Tribunal decisions

The decision

IAC-AH-SAR-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: LP/00067/2021
PA/50043/2020

THE IMMIGRATION ACTS

Heard at Bradford
Decision & Reasons Promulgated
On the 8 April 2022
On the 10 May 2022

Before

UPPER TRIBUNAL JUDGE LANE

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

MS
(ANONYMITY DIRECTION MADE)
Respondent

Representation:

For the Appellant: Ms Young, Senior Home Office Presenting Officer
For the Respondent: Mr Brown

DECISION AND REASONS
1. I shall refer to the appellant as the ‘respondent’ and the respondent as the ‘appellant’, as they appeared respectively before the First-tier Tribunal. The appellant was born in 1979 and is a male citizen of Ghana. By a decision dated 16 December 2019, the Secretary of State refused the appellant’s international protection and human rights claim. The appellant appealed to the First-tier Tribunal, which, in a decision dated 9 March 2021, allowed the appeal. The Secretary of State now appeals, with permission to the Upper Tribunal.
2. The appellant suffers from serious mental health problems, including depression and suicidal thoughts, and which are evidenced in two reports one prepared by a consultant psychiatrist.
3. There are three grounds of appeal. First, the respondent asserts that the basis upon which the judge allowed the appeal is unclear. Secondly, inadequate reasons have been given for allowing the appeal (if that is what the judge sought to do) on Article 3 ECHR grounds and by reference to AM (Zimbabwe) [2020] UKSC 17. Thirdly, if the judge has allowed the appeal on Article 8 ECHR grounds, it is unclear whether the judge properly engaged with the appellant’s circumstances as they would be on return to Ghana.
4. Granting permission in the Upper Tribunal, Upper Tribunal Judge Keith characterised the Secretary of State’s challenge as ‘a simple one – that it is not possible to discern which of his claims (or all of them) the appellant has succeeded on and why…’At the initial hearing, both representatives agreed that the decision of the judge could and should have been expressed more clearly. After an extensive (if, at times, unfocussed) analysis of the evidence and issues, I find (and the parties agreed) that it is tolerably clear that the judge at [56] dismisses the asylum appeal which was based on the appellant’s claimed involvement in a ‘voodoo feud’ (‘I find … even taking into account the lower standard (sic), the respondent’s reasons, analysis and conclusions for rejecting [the appellant’s] claims in theses respects are sound and tenable.’) At the end of the decision, however, the judge does not dismiss the asylum appeal in terms but simply writes ‘The appeal is allowed’ leaving the reader ignorant as to which grounds have succeeded and which have not.
5. Ms Young, who appeared for the Secretary of State, accepted that the judge had dismissed the asylum appeal at [56] but submitted that, so far as the remaining human rights grounds (Article 3 and Article 8 ECHR) were concerned, the judge had failed to undertake any analysis of paragraph 276ADE of HC 395 (as amended) and, regarding AM, had not explained how the threshold of the test articulated in the Supreme Court’s judgment had been crossed. She submitted that the Secretary of State did not know on what basis the appeal had been allowed.
6. For the appellant, Mr Brown submitted that the judge was plainly aware of the test in AM; at [6], the judge states that the respondent had rejected the appellant’s claim that his health ‘would suffer sudden and irreversible decline if he were returned to Ghana.’ Moreover, at [52], in the section of the decision headed ‘Closing Submissions’, the judge records counsel’s (Mr Brown’s) submission that, by reference to AM and paragraph 276ADE, the appellant ‘ought to succeed.’ Mr Brown submitted that, after the asylum claim had fallen away at [56] (a decision which the appellant does not challenge), it was obvious that only the Article 3 and Article 8 ECHR health grounds remained. As for the unparticularised conclusion to the decision, Mr Brown submitted that the appellant’s case is that the judge had allowed the appeal under both Article 3 and Article 8 and that it was disingenuous of the Secretary of State to claim that she did not know on what basis the appeal had been allowed.
7. The judge’s decision is, by any standard, very poorly expressed. He uses expressions (for example, referring to evidence ‘against which I sent weight’ (sic) [57]) which at best are clumsy and, at worse, borderline unintelligible. He inserts confusing and unnecessary adjectives (apparently discussing paragraph 276ADE at [58], he writes of ‘very insurmountable obstacles to meaningful integration’ [my emphasis]). Having said that, I agree with Mr Brown that, if a primary purpose of a decision is to tell the losing party why they lost, then I am in no doubt that the Secretary of State is aware that the judge did not agree with her view that returning the appellant to Ghana would not lead to a ‘serious, rapid and irreversible decline resulting in intense suffering’. Indeed, the judge uses those very words at [58] and then writes, ‘I do find for the appellant.’ It is also not the case that any confusion as to the outcome of the appeal will leave the Secretary of State uncertain as to the length of leave to remain which she should grant to the appellant; both Article 3 and Article 8 ECHR attract awards of 30 months initially. Ms Young’s submission that the decision does not state exactly why the appellant crosses the AM threshold is a good one but I am just satisfied that the judge has provided adequate reasons albeit mainly by referring to the arguments advanced by Mr Brown rather than in his own words. At [60] the judge states that he is ’aligning myself with the appellant’s skeleton argument and the points brought to my attention in synopsis on these points in Mr Brown’s submissions {50-53 above] that I find for the appellant on these two points only.’ Such a sentence is seriously unhelpful and potentially confusing; the reader should not have to consult other documents in order to understand the reasons for the Tribunal’s decision. However, having read that skeleton argument, it is clear to me that the judge has adopted the clear and cogent reasons why the appellant does surmount the AM threshold provided by Mr Brown. I agree with Mr Brown and I find that (i) the judge has allowed the appeal on both Article 3 and Article 8 ECHR grounds, (ii) that sufficient reasons have been given (or, at least, adumbrated) and (iii) that the Secretary of State does comprehend the outcome of the appeal sufficiently to be able to grant the appellant the appropriate period of leave to remain. I therefore dismiss the Secretary of State’s appeal.
Notice of Decision
The Secretary of State’s appeal is dismissed.

Signed Date 3 May 2022
Upper Tribunal Judge Lane

Direction Regarding Anonymity – Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008

Unless and until a Tribunal or court directs otherwise, the appellants are granted anonymity. No report of these proceedings shall directly or indirectly identify them or any member of their family. This direction applies both to the appellants and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings.