Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/08935/2018

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 8 October 2019
On 16 October 2019

Before

UPPER TRIBUNAL JUDGE NORTON-TAYLOR

Between

J L
(ANONYMITY DIRECTION made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

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.

Representation:
For the Appellant: Ms G Griffiths, Counsel, instructed by Southwark Law Centre
For the Respondent: Ms A Holmes, Senior Home Office Presenting Officer

DECISION AND REASONS
Introduction
1. This is the remaking of the decision in the Appellant's appeal following my error of law decision promulgated on 27 August 2019, in which I concluded that the First-tier Tribunal had materially erred in law. While setting the decision of the First-tier Tribunal aside, I specifically preserved all relevant findings of fact. The First-tier Judge had found the Appellant to be an entirely credible witness. In addition, I stated that the medical evidence which had gone unchallenged throughout was to be assessed on that basis when a resumed hearing took place.
2. In preparation for the resumed hearing I issued directions that both parties were to file and serve skeleton arguments. Both parties complied. I am grateful to both representatives at the hearing for their assistance.
3. By way of very brief summary, the Appellant is a gay man of Mexican nationality. It is right to say that he has had horrific experiences during the course of his life in various places that he has sought to reside. His experiences have been at the hands of both state and non-state actors. On any view this man has suffered serious persecution for simply being who he is.

The hearing
4. The Appellant attended the hearing. Although he did not give oral evidence, I confirm that I was treating his evidence as a whole in the context of him clearly being a vulnerable individual within the meaning of the Joint Presidential Guidance Note 2 of 2010.
5. In addition, the hearing was held in camera, in light of the sensitive nature of the issues arising in this case.
6. Ms Holmes, who in my view has adopted an entirely fair position in this case, sought to rely on the Respondent's skeleton argument (prepared by another Senior Home Office Presenting Officer) and confirmed that she had nothing further to add.
7. Ms Griffiths relied on her detailed skeleton argument and elaborated on certain matters arising therefrom. At my invitation, she also responded to issues arising from the Respondent's skeleton argument. All of these submissions are set out fully in the Record of Proceedings.

Findings and Conclusions
8. I begin by re-stating the important fact of the complete preservation of the First-tier Tribunal's credibility assessment of the Appellant. He was found to have given a truthful and accurate account in all respects.
9. I adopt the positive credibility assessment for the purposes of my remaking decision. Amongst other matters, the Appellant's experiences include the following:
i. he was abused by his alcoholic father from a very young age;
ii. he was then rejected by his father and then by his mother;
iii. having been sent to an orphanage and then a refuge, he was abused by other residents;
iv. having lived elsewhere for a time, he returned to his original home area of Mexicali but was arrested by police at his uncle's request. The police threatened him with rape;
v. having then moved to Tijuana, he was sexually abused by men;
vi. he then went illegally to the United States. Having formed a relationship with a man there, before returning to Mexico;
vii. the Appellant was forced to live in a building occupied by drug users and dealers. When he complained to the police, they harassed him. He was assaulted by other residents. He tried to get into the United States once again, but failed;
viii. he was picked up by the Mexican police and taken to a location where he was raped by drug users;
ix. the Appellant was subsequently tricked by a doctor, had money confiscated by the United States authorities when trying to enter country again, was abused public when back in Mexico, and was arrested by the police again for complaining about his treatment
x. he has been the subject of abuse whilst in the United Kingdom.
10. In addition, as is made clear in my error of law decision, the body of medical evidence was unchallenged before the First-tier Tribunal and nothing by way of adverse comment was raised by the Respondent at the error of law hearing (I shall say something about the Respondent's skeleton argument on this issue, below).
11. Having regard to the medical evidence as a whole, placed in the context of the Appellant's credibility and having regard to the qualifications, methodology, and clear compliance with the duties of an expert when providing evidence, I place very significant weight upon the report of Dr Rachel Thomas. In summary, she concludes that the Appellant suffers from moderate/severe is of Major Depressive Disorder and moderate/severe PTSD. In addition, Dr Thomas remarks on the following:
i. exaggerated startle responses;
ii. submissive posture and demeanour;
iii. appearing very childlike, indicating psychological vulnerability;
iv. frequently biting his nails with anxiety and stroking his face in a dazed, self-soothing manner.
12. In Dr Thomas's view, an individual with the Appellant's history of abuse and exploitation is significantly more vulnerable to similar experiences in the future.
13. I place similar weight upon the evidence from Dr Nick Larbalestier, Consultant Physician at Guy's and St Thomas's Hospital, London. He confirms the Appellant's diagnosis of HIV. As at January 2019, the CD4 count was 259, although upon presentation in September 2017 that had been just 45 (with a normal count being over 500). They had been "profound damage" to the Appellant's immune system. The letter states that although the Appellant was beginning to respond to antiretroviral therapy, it was "extremely important that he remains on antiretroviral therapy" and that if the relevant treatment stopped, the CD4 count would "crash" in a matter of "weeks", with a life expectancy of as little as 1-2 years. The author confirms that the Appellant is "at immediate and ongoing risk of both "life-threatening opportunistic infections and also malignancy". He does have some baseline resistance in his virus." In Dr Larbalestier's view, the Appellant is "an extremely vulnerable individual."
14. As to the country report from Steven Beckert, I find that he is an individual eminently qualified to provide expert evidence on the issues that he has (he is currently the Culture Program Consultant and Gender Focal Point at the UNESCO Country Office in Mexico, and has wide-ranging experience in gender and sexuality matters). I place very significant weight upon his evidence. In summary, Mr Beckert concludes that there is serious and widespread discrimination against members of the LGBT community in Mexico, including the capital city. He provides evidence on the availability of HI the treatment, concluding that this is limited.

