The decision


First-tier Tribunal No: PA/07220/2017


Decision & Reasons Issued:
On the 30 March 2023






For the Appellant: Mr A Briddock instructed by Southwark Law Centre
For the Respondent: Mrs A Nolan, Senior Home Office Presenting Officer

Heard at Field House on 20 January 2023

1. This is the rehearing of the appellant’s appeal against the respondent’s decision of 21 July 2017 refusing his claim for international protection.
2. Following an unsuccessful appeal, the judge’s decision was set aside by the Upper Tribunal on 17 December 2019 with regard to procedural unfairness, but it was found that the judge had not erred in law in relation to a section 72 certificate as the respondent had not accepted the protection claim (asylum and Article 3) as a fresh claim and therefore there was no asylum appeal before the judge.
3. As a consequence the hearing before me was limited to Article 3 health grounds and Article 8.
4. The appellant has been in the United Kingdom since 7 January 2000, when he arrived, aged 11. An asylum claim was unsuccessful but he was granted indefinite leave to remain on 8 March 2011. On 8 April 2013 he was sentenced to five years’ imprisonment for the offence of robbery and was subsequently, on 16 April 2014, served with notice of deportation action. An Article 3 medical claim was considered and rejected in the decision letter of 21 July 2017.
5. The appellant has significant mental health problems. In a psychiatric report dated 10th June 2018, Dr Sen, a consultant forensic psychiatrist, noted that the appellant developed mental health problems it seems while in detention, and these were linked in part to consumption of drugs such as Spice and he was treated with antipsychotic medication as well as a transfer to a psychiatric intensive care unit. It was noted that he had a previous history of self-harm and illicit drug use prior to his detention under immigration powers on 28 March 2015. He had subsequently suffered from paranoid schizophrenia and his condition was exacerbated by his detention under immigration powers as there was a temporal link between development of the symptoms of his illness and immigration detention. It was said that the impact on his mental health would be severe if he were to be deported to Angola. His condition would be classified in the moderately severe category under Judicial College Guidelines, and in the mild category before that, and this would have a significant effect on his employment potential in the past, present and future.
6. Under the heading Facts from Documentation Dr Sen noted concerns about the appellant’s mental health in 2015 when he was in immigration detention and him being judged unfit to fly. He continued to smoke Spice and in December 2016 he was said to have stopped taking Olanzapine. He self-harmed in January 2017 and had to be sent to Accident and Emergency for treatment and have surgery on his wounds. He would say inappropriate things to female staff and had to be put in segregation when he refused food, and demonstrated a number of paranoid and irrational beliefs. He was transferred to hospital in March 2017. There he was given a test dose of Clopixol as he was refusing medication and a diagnosis of schizophrenia was made. It was felt that he lacked insight into his mental health and did not recognise his symptoms and did not have the capacity to make a decision about his care. He was described as presenting with “acute psychosis and grandiose delusions”. It was noted that he had had his first episode of psychosis triggered by stress and substance use while in the detention centre.
7. The report goes on in detail to go through the appellant’s history. He was off medication at the time and it seems that his behaviour when off medication was bizarre and erratic. He used Spice heavily and had behaved inappropriately towards several female members of staff.
8. At paragraph 5.2 of his report Dr Sen concluded that on the basis of his perusal of the appellant’s records and his interview with him he concluded that the appellant had suffered from paranoid schizophrenia during his detention under immigration powers. He gave examples which were characteristic features of paranoid schizophrenia and also noted his good response to antipsychotic treatment such as Olanzapine and subsequently depot antipsychotic medication which he subsequently received and also an exacerbation of his paranoia when he used cannabis or Spice. At the time of the writing of the report on 10 June 2018 the appellant was currently in remission but he required follow-up. As he was off his antipsychotic medication, stresses in future could precipitate a relapse further exacerbated by substance misuse. It was recommended that the early intervention team continue to follow him up at least until such time as the uncertainty around his immigration issue was resolved. If he were to be deported to Angola the impact on his mental health would be significant. He had only suffered one episode of paranoid schizophrenia and if he were able to stay free of relapses would be able to pursue some other avenue of employment but the risk of relapse would undoubtedly have an effect on his employment potential. His condition was rated in the moderately severe category.
