Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/07925/2016

THE IMMIGRATION ACTS

Heard at Birmingham
Decision & Reasons Promulgated
On 30 July 2019
On 08 August 2019

Before

DEPUTY UPPER TRIBUNAL JUDGE DOYLE

Between

V S B
(ANONYMITY DIRECTION MADE)
Appellant

and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Ms S Conlan of Paragon Law
For the Respondent: Mr D Mills, Senior Home Office Presenting Officer
DECISION AND REASONS
1. This decision discusses the appellant's mental health. There is no public interest in identifying the appellant. I make an anonymity order under Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, precluding publication of any information regarding the proceedings which would be likely to lead members of the public to identify the appellant.

2. This is an appeal by the Appellant against the decision of First-tier Tribunal Judge Chohan promulgated on 3 October 2018, which dismissed the Appellant's appeal on Asylum and Humanitarian protection grounds but allowed the appeal on article 8 ECHR grounds.

Background

3. The Appellant was born on 8 May 1989 and is a national of Swaziland. On 8 June 2017 the respondent refused the appellant's protection claim.

The Judge's Decision

4. The Appellant appealed to the First-tier Tribunal. First-tier Tribunal Judge Chohan ("the Judge") dismissed the appeal on Asylum & Humanitarian Protection grounds but allowed the appeal on article 8 ECHR grounds. Grounds of appeal were lodged and on 4 March 2019 Upper Tribunal Judge Lane granted permission to appeal stating inter alia

The Judge's findings and conclusions as regards article 3 ECHR are arguably unclear (cf [27] and [28]). It is also arguable that the Judge's findings in respect of the appeal on asylum grounds (in particular, sufficiency of protection and membership of a particular social group) are unsound. Permission is granted on all grounds.

The Hearing

5. (a) Before Ms Conlan moved the grounds of appeal, Mr Mills set out the respondent's position. The Judge has allowed this appeal on article 3 grounds only because the appellant suffers from paranoid schizophrenia. In light of the Judge's decision, on 23 October 2018 the respondent granted the appellant three years discretionary leave to remain. Mr Mills took me to the respondent's own guidance on humanitarian protection which says, at page 16

Cases where it is claimed that removal would breach article 3 on medical grounds are not usually eligible for HP. In M'Bodj v Kingdom of Belgium (Case C-542/13)[2015] 1 WLR 3059 the Court of Justice of the European Union (CJEU) confirmed that subsidiary protection status requires that the harm from which the applicant seeks protection must emanate from the conduct of a third party, and therefore cannot simply be the result of a naturally occurring illness combined with general shortcomings in the health system of the country of proposed return. As such, cases raising medical or mental health issues must usually be considered under the discretionary leave policy.

(b) Mr Mills told me that if the appellant's appeal succeeded because the article 3 risk came from a third party, then humanitarian protection would have been granted; but because the respondent believes that the article 3 risk relates to the appellant's naturally occurring illness, and the general shortcomings in the health system of Swaziland, then the appellant is entitled to discretionary leave rather than humanitarian protection.

6. (a) For the appellant, Ms Conlan moved the grounds of appeal. Ms Conlan told me that the risk the appellant emanates from third parties. She referred me to the medical evidence, summarised in the Judge's decision, and emphasised the contents of Dr Hickel's report, from which extracts are quoted in the Judge's decision. Ms Conlan told me that the medical evidence indicated that the appellant is a member of a particular social group because he suffers from an enduring, serious, mental illness for which there is inadequate treatment in Swaziland. She told me that the risk was from third parties because, when the appellant's illness is not adequately treated, the symptoms of his illness cause erratic behaviour. In Swaziland that behaviour will attract the attention of non-state actors who will attack the appellant believing him to be a witch

(b) Ms Conlan told me that the appellant is a member of a particular social group as a paranoid schizophrenic in Swaziland. The immutable characteristic is that (in Swaziland) his illness is untreatable and enduring. Ms Conlan relied on Dr Hickel's report (at pages 46 and 47 of the appellant's bundle) which identifies the risk to the appellant as societal discrimination because of his reaction to the symptoms of his illness.