Risk in the home areas
15. The first issue to be dealt with is that of risk in the home area. In this particular case, and this is of some significance, there are effectively two home areas, the first being Mexicali and the second being Tijuana. It is self-evidently the case that the Appellant suffered very serious persecution in both of these locations. This ill-treatment related to both actual harm and very serious discrimination and emanated from both the authorities and members of the public. With the past experiences in mind, having regard to paragraph 339K of the Immigration Rules, the expert report from Mr Beckert, and in view of the relevant country information referred to in Ms Griffiths' skeleton argument, it is highly likely that the Appellant would once again suffer persecution by reason of his sexuality if he were to return to either of those two home areas.
16. I say this of course in the context of the very important principles set out in HJ (Iran) [2010] 3 WLR 386, namely that the Appellant is entitled to live as an openly gay man and it is abundantly clear that if he were to try and conceal this it would be simply in order to avoid the awful treatment that he has suffered in the past.
17. It is equally clear that he would be unable to obtain sufficient protection from the authorities. This is in light of what he has experienced in the past (when he suffered abuse having approached the police) and the current situation as set out in the expert report and country information.
18. It is right to say that the Respondent has not put up any substantive opposition to the existence of risk in the home area.
19. On the same factual matrix, the Appellant's removal would place an ad real risk of treatment contrary to Article 3.