9. In an assessment from Dr Ragunathan, a consultant psychiatrist, dated 18 July 2019, the appellant was described as presenting as very elated in mood with grandiose delusional beliefs and paranoid delusional beliefs and having no insight into his current presentation. He was extremely distractable and difficult to engage with in any meaningful conversation beyond a few seconds which indicated the severity of his current mental state. Dr Ragunathan was of the opinion that he did not have the necessary capacity to give instructions to solicitors in relation to his immigration appeal or to give evidence in the course of that appeal.
10. In the conclusions of the report Dr Ragunathan considered that the appellant was suffering from bipolar affective disorder – current episode mania with psychotic symptoms. He was aware of the past diagnosis of paranoid schizophrenia but based his opinion on the current presentation and recent evidence from the IRC medical records. His current mental disorder was of a nature and degree which required detention under the Mental Health Act. The appellant did not show any insight into his current mental state and had stated he was not mentally ill and did not need any treatment.
11. In a further report of 3 March 2020, Dr Ragunathan effectively confirmed his earlier diagnosis. The degree/severity of his mental disorder would fall under the category of severe under the Judicial College Guidelines. Such a presentation would be treated with antipsychotic medication and if non-co-operative, depot antipsychotic medication would be considered and there would also be a lot of regular monitoring of physical health following the administration of antipsychotic medications. He would continue to require support from the community mental health team following his discharge and would probably require antipsychotic medication probably in depot injection form due to limited insight and a previous history of non-compliance with treatment. The current presentation showed a low risk of self-harm or suicide. He lacked capacity within the meaning of the Mental Capacity Act 2005 in relation to providing instructions to a solicitor in relation to his two sets of civil proceedings.
12. There is a third report from Dr Ragunathan on the appellant dated 19 May 2021 under which he was of the opinion that the appellant continued to suffer from mental disorder within the meaning of the Mental Health Act. He continued to present with symptoms of a manic episode in the context of bipolar affective disorder and needed to be moved to a psychiatric unit within a hospital setting. He continued to have illicit substance misuse problems. His medication should be increased and he would benefit from daily nursing input and support from occupational therapy staff. He had presented with thoughts of wanting to end his life but was currently not presenting with a risk of self-harm or suicide. He was not receiving any treatment when Dr Ragunathan saw him and he observed him to be acutely psychotic, presenting with elated mood and no insight. When treated with medication in hospital his mental state had significantly improved. On each occasion that treatment and support had been interrupted for whatever reason in the UK his mental state had relatively rapidly and significantly deteriorated again. When he was not receiving treatment or support or temporarily disengaged from them he relapsed quickly including the misuse of illicit substances and excessive use of alcohol. There was a history of risk to others including towards females in the form of sexually inappropriate behaviour when he presented as elated in mood. If he were returned to Angola on balance he would not be able to or capable of identifying and responding appropriately to risky or potentially exploitative situations. In the absence of a comprehensive package of support either in hospital or from a multidisciplinary community mental health team in line with the treatment of support needs set out in the report he would be at high risk of becoming homeless in Angola as he had in the United Kingdom and his mental order would put him at increased risk of exploitation. He was not currently fit for work.
13. There is an Angola country report , dated 1 July 2022, by Professor Dr John Schubert who is a research professor in urban studies at the University of Basel.
14. He says that although healthcare is in theory free in Angola, public hospitals are overcrowded and underfunded and patients and their families have to provide everything from drugs to bedding to food to gloves and even clean water. Given the general state of the health system the state of mental health provision in Angola is overall very, very poor. There is one mental health facility per 10 million people. Luanda, the capital, has one psychiatric hospital (HPL) for a population of around 8.3 million people. Based on a Ministry of Health report, an Angolan newspaper reported in October 2016 that conditions at that hospital were insufficient to provide for the country’s mental health needs. Overall the conditions there are basic and the hospital lacks space and supplies to treat its patients properly. It was said by a Brazilian trained Angolan psychiatrist to whom Professor Schubert spoke in 2019 that the hospital sadly resembles a historic “mad house”.
