Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/02182/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision and Reasons Promulgated
On 21 June 2016
On 18 August 2016

Before

UPPER TRIBUNAL JUDGE DEANS

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

MO
(Anonymity order made)
Respondent

Representation:
For the Appellant: Mr N Bramble, Senior Home Office Presenting Officer
For the Respondent: Mr M Cogan of Counsel instructed by Immigration Advice Service

DECISION AND REASONS

1) This is an appeal by the Secretary of State brought against a decision by Judge of the First-tier Tribunal Wylie allowing an appeal by MO (hereinafter referred to as "the claimant"). The claimant made his appeal to the First-tier Tribunal on asylum, humanitarian protection and human rights grounds. The appeal was dismissed on asylum and human rights grounds but allowed on humanitarian protection grounds.

2) The claimant's immigration history is set out by the Judge of the First-tier Tribunal in the decision of that Tribunal. The claimant entered the UK as a student in September 2007. He had leave extended on more than one occasion until April 2011. The claimant's spouse entered the United Kingdom as his dependant in February 2011. A human rights claim was refused in August 2011. An asylum claim was made in April 2015 and refused in a decision dated 13 October 2015.

3) The claimant and his wife have 2 daughters, born in October 2011 and March 2013, and a son born in February 2016. The claimant contends that if his family return to Nigeria his daughters will be at risk of female genital mutilation (FGM). The claimant's wife was subjected to FGM as a teenager and her sister's two daughters, aged 11 and 6, were both subjected to FGM in October 2015 in Nigeria. The claimant states that family members will force his daughters to undergo FGM if they are in Nigeria.

4) In addition the claimant is HIV positive, as is his wife. The claimant was diagnosed around 2010. The claimant is treated with a medication called Stribild, which was prescribed after he was unable to tolerate other medications. His medication is understood either not to be available in Nigeria or, if it is available, it is at a cost of nearly 3000 dollars per month. The claimant's two daughters are clear of HIV but the baby son requires to be monitored for 18 months before it can be ascertained if he has acquired HIV from his mother.

5) The claimant was brought up as a Christian after his father converted to Christianity. He claims that his family threatened his father to try and make him return to the family's traditional religion. The claimant contends that two of his siblings were poisoned and killed. He heard from his brother around 2008 that his parents had disappeared. He further claims that he was attacked and shot in 2009 because of a dispute over money from a property belonging to his father which he had sold to raise funds for his studies in the UK. The claimant further alleges that his wife was attacked after their marriage when she was still living in Nigeria before she joined him in the UK.

6) Owing to inconsistencies in the evidence the Judge of the First-tier Tribunal did not accept that there was any threat to the claimant from his extended family in Nigeria. In any event, according to the evidence relied upon by the claimant, he was able to report the attack upon him to the police for investigation. The claimant was able to return to the UK to continue his studies shortly after the alleged incidents.

7) In relation to the claim that the daughters would be at risk from FGM, an expert report was provided from a public health specialist, Dr Comfort Momoh. According to the Judge of the First-tier Tribunal this report did not make any comment about the likelihood of FGM where the parents were opposed to it and there was no pressure from the father's family. As the claimant had said that he had no knowledge of his family's whereabouts and believed his parents were dead, it would seem that there was no question of pressure from his family. The evidence indicated that the subjection of the claimant's wife's nieces to FGM was done with the consent of both their parents. The judge noted that in May 2015 the Nigerian government made FGM illegal. In Dr Momoh's report it was stated that there was still considerable support for the practice in areas where it was deeply rooted and there was no plan for appropriate enforcement. The judge found that certain of the conclusions of Dr Momoh did not appear to be evidence based. The judge further noted that before the claimant left Nigeria he had lived and worked in Lagos, rather than in a rural village. The judge found that there would be state protection available to the claimant in seeking to keep his daughters safe and free from FGM.

8) The judge then considered the claimant's HIV status. The judge noted that in 2012 approximately 3.5 million people, or 4.1% of the population, were living with HIV/AIDS in Nigeria. There was widespread societal discrimination against persons with HIV/AIDS. Medical treatment was available.

9) Before the judge there was a consultant's letter of 2 October 2015. This stated that the claimant had responded reasonably well to treatment, although he had considerable damage to his immune system. Due to side effects and toxicities he had had to change his HIV therapy a number of times until he was prescribed medication which he could tolerate. He is able to tolerate Stribild, which he takes once a day. If his treatment were to be interrupted or terminated, it was likely that his disease would advance relatively quickly. Within a few months he would be ill and within a few years he would be dead. The medication Stribild was said not to be available in Nigeria. The average wholesale price of this medication was around 2948 dollars per month for a daily dose. According to the judge, the treatment available in Nigeria was not considered optimum by the consultant in the UK. However, there was no evidence that there was no treatment available to alleviate the symptoms of the claimant's illness, albeit subject to side effects. The judge was not satisfied that the discrimination in Nigeria against a person with HIV amounted to persecution.