Risk elsewhere in Mexico
20. The second issue for me to address is that of the existence of a risk elsewhere in Mexico, specifically Mexico City, where it is said by the Respondent that the Appellant could find a safe haven.
21. In assessing this issue, I have regard to the Appellant's past experiences in a number of locations within Mexico. It is of course the case that there may be a risk in another part of the country that does not emanate from the same people who have persecuted him in the past. I take into account once again the expert report from Mr Beckert (in particular, paras 65-81), the country information referred to in Ms Griffiths' skeleton argument, and the principles set out in HJ (Iran). The fact of past persecution is also relevant to future risk elsewhere. Of significance too is the fact, as I find it to be, that the Appellant is a particularly vulnerable individual, given both his physical and mental health problems, both of which are, on any view, very serious. This vulnerability is not simply by virtue of the way in which the Appellant sees himself and his place in the world, but also how he will be perceived by others.
22. The Respondent's skeleton argument at paragraphs 5 and 6 are, in my view, highly generalised, include certain matters which are either irrelevant or misplaced, and do not include a proper analysis of the Appellant's actual circumstances when taken on a cumulative basis. For example, laws relating to same sex marriage, LGBT-friendly venues, or events such as gay pride marches simply do not have any significant bearing on the issue of risk to this particular individual. In addition, whilst formal measures seeking to prohibit discrimination on the basis of sexuality may exist, the expert evidence indicates that in reality they have little material effect. Furthermore, the particular facts relating to the Appellant's past experiences and his circumstances on return make it extremely unlikely that anti-discrimination laws have any positive bearing on him.
23. On the facts of this case, I conclude that there will be a risk from the police in Mexico City. I base this in part upon the fact of past persecution as an indicator of future risk, in light expert evidence from Mr Beckert, and the Appellant's particular vulnerability, which is likely to make him what could crudely be described as an easy target.
24. It is quite apparent that the Appellant would not receive sufficient protection from the Mexican authorities in respect of what I considered to be the reasonable likelihood of risk emanating from non-state actors. His past experiences clearly show that the authorities have not simply declined to assist him, but have on occasion actively participated in causing him harm.
25. On return, his overall circumstances would if anything be worse than they had been in the past (bearing in mind his serious physical and mental health problems) and it is highly likely that what had befallen him in the past would be repeated.
26. Taking all relevant matters into account I conclude that there is a risk of either actual harm or very serious discrimination amounting to persecution in Mexico City.
27. Therefore, the Appellant is a refugee.
28. On the same factual matrix, the Appellant succeeds on Article 3 grounds.

Internal relocation
29. If there is no risk to the Appellant in Mexico City, I turn to consider the alternative issue of internal relocation to the capital. In doing so I apply all of the relevant factors as summarised helpfully by the Court of Appeal in the recent decision of AS (Afghanistan) [2019] EWCA Civ 873. I take into account what is said in the report of Mr Beckert, the country information, and the medical reports from Dr Thomas and Dr Larbalestier. I then have regard to all of the Appellant's relevant characteristics, including the following:
i. his sexuality;
ii. his wish to live openly as a gay man;
iii. what has happened to him in the past;
iv. the "rampant" homophobia in Mexico City;
v. the effect of this discrimination on the ability to find legitimate employment and to access reasonable accommodation;
vi. the prevalence of serious attacks against members of the LGBT community in the capital;
vii. his lack of education;
viii. his serious physical and mental health problems;
ix. his lack of any social or familial support network;
x. his significant overall vulnerability and the manifestly severe impact upon him having to attempt to establish himself and then to move on a day-to-day basis;
30. Taking all of these individual characteristics into account and combining them with expert evidence (both medical and country), it would clearly be unduly harsh for this Appellant to relocate to Mexico City.
31. On this alternative basis, the Appellant is a refugee.
32. The absence of an internal relocation option means that the Appellant is able to succeed on the Article 3 as well.

