Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/06109/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 12 April 2017
On 24 April 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE MONSON

Between

TS (IRAN)
(ANONYMITY DIRECTION MADE)
Appellant
And

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Richard O’Dair (Counsel, OTS Solicitors)
For the Respondent: Mr P Duffy (Senior Home Office Presenting Officer)

DECISION AND REASONS
1. The Appellant appeals to the Upper Tribunal from the decision of the First-tier Tribunal (Judge Kainth sitting at Hatton Cross on 6 December 2016) dismissing her appeal on human rights grounds. The Judge also dismissed her appeal on asylum and humanitarian protection grounds, but the Appellant does not seek to disturb the Judge’s findings on those issues.

Relevant Background
2. The Appellant is a national of Iran, whose date of birth is 21 September 1986. She has suffered from cerebral palsy since birth. She also has a history of depression.
3. On 26 May 2014, she was issued with a two-year multiple family visit visa enabling her to visit her sister here on a regular basis. On her second visit she claimed asylum on 10 September 2015.
The Appellant’s first witness statement
4. In support of her asylum claim, the Appellant submitted a lengthy witness statement. She described a very supportive family in Iran, but a difficult childhood on account of her disabilities and special needs, and the societal stigma which she said she encountered in consequence of her condition.
5. She had frequently visited the UK, particularly after 2003 when her sister moved to the UK to study. She found that attitudes towards her in the UK were very different. People would not stare at her: they were very nice and welcoming. There were extra facilities for people with disabilities, making her mobility much easier. Men and women were allowed to speak to one another. There were no strict and unreasonable laws to be complied with. She could see women had more opportunities, and they were not treated as lower than men in society.
6. On 4 October 2012, she had got married in Iran to a person named Ali. Her relationship with Ali had developed in secret. When she had revealed the relationship to her parents, they had initially been resistant to the idea of her marrying him. However, after meeting Ali’s family, they eventually agreed to the marriage going ahead.
7. The marriage was disastrous. Ali turned out to be a heroin addict, who stole from her parents in order to fund his drug addiction. He was also violent towards the Appellant when he became intoxicated.
8. She divorced Ali in October 2013, and following this divorce she felt very alone and depressed. Her parents tried to support her and help her overcome the difficulties, but they could not fill the void.
9. In November 2013, she had mixed poison in water and had tried to drink it. She did not go through with this as her family returned home. They did not realise what she was about to do. This was the only time that she had attempted to take her own life.
10. She had come to the UK on 9 July 2014 as her parents felt a change of scenery would do her good. She returned to Iran in September 2014. She found it very difficult to be back in Iran. Her parents were trying to force her to engage with them, and they encouraged her to get out of the house. But she refused to leave the house. Her parents tried to take her to the doctors. However she refused to go, because she was worried about what people would think about her.
11. On 25 March 2015, she returned to the UK to visit her sister. She finally broke down and decided that she was not strong enough to return to Iran again. She had made this decision against the wishes of her parents who did not wish to live apart from her. They tried to persuade her to return. They were willing to continue to support her, but emotionally it just was not possible for her to continue living in Iran.
12. If she had to go back, she would end her life. She could not bear to live in seclusion. She felt she had been humiliated. In the UK, she could go out and have freedom and independence. She wished to remain in the UK with her sister who was supporting her.
The report of Dr Ballard
13. The Appellant’s solicitors served on the Home Office a report dated 31 August 2015 from Dr Roger Ballard, a social anthropologist with a PhD in Sociology awarded by the University of Delhi. In section 4 of his report, he summarised the dilemma which the Appellant faced.
14. Whilst her parents would be only too happy if she was to return to Iran, and although the Appellant was clearly fond of her parents, the reaction of Iranians at large was clearly extremely problematic, so much so that it was virtually impossible for her to participate in public activities of any kind as a result of negative reactions to her disabilities. As a result she was fearful of having to return to Iran on a more or less permanent basis, in case she found herself imprisoned within the silken cords within which her parents were only too eager to wrap her.
15. By contrast, joining her sister in London on a more or less permanent basis would allow her to embed herself within the UK based component of her family, whilst also allowing her to develop an autonomous private life for herself, in a way which was wholly impossible in the land of her birth. This was clearly a source of immense psychological distress. Her sister was very concerned about the Appellant, fearing that she might attempt to commit suicide, since she tried to do so at least once before.