(c) Ms Conlan asked me to set the decision aside and to substitute my own decision, or to remit this case to the first-tier tribunal for further fact-finding.

7. (a) For the respondent, Mr Mills told me that the decision does not contain an error of law. He told me that no challenge has been raised to the article 3 decision (but he described that as "a mistake"). He told me that, at [6] of the decision, the Judge succinctly summarises the appellant's claim. He told me that between [7]and [12] of the decision the Judge carries out an adequate consideration of the appellant's asylum claim. He told me that the Judge was correct to find that the appellant is not a member of a particular social group, so that the refugee convention is not engaged.

(b) Mr Mills summarised the argument for the appellant by saying that there may be a risk of serious harm to the appellant as an undertreated paranoid schizophrenic whose symptoms lead to targeting by his neighbours, but would not concede that the appellant might be entitled to humanitarian protection. He urged me to dismiss the appeal.

Analysis

8. At [6] the Judge summarises the appellant's protection claim. At [10] & [11] the Judge bemoans the lack of reliable objective evidence. In the final sentence of [11] the Judge says

Certainly, there is nothing to indicate that such individuals are members of a particular social group, as seems to be argued for the appellant.

9. At [12] the Judge accepts the evidence that there is discrimination against those with mental health difficulties in Swaziland. He (correctly) distinguishes persecution from discrimination & stigmatisation.

10. In essence, what is argued is that the judge should have placed greater weight on Dr Hickel's report. It is clear from the decision that the Judge considers all of the medical evidence carefully. The Judge quotes at length from Dr Hickel. It is equally clear from the decision that the Judge had more than just Dr Hickel's evidence. The Judge manifestly considered each strand of evidence before coming to the conclusion that there was not enough reliable evidence before him (even to the lower standard of proof) to enable him to make a finding that the public discrimination and stigmatisation of paranoid schizophrenics in Swaziland reaches the threshold to become persecution.

11. Between [6] and [12] the Judge makes clear findings which were well within the range of reasonable findings available to the Judge. The Judge finds that the appellant will suffer discrimination, not persecution, and for that reason the refugee convention is not engaged. In addition, the Judge finds that there is not sufficient evidence to establish that the appellant is a member of a particular social group. Those are also conclusions well within the range of reasonable conclusions available.

12. Even though the Judge's conclusion in relation to article 3 might be challengeable, it has not been challenged and so stands. The Judge found that the appellant succeeds on article 3 grounds after considering all of the medical evidence and drawing the conclusion from that evidence that the risk to the appellant is created because of the absence of appropriate treatment which would lead to a serious, rapid, and irreversible decline in his mental health.

13. On pages 4 and 5 of his report, Dr Hickel argues that the discrimination the appellant will face is more serious than the respondent realises. Ms Conlan relies on Dr Hickel's report and argues that his report produces incontrovertible evidence that the risk is from a third party.

14. The Judge quotes at length from Dr Hickel's report at [8] & [9] of the decision. The skeleton argument prepared by counsel representing the appellant before the First-tier Tribunal and the Judge's record of proceedings indicate that the argument made for the appellant was that the risk to the appellant was of deteriorating mental health because of inadequate facilities in Swaziland.

15. At [11], when considering the asylum appeal, the Judge finds that there is no objective evidence to establish that individuals with mental health problems face a real risk of persecution or ill treatment. Having reached that finding, the Judge could not make a finding that the risks to the appellant comes from third parties who overreact to the manifestation of the symptoms of his illness.

16. There was evidence from Dr Hickel's report about the extent of discrimination and the risk of the perception of the presence of witchcraft. The Judge did not ignore that evidence. Having considered the totality of evidence, the Judge found that the appellant faces a risk of discrimination and stigmatisation.

