Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/06675/2017

THE IMMIGRATION ACTS

Heard at North Shields
Decision & Reasons Promulgated
On 24 April 2018
On 30 April 2018

Before

DEPUTY UPPER TRIBUNAL JUDGE J M HOLMES

Between

C. S.
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Selway, Brar & Co Solicitors
For the Respondent: Ms Petterson, Home Office Presenting Officer

DECISION AND REASONS
1. The Appellant is a national of Angola, who entered the UK illegally, and then claimed asylum on 15 November 2013. That protection claim was refused on 23 June 2017, when the Respondent concluded that she had not told the truth about who she was, or how she had travelled from Africa to the UK - the passport she claimed was not her own, having been identified as genuine and as legitimately issued to her. Her appeal against that refusal came before the First-tier Tribunal at North Shields on 9 November 2017, when it was heard by First-tier Tribunal Judge Head Rapson. The appeal was dismissed on all grounds in a decision promulgated on 20 November 2017.
2. The Appellant's application for permission to appeal was granted by First tier Tribunal Judge Hodgkinson on 29 December 2017. That application offered no challenge to the dismissal of the Appellant's evidence upon her experiences in Angola, and upon her identity, and how she had travelled to the UK as untrue. In the circumstances the decision to dismiss the asylum claim is unchallenged, and must be confirmed.
3. There are two grounds to the application for permission to appeal. Both concern the position of the Appellant's infant daughter, who was born in the UK with sickle cell anaemia, a condition that was diagnosed when she was six months old.
4. Mr Selway declined to advance the ground that advanced the complaint that the Judge had "failed to give any consideration to s55" because he considered it to be unarguable, since the Judge had indeed done so.
5. Mr Selway did not advance a complaint that the Judge had failed to consider whether the child's health entitled her to Article 3 protection. The Judge had concluded that she was not so entitled. She had concluded in the light of the medical evidence that the child was not in the final stages of a terminal illness, and that the Appellant had not established that her child would be unable to access the medical treatment she required in Angola, or, that he condition would rapidly deteriorate upon removal to Angola [91]. None of those findings were challenged in the grounds. It is not therefore open to me to interfere with them. I reject as unfounded Mr Selway's closing assertion that the grounds implicitly include a challenge that such findings were not borne out by the evidence; that is an assertion of perversity,
6. Instead, as set out in the grounds, Mr Selway advanced the complaint that the Judge had failed to consider the Appellant's own Article 3 claim properly. It was argued that the effect upon the Appellant of being placed in a position where she would be forced to watch her infant daughter's health collapse, to the point that she would die, engaged the Appellant's own Article 3 rights; CA [2004] EWCA Civ 1165.
"26. It seems to me obvious simply as a matter of humanity that for a mother to witness the collapse of her newborn child's health and perhaps its death may be a kind of suffering far greater than might arise by the mother's confronting the self-same fate for herself. There is no perversity in the approach taken by the Adjudicator."
7. This is not an argument that was raised in the skeleton argument that Mr Selway prepared and placed before the Judge, and he accepts that he provided neither the Respondent nor the Judge with a copy of this decision during the hearing. Indeed he accepts before me that he was unable to even provide the citation for the authority that he now relies upon at the time, and, that he advanced this argument only at the conclusion of his closing submissions, with a citation to be provided after the conclusion of the hearing. It is not at all clear how an argument that is now said to be the central focus of the Appellant's case developed so late, and in such a haphazard fashion. Be that as it may, I accept that the argument was advanced to the Judge.
8. There is however a fundamental difficulty with the complaint that the Judge failed to deal with the argument, which Mr Selway was not willing to engage with. For the argument based upon CA to be able to succeed, the Judge had to have accepted the claim that the Appellant's child faced a real risk of the requisite collapse in health and death upon removal. It is not enough to assert merely that the undisputed evidence is that an estimated 12,00 children are born each year in Angola suffering from the condition, and that an estimated half of these children die as a result of the condition before attaining the age of 5. In this case the unchallenged finding is that this child would not be one of them, because the Appellant would be able to access the necessary medical treatment her daughter required [91].
9. That finding was not perverse (even had such an assertion been raised in the grounds) because Angola launched a Sickle Cell Initiative in 2011 to tackle the issue, which is funded to at least 2020, through which an effective drug is provided to children with the condition (donated to the programme by the manufacturer). The Judge did not accept that the Appellant would be returned to Angola with an infant child, destitute, and unable to care for that child, or unable to access the medical treatment that either she or her child required. She was in my judgement right not to have done so. The Appellant was found to have lied about her lack of contact with mother and four adult siblings in Angola [46], so the proper inference to be drawn is that in truth she would enjoy access to family support upon return. She was found to have lied about being trafficked as claimed, and faced no real risk of being trafficked in the event of return to Angola [57]. She faced no risk of harm as one perceived to be, or to be related to, someone associated with opposition or separatist politics in Angola. She would also have the benefit of the aid and resettlement packages available to those who return voluntarily, which would provide financial support for medical treatment and for the establishment of a business.
10. In the circumstances, although it formed no part of the Appellant's case before the Judge, or today, the Appellant also gained no benefit from the principles explored in Akhalu (health claim: ECHR Article 8) [2013] UKUT 400, and, SQ (Pakistan) [2013] EWCA Civ 1251. The lower threshold test for a child in an Article 3 health case is not met on the Judge's unchallenged findings.
11. In the circumstances, and notwithstanding the terms in which permission to appeal was granted, I therefore dismiss the Appellant's challenge, and confirm the decision to dismiss the appeal on all grounds.
12. The anonymity direction previously made is continued.

Notice of decision
The decision promulgated on 20 November 2017 did not involve the making of an error of law sufficient to require the decision to be set aside. The decision of the First tier Tribunal to dismiss the appeal is accordingly confirmed.

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 him or any member of his 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 25 April 2018

Deputy Upper Tribunal Judge J M Holmes