Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/02831/2018

THE IMMIGRATION ACTS

Heard at Manchester Civil Justice Centre
Decision & Reasons Promulgated
On 10 July 2019
On 19th July 2019

Before
DEPUTY UPPER TRIBUNAL JUDGE BIRRELL

Between
WA
(ANONYMITY DIRECTION MADE)
Appellant
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms Johnrose, for Broudie Jackson and Cantor
For the Respondent: Mr Tan, Senior Home Office Presenting Officer

DECISION AND REASONS
Introduction
1. An anonymity direction was made in this case and will continue.
2. This is an appeal by the Appellant against the decision of First-tier Tribunal Judge Garratt promulgated on 2 May 2019, which dismissed the Appellant's appeal against a protection claim on all grounds.
Background
3. The Appellant was born on 1 June 1988 and is a national of Afghanistan. The Appellants wife (FA) and sons (AAA) whose dates of birth are 30.4.1992 and 1.4.11 are dependents in his appeal.
4. The Appellants case was that 5 years before his arrival in the UK he and his wife had met while she was studying near his home. Her family had already agreed that she should marry another family member and therefore beat her when they found out about her relationship with the Appellant. She fled her home and married the Appellant. She became pregnant and tried to speak to her family again but was beaten. The Appellant and his wife and child fled from Afghanistan fearing that they would be killed by her family. The Respondent did not accept that the Appellant was at risk from his wife's family as a result of their relationship or that her family had influence. It was not accepted that any medical problems suffered by the Appellants wife were at a critical stage.
The Judge's Decision
5. The Appellant appealed to the First-tier Tribunal. First-tier Tribunal Judge Garratt ("the Judge") dismissed the appeal against the Respondent's decision. The Judge found
(a) Although the Appellant had other family members living in the UK none of them gave evidence to support his account of events in Afghanistan.
(b) He did not find the account of the Appellants courtship and marriage of his wife and any risk arsing therefrom was credible.
(c) He did not find that there was reliable medical evidence that the Appellants wife had PTSD because he found that the letter of Dr Bright (AB 272-3) did not provide a detailed analysis and that there was no psychological assessment (para 41)
(d) The Judge accepted that the Appellants wife suffered from depression.
(e) In relation to the human rights appeal the Judge considered again the Appellants wife's medical issues and accepted that she suffered from severe depression (paragraph 53) and had a hearing defect. He found that these did not meet the high threshold in N [2003] EWCA Civ 1369; he found that there had to be unchallenged psychiatric evidence of a significant risk of suicide of the asylum seeker were removed and the Judge found no such evidence; he noted that she had never been sectioned.
(f) In respect of the availability of treatment in Afghanistan equivalent to that in the UK he found that there was no risk of imminent death and therefore Article 3 and 8 were not engaged.
6. Grounds of appeal were lodged arguing that:
(a) That the Judge failed to take into account the medical evidence before him in rejecting the claim that the Appellants wife had PTSD.
(b) The Judges assessment of the risk on return of suicide was therefore inadequate.
(c) The Judge failed to engage with the guidance given in J v SSHD [2005] EWCA Civ 629
(d) The Judge failed to adequately assess the expert evidence who states that the Appellants wife was unlikely to receive treatment not that the treatment available was not as good as that in the UK.
7. On 24 May 2019 First tier Tribunal Judge Scott Baker gave permission to appeal.
8. At the hearing I heard submissions from Ms Johnrose on behalf of the Appellant that:
(a) She relied on the Grounds.
(b) The Judge failed to assess the risk of suicide in accordance with the step by step guidance in J.
(c) The Judge made a finding that the Appellant did not have PTSD which was not open to him listing the sources of that diagnosis in the Appellants bundle.
(d) The Judge at paragraph 53 conflated the guidance in N and R.
(e) There is no assessment of the risk of suicide if she were told she was being removed when throughout the bundle there is evidence of 'suicidal ideation.'
(f) It is unclear why the Judge accepted that the Appellants wife had 'severe depression' when the medical evidence all refers to depression with suicidal ideation.
(g) There was no assessment of the causation of her problems as the Appellants case was that her mental health problems were linked to events in Afghanistan.
(h) A proper assessment under Article 3 was required.
9. On behalf of the Respondent Mr Tan submitted that:
(a) There is no challenge or permission in relation to the findings in respect of the events in Afghanistan the Appellant claimed caused the family to flee only Article 3.
(b) The Judge does not say that there was no medical evidence of PTSD but rather that there was no evidence upon which he could rely.
(c) The references to PTSD in the medical notes were not a diagnosis.
(d) The most recent assessment from Dr Bright was dated 18 February 2019 (AB 64) and the diagnosis made no reference to PTSD only depression with suicidal ideation.
(e) The letter at page 64 did not address the level of risk for the Appellants wife of suicide and did not establish that there was a real risk and what risk there was the Doctor linked not to the process of removal but to the lack of social interaction and the ongoing stress of the outstanding claim.
(f) The Judge was entitled to consider the fact that the Appellant had not been sectioned as reflecting on the level of risk.
(g) If the Appellant returned with his wife against the background that the Judge had rejected the reasons given for flight she would be returning to a familiar place, with family and some medical services. The expert was not in a position to assert that the treatment available was not appropriate for the Appellants wife.
10. In reply Ms Johnrose on behalf of the Appellant submitted
(a) The most recent letter from Dr Wright also did not refer to 'severe depression' yet that was the finding made by the Judge but it does refer to suicidal ideation. While there was no reference to PTSD there were past diagnoses.
(b) The medical notes would not simply record the Appellants wife's claim she had PTSD but would record symptoms and what was accepted. The letter did speak of increasing her dose of metazapine which must be relevant.
(c) The challenge is that the experts evidence i not that the treatment in Afghanistan is different but that it is not available.
The Law
11. Errors of legislative interpretation, failure to follow binding authority or to distinguish it with adequate reasons, ignoring material considerations by taking into account immaterial considerations, reaching irrational conclusions on facts or evaluation or giving legally inadequate reasons for the decision and procedural unfairness, constitute errors of law.
12. It is not an arguable error of law for an Immigration Judge to give too little weight or too much weight to a factor, unless irrationality is alleged. Nor is it an error of law for an Immigration Judge to fail to deal with every factual issue under argument. Disagreement with an Immigrations Judge's factual conclusions, his appraisal of the evidence or assessment of credibility, or his evaluation of risk does not give rise to an error of law.