15. There was also a mental health unit with about 53 beds at Huambo. It receives about 60 patients a days but lacks essential medicine. There is also a public psychiatric hospital in Lubango which was said in 2021 to have only a capacity of 50 beds in a mixed dorm, with demand much in excess of this. Otherwise there are no mental health facilities in the provinces. It is Professor Schubert’s belief that the treatment that the appellant requires is currently unavailable in Angola, namely regular psychiatric and psychosocial support and regular, reliable depot injections of antipsychotic medicine. (I should observe that Professor Schubert had been sent Dr Ragunathan’s psychiatric reports and also the letter from Dr McKenzie, treating psychiatrist at HMP Barlinnie, who provided a report dated 7 March 2022 and who said, inter alia, that in the short term if the appellant’s treatment and support needs are met he is likely to be able to live successfully within the community but if no support is in place and his treatment with his depot medication is not supported it is highly likely that once again he would not be able to meet his essential living needs independently and would fail to register a change of address due to a deterioration in his mental state and the development of manic symptoms impacting on his ability to remember to do so due to their effect on his perception of reality. He would be likely to end up in prison for a further period of time. If he were to receive a comprehensive care and treatment package he could maintain community living and progress his skills of insight to enable a reduction in such package over time which would lead to a reduction in the social upheaval of his life when periods of mental ill health and offending occurred ).
16. Having concluded that the treatment required by the appellant was currently unavailable in Angola, Professor Schubert considered how accessible support or treatment would be if available in theory. He referred to social stigma attaching to mental health issues. Food and medication are subsidised at the Luanda Hospital but only for a limited period of time. Especially for food and basic care patients usually depended entirely on the goodwill of their families and, given the lack of specialists, patients requiring regular treatment would likely end up seeing a doctor once every two months and would have only very irregular access to drugs. The majority of the people in that hospital and the other two hospitals were there because they had been abandoned there with their families with nowhere else to go. As state funding for such long term patients was restricted both in quantity and duration they ended up neglected if they had no family members to feed and wash them.
17. There is a private clinic in Luanda but the cost was out of reach for most Angolans without private (employer) insurance. There is a psychiatric ward in the Luanda Prison Hospital where supplies are slightly better but it is only for condemned inmates with recognised psychiatric problems.
18. Access to and cost of drugs remains a major issue. The emergency ward in the main Luanda Hospital (HPL) often lacks tranquilisers to sedate violent or agitated patients. In a 2010 report the World Health Organisation listed Haloperidol and Chlorpromazine as “available” but even with those drugs which are in theory available, supplies in the public system are seriously limited. There is no public subvention programme for drugs to treat chronic illnesses and as patient records at the HPL are very disorganised there is virtually no knowledge of dosage needs, dosages dispensed and future availability of supplies. The hospital has access to these drugs in some months and not in others because of poor planning, underfunding and embezzlement of funds at the Ministry of Health. Quantities are always insufficient, according to the Brazilian doctor to whom Professor Schubert spoke.
19. As regards societal and state attitudes towards mental health, there is little knowledge about mental illness, and mentally ill people who are feared or derided as being crazy, by the general population and often abandoned by their families. The appellant would be likely to encounter discrimination in his daily life ranging from difficulties in finding a job or housing to verbal and physical abuse in the streets. Chronically ill people depend entirely on the goodwill of their families. The appellant would face elevated risk of being destitute if deported to Angola and would likely be homeless and unemployed, facing a life of destitution in the streets.
20. Family networks remain the most important social support network in Angola and a returnee without any living/identified relatives would find it very difficult to settle and make a living without a family network to support them and would be economically and socially highly vulnerable. There is no state welfare provision for people lacking such support networks.
21. In conclusion, Professor Schubert believes it will be impossible for the appellant to receive the care which the medical evidence with which he had been provided indicated he needed for his mental illness in Angola today. There is currently very limited public provision for the treatment of schizophrenia and bipolar affective disorder in Angola and conditions are unlikely to improve in any significant way in the foreseeable future. Even in the case of gaining access to treatment in the public health system there are real problems in obtaining treatment which is likely to be irregular and insufficient and conditional on payment for drugs which are expensive and irregularly available. There are no provisions for community mental health support at the moment. The appellant would be condemned to a life of destitution, mistreatment and social stigma without both substantial economic means and a family network to support him, and a high risk of premature death as he would not be able to meet his essential living needs.