The Article 3 medical claim
33. It is quite clear that the Appellant's physical health constitutes a very serious matter and the same applies to his mental health. It is apparent to me that the Respondent has effectively analysed the Appellant's case by artificially separating these two issues, at least to a large extent. In my view they must be viewed cumulatively, with the effect of one on the other being of central importance to the overall assessment of this aspect of his case. In particular, the overall impact on both aspects of his health on return as that relates to: (a) his ability to actually access any treatment which may in theory be available; (b) maintain even a reasonable existence anywhere in Mexico with regard to functioning on a social level; (c) having access to legitimate employment, public services and accommodation.
34. There is a further issue, which is the ability of the Appellant to maintain access to treatment over the course of time. To put it in rather crude terms, simply being able to walk through the door of a clinic on one occasion and potentially obtain some medication is not enough. The Appellant needs significant, appropriate and long-term help for both aspects of his health conditions. In light of his overall circumstances, such as they are very likely to be, the Appellant's ability to access initially and then maintain appropriate treatment for his serious mental and physical conditions is remote in the extreme.
35. With respect to the Respondent's skeleton argument, the points made in paras 7 and 8 are in my view misconceived. First they do not engage with the combined effect of the Appellant's overall medical and socio-economic circumstances upon return to Mexico. For example, it is highly likely that the Appellant's mental health will rapidly deteriorate upon return simply as result of that state of affairs. Second, this, combined with his sexuality and lack of social and/or familial support, will significantly undermine his ability to find work and/or sufficiently fixed accommodation. Therefore, even on the Respondent's own arguments arising from the fairly thin evidence cited in the reasons for refusal letter (which is itself subject to what I consider cogent criticism by Ms Griffiths in her skeleton argument), it is really very unlikely indeed that the Appellant will be able to initially access and then maintain treatment appropriate to his HIV. These same set of circumstances will also effectively preclude the Appellant from accessing and then maintaining appropriate treatment for his mental health. In this way, there is highly likely to be a downward spiralling of his overall health.
36. This is a rare case which reaches the very high threshold established in N is met. It is highly likely that the Appellant would face a very serious and rapid deterioration in his mental health. This, combined with consequent inability to generate financial resources, is highly likely to lead to, at very least, a material interruption in his HIV treatment. In turn, he will be exposed to life-threatening infections and his CD4 count is likely to plummet.
37. There is also an issue arising out of Paposhvili 41738/10 and now Savaran 57467/15 regarding procedural safeguards. The Respondent's response to the Appellant's medical claim has been generalised and inadequate. References to the potential availability of certain medications has been stated in, for example, the reasons for refusal letter, but there clearly had been no individualised and specific attempts to obtain assurances of one sort or another in respect of the particular type of treatment required by this individual as regards both his physical and mental health conditions.
38. The evidence produced by the Appellant, at the very least, presents a strong claim to reach the Article 3 threshold. The absence from the Respondent of any individualised assessment and/or assurances (including whether or not this particular Appellant would be able to access the appropriate treatment in Mexico) need me to conclude that the Appellant is entitled to succeed on this alternative Article 3 basis.

Suicide risk
39. The next issue is that relating to the risk of suicide. The first point to make on this issue is that I do not regard there to be any contradiction within the report of Dr Thomas. As I read her report, specifically the passages referred to in para 12 of the Respondent's skeleton argument, the author is at one stage stating that she could not specify the extent of a deterioration in the Appellant's mental health, whereas latterly she confirms that she was clear that there would be a crisis were he to be forcibly removed. These two statements are compatible. A crisis can of course involve varying levels of severity, and all Dr Thomas is saying is that she is unable to predict that level. However, in light of the evidence as a whole it is highly likely that there would be a crisis. That crisis would have to be seen in the context of the Appellant's experiences in the past, the objectively justified perception that he would find it extremely difficult to secure appropriate work and/or accommodation and/or receive other public services and/or have access to appropriate treatment for one or other or both of his health conditions. It is also of course important that, on my findings, the Appellant's fear of persecution (or at the very least pervasive discrimination) is well-founded.
40. Having regard to the criteria set out in J [2005] EWCA Civ 629, I conclude that this is an exceptional case in which the risk of the Appellant taking his own life is sufficiently high for him to succeed on this basis.

Para 276ADE(1)(vi)
41. The final matter is that relating to paragraph 276ADE(1)(vi) of the Immigration Rules. The threshold of very significant obstacles is a high one as stated in Treebhawon and Others (NIAA 2002 Part 5A - compelling circumstances test) [2017] UKUT 13 (IAC) and in assessing the issue of integration I undertake a broad, evaluative judgment in line with the guidance in Kamara [2016] EWCA Civ 813 at paragraph 14. The relevant factors have been set out earlier in my decision and do not need to be repeated. The Appellant is an individual who has been ostracised and persecuted by Mexican society when he last resided there. Problems have emanated from both members of the public and state authorities. He has very serious health conditions. It is extremely likely that he will be perceived in a way that will attract, at the very least, serious discrimination. I conclude that on any legitimate review the Appellant would not be seen as an insider and would not be able to make himself an insider into Mexican society if he were to be returned. It is highly likely that he will be forced to live on the periphery of society and be subject to harm or discrimination that would prevent him from living anything approaching a reasonable existence in that country.
42. The Appellant is able to succeed on this final basis as well.

