Tribunal decisions

The decision

IAC-AH-KRL-V2

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/10793/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 20th January 2017
On 24th February 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE D N HARRIS

Between

Lamin [C]
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr A Cooray, Solicitor
For the Respondent: Mr S Kotas, Home Office Presenting Officer

DECISION AND REASONS
1. The Appellant is a citizen of the Gambia, born on 14th April 1959. The Appellant entered the UK in December 2002. The Appellant applied in September 2003 for leave to remain outside the Rules due to HIV and to obtain medical help from the NHS. That application was refused on 6th August 2004 with no right of appeal. Regrettably no steps were taken thereinafter by the Secretary of State and in April 2011 the Appellant was sent a legacy letter. Still no steps were taken and in March 2015 following a review of the Appellant's case, the Secretary of State determined that there was no basis to grant leave. On 5th March 2016 the Appellant claimed asylum on the basis that if returned to Gambia he would face mistreatment due to the stigma surrounding HIV and his further fear that he would not be able to obtain medical treatment. That application was refused by the Secretary of State by Notice of Refusal dated 21st September 2016.
2. The Appellant appealed and the appeal came before Judge of the First-tier Tribunal Mrs R J N B Morris, sitting at Hatton Cross on 7th November 2016. In a decision and reasons promulgated on 29th November 2016 the Appellant's appeal was dismissed under the Immigration Rules and on human rights grounds. On 13th December 2016 the Appellant lodged Grounds of Appeal to the Upper Tribunal. The Appellant's principal ground was that the First-tier Tribunal had not given any or any proper consideration to whether the evidence of likely mistreatment and discrimination to an HIV positive person in the Gambia was reasonably likely to reach the degree of severity that would amount to persecution or a breach of Article 3.
3. On 23rd December 2016 Designated First-tier Tribunal Judge Macdonald granted permission to appeal. I am informed by the legal representatives that there is no Rule 24 response by the Secretary of State. It is on that basis that the appeal comes before me to determine whether or not there is a material error of law in the decision of the First-tier Tribunal Judge. The Appellant appears by his instructed solicitor, Mr Cooray. Mr Cooray is familiar with this matter having appeared before the First-tier Tribunal. The Secretary of State appears by her Home Office Presenting Officer, Mr Kotas.
Submission/Discussions
4. Mr Cooray relies upon the Grounds of Appeal. He submits that the decision has not dealt with the substance of the appeal as to whether there would in fact be protection available for the Appellant if he returned to Gambia. He submits that the judge has taken the wrong approach to credibility and has made an adverse finding regarding the Appellant's late wife and her treatment. He submits that there is a likelihood of persecution under Article 3 on the Appellant's return. Whilst he notes that the First-tier Tribunal went on to consider state protection in the light of Horvath, he contends that the First-tier Tribunal merely sets out the principle and does not actually address any evidence in relation to whether state protection would actually be available.
5. Mr Kotas responds by stating that the starting point is that the judge was well aware of the Appellant's case and he refers me to paragraph 16 of the decision which sets out the background evidence in considerable detail. He submits that credibility of the Appellant is a building block and that it is from there that the Appellant's case has to be analysed. He takes me through the decision, pointing out that at paragraphs 21 and 22 the judge considers the generic law and at paragraphs 23 and 25 the individual circumstances of this family. He submits that in order to succeed under Article 3 there is a very high threshold and that that standard is in no way approached. He submits the correct approach is to concentrate on the immediacy of the problem. He submits that it is not possible for the Appellant to succeed under Article 3 otherwise quite simply anyone with HIV would succeed and that the claim is not sustainable. He asks me to dismiss the appeal.
6. Mr Cooray in brief response refutes that latter contention, stating the judge was well aware of the case and that the witness statement refers specifically to a fear of attack and abuse and that it is not sufficient for the judge merely to recite the evidence, he still has to make findings and that he has not made any. He asks me to allow the appeal and to remit the matter back to the First-tier Tribunal for rehearing.