10) Having made these findings, the judge then went on to review them under the heading "humanitarian protection". The judge noted that the risk of FGM for the claimant's daughters depended on the claimant being likely to withstand any pressure from his wife's family and being able to protect his daughters. If the claimant were to die within a few years, the children would still be of an age when they were at a significant and serious risk of being subjected to FGM. Given that the claimant's wife's sister's daughters had recently been subjected to FGM, it appeared to the judge that if the children were in the sole care of their mother, they would be within the influence of the maternal family and it was very probable that their mother would not be able to protect them. On this basis there were substantial grounds for believing that the family would be at real risk of suffering serious harm and would not be able to avail themselves of the protection of the state.

11) So far as the claimant's HIV condition was concerned, the judge found that this would not exceed the Article 3 threshold. It would not be disproportionate under Article 8 to remove the family.

12) The Secretary of State sought permission to appeal on the basis that the Judge of the First-tier Tribunal had made perverse or irrational findings. The judge found first that there was no risk of the claimant's daughters being subjected to FGM and that there was a sufficiency of state protection. The judge then made a contradictory finding to the effect that the family would be at real risk of suffering serious harm if returned to Nigeria and the daughters would not have the protection of the state. It is submitted that the judge found there was a sufficiency of state protection when considering the asylum grounds but not when considering the humanitarian protection grounds. In making the decision in relation to humanitarian protection, the judge appeared to have relied on the report by Dr Momoh, although earlier the judge had criticised certain of the conclusions in this report as not appearing to be clearly evidence based. This amounted to a further contradictory finding.

13) Permission to appeal was granted on these grounds.

Submissions

14) In his submission at the hearing. Mr Bramble, on behalf of the Secretary of State, relied on the grounds of the application. The judge made findings that the claimant was not a refugee and there were findings that the daughters were not at risk of FGM. The judge then turned to the issue of humanitarian protection and allowed the appeal on the premise that if the claimant died within a few years the daughters would be at risk. The judge was, however, tied to the date of the hearing and the foreseeable future. Mr Bramble said he was not trying to lessen the claimant's situation but the judge had moved from finding there was no threat to the claimant on medical grounds to finding at paragraph 56 that he would die in the next couple of years. This was speculation. The judge then postulated a scenario where the claimant's wife would be on her own with the children and because her older sister's children had been subjected to FGM, she would not be able to protect her daughters from this. The judge's decision was irrational and perverse. The judge did not make clear findings in relation to the expert's report by Dr Momoh. There was no evidence that the claimant was going to die in a few years.

15) Mr Bramble further observed that there was no cross-appeal by the claimant.

16) For the claimant, Mr Cogan submitted that the Secretary of State was confusing considerations relevant to a grant of humanitarian protection with those relevant to asylum or human rights. Different considerations applied to each claim. The finding in relation to the asylum claim that there was protection for the daughters meant that their father was in a position to protect them. State protection would be available only after the event. This protection was conditional upon the presence of the daughters' father. The judge had taken into account the medical report on the claimant and it was on this, and not on Dr Momoh's report, that the humanitarian protection risk to the daughters was based. This was not "crystal ball gazing" but was based on the fact that without appropriate medication the claimant would fall ill and die. The judge was entitled to take the view that this would happen sooner rather than later, while the children were still minors.

17) Mr Cogan further stated that there was no reference in the judgment to section 55, which had been a central issue in the appeal. Although the law on FGM changed in Nigeria in May 2015, in October 2015 the claimant's wife's nieces were subjected to FGM and this was accepted by the judge.

18) Mr Cogan acknowledged that there was no cross-appeal on behalf of the claimant. If the judge was wrong to allow the appeal on humanitarian grounds it should have been allowed under Article 3. The decision as a whole was not illogical but was compartmentalised. The judge was obliged to deal with each issue separately. The same criticisms were not appropriate to each part of the judge's findings. The judge had said that if the claimant was on the appropriate drug regime he would stay fit but if his condition deteriorated because of a lack of suitable drugs he would not be able to protect his daughters from FGM. Mr Cogan pointed out that although the claimant's drug, Stribild, was not available in Nigeria, the drugs being taken by the claimant's wife were available.

19) There followed some discussion of what submissions might have been made to the judge at the hearing before the First-tier Tribunal. According to Mr Bramble, the best interests of the daughters were implicitly considered in relation to FGM. The judge was wrong then to consider what might happen if the claimant were to die in a few years. This was speculation. If the children were considered on their own then it would be the responsibility of the state to protect them.