Notice of Decision
The decision of the First-tier Tribunal contained errors of law and it has been set aside.
I remake the decision by allowing the Appellant's appeal on the grounds that the Respondent's refusal of his protection claim is contrary to the United Kingdom's obligations under the Refugee Convention and that the Respondent's refusal of the human rights claim is unlawful under section 6 of the Human Rights Act 1998.

Signed Date: 13 October 2019
Upper Tribunal Judge Norton-Taylor

ANNEX: ERROR OF LAW DECISION

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/08935/2018

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 14 August 2019

?????????????

Before

UPPER TRIBUNAL JUDGE NORTON-TAYLOR

Between

J L
(ANONYMITY DIRECTION made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

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 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.

Representation:
For the Appellant: Ms E Griffiths, Counsel, instructed by Southwark Law Centre
For the Respondent: Ms N Willocks-Briscoe, Senior Home Office Presenting Officer

DECISION AND REASONS
Introduction
1. This is a challenge by the Appellant against the decision of First-tier Tribunal Judge Buckwell ("the judge"), promulgated on 8 March 2019, in which he dismissed the Appellant's appeal against the Respondent's decision of 7 July 2018, which in turn had refused his protection and human rights claims.
2. In summary, the basis of those claims was that the Appellant, as a gay man, had suffered persecutory treatment in Mexico at the hands of state and non-state actors. He had encountered these problems in various places within his home country and was in fear of similar events occurring should he be returned there. In addition, due to particular health conditions, he claimed that his return to Mexico would violate Articles 3 and/or 8 ECHR.

The judge's decision
3. The judge found the Appellant's account of past events to be entirely credible. However, he did not regard the Appellant's past experiences as amounting to persecution, either on the part of the state or non-state actors. Without making a specific finding on whether there would be a risk in the Appellant's home area, the judge dealt with the issue of internal relocation, concluding that there was a viable option open to the Appellant in respect of Mexico City.
4. In respect of the medical issues, the judge considered the evidence from various professionals (all of which was unchallenged before him) but concluded that the high threshold in respect of Article 3 had not been met and that there would not be very significant obstacles to reintegration into Mexican society with reference to paragraph 276ADE(1)(vi) of the Immigration Rules. The appeal was duly dismissed.

The grounds and grant of permission
5. The grounds of challenge make the following points. First, that the judge had failed to carry out a holistic assessment of the Appellant's particular circumstances when considering the issue of internal relocation. Second, that the judge's conclusion that the treatment metered out to him in the past did not constitute persecution was irrational. Third, that the judge had failed to engage with and make findings on the country expert report. Fourth, that the judge had failed to give any or any adequate reasons in respect of material matters relating to, amongst other points, the country information, the various elements of the medical claim and the issue of very significant obstacles. Fifth, that the judge had failed to take relevant medical evidence into account and/or conduct a holistic assessment of the Appellant's healthcare needs.
6. Permission to appeal was granted by Upper Tribunal Judge Kamara on 25 June 2019.

The hearing
7. At the hearing before me Ms Griffiths relied on the grounds of appeal and her skeleton argument. She emphasised the fact that the judge had not made any clear finding on the risk in the home area, but that the conclusion that there had not been persecution of the Appellant in the past was erroneous and this was relevant to that issue. She also emphasised the Appellant's own evidence that he had suffered harm wherever he had gone, both within Mexico and indeed when he had lived in the United States for some time. The harm had emanated from both state and non-state actors.
8. For the Respondent, Ms Willocks-Briscoe accepted (in my view quite properly) that there were "some difficulties" in the judge's decision, but nonetheless contended that his decision as a whole was sustainable.

