Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/02347/2015

THE IMMIGRATION ACTS

Heard at Manchester, Piccadilly Decision & Reasons Promulgated
On the 13th March 2017 On the 20th March 2017

Before:
DEPUTY UPPER TRIBUNAL JUDGE MCGINTY

Between:
MS LIJUAN LIN
(Anonymity Direction not made)
Appellant
And

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Ahmed (Counsel)
For the Respondent: Mrs Patterson (Senior Home Office Presenting Officer)

DECISION AND REASONS
1. This is the Appellant’s appeal against the decision of First-tier Tribunal Judge Heynes promulgated on the 11th August 2016, in which he dismissed the Appellant’s appeal against the Respondent’s decision dated the 27th October 2015, to refuse to grant her asylum, humanitarian protection, and protection in respect of her Human Rights under Article 8 both inside and outside of the Immigration Rules.
2. Within his decision, Judge Heynes noted at [7] that the Appellant’s account was that she had borrowed money from loan sharks in China, and that she was now separated from her husband and that she suffered from severe idiopathic pulmonary arterial hypertension. Her case was that she would be killed by loan sharks upon her return, and could not afford medical treatment in China. Her case regarding lack of availability of medical treatment is not only in respect of the cost of the drug, but also its availability and the availability of the method of delivery by use of an ultrasonic nebuliser in China. Judge Heynes found that there was no issue about the Appellant’s diagnosis or the seriousness of her condition, but found that the required drug Ventavis has been widely used in China and that the drug and means of delivering it had been available. He found that the current position regarding availability in China was now unclear and that all that was said was that at the end of 2015 there was a proposal to withdraw it from China, but that efforts would be made to secure future supplies.
3. However, First-tier Tribunal Judge Heynes, after having rejected her account of having borrowed money from loan sharks and been at risk therefrom, went on to find that the Appellant’s medical condition did not meet the threshold set out in the case of N and which was confirmed in respect of terminally ill patients and the case of GS (India) and others [2015] EWCA Civ 40. Judge Heynes also went on to consider the alleged breach of Article 2, Article 3 and Article 8 and the approach taken in GS (India) in that regard which had approved the position set out in MM (Zimbabwe) [2012] EWCA Civ 279, in that the absence of medical treatment in the country to which a person is to be removed will only be relevant to Article 8 where it is an additional factor to be weighed in the balance with other factors which by themselves engage Article 8. He found that the Appellant did not claim to have a family life with a partner and there was no evidence to establish she had a private life engaging Article 8 beyond her medical issues. He therefore found that Article 8 was not engaged and was not breached by her removal.
4. The Appellant has now sought to appeal against that decision for the reasons set out within both the initial and the further Grounds of Appeal. I have fully taken account of both of those documents in reaching my decision.
5. Within the initial Grounds of Appeal it is argued, inter alia, that it was incumbent upon the Immigration Judge to provide reasons for rejecting Dr Armstrong’s evidence, and it is argued the Judge’s findings that both the drug and the means of delivering it have been available in China and that the current position regarding the availability of Ventavis was unclear, was contrary to the evidence of Dr Armstrong and that the Judge had failed to give proper reasons following the case of MK (duty to give reasons) Pakistan [2013] UKUT 641, in that regard. It was further argued that the Judge failed to consider the Article 3 claim in light of the case of D v the United Kingdom (application number 30240/96) and the findings of the court in that case between paragraphs 51 and 53 in respect of the test that has to be met in respect of whether or not Article 3 is breached on health grounds.
6. Permission to appeal was originally refused by First-tier Tribunal Judge Davidge on the 5th September 2016 who found that the Judge Heynes had rejected the Appellant’s historical account of being forced to work to clear the debt of a loan shark and of her family having constantly to move to avoid threats from a loan shark and that the Judge had properly taken account of the fact the Appellant was pregnant, apparently by her original partner who had left after an earlier miscarriage and difficulties caused by her suffering pulmonary arterial hypertension, a rare condition which is life-limiting and life-shortening requiring her to receive highly complex and expensive therapy, disruption to which would put her life at immediate risk. Judge Davidge found that Judge Heynes gave weight to the evidence that the drug required for treatment is available in China and that given the drug is in use that the precise delivery system with logistical and support mechanism required were available. He noted the Judge had concluded that the Appellant had not established that she would be returning to her home country in circumstances which means she would not be able to die with dignity. He found that the Grounds of Appeal asserted that the Judge had dealt inadequately with the Appellant’s doctor’s evidence but had not set out any of the doctor’s evidence which would suggest that the Judge’s conclusions were perverse. He found that the Judge had dealt with the letter from Dr Armstrong at paragraphs 15 to 20 and concluded at paragraphs 23 and 24 that the Appellant’s evidence fell short of the required threshold.
7. In the renewed Grounds of Appeal dated the 20th September 2016, it is further argued that when considering both letters from Dr Armstrong, that dated the 24th September 2015 and subsequently the letter dated the 19th May 2016, Dr Armstrong had gone to a great length in investigating/researching the availability of the drug/treatment in China and that both letters succinctly addressed the material factual contentions and that the Judge had failed to provide adequate reasons in dismissing the evidence of Dr Armstrong. It was argued that the findings were accordingly perverse.
8. Permission to appeal was then granted by Deputy Upper Tribunal Judge Taylor on the 29th September 2016, who found that:
“Although ultimately it may be that the original Judge was entitled to reach the decision which he did, I am concerned that this brief determination does not, as the grounds argue, properly engage with the complex medical evidence in this case, which involves a very seriously ill pregnant Appellant. The grounds may be argued.”
9. It was on that basis that the case came before me in the Upper Tribunal.