16. The Appellant had a trans-jurisdictionally extended family, but one in which the part of the family which was in the land of her birth effectively excluded the prospect of her developing a private life beyond the narrow space of her parents’ household. She found the prospect of remaining in the UK a much more attractive prospect than going back to Iran, since it opened up the prospect of a full and fulfilling life, whilst the former would by definition seriously inhibit her prospect of so doing.
17. Although the Appellant was currently lodging an application for humanitarian protection, so far as he could see, she had no prospect of making a successful claim in terms of either Articles 2 and 3 of the ECHR, nor in terms of the Immigration Rules, since her relationship with her sister did not engage with any of the requirements of the Rules.
18. However, as her circumstances were clearly exceptional, there appeared to be good grounds to suggest that her application should be considered outside the Rules, under Article 8 ECHR.
The Asylum Interview
19. The Appellant was interviewed about her asylum claim on 23 December 2015. The Appellant was asked questions arising from a report prepared by a chartered psychologist, Anopama Kapoor, dated 20 August 2015.
20. The Appellant said that she had obtained a degree in Iran in 2007. She was not getting any treatment for her depression in the UK. She had begun suffering from depression since her divorce. She had received treatment for her depression in Iran. She had had one year of consultations. She was not receiving any medical treatment for her cerebral palsy. Her sister was providing practical care for her in the UK, in the same way that her mother had done when she was in Iran.
21. She was asked why she did not want to return to Iran. She answered it was because she was in danger from her ex-husband, who had threatened her. It was put to her that there was no mention of threats in the witness statement which had been taken from her by her solicitor. She answered if she went back she would kill herself. She was asked why she would do that. She said it was because she was so scared. She confirmed that she would kill herself because she was scared of her ex-husband. Another reason was because she was disabled, and she wanted to be independent (Q&A 120).
22. She was asked why she could not go outside in Iran. She answered because people in the street made fun of her, and they said bad things and kept staring at her all the time.
The Reason for Refusal
23. On 4 March 2016, the Secretary of State gave her reasons for refusing to recognise the Appellant as a refugee, or as otherwise requiring international or human rights protection.
24. She had failed to give a credible or consistent account of alleged threats made to her by her ex-husband. It was accepted that she faced discrimination in Iran, but it was not accepted that this amounted to persecution. With regard to her fear of discrimination due to her disability, it was noted that Iran provided services and opportunities for those with cerebral palsy. For example, a recent article described Iran’s national cerebral palsy football team as the fifth ranked side in the world, whereas England was ranked 10. There were organisations in Iran seeking to address the inequalities faced by people with disabilities. Studies published in Iran demonstrated that the Iranian healthcare system was funding research into treatments for cerebral palsy.
25. On the topic of her mental health, it was noted that, in the opinion of the counselling psychologist, she was suffering from severe depression and anxiety. She also suggested that the Appellant was likely to be suffering from post-traumatic stress, and that her problems were exacerbated by her current immigration status and fear of return to Iran. She suggested that the Appellant’s symptoms would improve with treatment in three to six months. However Ms Kapoor was not a clinical psychologist or psychiatrist, and her report did not conform to the Istanbul protocol.
26. In any event, any suffering to which she might be exposed as a result of her removal would not be sufficient to severe as to breach the exceptionally high threshold of Article 3 ECHR in accordance with the case law of N v UK [2008] ECHR 453.
27. Her parents in Iran had been supporting her since birth and they continued to offer support to her. She could return to Iran and resume the same level of support and financial assistance that her family had provided in the past. Objective information demonstrated that mental health treatment was available in Iran, and it was noted that she had provided a letter from a neurologist in Iran who had been treating her in Iran.
The Hearing before, and the Decision of, the First-tier Tribunal
28. Both parties were legally represented before Judge Kainth. The Judge received oral evidence from the Appellant, her sister and another witness.
29. In his subsequent decision, the Judge identified a number of fundamental discrepancies in the evidence. On the topic of the Appellant’s depression, he noted that the bundle of evidence included a letter from Dr Shadfar dated 1 January 2015 confirming that the Appellant had a major depressive disorder for which she was receiving medical treatment, and in respect of which she was in need of follow-up care.