Decision on error of law
9. I conclude that there are a number of material errors of law in the judge's decision, all of which are clearly articulated in the grounds of appeal.
10. The first error relates to the issue of internal relocation. It is clear from what is said in paragraphs 81 and 82 that the judge failed to carry out the crucial exercise of considering all relevant characteristics of the Appellant when assessing whether internal relocation was a viable option. With respect, what is said in those two paragraphs is of a very generalised nature and simply fails to engage with the specifics. The error is certainly material, particularly given the fact that the judge had found the Appellant to be an entirely credible witness and that the medical evidence stood unchallenged. The Appellant's past experiences and that medical evidence of themselves constituted significant factors which had to be weighed up when considering the viability of a relocation option. This was simply not done.
11. I would add that the judge had not in fact reached a clear finding as to whether there would be a risk to the Appellant in his home area. However, given his consideration of internal relocation option it may be said that this was implicitly accepted. Even if it had not been, there is an obvious error as regards a failure to reach a conclusion on a core issue.
12. The second error of law renders the issue of risk in the home area, at least in terms of the way the judge dealt with it, flawed in any event. A challenge based on perversity necessitates an elevated threshold. In this case I am satisfied that that threshold is met. On the basis of the Appellant's credible evidence, it was in my view irrational for the judge to have described what happened to this individual simply as "adverse encounters" or "most unfortunate encounters" with the authorities. On any legitimate view, his past experiences (which I do not need to set out in any detail here) constituted persecution and treatment contrary to Article 3. It is to be noted that this persecutory treatment occurred in various places, not simply the home area.
13. The third error relates to the report of Mr Stephen Beckert. Whilst the judge made reference to that report earlier in his decision, there is no engagement with it in terms of findings and conclusions in the relevant section of the decision. The report clearly contained material evidence relating to all live issues in the appeal. The judge's failure is therefore a significant error.
14. The reasons challenge is also made out. I do not propose to go through each and every limb of the Appellant's argument, but I would refer to what is said in the grounds, as supported by the skeleton argument. Reasons may be concise, but reasons there must be, and in respect of the matters set out under ground 4 the duty to provide them has not been discharged in this case.
15. The fifth and final error relates to the medical evidence. There has in my view been a failure to engage with what was actually said within certain items of that evidence (for example the report from Dr Thomas), and also to undertake a cumulative assessment of the effects of that evidence in respect of the suicide issue, what may be described as the N issue, and as that evidence related to the question of very significant obstacles under paragraph 276ADE(1)(vi) of the Rules.
16. In light of the foregoing, the judge's decision must be set aside.
17. However, it is quite clear to me that the positive credibility findings made by the judge in respect of the Appellant's account of past experiences should not be disturbed. It is also the case that the body of medical evidence was unchallenged before the judge and there is no sound reason for this evidence not to be accepted at face value in respect of the expert opinions and conclusions set out therein.
18. What needs to be done when this matter is re-heard is to apply the factual basis of the Appellant's credible history to the country evidence on Mexico, to consider and make findings on the country expert report, to reach conclusions based on the unchallenged medical evidence, and to place all of this into the appropriate legal framework relating to both the protection and the human rights claims. This will involve a degree of fact-finding but in my view, it does not call for a remittal to the First-tier Tribunal. The exercise can properly and fairly be undertaken in the Upper Tribunal.
19. Having considered the Appellant's particular vulnerabilities, I conclude that this matter should be reserved to myself for a resumed hearing in the Upper Tribunal, to be listed as soon as is practicably possible. I will issue directions to the parties. In summary this will involve skeleton arguments and the submission of any additional evidence in good time.

Notice of Decision
The decision of the First-tier Tribunal contains errors of law and I set it aside.
I adjourn this appeal for a resumed hearing to be listed in the Upper Tribunal.
I make an anonymity order

Directions to the parties
1. The Appellant shall, no later than 14 days before the resumed hearing, file and serve a skeleton argument addressing all relevant issues (subject to what I have said in my error of law decision) and containing references to the evidence and relevant case-law;
2. Any further evidence relied on by the Appellant shall be filed and served at the same time as the skeleton argument;
3. The Respondent shall, no later than 7 days before the resumed hearing, file and serve a skeleton argument addressing all relevant issues (subject to what I have said in my error of law decision).

Signed Date: 20 August 2018
Upper Tribunal Judge Norton-Taylor