Finding on Material Error
13. Having heard those submissions I reached the conclusion that the Tribunal made no material errors of law.
14. The grounds challenge the Judges finding at paragraph 40 that the Appellants wife was not suffering from PTSD arguing that this was not a finding reasonably open to him. I am satisfied that the Judge did not have a full psychiatric or psychological report but was faced with a bundle that contained various GP notes; letters from Nurses, Doctors and two different Consultants both dated and undated, none of which were placed in any chronological order.
15. Thus the Judge at paragraph 41 refers to an undated letter from Dr Bright a Consultant Psychiatrist (AB 92) which confirms that FA was being treated for PTSD and depression but notes that there is 'no other medical report which shows that there has been a detailed analysis of the wife's condition '.Even where a Judge is presented with a full medical report (which he did not have in this case) he is entitled to consider to what extent it is based on established medical methodology and criteria. To the extent that it is not, a Judge may be justified in attaching less weight to it.
16. In this case I am satisfied that the Judge was not stating that there was no medical evidence but what was in the bundle was not evidence he could rely to conclude that the Appellants wife had PTSD and that was a finding open to him. It is clear that the Judge was not provided with an up to date psychiatric or psychological assessment of the Appellants wife's mental state. There was no assessment of this lady by reference to the recognised diagnostic formulation which was presumably what the Judge means at paragraph 41. An experienced Judge such as this one would also have routinely seen an accompanying psychological assessment but that was also absent in this case and the Judge was entitled to note its absence and to note that the Psychiatrist Dr Dolange at AB106-107 in her undated letter states that what she had done was not a 'complete assessment' and there was a psychological assessment outstanding.
17. Indeed, the most recent letter in the bundle at page 64 (not under the heading Medical Evidence but in that part of the bundle described as Country Evidence) was dated 18 February 2019 and made no reference to PTSD or any associated treatment but stated that FA had depression with suicidal ideations 'due to her social situations'. Ms Johnrose urged me to accept that the Judge should have accepted that the prescription of Mirtazapine was an indicator that the PTSD was ongoing but there was no evidence before the Judge to suggest that this medication was intended to address anything other than the depression that he had diagnosed.
18. While the GP notes and medical notes make references to PTSD again the Judge would be entitled to give very limited weight to that as it is unclear on what basis that record was made and by whom and where they have derived the information.
19. I am therefore satisfied that it was open to the Judge on the basis of the evidence before him to conclude that the Appellant had not met the evidential burden of establishing that his wife had at the time of the hearing PTSD.
20. The Judge at paragraph 53 makes clear that he accepts that FA suffers from depression: he states 'severe' depression but I am satisfied that this is a factual error as the evidence he appears to accept states that it is 'depression' but I am satisfied that this factual error was not material as clearly a less debilitating condition does not assist the Appellants case.
21. The Judge accepts that there is mention of suicidal thoughts and the threat of suicide if returned to Afghanistan but the gravity of that risk was undermined again by the absence of clear evidence. I am also satisfied that the Judge has adequately assessed the suicide risk at paragraph 53-53 again on the basis of the material before him given that he notes again the absence of a full psychiatric or psychological assessment with a clear and definitive diagnosis of FAs mental state and her suicide risk at the time of the hearing. I have already indicted above that the Judge was entitled to limit the weight that he gave to evidence where the absence of a detailed report does not enable him to assess it by reference the medical methodology and criteria underpinning it.
22. The Judge states at paragraph 53 that the threshold for the engagement of Article 3 is a high one by reference to N [2003] EWCA Civ 1368 and would have been entitled to explicitly state that caselaw is clear that the Appellant must adduce the clearest possible evidence of a real risk that suicide would occur which would not otherwise be preventable by appropriate medical supervision both on the part of the removing country and having regard to facilities which might reasonably be expected to exist in the country of destination. The grounds argue that the Judge failed to take into account the guidance given in J and confuses that with N but there firstly are many features of that case that the Judge would have been able to distinguish: the Appellant in that case was accepted to be suffering from PTSD but more important there was a full report from a Consultant Psychiatrist who explicitly addressed the risk of suicide. The Court in J nevertheless was clear that the threshold of engagement in relation to suicide risk was high even when faced with detailed psychiatric reports.
23. The evidence in this case I have already indicated fell far short of painting a clear picture for the Judge, much of it undated or described as incomplete (Dr Dolange pages 93-95) While there are references to suicidal ideations due to her social situation and an attempt to jump of a bridge in 2018 prevented by the Police there follows thereafter in the bundle a letter from a Nurse at AB 96-97 who records that the Appellant wants to return home; does not want to end her life ; her son was a protective factor and she would not 'do anything crazy again' which is presumably a reference to the suicide attempt.
24. Therefore, I am satisfied that there was an absence of clear and consistent evidence on which the Judge could conclude that there was a real risk of suicide either in the UK or in Afghanistan. His comment about the fact that FA was not sectioned was just that, he was noting that whatever she has done and however she has behaved although she has been treated by the NHS their concerns were not such that sectioning her was believed to be the appropriate course.
25. Ms Johnrose also argues that the Judge did not properly engage with the expert report of Mr Foxley (AB13-56). The findings that I have accepted were open to the Judge were that FA suffers from depression but not PTSD and there was no clear evidence of a real risk of suicide and it is on the basis that the Judge was entitled to assess the availability of treatment. While the Judges summary of the evidence in so far as it is relevant to FAs mental health issues is very brief it was open to him to conclude that 'treatment would not be available at the same standard as that present in this country.' I do not accept that Mr Foxley in the report states that no treatment was available but rather that treatment was poor, medication was limited and she would have difficulty accessing it. However given that the findings of the Judge were that he rejected the claim that she was at risk from family members and therefore might have the prospect of family support together with the support of her husband who would return with her it was open to the Judge to find that the Appellant had not met the evidential burden of establishing that FAs rights under Article 3 or 8 would be breached by their removal.
26. As to the duty to give reasons I take into account what was said by the Court of Appeal in MD (Turkey) [2017] EWCA Civ 1958 at paragraph 26:
"The duty to give reasons requires that reasons must be proper, intelligible and adequate: see the classic authority of this court in Re Poyser and Mills' Arbitration [1964] 2 QB 467. The only dispute in the present case relates to the last of those elements, that is the adequacy of the reasons given by the FtT for its decision allowing the appellant's appeal. It is important to appreciate that adequacy in this context is precisely that, no more and no less. It is not a counsel of perfection. Still less should it provide an opportunity to undertake a qualitative assessment of the reasons to see if they are wanting, perhaps even surprising, on their merits. The purpose of the duty to give reasons is, in part, to enable the losing party to know why she has lost. It is also to enable an appellate court or tribunal to see what the reasons for the decision are so that they can be examined in case some error of approach has been committed."
27. I was therefore satisfied that the Judge's determination when read as a whole set out findings that were sustainable and sufficiently detailed and based on cogent reasoning.

CONCLUSION
28. I therefore found that no errors of law have been established and that the Judge's determination should stand.

DECISION
29. The appeal is dismissed.

Signed Date 15.7.2019

Deputy Upper Tribunal Judge Birrell