30. The Judge contrasted this evidence with paragraph 140 of the Appellant’s first witness statement (to which I have previously referred) where she said that her parents had tried to take her to the doctors, but she had refused to go. The Judge observed that this paragraph was in direct conflict with the psychiatric letter of 1 January 2015. The Judge further observed that in her oral evidence the Appellant had confirmed that her parents were aware of her depression and were trying to help her with it.
31. The Judge concluded at paragraph [41] that the Appellant would not face any risk upon return to her home country. He noted that, according to the Appellant’s first witness statement at paragraph 117, her ex-husband’s family had apologised to her father, and they had begged her family to take her ex-husband back. The Judge found that this was inconsistent with any potential risk to the Appellant from her ex-husband.
32. At paragraphs [43] to [46], the Judge addressed the topic of the Appellant’s mental health. He said he was guided by the case of N v UK and GS (India) and Others [2015] EWCA Civ 40. The Appellant had been diagnosed with depression in her home country and she had sought the assistance of psychiatrists. She had received treatment in her home country, and he held that there was no reason to suggest that the Appellant would not be able to access such treatment on her return.
33. In response to Dr Ballard’s opinion that there were clearly exceptional circumstances, and there appeared to be good grounds to suggest that her application should be considered outside the Rules under Article 8 ECHR, the Judge said as follows in paragraph [46]:
The appellant’s family have been supporting her in Iran. They have provided financial and emotional support. They wish her to return back to Iran. Mr Ballard did not have the opportunity of dissecting the evidence and dealing with the inconsistencies that have identified themselves during the course of the hearing. I can therefore attach little weight to his findings and disagree with respect to his assessment of Article 8 outside the Rules for the reasons contained within the body of this decision.
The Application for Permission to Appeal
34. Mr Mark Symes of Counsel, who did not appear before the First-tier Tribunal, settled the Appellant’s application for permission to appeal to the Upper Tribunal.
35. Ground 1 was that the Judge had taken into account irrelevant considerations in discounting the report from a psychologist for a perceived want of conformity with the Istanbul protocol.
36. Ground 2 was that the Judge’s approach to the assessment of the Appellant’s mental health problems, as a person who might face suicidal ideation if returned to Iran, was arguably inconsistent with the landmark restatement of the appropriate test for ECHR Article 3 violations in Paposhvili v Belgium (Application No. 41738/10, 13 December 2016).
37. Ground 3 was that the Judge had erred in law in failing to determine whether the Appellant had established close ties with her supportive sister in the United Kingdom exceeding the normal emotional ones between adults, given the significant difference in the stability of her mental health here as opposed to in Iran, where she had attempted suicide.
The Initial Refusal of Permission to Appeal
38. On 9 January 2017 First-tier Tribunal Judge Saffer refused permission to appeal for the following reasons:
There is no merit in the Grounds which are nothing more than a disagreement with the decision. The Judge made findings open to him/her on the evidence regarding the Appellant’s physical and mental health conditions, not being sufficiently serious, as guided by authorities such as N and GS, to allow the appeal on that basis. The Judge was entitled to place little weight on the opinion of the psychologist for the reasons he/she gave.

The Reasons for the Upper Tribunal granting Permission to Appeal
39. On 20 February 2017, Upper Tribunal Judge Kekic granted the Appellant permission to appeal, following a renewed application for permission to appeal settled by Mr Symes. Her reasons were as follows:
The appellant challenges the decision of First-tier Tribunal Judge Kainth dismissing her appeal for protection. Her claim is that she would be at risk from her violent husband and would face social ostracism on return to Iran because she has cerebral palsy.
The grounds argue that the Judge took irrelevant matters into account, erred in his assessment of the Appellant’s mental health problems and failed to determine her emotional and supportive ties with her sister in the UK.
The Grounds are arguable and permission is granted.
The Hearing in the Upper Tribunal
40. At the hearing before me to determine whether an error of law was made out, Mr O’Dair provided me with a key documents bundle in which he had highlighted passages upon which he relied in the evidence. He also provided an extensive Skeleton Argument to which he had attached a number of authorities.
