Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/02083/2015

THE IMMIGRATION ACTS

Heard at Glasgow
Decision & Reasons Promulgated
on 31 January 2017
on 16 February 2017

Before

UPPER TRIBUNAL JUDGE MACLEMAN

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

M J KAMISA
Respondent

For the Appellant: Mrs M O'Brien, Senior Presenting Officer

For the Respondent: Mr A Caskie, Advocate, instructed by Maguire Solicitors (Scotland) Ltd

DETERMINATION AND REASONS
1. The SSHD appeals against a decision by First-tier Tribunal Judge D H Clapham, promulgated on 16 November 2016, allowing the appellant's appeal.
2. The rest of this determination refers to parties as they were in the FTT.
3. The appellant, his wife and child are all citizens of Malawi. He came to the UK as a student in 2005 and his wife as his dependant in 2008. Their daughter was born here on 17 February 2011.
4. In 2013 the appellant leave as a student came to an end. He says this was due to a combination of delay by his university and unnecessarily rapid decision-making by the respondent. The FtT judge had some sympathy with his position (paragraph 40), but that is now historic. Having overstayed for a period, he sought to remain on the basis of asylum and of article 8 of the ECHR.
5. The appellant's wife has a history of serious mental illness since coming to the UK. She has been hospitalised on several occasions, and was diagnosed with schizophrenia in 2014. Her condition is presently controlled by antipsychotic medication administered to her as an outpatient by injection every 3 weeks.
6. The claim was based on shortcomings of mental health care in Malawi, the possibility of relapse in absence of medication, discrimination against or persecution of the mentally ill in Malawi, and the best interests of the child.
7. The decision of the first-tier Tribunal concludes:
For all these reasons therefore and taking this case in the round I am satisfied that the appellant's wife is a member of a particular social group being a person with a mental illness in Malawi but even if I am wrong in this I am satisfied that the appeal should be allowed under article 8 of the ECHR.
I allow the appeal in terms of asylum and under article 8 of the ECHR.
8. The SSHD's first ground of appeal is that the claim was not based on a fear of persecution in any Refugee Convention category, but on the basis that the appellant's wife would be stigmatised because of mental health problems, and so the appellant could not qualify.
9. Under this ground, it is also said that the judge gave no reasons for the finding that the appellant's wife falls within a particular social group.
10. Ground 2 is that the judge failed to consider objective information on availability of medication. Permission was not granted on this ground.
11. Ground 3 is that membership of a particular social group is not sufficient to qualify for asylum, and that it was incumbent on the judge to consider whether the appellant had a well-founded fear of persecution on return.
12. Ground 4 is that the article 8 finding is flawed as there is no assessment of the appellant's ability to meet the immigration rules and no reference to the public interest considerations under part 5A of the 2002 Act.
Submissions for SSHD.
13. Grounds 1 and 3 should be read together. The judge misdirected herself in considering it possible for the appellant to succeed as a refugee. Further, she did not demonstrate that women with mental illness in Malawi form a particular social group, or that discrimination against them reaches the level of persecution. The article 8 outcome was bereft of any consideration of factors on the respondent's side. The rules were not taken as a starting point. There was no acknowledgement of the extent to which the appellant's situation fell short of the rules. There was no mention of any of the public interest considerations established by statute. The best interests of the child had been considered in isolation and as paramount rather than primary. Reconsideration was required.
Submissions for appellant.
14. The decision should be read as a whole, and on the assumption of an informed reader. The judge should be given credit for knowing her job. It was notable that permission had been refused on ground 3, and there had been no application to renew that ground. It therefore was to be taken that the appellant's wife could not access suitable medication in Malawi. She is the mother of a child aged 6. It was known that in the absence of treatment she was liable to become psychotic and violent. The evidence narrated at paragraph 28 as part of the submissions for the appellant was sufficient to ground a finding of persecution. All that should be taken as clear to the informed reader, and as sufficient to ground the finding of persecution. The case involved a mother who was particularly vulnerable, a child at its centre, and absence of support in Malawi. The best interests of the child obviously formed the ultimate basis of the decision. While the final paragraph of the decision might be "problematic" there were findings which justified the outcome in respect of mother and child. Apart from not having submitted the claim, the appellant's wife was entitled on the facts to recognition as a refugee. It would follow that she could not be removed and nor could her child, a sufficient basis for the article 8 outcome, as in refugee recognition there were no public interest considerations to the contrary. The decision might not be a model one but on careful analysis it contained all the necessary elements. The judge had looked at the strength of the underlying case and seen that there could sensibly be only one outcome.
Response for SSHD.
15. The appellant in effect sought rewriting or reconstruction of the decision. It should not be rescued by a complete forensic re-analysis. This was not a case with only one possible outcome, where the operation of the rules and the public interest considerations were inevitably outweighed, so there had to be another decision, weighing all factors on both sides.
Conclusions.
16. As I understood the submissions for the appellant, error was accepted in the asylum finding. In any event, for obvious reasons, the appellant had no case for recognition as a refugee. That part of the outcome cannot stand, on any view.
17. Mr Caskie made a good case of what might have been, based on the factors in the decision which are positive for the appellant. However, it cannot be gainsaid that the decision completely omits the other side.
18. The judge did not say that this was a case which rationally could only have one outcome. It cannot sensibly be read into the decision that she took that view, having considered but not mentioned all relevant factors.
19. There are very few cases so clear and so overpowering as to have only one possible outcome under article 8, outside the rules, and even stated at its highest, as it was by Mr Caskie, this is not such a case.
20. The decision should have taken the private and family life provisions of the immigration rules as a starting point.
21. The judge was bound to take into account part 5A of the 2002 act; in particular section 117B, public interest considerations applicable in all cases, and paragraph 117D, defining a qualifying child.
22. It is an error of law not to take into account these considerations, but rehearsal of the specific terms of the statute is not required, provided that the duty is substantively complied with.
23. There is nothing in the decision by which it might be found that the public interest considerations were even implicitly taken into account.
24. In the further resolution of this particular case the best course would be to set out the relevant statutory provisions and deal with them explicitly one by one.
25. Article 8 requires a current and not a backdated assessment. I was not asked to preserve any particular findings. It would impose an artificial restraint on both sides and an unnatural task on the judge to try to do so. An entirely fresh decision is required.
26. The decision of the FtT is set aside. None of its findings are to stand, other than as a record of what was said on that occasion. The nature of the case is such that it is appropriate in terms of section 12(2)(b)(i) of the 2007 Act and of Practice Statement 7.2 to remit the case to the FtT for rehearing.
27. The member(s) of the FtT chosen to consider the case are not to include Judge D H Clapham.
28. No anonymity direction has been requested or made.

15 February 2017
Upper Tribunal Judge Macleman