Tribunal decisions

The decision

JR/11300/2016

Upper Tribunal
Immigration and Asylum Chamber

Judicial Review
Decision Notice

The Queen on the application of FAISAL [C]
Applicant
v

Secretary of State for the Home Department
Respondent

Before Upper Tribunal Judge Canavan

Application for judicial review: substantive decision

Having considered all the documents filed and having heard the parties' respective representatives, Mr P. Richardson, of Counsel, instructed by Nasim & Co. Solicitors, on behalf of the applicant and Mr D. Sternberg, of Counsel, instructed by the Government Legal Department, on behalf of the respondent, at a hearing at Field House, London on 02 March 2017.

Decision: the application for judicial review is granted

1. The applicant sought to challenge the respondent's decision dated 21 July 2016 to refuse a protection and human rights claim and to certify the claim as 'clearly unfounded'. The effect of the certificate is that the applicant can only appeal the decision from outside the UK. In so far as this formed part of the original claim Upper Tribunal Judge Pitt refused permission in an order sent on 30 November 2016. The applicant did not seek to renew that application orally.

2. The second part of the challenge was to the respondent's decision dated 30 August 2016 to refuse to treat further submissions made on 5 August 2016 as a fresh claim.

3. Upper Tribunal Judge Pitt refused permission in so far as the further submissions might relate to a claim made under Article 3 of the European Convention on Human Rights, but granted permission in the following terms:

"It remains arguable that an Immigration Judge might view the report differently notwithstanding the points made about it by the respondent. The letter of 30 August 2016 treats the further submissions as being "non-protection based" and so fails to address at all the submissions of 5 August 2016 that the report supports the applicant's claim that his mental health affected his ability to give a clear account in his interviews and made the processing of his protection playing unreliable it is also arguable that if an Immigration Judge took the report at its highest it could be capable of making a material difference in an Article 8 claim in the context of the applicant's potential age when he came to the UK and his history here."

4. The written grounds of challenge made general submissions relating to substantive aspects of the human rights claim but did not particularise any clear public law grounds save to make a general assertion that the decision was 'irrational' without proper reference to the legal framework relating to fresh claims. At [14] the grounds stated that the applicant did not want to claim asylum. This was stated at interview. The applicant relied on his private life in the UK. On the face of it the interview record appears to have been amended to record that it was a "human rights interview" [pg. 67 applicant's bundle "AB"]. At the hearing, Mr Richardson confirmed that the applicant did not seek to pursue a protection claim. Insofar as the respondent's decision in relation to a human rights claim under Article 8 ECHR dated 30 August 2016 was being challenged the following points were made:

(i) The respondent failed to engage with the psychological report sufficiently as part of an assessment of whether there were very significant obstacles to integration for the purpose of paragraph 276ADE(1)(vi) of the immigration rules. The fact that the applicant arrived in the UK when he was 13 years old, the difficult circumstances from which he fled Pakistan, the lack of familial or other connections there, and the evidence relating to his mental health, combined to show that the claim has a realistic prospect of success before an Immigration Judge.

(ii) In the alternative, the psychological report raised compelling circumstances that engaged Article 8 outside the immigration rules.

5. The further submissions made on 05 August 2016 were limited to the following representations:

"We submit that we had earlier mentioned in our representation dated 10 June 2016 that our client was not mentally well and you were requested to conduct his mental health assessment before conducting his interview, but our request was denied by you for the reasons best known to you.

However, on 3 August 2016 our client's mental health condition has been examined by a Psychiatrist who has confirmed that our client is suffering from mental health issues. We therefore, maintain that our client was in fact interviewed when he was not medically fit to attend the interview. Please refer to the attached medical report for confirmation of the same.

We therefore, believe that our client's all previous interviews including the decision dated 21 July 2016 are voidable. Given the situation, we ask that you kindly reassess our client's case in the light of submitted medical report and immediately cancel removal directions in relation to our client as soon as possible."

6. The further submissions attached a report prepared by Dr Muhammad Shafi who is a general psychiatrist. There is no dispute as to his qualification to comment on the applicant's mental health. Dr Shafi outlined the instructions given by the applicant's solicitors.

"1. Is Mr Faisal [C] capable of understanding the issues and circumstances around him.
2. Is Mr Faisal [C] capable of concentrating for longer period of time.
3. Is his current mental condition affecting his concentration skills over a lengthy period of time so that he could follow process.
4. Is Mr Faisal [C] able to understand questions properly put forward to him and is he able to respond them accordingly.
5. His future treatment plan, any medication, if required.
6. Is Mr Faisal [C] suffering from mental disorders as defined under the Mental Health Act 1983."

7. Dr Shafi outlined the limited circumstances in which he assessed the applicant's mental health. He made clear that he was unable to review the applicant's medical records. He outlined the brief background to the applicant's immigration history provided by his legal representatives in their letter of instruction.

"Mr Chaudhury came to the UK on a visit Visa on 19 December 2006 when he was 13 years old. He overstayed in this country. He was encountered on 10 November 2008 by the immigration enforcement team and was asked questions about his status. Home Office case is that when the Subject was encountered in 2008, he mentioned that he was born in 1983 and claimed Asylum however the Subject asserts that he could not understand questions put forward to him at that time and he never mentioned that he was born in 1983. Nevertheless according to the HO the Subject claimed Asylum and never returned for reporting.

The Subject was again apprehended and currently in immigration detention and accordingly to the HO he again claimed Asylum to which the Subject denies however interview was conducted by the HO."

8. Dr Shafi said that he assessed the applicant in detention on 03 August 2016. The assessment lasted one hour and thirty minutes. The doctor went on to outline the history provide by the applicant. He noted the difficulty that the applicant appeared to have in remembering past events. He recorded that the applicant claimed to have self-harmed with blades. Dr Shafi noted one old scar on his forearm that the applicant alleged was due to self-harm. He also noted other old scars on his elbow area but was unable to give details of the events which led to self-harm. The doctor noted that the applicant claimed to have an uncle in the UK although he was unable to provide any details, not even his name. Dr Shafi's observation was that the applicant appeared anxious and distressed during the assessment and struggled to understand his questions even when he was interviewed in Urdu or Punjabi. He noted that the applicant reported hearing voices but denied any visual hallucinations. Dr Shafi observed that the applicant "was not orientated to time, place and person. During this interview, his attention and concentration did not seem good." Dr Shafi concluded that there was evidence to suggest "severe cognitive impairment" because of the low score (5/30) in his Mini Mental State Examination (MMSE). Dr Shafi's summarised his opinion as follows:

"i. Mr Faisal [C] is a 23 years old male of Pakistani origin; he had a difficult childhood and his parents died when he was 10 years of age. He had never been to either primary or secondary school. He reports difficulty in memory and concentration. He has a language barrier as he cannot speak English and has no friends. He admits of self-harming. He denied any issues with alcohol or illicit drugs.

ii. In my opinion Mr Faisal [C] suffers from a mental disorder namely "Major depressive disorder, recurrent, severe with psychotic symptoms" ICD10 code F 33.3. This is characterised by low energy, disturbed sleep, poor concentration, low self-confidence, low mood, loss of interests or pleasure, suicidal thoughts, diminished ability to think or concentrate, persecutory and auditory hallucination.

[iii.] There has been deterioration in Mr Faisal [C] symptoms after detention and the risk to self has been increased. He denied any active plans but had thoughts to end his life and is not guarded. He still feels low and has the feeling of emptiness however, the intensity of his symptoms has increased and he appears to be in distress while being detained.

[iv.] Mr Faisal [C] had not had any medications and I would suggest antidepressant and antipsychotic usage. He would benefit also from engagement with psychologist and doing possibly art therapies which may help his confidence. This would be possible by an admission to hospital in a general adult psychiatric unit local to Ilford (North East London Foundation Trust - Goodmayes hospital)."

9. In response to the questions put forward by the applicant's solicitors Dr Shafi concluded that (1) the applicant was not capable of understanding the issues and circumstances around him; (2) that he was not capable of concentrating for long periods of time; (3) that he was being affected by his current mental condition and that this affected his concentration skills over a lengthy period of time; (4) that the applicant was not able to understand or respond to questions properly; (5) that he would benefit from admission to hospital and by engagement with local mental health services, which might include treatment such as CBT (Cognitive Behavioural Therapy) and medication; and (6) that he was suffering from Major Depressive Disorder, recurrent, severe with psychotic symptoms.

10. The respondent considered the further submissions and evidence in a decision dated 30 August 2016. In considering whether the further submissions amounted to a fresh claim the respondent stated:

"Your legal representatives have raised concerns regarding your mental health and in support of this they have submitted a Psychiatric Report written by Dr Shafi dated 5th August 2016.

Dr Shafi in his report states you suffer from "Major depressive disorder, recurrent, severe with psychotic symptoms". At the request of your legal representatives Dr Shafi has more specifically made an assessment on your ability to concentrate for lengthy periods of time, comprehend and questions and formulate coherent responses. It is noted that there is no indication contained in the medical report that the doctor or psychiatrist has taken into account the evidence and statements you have presented to the Home Office. As noted, the caselaw of BN (psychiatric evidence - discrepancies) Albania [2010] UKUT 279 (IAC) states:

"Yet the psychiatrists had either not read the interview records, statement and letters or had not evaluated them in reaching their conclusions. This obviously means their views are not informed by crucial information available to the Immigration Judge and to this Tribunal" (para 53)

In light of the above it is considered Dr Shafi's assessment of your mental health was based on your mental health of the day you were assessed. Without Dr Shafi having access to your asylum interview and previous representations it is not possible to conclude on this report alone that you suffered from mental health issues affecting your concentration and ability to understand prior to this assessment. This is supported by your ability to provide answers to questions asked in your asylum interview and your failure to inform the interviewing officer during the asylum interview that you were unable to understand the questions or the interpreter.

In addition to the above it is important to note that you and your legal representatives were given 5 working days after your asylum interview to submit any comments regarding the asylum interview record and your asylum claim. However despite this no requests were made to delay your asylum decision whilst a medical assessment was being carried out.

Therefore, it is concluded that your further submissions have no realistic prospect of success because there is no evidence when you began suffering from such conditions. Furthermore you failed to raise such concerns during your asylum interview."

11. Under a heading entitled "Consideration of compassionate circumstances" the respondent went on to state:

"In deciding whether there are exceptional circumstances which mean that removal from the United Kingdom is no longer appropriate, I have taken into account the requirements set out in paragraph 353B of the Immigration Rules. It is noted that you claimed asylum when you were encountered 10/11/2008 however you failed to attend your interview and failed to attend for reporting. You have prolonged your stay in the UK by absconding. Sine the refusal of your asylum claim you have remained UK due to you submitting a Judicial review. I am content that your removal from the United Kingdom remains appropriate for the reasons mentioned above.

In accordance with the published Home Office Asylum Policy Instruction on Further Submissions, your asylum and human rights claim has been carefully reconsidered on all the evidence available including the new further submissions and the previously considered material. I have also taken into account any more recent relevant case law and any country information that may apply to your current situation.

I have concluded that your submissions do not meet the requirements of paragraph 353 of the Immigration Rules and do not amount to a fresh claim. The new submissions taken together with the previously considered material do not create a realistic prospect of success. This means that it is not accepted that should this material be considered by an Immigration Judge, that this could result in a decision to grant you asylum, Humanitarian Protection, limited leave to enter on the basis of your family and/or private life or Discretionary Leave for the reasons set out above."

12. There is a factual dispute as to the applicant's age. Although various documents and arguments have been put forward in this claim, both parties accepted that the Tribunal was not required to determine this factual issue. It is only said to be relevant in so far as it might impact on the assessment of paragraph 276ADE of the immigration rules i.e. whether there might be very significant obstacles to the applicant's integration in Pakistan in circumstances where, if believed, he might not have had previous experience of living independently as an adult.

Decision and reasons

13. The further submissions made on 5 August 2016 were vague and limited in nature. They failed to particularise the applicant's case in any detail. They made general assertions about whether the appellant was fit for interview, but failed to say how or why the psychiatric evidence might impact on the substance of his human rights claim.

14. Dr Shafi outlined the limitations of the instructions he was given. He was only asked to answer general questions about the applicant's ability to understand the issues and his ability to concentrate for long periods of time. The report does not give a specific opinion on the applicant's fitness for interview or his fitness for removal. Dr Shafi was not asked to comment on the impact of removal on the applicant's mental health. The report does not give an opinion as to whether the applicant is so unwell that he is unable to care for himself. Regardless of the age dispute he is now an adult who, despite his vulnerabilities, has been able to live and support himself in the UK for a number of years.

15. At the date when Dr Shafi assessed the applicant he was detained pending removal. In the circumstances, it is understandable that he was distressed by his situation. The further submissions were of poor quality and failed to set out how or why the further evidence might impact on his claim. However, at minimum, they did at least ask the respondent to "reassess our client's case in the light of submitted medical report".

16. In view of the poor quality of the representations it is perhaps understandable that the respondent focused on whether the evidence showed that the applicant was fit for interview. I find that it was within a range of reasonable responses to the evidence for the respondent to conclude that the psychiatric report was insufficient evidence to show that the applicant was too unwell to be interviewed. Although Dr Shafi commented on his mental state at the date when he assessed him on 03 August 2016, he was not asked for his opinion as to whether the applicant's condition was likely to have been sufficiently long standing that he may not have been fit for interview two weeks previously.