41. As well as developing Grounds 1 to 3, Mr O’Dair also put forward a further Ground of Appeal (Ground 4) which was that the Judge had erred in law in failing to follow his self-direction at paragraphs [19] and [20]. He had failed to consider aspects of the Appellant’s evidence which were corroborated by other witnesses, particularly her sister and Dr Ballard; and he had failed, in the case of the Appellant’s sister, to give reasons for not accepting her evidence.
42. I gave Mr O’Dair permission to advance Ground 4 on the basis that it was not a distinct ground of appeal, but he was relying upon it as buttressing the arguments arising under Grounds 1 to 3.
43. In reply, Mr Duffy adhered to the Rule 24 response settled by his colleague. He submitted that the grounds had no merit. They merely disagreed with the adverse outcome of the appeal, without identifying any arguable material error of law. The Judge considered all the evidence and came to a conclusion that was open to him, based upon the evidence and the Rules, and applying the lower standard of proof.
Discussion
44. The error of law challenge is underpinned by two assumptions which do not stand up to scrutiny. The first incorrect assumption relates to the case which was put forward by Counsel for the Appellant at the hearing in the First-tier Tribunal. The second incorrect assumption relates to the broad thrust of the evidence given by the Appellant’s sister, taking into account what she said in her oral evidence.

The Case under Article 8 which was put to the First-tier Tribunal versus the case under Article 8 which is relied on by way of appeal to the Upper Tribunal
45. As noted in the Record of Proceedings, Counsel for the Appellant did not provide a Skeleton Argument. The Judge asked her at the outset of the hearing to identify the issues. She said that, aside from the asylum claim, the Appellant advanced an Article 3 ECHR “stand alone” claim relying on the case of N v UK. As regards an alternative claim under Article 8, she characterised this claim as being “part of the Appellant’s well-founded fear”. The import of this submission is that the asserted obstacles to the Appellant’s re-integration into life and society in Iran were the same as those relied upon for the purposes of her asylum claim: namely, the alleged threat of serious harm at the hands of her ex-husband; and her alleged rejection by her family in Iran, with the consequence that she would be completely isolated and abandoned, with no one to look after her.
46. In the permission application, Mr Symes submitted that the Appellant’s case before the First-tier Tribunal was essentially twofold:
(a) She would face a real risk of persecution in Iran because of the social problems that followed her marriage and divorce from her drug addicted violent husband;
(b) Alternatively, she would face a disproportionate interference with her Article 8 rights, as she faced social ostracism because of her disability in Iran, and the degree of disadvantage that she would suffer was radically different there from that which she would face in the UK. In particular, she would be able to significantly develop her private life in the company of her sister in the UK in ways which are inconceivable in Iran, and she would be supported by her family here and there was no public interest against her remaining here.
47. Mr Symes’ summary of the Appellant’s case before the First-tier Tribunal is not accurate with regard to the second limb set out in sub-paragraph (b). He has put a gloss on the Article 8 case which is not to be found in the decision or the Record of Proceedings. He has set out the case under Article 8 that he would have put to the First-tier Tribunal - not the case under Article 8 which was in fact put. He cross references Dr Ballard’s report. But Dr Ballard did not purport to engage with countervailing public interest considerations or proportionality. Moreover, insofar as Dr Ballard can be treated as putting forward the Appellant’s case, there is a clear conflict between the case put forward by him and the case put forward by Counsel. Whereas Dr Ballard took the view that the only sustainable case which the Appellant had was an Article 8 claim outside the Rules based upon the difference of the quality of private life which she enjoyed in the United Kingdom as against that which she could expect to enjoy in Iran, Counsel for the Appellant adhered to the line that the Appellant did indeed have a well-founded fear of persecution, which meant that she should be recognised as a refugee or at least there should be a finding in her favour under Rule 276ADE that there would be very significant obstacles to her integration into the country to which she would have to go if required to leave the UK.
The evidence of the Appellant’s sister
48. There is no challenge to the Judge’s adverse credibility findings in respect of the Appellant’s asylum claim. However, Mr O’Dair, as distinct from Mr Symes, challenges the Judge’s factual findings on the Article 3 and Article 8 claims on the ground that the Judge did not adequately engage with certain key passages in the witness statement of the Appellant’s sister, NS.