Oral Submissions
10. In his oral submissions to the Upper Tribunal, Mr Ahmed relied upon both the original Grounds of Appeal and the renewed Grounds of Appeal to the Upper Tribunal, both of which I have fully taken account of. He argued that the main issue was the serious complicated medical issues that the Appellant had and although he conceded that the Judge had referred to both letters from the 24th September 2015 and the 9th May 2016 from Dr Armstrong, he argued that the Judge had failed to properly take account of the evidence of Dr Armstrong that if removed to Beijing the Appellant would not get the full package of treatment she needed and that this would put her at serious risk. He said that the Judge had failed to take account of the seriousness of the problem of taking such a drug in Beijing and that the Respondent’s own evidence was that the makers of Ventavis were seeking to exit the Chinese market.
11. In her oral submissions to the Tribunal, Mrs Patterson argued that the Judge was entitled to weigh up the medical evidence and that there was a very high threshold for Article 3. She said the Judge was entitled to take account of the evidence regarding the availability of the drug in China and the availability of the delivery system and that the Appellant’s evidence although saying that the machines required maintenance did not say that that was not available in China. She submitted that for the purposes of Article 3, even if the unavailability of a drug shortened life, that in itself was insufficient to amount to a breach of Article 3.
12. In his submissions in reply, Mr Ahmed argued that the UK had undertaken to provide such drugs and that if the Appellant came off such medication, there would be significant withdrawal symptoms amounting to degrading treatment. However he conceded that he had no evidence regarding the withdrawal symptoms that she would suffer if she were taken off the medication. He said that if returned she would not have access to the life-saving medication available in this country. He conceded that it would have been helpful had Dr Armstrong set out the suffering that she would face if the drugs were not available. He argued that as a backstop Article 8 would be breached by her removal. He argued that the First-tier Tribunal Judge had failed to attach appropriate weight to the evidence of the professionals. But he conceded that the test set out by First-tier Tribunal Judge Heynes both in respect of Article 3 and Article 8 were the correct tests.
My Findings on Error of Law and Materiality
13. I note specifically that Mr Ahmed on behalf of the Appellant does not contend that First-tier Tribunal Judge Heynes applied the wrong test, when considering either Article 3 or Article 8 in this case. The argument that the Judge failed to give proper weight to the evidence of Dr Armstrong, amounts in effect to an argument that the Judge’s findings in that regard were perverse. The matter of weight to be attached to the evidence in the absence of perversity, is a matter for the First-tier Tribunal Judge.
14. It is clear in this case that First-tier Tribunal Judge Heynes has taken account of the evidence of Dr Armstrong both in the letter dated the 24th September 2015 and the 19th May 2016, and has specifically made reference to them and summarised the evidence between paragraphs 15 and 19. He took account of the fact that pulmonary arterial hypertension is a rare condition managed at 7 designated centres in the UK and that it is a life-limiting and life-shortening condition and that the Appellant receives a highly complex and expensive therapy and any interruption with her care will put her life at immediate risk. Judge Heynes has clearly specifically taken that into account. He further took account of the fact that Dr Armstrong had said that research showed that the relevant drug Ventavis could be made available anywhere in the world, but had to be delivered by an ultrasonic nebuliser and that patients need 24 hour per day, 7 day a week access to emergency services for the possibility of urgent admission in an acute bed on a pulmonary vascular disease unit which is not available in Beijing and that Dr Armstrong emphasised not only it was the drug that was required but also the delivery system and logistical and support mechanisms that were required. He further took account that Dr Armstrong had clearly gone to lengths to research the availability of Ventavis in China. However, First-tier Tribunal Judge Heynes found that the shortcoming of the letter was that Dr Armstrong had not identified the sources of the information that the letter contained.