17. However, the respondent has duties under section 6 of the Human Rights Act 1998. She was asked to re-assess the case in light of the psychiatric evidence, which required an assessment of whether the evidence might have been relevant to other aspects of the applicant's claim. Although the instructions given to Dr Shafi were limited, at the very least, the report indicated that the applicant was likely to be suffering from severe cognitive impairment as well as a major depressive disorder with psychotic symptoms. Although Dr Shafi was not asked to comment on all the elements that might be relevant to an assessment of suicide risk, the report did give rise to concerns about the possibility of an increased risk of self-harm and outlined that the applicant had thoughts about ending his life.

18. While the respondent is not obliged to search out finer aspects of the claim that were not put forward in further submissions, it is incumbent on the respondent to consider any issues that might properly arise from the face of the evidence. In this case I conclude that it was insufficient for the respondent to reject the further submissions as a fresh claim on the ground that there was no evidence to show when the applicant began suffering from the conditions outlined in the report. The evidence before the respondent showed that this was likely to have been the applicant's mental state at the date of decision and it should have been considered accordingly. When it came to considering whether there were any compassionate circumstances that might justify a grant of leave to remain no consideration was given to the substance of Dr Shafi's report, which gave rise to concerns about the applicant's mental health, and on the face of it, engaged potential human rights issues that previously had not been considered.

19. I find that the age dispute is simply not relevant to the issues that need to be determined in this judicial review claim. Although it seems clear from the evidence produced by both parties that it has been an issue in the past it did not form any part of the further submissions or evidence put forward by the applicant's representatives. The respondent could not be criticised for failing to consider the issue in such circumstances.

20. However, I conclude that, despite the vague nature of the further submissions, the respondent's failure to consider how the substance of Dr Shafi's report might impact on the human rights issues in this case does give rise to a public law error. The respondent failed to consider relevant matters before deciding whether the further evidence, taken with previously considered material, was likely to give rise to a realistic prospect of success before an immigration judge.

21. The decision to refuse to treat further submissions as a fresh claim dated 30 August 2016 is quashed.

22. The effect of this order is that the respondent will need to make a fresh decision. If the applicant wishes to make further representations they should contain sufficient detail for the respondent to understand all the arguments that are relied upon to support his claim.

Signed:
Upper Tribunal Judge Canavan

Dated: 11 May 2017

JR/11300/2016

Upper Tribunal
Immigration and Asylum Chamber

Judicial Review
Decision Notice

The Queen on the application of FAISAL [C]
Applicant
v

Secretary of State for the Home Department
Respondent

Before Upper Tribunal Judge Canavan

Application for judicial review: substantive decision

Having considered all the documents filed and having heard the parties' respective representatives, Mr P. Richardson, of Counsel, instructed by Nasim & Co. Solicitors, on behalf of the applicant and Mr D. Sternberg, of Counsel, instructed by the Government Legal Department, on behalf of the respondent, at a hearing at Field House, London on 02 March 2017.

Decision: the application for judicial review is granted

1. For the reasons given in the written judgment (attached).

Permission to appeal to the Court of Appeal

2. I refuse permission to appeal to the Court of Appeal because the decision does not disclose any arguable errors of law.

Costs

3. The respondent shall pay the applicant's reasonable costs, which shall be subject to detailed assessment if not agreed.

Signed:
Upper Tribunal Judge Canavan

Dated: 11 May 2017

Applicant's solicitors:
Respondent's solicitors:
Home Office Ref:
Decision(s) sent to above parties on:12/05/2017
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Notification of appeal rights

A decision by the Upper Tribunal on an application for judicial review is a decision that disposes of proceedings.

A party may appeal against such a decision to the Court of Appeal on a question of law only. Any party who wishes to appeal should apply to the Upper Tribunal for permission, at the hearing at which the decision is given. If no application is made, the Tribunal must nonetheless consider at the hearing whether to give or refuse permission to appeal (rule 44(4B) of the Tribunal Procedure (Upper Tribunal) Rules 2008).

If the Tribunal refuses permission, either in response to an application or by virtue of rule 44(4B), then the party wishing to appeal can apply for permission from the Court of Appeal itself. This must be done by filing an appellant's notice with the Civil Appeals Office of the Court of Appeal within 28 days of the date the Tribunal's decision on permission to appeal was sent (Civil Procedure Rules Practice Direction 52D 3.3(2)).