts of deliberate self-harm and may even accidentally kill herself. Accidental death by suicide could occur if she inadvertently harms herself in a way that might prove to be fatal. It is well-established that she engages in deliberate self harm due to distress and a sense of helplessness. Often it is the case that she is behaving in this manner to alleviate her genuine distress. In other words it is a cry for help. In doing so, if she exceeds in her attempt, for example accidentally cuts a major artery it can potentially lead to death. Her previous self-harm injuries are severe. The risk of such severe injuries occurring in the aftermath of a forcible removal of her husband is high. I am of the opinion that the risk of suicide will sharply escalate if her husband was forcibly removed from the UK. He provides support and encouragement through periods of distress which is very valuable in preventing her from self-harm or inadvertently harming herself in a way that results in death. In other words he is a significant protective factor in managing the risk to herself i.e. deliberate self-harm and suicide. I’m very concerned about her mental health and risk of deliberate self-harm/suicide. I am of the view that she will require robust ongoing treatment and support. I have therefore written to the GP requesting him/her to refer her to local mental health services for support and monitoring of ongoing risks.
10. In his oral evidence Dr Saleem took a fair and balanced approach when discussing the issues with the advocates in response to questions put in examination in chief and cross examination. Dr Saleem also confirmed he had experience of tribunal processes and was aware of his professional obligation of neutrality to the Tribunal, especially as he sits as a medical member of the Mental Health Tribunal.
11. Dr Saleem confirmed that W’s mental health presentation was unusual. She has history even though the more severe presentations of that illness have not been present for the past few months. The illness must be understood in the context of W’s traumatic first marriage and previous unsuccessful attempts at becoming pregnant.
12. W’s continued desire and ability to work is seen as a positive factor indicating a “reasonable” recovery from severe episodes which contributed to the reduction of incidence of severe self-harm. Dr Saleem stated that in his opinion the current structures W is involved with, being her job, family, support, and the fact she is three months pregnant, together with support from the NHS, have contributed to her current presentation which is far more positive than it has been in the past. In Dr Saleem’s opinion if W was removed from such structures there will be great concern about the impact upon W.
13. Antidepressants will not solve W’s mental health issues as she suffers from a complex disorder of the mind caused by a number of differing aspects. The social factors discussed in his report are said to be relevant as a combination of good factors in assisting with a sustained recovery. If such structures were removed W may struggle and, if so, relapse.
14. Dr Saleem referred to the support structure provided by the appellant which he confirmed was evident in the information he had received from other individuals such as W’s GP and NHS letters referenced in his own report. It was also worthy of note that W’s place of work and her employer had been supportive of her condition. W’s GP has known her for a number of years and gone to great lengths to assist with the mental health and pregnancy issues. Such support from her GP and the NHS was stated to have gone a long way in assisting W. Although medication may assist W require structures in her life which gives her something to work towards. Her employment means that she earns money meaning that there are structures to her life which reduces the possibility of relapse.
15. Dr Saleem was unaware of the appellant’s evidence given previously, that W had not worked for the past six or seven weeks once she discovered she was pregnant due to a fear of going outside the house and the fear of miscarriage. In response to a question from Mr Mahmood about how it would affect W if she was required to travel to Pakistan, Dr Saleem stated that such travel would cause distress. W also had a plethora of other problems that any stress might heighten, which was a factor that had to be taken into account. Moving W to a country where healthcare was not familiar to her would also be an additional stress factor. Dr Salim’s opinion was that W would have problems with the healthcare system in Pakistan.
16. In relation to the pregnancy, Dr Saleem stated this will be welcome to W in light of the history and the fact it creates a real prospect of her being able to have a child. The risk of W self harming fluctuates and although with news of the pregnancy it might be lowered, it cannot be eliminated altogether. It is a case of how W and the medical services manage the same. Studies show that the risk to those who self-harm is “up-and-down”. It fluctuates. The thrust of opinion today to minimise risk is that of self managing any risk.
17. In Dr Saleem’s opinion W would find it difficult to cope in Pakistan. If W was to be separated from the appellant the pain and distress of separation could cause a relapse although was also accepted that in Pakistan she may have some support which could ameliorate symptoms, but W’s family support in Pakistan is not strong. Dr Saleem was concerned about whether adequate support would be available as the appellant is the main source of W’s support and he was not sure if this would be available in Pakistan. If appropriate support was not available the likelihood that W will self-harm is severe. Dr Saleem reminded the Tribunal that W’s injuries are "deep” and “significant”. There is a real possibility W will self-harm on the basis of the assessment. It is an assessment based upon W’s previous history as Dr Saleem accepted that he could not read the future although, based upon the history, there was an identified risk that W will harm herself again.