49. At paragraph 11 of her statement, NS said that the Appellant had found it very difficult to cope with her disability, and this had been aggravated by her time in Iran where she was often restricted and not allowed or even able to leave the home.
50. At paragraph 15 of her statement, NS said that the Appellant now suffered from depression, and she had “on numerous occasions” attempted suicide. Most recently, on and around 14 or 15 November 2016, she noticed marks on the Appellant’s wrist where she had cut herself with a blade.
51. At paragraph 26, NS said that their parents did not want the Appellant back and had refused to support her or offer her any help or assistance. If she was forced to return to Iran, she did not know where the Appellant would live, how she would survive, support herself or what would even happen to her. Without any support or assistance, she would be left alone to die.
52. Mr O’Dair criticises the Judge for not addressing these passages in NS’ witness statement when making findings on the human rights claim. However, the key passages which he has highlighted in her witness statement do not reflect the broad thrust of the evidence which she gave to the First-tier Tribunal. Other passages in the same witness statement paint a different picture, as did NS’ oral evidence.
53. The implication of paragraph 15 of NS’ statement, taken in isolation, was that the Appellant was in an acute depressive episode, and that her mental condition had recently deteriorated. However, at paragraph 37 of the same statement NS said:
The Appellant has made a lot of progress in the UK, she has become happier, more confident and is no longer an introvert.
54. In answer to supplementary questions from Counsel, NS said that the Appellant did not have mental problems, her problems were just physical. In cross-examination, NS attributed the cause of the Appellant’s depression to her cerebral palsy. She agreed that her sister’s depression had not worsened since her first visit in July 2014. She effectively retracted the assertion in her witness statement that their parents now refused to support the Appellant or to offer her any help or assistance. In answer to the question whether their parents loved the Appellant, she said that their parents loved the Appellant, as they all did.
55. The Judge summarised the evidence given by the Appellant’s sister at paragraph [28] of his decision as follows:
The appellant’s sister accepted that in July 2014 the appellant was suffering with depression and in her opinions this was primarily because she was suffering from cerebral palsy. She agreed with Mr Shane’s question that between 2014 [and] 2015 nothing had changed in the appellant’s personal circumstances. [NS] confirmed that she had spoken to her parents who were of the view that the Appellant was better off in the United Kingdom than in Iran. The Appellant had the benefit of a carer when she was resident in Iran but because personal property had gone missing, it was believed the carer was responsible. No independent enquiries had been made as to whether other support could be offered to the Appellant in her home country.
56. Having reviewed the Record of Proceedings, I consider that this is a fair summary of the tenor of NS’s oral evidence. She did not paint nearly as bleak a picture in her oral evidence as was at times painted in her witness statement. When asked to state the major problems that the Appellant would face on return to Iran, she did not mention a risk of suicide.
57. On the Appellant’s own evidence, her attempted suicide in Iran was undocumented, as she had not told anyone about it. She also had not harmed herself, as she had not drunk any of the poison. Although NS referred to numerous suicide attempts in her witness statement, she did not repeat this claim in her oral evidence. On her account, NS had in any event only witnessed one act of self harm. This act of self-harm did not require the Appellant to go to hospital or to have the wound treated by her GP. It also did not cause NS to seek treatment for her sister so as to prevent a re-occurrence. At the time of the hearing in the First-tier Tribunal, the Appellant was not receiving any treatment for depression, either in the form of cognitive behavioural therapy or in the form of medication.
Ground 1
58. I turn to the individual grounds. The Istanbul Protocol does not aim to delineate the best practice regarding psychiatric assessments of suicidal ideation outside the context of torture and analogous mistreatment. So the Judge was wrong to criticise the report of the chartered psychologist for not conforming to the Istanbul Protocol.
59. Mr O’Dair submits that the Judge was also wrong to discount the evidence of Ms Kapoor, who is a counselling psychologist, on the ground that she is neither a clinical psychologist nor a psychiatrist.
60. In an article which Mr O’Dair has annexed to his Skeleton Argument, the difference between counselling and clinical psychologists is said to be their perspective and training. Counselling psychologists, in general, focus more on healthier, less pathological populations whereas clinical psychologists focus on individuals with more serious mental health issues, such as psychosis.