20) Reference was made to the grounds of appeal to the First-tier Tribunal, in which the issue of FGM was raised, but not, directly the best interests of the children. The skeleton argument before the First-tier Tribunal also referred to FGM and to the medical condition of the claimant and his wife and the inability of the claimant to obtain medication in Nigeria.

Discussion

21) Mr Cogan submitted that different considerations applied to refugee status, humanitarian protection and human rights. Nevertheless, the same findings of fact may be relevant to more than one of these categories. The judge found, at paragraphs 45-47 of the decision, that if the claimant's treatment was interrupted or terminated, it was likely that his disease would advance relatively quickly and he would die within a few years. The medication he currently takes, Stribild, is not available in Nigeria. There was, however, other treatment available in Nigeria. According to the judge this was not considered to be the optimum treatment but there was no evidence that there was no treatment available, albeit that treatment would have side effects.

22) The finding of the judge at paragraph 47 of the decision was that there would be treatment for the claimant in Nigeria, although this was not the optimum treatment.

23) The judge found that the claimant would be in a position to protect his daughters from being subjected to FGM in Nigeria. There would be no pressure from his side of the family and he would be able to resist the pressure from his wife's family. The judge then went on to find at paragraph 56 of the decision that if the claimant were to die within a few years the children would face a significant and serious risk of being subjected to FGM. At paragraph 54 the judge stated that medical evidence was accepted to the effect that if the claimant ceased the therapy he presently receives his health was likely to deteriorate within a few months and he would die within a few years.

24) The finding at paragraph 54 in relation to the short life expectancy of the claimant entirely contradicts the finding at paragraph 47, to the effect that the claimant would receive treatment, although not the optimum treatment. The finding at paragraph 54 appears to be based on the proposition that if the claimant's current treatment was interrupted or ceased this would lead to illness and eventually death. These contradictory findings are perverse, not adequately reasoned, and amount to an error of law. At this stage in proceedings it is difficult for me to be satisfied that either finding fully reflects the medical evidence which was before the Tribunal, having regard, in particular, to the consultant's letter of 2 October 2015, which does not refer to optimum treatment but states that if the claimant returned to Nigeria it was "almost certain his HIV therapy would be stopped". Because of the contradictory findings made by the judge the entire decision should be set aside and will have to be remade.

25) A further question was raised at the hearing by Mr Cogan about the judge's approach to the children and, in particular, whether their best interests were taken into account. The submissions made at the hearing are not recorded in detail by the judge in the decision. There is nothing in the grounds of appeal to the First-tier Tribunal or the skeleton argument placed before the Tribunal to suggest that an argument was presented to judge in terms of the best interests of the children. The judge clearly approached the issue of FGM on the basis that if there was a real risk of the children being subjected to this then this would constitute serious harm. The judge was entitled to form this view, although the judge erred in relation to the findings in respect of the claimant's health. There is no doubt that FGM constitutes serious harm.

26) Mr Cogan appeared to suggest that even if the issue of FGM would not lead to an outcome in the claimant's favour in respect of humanitarian protection, it should do so in relation to Article 3. There is no basis for the suggestion. If the findings made by the judge would not support a decision in the claimant's favour in respect of humanitarian protection, neither would it support an outcome favourable to the claimant under Article 3.

27) The place where the best interests of the children should have been raised was in relation to Article 8. Although the judge did not refer directly to the best interests of the children, reference was made to sections 117A and 117B of the 2002 Act. The judge clearly contemplated that the family would be removed to Nigeria as a unit. The judge pointed out that all the children were born after the claimant's leave expired. At the date of the hearing the oldest child was under 5 years old. The removal of the claimant to Nigeria would constitute a breach of his private life but his family life would continue as the whole family would return with him. The interference with his private life would not be disproportionate. These findings are not in themselves objectionable but they cannot stand where proper findings have not been made in respect of the claimant's health. Accordingly no findings should be preserved.

28) In view of the inadequacy of the findings based on the medical evidence, the proper course is for the appeal to be remitted to the First-tier Tribunal for fresh findings to be made. If the claimant considers that the medical evidence should be clarified or up-dated then this provides an opportunity for so doing.

Conclusion

29) The making of the decision of the First-tier Tribunal involved the making of an error on a point of law.

30) I set aside the decision.

31) The appeal is remitted to the First-tier Tribunal for a hearing before a different judge with no findings preserved.

Anonymity

32) The First-tier Tribunal made an order for anonymity and I continue that order. No report of these proceedings shall directly or indirectly identify the claimant or any member of his family. This direction applies both to the claimant and to the Secretary of State. Failure to comply with this order could lead to contempt or court proceedings.

Signed Date 17th August 2016

Upper Tribunal Judge Deans