18. In response to a question posing the proposition that W and the appellant returned to Pakistan together, Dr Saleem stated that it will be beneficial if W has her husband with her, but her employment and the support that provides would not be available and it may depend upon whether she had a reassurance that she could return to her employment. It was identified as being important that W has the chance to do so and Dr Saleem was not sure how this element would impact if W was in Pakistan. Dr Saleem repeated his opinion that W’s recovery would depend upon many factors of which this was only one.
19. In response to questions put in cross examination, Dr Saleem confirmed that W had not indicated what would happen if she had a child. In relation to the evidence of the appellant that W had attended one counselling session but had gone to no further sessions and stopped work when she discovered she was pregnant, Dr Saleem confirmed he did not know W’s current circumstances or that she had stopped work. He was therefore unable to answer any questions fully in relation to this development which postdate his report. It was noted however that some people work up to pregnancy and that some work later on.
20. Dr Saleem was asked whether he thought as a result self-harm W would have gone to hospital to seek treatment. This arose in the evidence of the appellant that she had not sought such treatment. Dr Saleem confirmed that self-harm is more often than not treated on an outpatient basis. Depending on how deep the scars or lacerations are they are normally dealt with in A&E. W is aware of the same now.
21. In relation to whether W had attempted to kill herself, Dr Saleem stated it appeared W had not made a conscious effort to kill herself and that she had in fact stopped herself from going further than they did. The risk of her committing suicide arises therefore as a result of an accidental consequence of her self-harm. W’s history does not show that she has consciously attempted to kill herself, the harm recorded is often due to a cry for help and an expressed need to act as she has.
22. In relation to the pregnancy, Dr Saleem confirmed that the pregnancy is a “protective factor” but was one of a multitude of factors that could give W protection. If one or some such factors were removed, such as the appellant’s ability to continue to provide W with support, this will be a destabilising factor. Although the pregnancy is a protective factor meaning that risk of self-harm is reduced, such risk is still lurking under the surface albeit that it is under control.
23. In re-examination Dr Saleem was asked about the impact upon W if she was to miscarry the child she is currently pregnant with. In Dr Saleem’s opinion, based on the history of pregnancy loss in the past, this would cause W significant distress which would have a detrimental impact/effect upon her. If the appellant was in the UK with her when this occurred it would have the same detrimental effect but that if the appellant had been removed and was not with W that effect would be exasperated. It would be much better for W if her husband was with her. If this occurred in Pakistan then all should be aware that she has psychiatric/mental health issues and providing she can access services and the family can provide support, this will be of some assistance although in his professional opinion Dr Saleem stated that it would not be helpful to W to remove the structures that are currently helping her to hold things together. W has had a traumatic two years and somehow things have come together for her. If the structure she is relying upon are not there to help a real risk concerns arise.
24. In response to questions from the Tribunal, Dr Saleem confirmed W has insight into her low mood. As far as he is aware W is compliant with treatment and assistance that is made available by her GP and the NHS. He had written to W’s GP as he was concerned about her mental state but it is clear that W does show insight into the same.
25. In relation to W’s situation if she carries to full term and/or the child is born, Dr Saleem confirmed that in his opinion a person who has a known history of depression is more likely to suffer postnatal depression after birth. Within the NHS GPs and the perinatal services, including Perinatal Psychiatric Teams, are fully aware of this fact and can prepare to deal with the same if it arises. In his professional opinion W has a higher risk of suffering from postnatal depression than the average person.
26. It was accepted by Dr Saleem that there are a range of presentations with individuals suffering from depression. Whilst W’s is not at the severe end of he spectrum, that of a person who is so incapacitated by the depression that they are at times even unable to get out of bed, one of the positive factors contributing to W’s ability to live what to the outside may appear a reasonably normal life, including work, is the fact she has insight and has made effort to function as well as she is able.
27. Dr Saleem confirmed that the pregnancy was one of the balancing factors and that if this was lost it could have a severe detrimental effect upon W in light of her past history.