61. The same article goes on to state that the requirements to register as a practitioner psychologist in the counselling discipline requires not only a Degree in Psychology, but also the completion of a BPS accredited doctorate in counselling psychology or a BPS qualification in counselling psychology. Ms Kapoor says that she has a post-MSc Diploma in Counselling Psychology.
62. While I am in no doubt that Ms Kapoor is qualified to offer an opinion as a psychologist, the distinction drawn by the Judge is not an entirely arid one in that Ms Kapoor does not profess an ability to prescribe medication for the treatment of the Appellant’s mental ill-health. Thus, at the end of her report - as noted by the Judge – Ms Kapoor recommended that the Appellant should be assessed by her sister’s GP or by a psychiatrist with a view to being prescribed appropriate medication.
63. Although the Refusal letter took the same points against Ms Kapoor’s report as were taken by the Judge, the Refusal letter went on to say that, nonetheless, the Home Office attached some weight to her report, as Ms Kapoor was an experienced psychologist. The Judge should have adopted the same approach. He was wrong not to recognise that her report had some independent probative value.
64. However, I do not consider that the Judge’s errors with regard to Ms Kapoor’s report are material. Firstly, it was open to the Judge to attach little weight to her report because the information upon which Ms Kapoor had arrived at her conclusions was based entirely on what the Appellant had said to her, with her sister acting as an interpreter. The psychologist did not have access to any GP medical records or any other independent sources of evidence as to her medical history. The Appellant was not a reliable narrator with regard to the core of her asylum claim, and it was the same discredited claim which formed the basis of the narrative which the Appellant gave to the psychologist.
65. Secondly, it is a highly material consideration that the report was issued as far back as August 2015. The conclusion of Ms Kapoor in August 2015 was that if the Appellant was to receive and engage in treatment for her mental health in the UK, it was likely the severity of her symptoms would decrease in three to six months. According to her sister, the Appellant was subsequently prescribed with diazepam, and her mental health improved. At the date of the hearing, some 15 months had elapsed since the Appellant had been seen by Ms Kapoor. So the Appellant had had the benefit of more than double the period of recovery recommended by Ms Kapoor.
66. Thirdly, Ms Kapoor’s prognosis did not extend to anticipating a real risk of the Appellant actually attempting to commit suicide, as distinct from having suicidal thoughts. Her prognosis was as follows:
[TS] believes that she would come to harm if she returned to Iran, it also seems that her life would be limited in that she would not have the freedom and independence to live her life. If she was forced to return to Iran, I believe her symptoms may worsen and she may experience further suicidal thoughts due to the lack of freedom and independence she describes.

67. This is not a prognosis which sustains a case under Article 3 ECHR on the grounds of suicide risk, and Counsel for the Appellant did not so contend at the hearing in the First-tier Tribunal. In her closing submissions, Counsel referred to a risk of self -harm, not to a risk of suicide. The prognosis is also predicated on the Appellant having a genuine fear of persecutory harm at the hands of her ex-husband and/or a well-founded fear of a lack of freedom and independence in Iran, neither of which was made out on the evidence.
Ground 2
68. Paposhvili v Belgium had not been reported at the time of the Judge’s decision. But Mr O’Dair relies on the principle that the law always speaks, and so he submits that with the benefit of hindsight the Judge asked himself the wrong question when addressing the Article 3 ECHR (mental health/suicide risk) claim.
69. In Paposhvili v Belgium, the Court held inter alia as follows:
181: The Court concludes from this recapitulation of the case law that the application of Article 3 of the Convention only in cases where the person facing expulsion is close to death, which has been its practice since the judgment in N -v- United Kingdom, has deprived aliens who are seriously ill, but whose condition is less critical, of the benefit of that provision …
183. The Court considers that the “other very exceptional cases” within the meaning of the judgment of N -v- United Kingdom (paragraph 43) which may raise an issue under Article 3 should be understood to refer to situations involving removal of a seriously ill person in which substantial grounds have been shown for believing that he or she, although not at imminent risk of dying, would face a real risk, on account of the absence of appropriate treatment in the receiving country or the lack of access to such treatment, of being exposed to a serious, rapid and irreversible decline in his or her state of health resulting in intense suffering or to a significant reduction in life expectancy. The Court points out that these situations correspondent to a high threshold for the application of Article 3 of the Convention in cases concerning the removal of aliens suffering from serious illness.
