Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/12698/2018

THE IMMIGRATION ACTS

Heard at Royal Courts of Justice
Decision & Reasons Promulgated
On 21 October 2019
On 24 October 2019

Before
UPPER TRIBUNAL JUDGE FINCH

Between
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
-and-

HA
(Anonymity order previously made)
Respondent

Representation:
For the Appellant: Mr. D. Clarke, Home Office Presenting Officer
For the Respondent: Ms A. Nicolaou of counsel, instructed by Turpin & Miller LLP

DECISION AND REASONS
BACKGROUND TO THE APPEAL
1. The Respondent is a national of Bangladesh, who had been born in 1996. He arrived in the United Kingdom on 15 September 2004 and applied for asylum, as an unaccompanied child, on 25 October 2004. A residence order in favour of a paternal uncle was made on 3 March 2006 but he was abused and neglected and this order was discharged on 24 June 2008 and a residence order was made in favour of AK. From 2015 he was in the care of the London Borough of Tower Hamlets.
2. Meanwhile, his application for asylum had been refused but he was granted discretionary leave to remain and this leave was subsequently extended until July 2011. He was granted indefinite leave to remain on 19 September 2011.
3. Whilst in foster care the Respondent developed a significant drinking problem. He was also involved in a serious road accident in which both of his legs were broken.
4. On 24 February 2016 the Respondent was fined for using a vehicle without insurance and possession of a Class B drug. On 2 December 2016 he was fined for possessing a Class A drug, namely cocaine. He was also fined on 14 February 2017 for failing to attend for an assessment after a drugs test. On 12 May 2017 he was sentenced to a community order and disqualified from driving after pleading guilty to failing to stop a vehicle, using a vehicle without insurance and driving with the proportion of a specified controlled drug being above a specified limit. He was also convicted of four other vehicle related offences on another date on 12 May 2017.
5. On 7 July 2017 he was convicted of failing to stop after an accident and failing to provide a specimen and this eventually led to a suspended prison sentence of 4 months. On the same date he was also convicted of four other vehicle related offences which had taken place on another date but no separate penalties were imposed. On 23 August 2017 he was made the subject of a community order for possession of a knife and on 4 September 2017 he was sentenced to six months imprisonment for possession of a knife. He was also sentenced to a further three months for committing a further offence during the operational period of a suspended sentence. Finally, on 17 November 2017, he was fined for burglary and theft from a non-dwelling.
6. On 10 October 2017 the Respondent was served with a decision to make a deportation order in his favour. He then made a human rights claim on 16 October 2017 but this was refused on 11 September 2018. He appealed and First-tier Tribunal Judge Seelhoff allowed his appeal in a decision promulgated on 8 August 2019. The Appellant appealed and First-tier Tribunal Judge Lever refused her permission to appeal on 27 August 2019. However, permission was granted by Upper Tribunal Judge Kekic on 11 September 2019.
ERROR OF LAW HEARING
7. Counsel for the Respondent made an application to rely on a letter from the Respondent's GP Surgery, dated 7 August 2019, which had not been before First-tier Tribunal Judge Seelhoff. I found that it would only be necessary to consider whether to admit this evidence if I found that there had been an error of law in the Judge's decision. The Home Office Presenting Officer and counsel for the Respondent made oral submissions and I have taken these into account when reaching my findings below. I also took into account the content of counsel's skeleton argument.
ERROR OF LAW DECISION
8. Upper Tribunal Judge Kekic granted the Appellant permission to appeal on the basis that "it was arguable that in finding that there were very significant obstacles to the appellant's reintegration into Bangladeshi society because of the appellant's claimed mental health problems, the judge failed to appreciate that there was no up to date medical evidence and that despite the claimed issues, the appellant was in full time studies for a degree course and able to work which suggested that the high threshold had not been met".
9. However, in paragraph 62 of his decision First-tier Tribunal Judge Seelhoff clearly stated "? I am in some difficulties here because I do not have a specific medical report which has been provided for these proceedings and I do not have a specific letter from the doctor explaining the various diagnosis". But he went on to state "what I have instead [are] photocopies from the Appellant's medical records, letters confirming that he is receiving psychotherapy and evidence from the social workers who have been responsible for managing and supporting his care since his release from prison. There is no dispute that the Appellant made a serious attempt at suicide last year. That is indicative of significant mental health problems and vulnerability".
10. This finding was clearly in accordance with the medical evidence which was before the First-tier Tribunal Judge in the Respondent's 132 page Bundle.
11. In particular, there was a statement, dated 26 July 2018, from a social worker in the East London Mental Health Trust, which confirmed that he had had access to the Respondent's mental health records. He noted that the Respondent first came to the attention of the Service at the age of 17 and had presented as a troubled teenager with a history of abuse from adult carers both in Bangladesh and in the UK. He added that he presented with symptoms which were consistent with a diagnosis of personality disorders related to childhood trauma and abuse and that he had had impulsive suicidal thoughts and plans. He also referred to a very serious suicide attempt on 21 July 2018 and noted that in spite of recent progress [the Respondent] remains vulnerable, and it was important to recognise the seriousness and severity of his suicide attempt. He finished by stating that he would have concerns about future suicide risks if he was not allowed to stay in the UK, as he had not yet developed the psychological resilience to cope with such a major disruption to his life. In addition, his detailed medical notes confirmed this diagnosis and the extent of his mental health needs over an significant period of time.