The Law
7. Areas of legislative interpretation, failure to follow binding authority or to distinguish it with adequate reasons, ignoring material considerations by taking into account immaterial considerations, reaching irrational conclusions on fact or evaluation or to give legally inadequate reasons for the decision and procedural unfairness, constitute errors of law.
8. It is not an arguable error of law for an Immigration Judge to give too little weight or too much weight to a factor, unless irrationality is alleged. Nor is it an error of law for an Immigration Judge to fail to deal with every factual issue of argument. Disagreement with an Immigration Judge's factual conclusion, his appraisal of the evidence or assessment of credibility, or his evaluation of risk does not give rise to an error of law. Unless an Immigration Judge's assessment of proportionality is arguable as being completely wrong, there is no error of law, nor is it an error of law for an Immigration Judge not to have regard to evidence of events arising after his decision or for him to have taken no account of evidence which was not before him. Rationality is a very high threshold and a conclusion is not irrational just because some alternative explanation has been rejected or can be said to be possible. Nor is it necessary to consider every possible alternative inference consistent with truthfulness because an Immigration Judge concludes that the story is untrue. If a point of evidence of significance has been ignored or misunderstood, that is a failure to take into account a material consideration.
Findings on Error of Law
9. It is the contention of Mr Cooray that the First-tier Tribunal Judge contented herself with a conclusion that the Appellant's credibility was questionable. Even if that is the case he states there was a responsibility on the judge to consider whether the Appellant is as an HIV positive person put at risk. The judge has well constructed her decision. She has set out at paragraphs 8 and 9 the Appellant's claim and the rebuttal of that claim to be found at paragraphs 10 to 15 by the Secretary of State. Thereafter she has considered in detail the background history, in particular the objective evidence set out at paragraph 16 and has then gone on to address the issue of the Appellant's credibility. A proper approach to credibility requires an assessment of the evidence and of the general claim. In a claim such as this relevant factors would firstly be the internal consistency of the claim, secondly its plausibility and thirdly the consistency with external factors of the sort typically found in country guidance. External information against which the claim could be checked is available and this has been considered in some depth by the judge. The judge's approach to credibility is correct.
10. Thereafter the judge has come to her conclusions. She has looked firstly at objective factors, such as case law and the Regulations, and thereafter gone on to consider the issue so far as it relates to the Appellant. She has quite properly noted that the burden of proof was on the Appellant and has made a finding of fact giving reasons that the Appellant has not shown that he or any member of his family have been subjected to claims of taunting, albeit that I acknowledge that that claim relates far more to how he would be treated on return than to how he would be treated in the UK.
11. The judge has gone on at paragraph 24 to consider sufficiency of protection and has considered the position in Horvath. When looked at overall this is a consideration that has properly been addressed by the judge. Despite the submissions made by Mr Cooray I do not find that the decision on this particular issue (which is the essential argument) discloses any material error of law.
12. Finally the judge has gone on to give due and proper consideration to the issues of family and private life in a detailed analysis at paragraphs 28 to 32 and made findings which she was entitled to at paragraphs 33 to 55. I agree with the submissions made by Mr Kotas that the arguments in this case come nowhere near being able to sustain a claim pursuant to Article 3, but in any event the judge has given a very full detailed analysis and logical conclusion as to her reasons. The decision consequently discloses no material error of law and as a result the Appellant's appeal is dismissed and the decision of the First-tier Tribunal is maintained.
Notice of Decision
The decision of the First-tier Tribunal discloses no material error of law. The appeal is dismissed and the decision of the First-tier Tribunal Judge is maintained.
No anonymity direction is made.

Signed Date
Deputy Upper Tribunal Judge D N Harris

TO THE RESPONDENT
FEE AWARD

No application is made for a fee award and none is made.

Signed Date
Deputy Upper Tribunal Judge D N Harris