22. There is a witness statement from Emma Frances Bulmer who is the appellant’s litigation friend. She describes in that statement, which is dated 27 July 2022, all she has seen over the time she has worked with the appellant and the level of multidisciplinary support he has needed and the fact that even in the UK without this he has ended up destitute and repeatedly imprisoned, in particular the way his beliefs can be out of touch with reality, she believes that he would have extreme difficulty in navigating life there. She anticipates that his mental health would deteriorate greatly, he would possibly attempt to survive by moving around and presenting to authorities but it is unlikely these encounters would be conducive to his welfare and his treatment. She has also provided an update statement dated 19 January 2023 referring to her continuing telephone contact with the appellant and her ongoing concerns about the appellant and his displays of lack of understanding of what is going to happen at a hearing and what the possible outcomes might mean. He had still not grasped her role in the proceedings as compared to that of the legal professionals though it had been explained to him on a number of occasions. He struggled to keep track of the questions asked of him by her and his solicitor about the upcoming hearing.
23. In her oral evidence Ms Bulmer adopted the two witness statements. She was happy for them to be used as her evidence today.
24. When cross-examined by Mrs Nolan she said that her recent contacts with the appellant had been by telephone. She had moved from London to live in the South West so it was easier. She would usually speak to him at times when hearings were listed.
25. As regards his family she had said that he had family in the United Kingdom consisting of a sister and brother. He said he spoke to them every couple of months and he also referred to an uncle. When she most recently spoke to him and asked him about his mental health and how he was finding things he had said he talked to professionals and was assisted by them and was not taking medication but was in touch with them. She was asked whether she checked the information with the support team and said she had not but his outreach worker was in touch with them, she thought. There were concerns about compliance in respect of his medication.
26. As to whether she would be able to maintain contact with him if he were returned to Angola, with regard to her role as his litigation friend, she thought she would not have capacity to do that and in any event he changed his phone number often and forgot to answer the phone.
27. In her submissions Mrs Nolan relied on the refusal letter of 21 July 2017. She noted the most recent diagnosis was of bipolar affective disorder. In Dr McKenzie’s letter of 7 March 2022 there was reference to a significant improvement in the appellant’s mental state with the treatment described there. He was showing some insight into his condition. He received monthly depot medication and six-monthly reviews from a psychiatrist as a minimum and this was to be indefinite. It was said that in the short term he would be able to live in the community if his treatment and support needs were met.
28. As regards the most recent evidence from Barnet, Enfield and Haringey Mental Health NHS Trust, this referred to the need in order to manage safely the appellant’s needs in the community, ongoing support from a clinical member of staff and psychiatrist in addition to the care provided by his GP. There were no details as to what support the appellant currently had or what he got from the GP and would get from the clinical member of staff.
29. It was argued that on the current evidence it had not been shown that he was seriously ill but the evidence from March 2022 showed an improvement and insight.
30. Even if the Tribunal disagreed and found he was seriously ill, he had to show a real risk on account of the absence of appropriate treatment in Angola or a lack of access to treatment.
31. The expert in his report referred to the psychiatric hospital but did not say what he had asked about availability of medication including depot medication, to conclude as he did at paragraph 16. The appellant could attend the hospital and would be able to see a psychiatrist. As regards what was said about the difficulties, at paragraph 18 of the expert’s report, the appellant did not require specific treatment needs and had medication every month and six-monthly reviews so there was not a real risk of a lack of access. There was nothing said about the hospitals and depot medication. It was relevant to note that Haloperidol, referred to at paragraph 21 of the report, was the medication that the appellant was said to need and it was available in Angola. It could be seen from the report of Dr Ragunathan of May 2021 at page 177 of the bundle that it was evident from the medical records that when the appellant was treated with medication he achieved a significant improvement. The expert did not say there would be a discontinuation of treatment but just that it was possible that at the Luanda Hospital the appellant would not have access to the drugs. There would not be a discontinuation of treatment. There was not a real risk of exposure to serious and rapid reversal in his health leading to intense suffering, as the legal test required. The prognosis set out at page 191 in Dr Ragunathan’s report did not meet that test.