28. In response to a discussion with the Tribunal concerning self-harm, and in seeking clarification that in Dr Saleem’s opinion this was not just an act of attention seeking, he confirmed that it is a gross misunderstanding of the complexities of self-harm if it is thought it is only an incident used to draw attention to the individual concerned. Self-harm arises as a result of a multitude of factors which can include seeking attention bit also arises if there is a feeling of helplessness or hopelessness that is beyond the individual’s control. It is important to note that W does not have a personality disorder and that the evidence that has been provided goes against any diagnosis of a personality disorder. W, on good days, is able to function with an ordinary respectable life. Some make lifestyle choices to self-harm but in his professional opinion this does not apply to W.
Non expert witnesses
29. The Tribunal was able to hear initially from the appellant who confirmed the contents of his witness statements were true and which therefore stood as his evidence in chief. The appellant confirmed that W had stopped working when she discovered she was pregnant as she was afraid to go out in light of the history of three miscarriages and therefore wanted to stay at home.
30. It was stated W had only attended counselling once and had stopped as she did not wish to leave the home.
31. In relation to the issue of self-harm, the appellant recalled one occasion when he was outside and came home to find W cutting herself, as a result of which she stopped. The appellant confirmed that in his opinion it will be difficult for W to live in Pakistan. She could not get a job and would face different pressures. The appellant confirmed W stopped going to work the day she found out that she was pregnant.
32. In response to questions put in re-examination, the appellant confirmed that in his opinion if W lost her work and home it would be bad for her. W had visited Pakistan once before their wedding and more recently to attend his brother’s wedding as he could not travel as he did not have status in the United Kingdom in 2015. In Pakistan, the appellant has his mother, two sisters, and two brothers. His father lives in Pakistan but works in Dubai. The appellant expressed concern for W as it will be hard for her to live in Pakistan as she is unlikely to get a job and would face different pressures. W stopped going to work the day she discovered she was pregnant.
33. The appellant confirmed that W demonstrates low mood at times although when he is with her he is able to keep an eye on her. He accepted he could do this in Pakistan but that W has everything she needs in the UK.
34. Dr Saleem’s evidence was taken between that of the appellant and W. W confirmed she was able to give oral evidence and was questioned appropriately by both advocates. W confirmed that her witness statements were true and that she had met Dr Saleem previously.
35. W confirmed she is three months pregnant and is employed by Boots of Nottingham, initially in the warehouse. She had not been well recently and her GP “signed her off”, this being the case for nearly 7 weeks now. Her job involves lifting heavy items which her GP stated was not good for her, although she intends to go back to work after 20 weeks of the pregnancy. Her employers have been very understanding of how she is feeling and when she returns they have indicated they will give her a different position. W stated it is her intention after the baby has been born to take long-term maternity leave but then to return to work.
36. W was able to talk about past problems including her previous five miscarriages. W indicated that tests revealed a white blood cell problem which was now being dealt with during this pregnancy, which had not been dealt with earlier. She was receiving regular scans and regular appointments with her GP who keeps an eye on her.
37. In response to re-examination, W confirmed she has no family in Pakistan and that her last visit was for the purposes of the wedding. He has met her husband’s family and stayed with them 2015. They live in a small village in the Kashmir region of Pakistan.
Discussion
38. The parties respective positions were set out in the submissions they made following the conclusion of the evidence. Mr Bates accepted that the issue in this case is one of the proportionality of the respondent’s decision. It was accepted that W has mental health problems and that this is the main issue in the appeal. W has family and employment in the United Kingdom but the relevance of this was discussed by the Tribunal in the case of Treebhawon and Others [2017] UKUT 00013(IAC), when considering the ‘compelling circumstances’ test and which found that family and employment in the UK is not determinative. It is accepted that the difference in this case is that such issues stand not only in isolation but also form part of the support mechanism available to W.
39. The evidence of Dr Saleem was accepted by Mr Bates. It was submitted that the issue in the case is the effect of return and whether the appellant and his family will be to provide the required degree of support to W.
40. It was noted that the oral evidence is that the family live in a village in Kashmir 30 minutes from the local hospital. It is not disputed that mental health services and medical treatment generally in Pakistan is adequate, if the same can be obtained. The issue in this case is not whether such support exists but whether it is accessible.
41. It was submitted that the appellant’s circumstances and status has always been precarious which was relevant to the weight that can be attached to the family and private life he seeks to rely upon.