17. Article 2 (e) of the Qualification Directive defines a "person eligible for subsidiary protection" as

A third country national or stateless person who does not qualify as a refugee but in respect of whom substantial grounds have been shown for believing that the person concerned, if returned to his or her country of origin, or in the case of a stateless person, to his or her country of former habitual residence, would face a real risk of suffering serious harm as defined in Article 15, and to whom Article 17 (1) or (2) do not apply, and is unable, or owing to such risk, unwilling to avail himself of the protection of that country.

18. Article 15 of the Qualification Directive defines serious harm as follows:

Serious harm consists of:
(a) death penalty or execution; or
(b) torture or inhuman or degrading treatment or punishment of an applicant in the country of origin; or
(c) serious and individual threat to a civilian's life or person by reason of indiscriminate violence in situations of international or internal armed conflict.

19. Paragraph 339CA of the Immigration Rules states:

?Serious harm consists of:
(i) the death penalty or execution;
(ii) unlawful killing;
(iii) torture or inhuman or degrading treatment or punishment of a person in the country of return; or
(iv) serious and individual threat to a civilian's life or person by reason of indiscriminate violence in situations of international or internal armed conflict.
20. Inhuman or degrading treatment covers a wide-range of ill treatments reaching a certain degree of severity. The assessment of the minimum level of severity is relative. It depends on all the circumstances of the case such as the duration of the treatment, its physical and mental effects and in some cases, the gender, age and state of health of the victim. Further factors include the purpose for which the treatment was inflicted together with the intention or motivation behind it, as well as its context, such as an atmosphere of heightened tension and emotions (Bures v Czech Republic application 37679/08 (paras 83 and 84)).

21. In M'Bodj v Etat Belge (case C-542/13 CJEU Grand Chamber it was held that the risk of deterioration of health of a third country national suffering from a serious illness as a result of the absence of appropriate treatment in his country of origin was not sufficient to warrant the grant subsidiary protection unless the person was intentionally deprived of health care. Serious harm in Article 15(b) of the Qualification Directive did not cover inhuman or degrading treatment arising from a serious health condition unless there was an intentional deprivation of health care in the country of origin.

22. If the Judge had made a finding (relying on Dr Hickel's report) that there risk to the appellant comes from third parties, then the appellant would be entitled to a grant of humanitarian protection. The Judge did not make that finding. The Judge clearly considered Dr Hickel's report and finds that the entirety of his report indicates that there is sufficient and available protection. Having considered all of the evidence, the Judge found that the risks to this appellant was solely a risk of deteriorating mental health because of inadequacy of treatment in his country of origin.

23. This appeal does not identify a material error of law. It is, in reality, an attempt to argue that the Judge should have made on additional finding of fact.

24. In Shizad (sufficiency of reasons: set aside) [2013] UKUT 85 (IAC) the Tribunal held that (i) Although there is a legal duty to give a brief explanation of the conclusions on the central issue on which an appeal is determined, those reasons need not be extensive if the decision as a whole makes sense, having regard to the material accepted by the judge; (ii) Although a decision may contain an error of law where the requirements to give adequate reasons are not met, the Upper Tribunal would not normally set aside a decision of the First-tier Tribunal where there has been no misdirection of law, the fact-finding process cannot be criticised and the relevant Country Guidance has been taken into account, unless the conclusions the judge draws from the primary data were not reasonably open to him or her.

25. A fair reading of the decision demonstrates that the Judge applied the correct test in law. The Judge carried out a holistic assessment of all of the evidence. There is nothing unfair in the procedure adopted nor in the manner in which the evidence was considered. There is nothing wrong with the Judge's fact-finding exercise. The appellant might not like the conclusion that the Judge arrived at, but that conclusion is the result of the correctly applied legal equation. The correct test in law has been applied. The decision does not contain a material error of law.
26. The decision does not contain a material error of law. The Judge's decision stands.
DECISION
27. The appeal is dismissed. The decision of the First-tier Tribunal, promulgated on 3 October 2018, stands.
Signed Date 2 August 2019
Deputy Upper Tribunal Judge Doyle