70. Mr Symes acknowledged that Paposhvili does not necessarily represent a binding legal norm instantly transferable to the domestic jurisdiction, but he relied on the following observation of Baroness Hale in Keyu [2015] UKSC 69 at paragraph [291]:
First, if it is clear that the claimant would win in Strasbourg, then he will normally win in the courts of this country. This is because it would negate the purpose of the Human Rights Act for the claimant to have to bring a claim in Strasbourg.
71. Mr Duffy submits that it is not clear that the Appellant would win in Strasbourg on the Paposhvili test, and the proper course is for the Appellant to make a fresh claim if she believes that she can bring herself within the Paposhvili test.
72. I did not consider that it is necessary for the Appellant to bring a fresh claim as on analysis Paposhvili v Belgium does not retrospectively cast doubt on the soundness of the First-tier Tribunal’s finding.
73. On the medical evidence which was made available to the First-tier Tribunal, the Appellant was not and is not a seriously ill person as defined in paragraph [183] cited above. Substantial grounds were not shown for believing that the Appellant would face a real risk, an account of the absence of appropriate treatment in the receiving country or the lack of access of such treatment, of being exposed to a serious, rapid and irreversible decline in her state of health resulting in intense suffering or to a significant reduction in her life expectancy.
Ground 3
74. In Ground 3 the Judge is unfairly criticised for not making a finding on a case which was not put to him by Counsel for the Appellant at the hearing in the First-tier Tribunal. Moreover, Ground 3 sets up a false dichotomy.
75. The implication of Ground 3 is that it is an established fact that the Appellant’s mental state is considerably more stable in the UK than it was in Iran, and that it is only in Iran that she has attempted suicide.
76. As previously noted, there is in fact no independent medical evidence of the Appellant having attempted to commit suicide anywhere. NS’ account of the Appellant making numerous suicide attempts was contradicted by the Appellant herself, who could only recall two at most, one of which was in Iran at a time which she could not recall, and the other of which she indicated was three weeks prior to the hearing, which appears to correspond to the minor self-harming incident referred to by her sister, an incident which did not require the Appellant to seek medical treatment.
77. The Judge adequately addressed the Appellant’s case under Article 8 in the terms in which it was presented to him. He gave adequate reasons in paragraph [36] and elsewhere for finding that there were not very significant obstacles to the Appellant’s integration into the country to which she would have to go if required to leave the UK. Her parents had taken her to see a psychiatrist, and this showed that they had her best interests at heart and that her depression was being treated while she was in Iran. She had suffered from cerebral palsy since birth. She had spent the vast majority of her life in her home country being looked after by her caring parents and other family members. She had the benefit of attending school and higher education. She spoke Farsi, and was aware of the local traditions and customs of Iran.
78. The Judge did not accept the Appellant’s evidence about her father being strict and preventing her from going outside. Although the Judge did not elaborate on this point, it is clear from the Appellant’s first witness statement that she had chosen to isolate herself by remaining in the house, whereas her parents had been encouraging her to go out.
79. It was open to the Judge to find, as he did, that the Appellant was exaggerating the difficulties that she had faced in the past, and the difficulties which she was likely to face in the future. In particular, it was open to him to reject the claim – adopted as true by Dr Ballard - that her parents had stopped her from developing a private life outside the narrow confines of the family home, and that they were likely to carry on in the same vein on her return to Iran.
80. With regard to an Article 8 claim outside the Rules - based on the disparity of the quality of private life which she would enjoy in the UK under the care of her sister as against the private life which she would enjoy in Iran under the care of her parents - the Judge gave adequate reasons in paragraph [46] for disagreeing with Dr Ballard’s opinion on this topic.
Conclusion
81. The Judge has given adequate reasons for rejecting the Appellant’s human rights claims under Article 3 and 8 ECHR, and no error of law is made out.

Notice of Decision
82. The decision of the First-tier Tribunal did not contain an error of law, and accordingly the decision stands. This appeal to the Upper Tribunal is dismissed.

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

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

Signed Date: 21 April 2017
Deputy Upper Tribunal Judge Monson