42. On the appellant’s behalf, Mr Mahmood submitted that the real focus of the appeal is that of W and the effect of the decision upon her in light of a very difficult history of being a victim of domestic violence at the hands for former husband and previous miscarriages, which have severely affected her. She is now pregnant and Dr Salim identifies a number of factors and support networks available to W, an important one of which is the appellant.
43. It was submitted that it is not proportionate to remove the appellant in this case as a result of the fact:
i. W has a whole life in the UK
ii. W has to have the essential psychiatric treatment here to prevent or to reduce depression, self-harm and death
iii. W has to continue to have her current pregnancy monitored on a careful and expert basis in the UK
iv. the risk of pregnancy leading to miscarriage is heightened by travel to Pakistan, the uncertainty about treatment and the general stress and anxiety caused by removal of the appellant
v. The past forced marriage situation which cannot be “sidelined”.
44. It is not suggested on behalf of the Secretary of State that this is a case in which it is proportionate to find that W and the appellant can be separated, by the appellant being returned and W remaining in the United Kingdom, even for a short, but not determinable, period of time.
45. It was not conceded by Mr Bates that if the appellant was returned for the purposes of making an application to re-enter United Kingdom as a spouse that it was guaranteed that he will succeed with such application, but it was agreed that the Tribunal could record in this decision that there is a strong possibility that the appellant will succeed with an application to re-enter on the facts as known, if it was shown that the requirements of Appendix FM could be complied with by the provision of evidence defined in Appendix FM- SE.
46. The appellant’s status, based upon the definition in Tribunal jurisprudence, is precarious as the appellant has no lawful entitlement to remain in the UK. This is not a case of a person who has overstayed. The appellant’s immigration history as noted above and it can be seen that the reason he still remains in the United Kingdom is as a result of the ongoing appeal process. The fact that the appellant has established family and private life in the full knowledge that his stay in the UK is precarious affects the weight to be attached to such protected rights in the balancing exercise, but is not a determinative factor.
47. It is not disputed that medical services exist in Pakistan but neither is it disputed that the village in which the appellant and his family live, in Kashmir, is some 30 minutes away from the local hospital.
48. Dr Saleem repeated on a number of occasions the complex nature of W’s presentation and the combination of events that occurred which led to the depressive illness and incidents of self-harm. It was also stressed that W’s insight means she is aware of her problem and that she has developed a number of supportive elements which, taken cumulatively, enable her to function at a level that she is able to cope with, without resorting to self-harm.
49. As a result of W’s efforts the family is financially self-sufficient even though the appellant is unable to work at this time.
50. If the appellant and W have no choice but to travel to Pakistan a number of issues arise being (i) the danger posed to W as a person with a history of multiple miscarriages and who has been dependent upon assisted conception of suffering a further miscarriage as a result of having to undertake such a long journey, (ii) the danger posed to W by the stresses of having to move to a different country with which she is not familiar and adapt to a different culture with which she is not familiar in Pakistan even though her husband and her husband’s family are available and will provide support to her. There is clearly an element of W’s presentation that may suggest that any response to such a situation may not be as rational as it will be for a person who does not have mental health issues. (iii) the accessibility of pregnancy-related and mental health medical services that may be required by W. Whilst these are available and focused upon W’s needs in the UK Dr Saleem stated that in his professional opinion W would have difficulties accessing such services in Pakistan. Even if able to access such services they would have to be able to understand and meet W’s specific needs and be accessible within a reasonable time, especially if an incident occurs creating a crisis which requires immediate medical intervention and management. The fact W will be 30 minutes away in a village in rural Pakistan mitigates against such services being reasonably available as required by W. (iv) the disruption in/removal of factors that W has identified as being important to her and described by Dr Saleem as forming part of W’s support structures and network. Although W draws her main source of support from her husband, the appellant, Dr Saleem identified W’s employment with Boots in the UK and the sense of purpose/belonging and independence this provides for W as being an important part of her support network. It is also the case that W’s home in the UK is another part of that support network which it is not suggested forms part of any joint family system, which may be the nature of any available accommodation in Pakistan. The evidence suggests that W does not integrate with her family in the UK and appears to prefer her own privacy and a life shared with her husband rather than with others. (v) the consequences to W of the removal of support networks and/or inappropriate treatment or support in the times of crisis which, Dr Saleem, identifies as being likely to result in further incidents of self-harm and, in light of the serious and severe nature of previous self-inflicted injuries, a real risk of suicide albeit one arising out of accident rather than a deliberate attempt to end her own life.