15. I find that Judge Heynes has properly considered the evidence of Dr Armstrong, but had also taken into account the evidence produced by the Respondent at the hearing to which Mr Ahmed had not objected at the time from the Farmer Industry Trade Platform dated the 28th December 2015 which found that as of December 2015 there were 12 million patients with pulmonary hypertension in China and that Ventavis had been used in 400 hospital and 16 cities in China. He also took account of the note that Bayer the maker of the drug was intending to exit the Chinese market, but the Chinese Charity Federation were seeking a solution to the continued supply of the product.
16. In such circumstances, Judge Heynes was perfectly entitled to find at [23] that the evidence that Ventavis has been widely used in China means that both the drug and the means of delivering it must have been available. He was also entitled to take into account that although there was evidence that there was a proposal to withdraw it from China that efforts were being made to secure future supplies.
17. In such circumstances, having properly considered and weighed both the evidence from the Appellant and the evidence from the Respondent, the Judge has made findings which were perfectly open to him in preferring the Respondent’s evidence in that regard to that of Dr Armstrong, and the Judge has given a perfectly adequate and sufficient reason for preferring that evidence in that he noted at [19] that Dr Armstrong had not identified the sources of information that he had provided. It cannot be said that the findings of the First-tier Tribunal Judge in that regard were therefore perverse.
18. In any event, First-tier Tribunal Judge Heynes properly considered the case of GS (India) and others in which the Court of Appeal noted at [46] that “The case of a person whose life will be drastically shortened by the progress of natural disease if he is removed to his home state does not fall within the paradigm of Article 3. Cases such as those before the court can therefore only succeed under that Article to the extent that it falls to be enlarged beyond the paradigm”. In that case, even though the Claimant’s life expectancy was likely to be shortened if they failed to continue to receive the medication they were receiving in the UK, the Court of Appeal following the cases of D v the UK [1997] 24 EHRR 423 and the House of Lords case of N v the Secretary of State [2005] 2 AC 296, found that in order to amount to a breach of Article 3, not only had the Appellant to be terminally ill but that the test was “whether the applicant’s illness had reached such a critical stage (i.e. he is dying) that it would be inhuman treatment to deprive him of the care which he is currently receiving and send him home to an early death unless there is care available there to enable him to meet that fate with dignity”.
19. Judge Heynes in deciding that the evidence before him had not shown that if the Appellant were returned to her home country that she would not be able to die with dignity made a finding that was open to him on the evidence. The Learned Judge did properly as conceded by Mr Ahmed, apply the correct test in that regard. Nowhere within the evidence of Dr Armstrong, does it deal with whether or not the Appellant would not be able to die with dignity, and as to whether or not the level of suffering that she would suffer whilst dying would amount to inhuman or degrading treatment. The fact that her life would be put at jeopardy and may be shortened, as was stated in GS, is not the point. The Judge therefore made findings which were open to him that the high threshold within Article 3 was not met.
20. Further, the Judge has properly applied the test regarding the relationship between Articles 3 and 8, and again made findings which were open to him that the Appellant had not put forward any evidence to establish that she actually had a family life in the UK for the purposes of Article 8 or that she had established a private life engaging Article 8 beyond her medical issues, and that as was set out in GS (India) that the absence of adequate medical treatment in the country to which a person is to be removed will only be relevant to Article 8 where it is an additional factor to be weighed in the balance with other facts which by themselves engage Article 8. In the absence of any other factors which engaged Article 8, the Judge made findings which were perfectly open to him that Article 8 would not be breached by the Appellant’s removal.
21. In such circumstances, therefore, the decision of First-tier Tribunal Judge Heynes does not reveal any material error of law and is maintained. The Appellant’s appeal is dismissed.

Notice of Decision
The decision of First-tier Tribunal Judge Heynes does not reveal any material error of law and his decision is maintained. The Appellant’s appeal is dismissed.
I make no order in respect of anonymity, no such order having been sought before me.

Signed

Deputy Upper Tribunal Judge McGinty Dated 14th March 2017