32. The appellant’s treatment and support had been interrupted in the United Kingdom and he had deteriorated but it was not irreversible, as when he had been treated he had improved. The evidence was not enough to show that the condition would worsen on removal. Intense suffering was required under the legal test and that had not been shown.
33. With regard to the reference to a lack of access to a varied support or social network on return to Angola, reference was made to today’s evidence and the fact that the appellant had a brother and sister and uncle in the United Kingdom and they were in contact every couple of months. It was not accepted that there was no family support on return to Angola, with reference to the Secretary of State’s bundle at page 44, 42 and 62 and the references there to family. The appellant had said he had left family in Angola but lost contact with them and most had passed away. In response to question 10 he had not known what family he had in Angola. His mental health was currently stable and he had contact with family members in the United Kingdom and they could contact family in Angola to ensure networks on return. They could help him with access to mental health treatment. The high Article 3 threshold was not met.
34. As regards Article 8, the appellant had entered the United Kingdom in 2000 and had no lawful leave until March 2011. He had committed the serious offence of robbery in 2013 and was sentenced to five years’ imprisonment. Reference was made to HA (Iraq) at paragraph 58 with regard to rehabilitation and if it was no more than the failure to commit the offences the lack of weight to be attached but as could be seen from the PNC there were other offences. Mrs Nolan did accept that his mental health had to be taken into account in that regard, but it was not accepted there was no family support on return. There was a very strong interest in deportation.
35. In his submissions Mr Briddock referred first to what was said in AM about the procedural requirements and the obligations on the Secretary of State which were very important and had not been carried out. It was the case that the appellant’s mental health had changed as happened and diagnoses changed. He was originally diagnosed with paranoid schizophrenia with psychosis symptoms and that was changed to bipolar disorder with psychotic symptoms. It had fluctuated. All the doctors could do was stabilise him as much as possible. It was the case that he could now live in the community in the United Kingdom but only if he went to access the medical facilities including the monthly injection of drugs and this would be for the rest of his life. It was necessary to consider how ill he became when his medication was not properly managed and he was not accessing the facilities. This could be seen from Dr Sen’s report as to the problems he had had when he had not been taking medication and the deterioration in his health. Much of this had happened while he was in immigration detention with, apparently, access to the mental health team and nevertheless he had experienced a severe deterioration, and this showed what could happen to him. All the doctors considered he would need medication for the rest of his life and not just the drugs but constant help from professionals. All agreed that if that were not the case he could deteriorate to the point where he was in detention. On numerous occasions he had deteriorated and had gone to different places and was hospitalised a number of times under the Mental Health Act.
36. It was not a question of concentrating on treatment in Angola as argued by Mrs Nolan but the crucial point was whether the appellant would be able to access that treatment and it was said not, because of his mental health condition. He had a history of causing risk to others. Dr McKenzie referred to the complexity of his case and the risk of prison and risk of harm to others.
37. The Barnet letter was not a full report. There had been a discussion about getting an update report from one of the doctors. There was a detailed history and the letter made the position clear. It was not accepted that the appellant did not suffer from a severe mental illness as he did, and it was being managed in the United Kingdom to an extent by the mental health team and drugs. All the doctors were clear that if he was not given access to that medication and treatment he would suffer a relapse and that was the crux of the matter as to whether he could receive that treatment in Angola and it was clear that the answer to that was no.
38. The expert’s expertise was not challenged by Mrs Nolan. He could not be expected to make enquiries of the hospitals as that was not his role. He was not an advocate and he was there to report on the general situation in Angola and he could not call the authorities and enquire about a particular potential case. The appellant would not be able to organise any of these matters referred to by the expert himself. He had no family in Angola and there was no evidence that his family in the United Kingdom could or would help him. He had queried indeed whether they existed and clearly they were not giving him any help at all and there was no evidence they could or would organise anything for him in Angola. The necessary treatment was lacking for the appellant in Angola as could be seen from the expert report. He lacked access to support. He had ongoing medical care needs and would not be able to access the appropriate care in Angola. Complex treatment was needed. He needed constant medical intervention to be stable, if he did not get it he would suffer psychotic episodes and self-harm and he had no real understanding of how to live his life. He would be in Angola with no proper access to medical care for his needs. He would not be able to organise the basics of his life. The decline would be rapid and irreversible. Mrs Nolan argued that that was not the case as there was treatment in the United Kingdom and that he had improved but that would defeat every Article 3 medical case. There was no prospect of accessing proper medical treatment in Angola.