12. The Home Office Presenting Officer submitted that the Respondent was no longer at a crisis point in his life in relation to this mental health but the Respondent's vulnerability was confirmed by the four witnesses who gave oral evidence at the appeal hearing and his progress was seen to be dependent upon the support he was being given.
13. In the context of all of this evidence, it was clearly open to First-tier Tribunal Judge Seelhoff to conclude in paragraph 63: "in that context I am satisfied that the Appellant has significant mental health needs and I infer that he would need help and support where ever he was living accordingly I do find that he would struggle to cope if he could not put comparable social and medical support networks in place on return to Bangladesh".
14. The Judge then relied on extracts from the Appellant's Country Policy and Information Note Bangladesh: Medical and Healthcare Issues Version 1.0 May 2019 which stated that:
"9.1.1. An Australian DFAT report of February 2018 noted, 'Despite considerable needs, there are few support services available for those suffering from mental health disorders and [there is] no specific mental health authority in Bangladesh'. The US State Department 2018 Report on Human Rights Practices similarly observed, 'Government facilities for treating persons with mental disabilities were inadequate [for the country as a whole]
9.1.2. MedCOI commented in a response of 4 September 2015:
'Based on the information found in several sources, mental illness in Bangladesh is highly stigmatized and mental healthcare is in its nascent stages. Healthcare provision is limited ?"
15. The Home Office Presenting Officer submitted that, as the Respondent was now studying on a full-time basis and also working on a part-time basis, he would be able to work in order to fund any services which he may need if removed to Bangladesh. However, this does not address the reality of the country evidence which suggests that mental health care is still in its nascent stages and those with mental health difficulties are stigmatised even if they can afford to pay for services. The lack of facilities was also confirmed in the article from the International Journal of Mental Health Systems which was also in the Respondent's Bundle.
16. Upper Tribunal Judge Kekic also found that it was arguable that the Judge had failed to take into account financial assistance which the appellant would receive from a facilitated return and potentially from his family in Bangladesh.
17. However, at paragraph 61 of his decision First-tier Tribunal Judge Seelhoff noted that "the Appellant's account of having no contact with his family at all was not disputed". He also added that "that is also consistent with the account of the Appellant being taken into care because even the relatives in the UK were being abusive. I am satisfied that that Appellant has no support mechanism in Bangladesh to call on to facilitate his return".
18. At paragraph 60 the Judge also found that "in the Appellant's case he has been in the UK since the age of eight. He also, and this is not disputed by the Respondent, left Bangladesh because his father was abusive. That must form a significant factor to take into account when considering whether or not there would be significant obstacles to return?I consider in essence the Appellant claims to have fled Bangladesh and the abusive situation there to be unchallenged. Although the Appellant is now an adult that must increase the stress and difficulty he would face on return".
19. In terms of the Respondent benefitting from a facilitated return, the Appellant had made a general reference to the Facilitated Return Scheme in refusal letter, dated 11 September 2018. However, The Facilitated Return Scheme (FRS) Version 8.0 indicates that the scheme is not available to a person who pursued a right of appeal beyond the level of the First-tier Tribunal or someone who has an extant immigration appeal. This interpretation of the policy was accepted by the Home Office Presenting Officer and he did not seek to rely on this second ground of appeal.
20. However, he did submit that First-tier Tribunal Judge Seelhoff had not undertaken the broad evaluative assessment of the evidence which was necessary in the light of Secretary of State for the Home Department v Kamara [2016] EWCA Civ 813, when considering whether there were very significant obstacles to the Respondent establishing a private life in Bangladesh. However, between paragraphs 60 and 65 of his decision First-tier Tribunal Judge Seelhoff did give very detailed consideration to a range of evidence, including that related to his mental health, before giving cogent reasons for finding in paragraph 65 that "there [were] very ?significant obstacles to this highly vulnerable Appellant's integration on return?"
21. In addition, between paragraphs 52 and 56 of his decision the Judge gave appropriate weight and detailed consideration to the extent and seriousness of the Respondent's criminal offences and how this effected his right to leave to remain.
22. Therefore, I find that there were no errors of law in the manner in which First-tier Tribunal Judge Seelhoff considered whether the Respondent fell within the exception contained in paragraph 399A of the Immigration Rules and section 117C(4) of the Nationality, Immigration and Asylum Act 2002.
23. Therefore, there were no errors of law in First-tier Tribunal Judge Seelhoff's decision.

DECISION
(1) The Appellant's appeal is dismissed
(2) First-tier Tribunal Judge Seelhoff's decision is upheld.

Nadine Finch

Signed Date 21 October 2019
Upper Tribunal Judge Finch