51. If the appellant is permitted to remain in the United Kingdom and life continues as it is at the moment for W: It is accepted the fact there is no disturbance to her current pattern does not give her any additional issues that may suggest her pregnancy will be more viable than it already is, but it will remove elements that may adversely affect the same as identified above. What remaining in the UK does for W is ensure that she maintains contact, input, and support from her GP with whom she clearly has a long-standing and beneficial relationship, the NHS in relation to both pregnancy-related and mental health services in the UK, her supportive employers and ability to return to work both during the course of the pregnancy and after, in a role suited to meet her needs, and that she can realistically undertake, that her home is maintained providing certainty and security for W at what is clearly going to be a time that is probably both as frightening as it is exciting for her.
52. The current status of the law, as recently confirmed by the Supreme Court, is that the Tribunal’s jurisdiction in such issues as a human rights jurisdiction where it is necessary to weigh together all the competing factors. The Secretary of State ordinary has a strong case when one takes into account the Secretary of State’s view of how article 8 should be interpreted set out in the Immigration Rules and the statutory provisions to be found in section 117 of the Nationality, Immigration and Asylum Act 2002, as amended. But none of these provisions are determinative, even when taken together with Mr Bates submissions, for the Secretary of State when undertaking the required balancing exercise.
53. Had this been a case where the appellant was being considered without the added factor of W he would lose. On an individual basis there is nothing in the appellant’s case that outweighs the public interest. What there is in this case however is a British citizen who has been severely damaged psychologically as a result of her past traumatic experiences arising from a forced marriage in Pakistan at the behest of her parents, incidents of domestic violence within that marriage, a desire to have a child which is ended in multiple miscarriages, resulting in a person who is herself so damaged as a result of the combination of events that she has resorted to serious self-harm. To W’s credit she has devised systems to enable her to function on a day-to-day basis but these systems do not mean those areas of concern which have led to past events can be discounted. It is like a jigsaw where the individual pieces of the past traumatic events have created a picture showing W as she appears today, which stand side-by-side with another jigsaw made up of individual pieces each with a picture of those factors which W relies upon to enable her to function and prevent further relapse. It is the professional opinion of Dr Saleem that those pieces that make up the first jigsaw are still present and very real, including the previous miscarriages, even if one of them is removed. This therefore gives particular concern for what may occur to W if there is a re-occurrence of any such events. It is also the professional opinion of Dr Saleem that W needs all the pieces of the second jigsaw to remain in place and that if any of those pieces are removed this could have a severe and detrimental effect upon W as it reduces the effectiveness of the support available to her. Those pieces include the appellant’s continued presence in W’s life, W’s employment and home in the UK.
54. This is a rare case which sets no precedent in which a British citizen with mental health issues faces the prospect of very serious consequences of the loss of her established support networks. It is a case in which it has clearly been made out that the cumulative effect of the pieces of the jigsaw that make up the support network must, if at all possible, be maintained for W’s future well-being. It is therefore a case in which I find that the needs of the British citizen W are such that the overriding factor in this appeal is not the need to maintain immigration control or the case relied upon Mr Bates on behalf of the Secretary of State but the needs of W. I find such needs can only be maintained to the required standard by W being able to maintain the support mechanisms that she has developed in the UK, including the appellant’s presence.
55. I therefore find the Secretary of State has not discharged the burden of proof upon her to the required standard to show that the interference in W’s family and private life that would occur should the appellant be removed from the UK, making it necessary for W to accompany him, is proportionate to the legitimate aim relied upon. It is properly conceded this is not a case in which W and the appellant can be separated. It is therefore one of those rare cases in which I find, notwithstanding the appellant’s immigration history, that this human rights appeal must be allowed.

Decision
56. The First-tier Tribunal Judge has previously been found to have materially erred in law and the decision of the First-tier Tribunal set aside so far as it relates to the human rights ground of appeal only. I remake the decision on that ground as follows. This appeal is allowed.
Anonymity.
57. The First-tier Tribunal did not make an order pursuant to rule 45(4)(i) of the Asylum and Immigration Tribunal (Procedure) Rules 2005.
I make such order pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 to prevent the identity of the parties, and specifically W, in relation to whom it has been necessary to set out very personal and private aspects of her life to enable a just and proper determination of this appeal.

Signed……………………………………………….
Upper Tribunal Judge Hanson

Dated the 28 March 2017