39. If the Tribunal disagreed and there was a failure by the respondent to observe the procedural safeguards set out in AM, that could not lead to success under Article 3 but should lead to the appeal being allowed under Article 8.
40. In that regard Mr Briddock relied, as he did generally, on his skeleton argument. The appellant could not succeed on mental health grounds on their own but as part of the Article 8 conclusion and the guidance in Maslov was to be borne in mind in assessing his position as someone who had come to the United Kingdom as a child. The appeal should be allowed.
41. I reserved my decision.
The Legal Test
42. In Paposhvili v Belgium, approved in AM (Zimbabwe), it was held that Article 3 refers to situations involving the removal of a seriously ill person in which substantial grounds have been shown to 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.
43. In my judgment the test set out in Paposhvili and as approved in AM (Zimbabwe) is made out in this case. I have set out above the health problems from which the appellant suffers. It is clear that he suffers from serious mental illness which is managed by medication and by regular treatment and support. The most recent letter from the Barnet, Enfield and Haringey Mental Health NHS Trust confirms the support that the appellant is receiving from them, this being a team supporting people with severe and enduring mental illness. The medical reports from in particular Dr Ragunathan and Dr McKenzie make clear how the appellant’s health problems have been managed and how he is when he is not taking medication. It is clear that in those situations where he is not taking medication he has experienced relatively rapid and significant deterioration in his mental health which has led to criminal conduct and homelessness. As was said by Dr Ragunathan in June 2021, any interruption to the appellant’s treatment or support in the UK would be detrimental to his mental state as this would very likely lead to the risk of further deterioration of his mental health, as evident in the medical records, which would carry a risk to him in terms of homelessness and an inability to meet his basic needs. It is clear that he relapses quickly when he is not receiving or temporarily disengages from treatment or support and there is a history of risk to others. Dr McKenzie refers to the requirement of ongoing specialist support from an appropriately experienced and qualified multidisciplinary mental health team and the continual need for a depot to be administered on a monthly basis. If his treatment and support needs are met he is likely to be able to live successfully within the community but if not he will again be unable to meet his essential living needs independently which would likely have the impact of him ending up in prison for a further period of time and there is an increased risk of harm both of violence and sexual offences to members of the public and risk of harm to him through retaliatory violence or other harm such as exploitation.
44. I accept also the argument made on the appellant’s behalf that it is clear from Professor Schubert’s report that the appellant is very unlikely to be able to access appropriate or anywhere near appropriate medical care in Angola including access to drugs. There are severe problems, as his report sets out, in the availability of mental health treatment both in terms of medication and care and support in any event, but access is a very real problem as well. It is clear that the appellant needs continuous and permanent medical intervention including antipsychotic drugs and regular examination from psychiatrists in order to keep his illness and symptoms under control and without such intervention he suffers serious relapses including lacking the capacity to make decisions for himself.
45. It does not appear that support would be available from family members. He has family in the United Kingdom but there is no evidence of any support they have been able to offer him here, let alone of their ability to do so indirectly by way of support to him in Angola, likewise with regard to his uncle, and there is no evidence of any other family in Angola and it is clear that family networks play an important part in providing support mechanism in that country. There is a real risk that the appellant would not be able to access appropriate treatment, even if that were available in Angola, and the consequences to him fall in my judgment within the definition of a serious, rapid and irreversible decline in his state of health resulting in intense suffering.
46. Accordingly this appeal succeeds under Article 3 of the European Convention on Human Rights on health grounds. In the circumstances it is not necessary to say more about the Article 8 claim other than to observe that it succeeds on the basis that there would be a disproportionate breach to the appellant’s private life in the circumstances of his health situation as I found above, were he to be removed to Angola. In coming to this conclusion I have borne in mind the strong public interest in his removal, in light of his criminal history in particular, and have also placed in the balance the length of time of his residence (albeit for a significant period of time without leave) and the respondent’s failure to observe the procedural safeguards set out in AM.

David Allen

Judge of the Upper Tribunal
Immigration and Asylum Chamber

27th January 2023