Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2022-002693

First-tier Tribunal No: PA/51581/2021
IA/03478/2021

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 14th June 2024

Before
UPPER TRIBUNAL JUDGE RIMINGTON

Between
OB
(Anonymity Direction Made)
Appellant
And

Secretary of State for the Home Department
Respondent

Representation:
For the Appellant: Mr Olphert instructed by NLS Solicitors
For the Respondent: Ms S Rushforth, Home Office Presenting Officer

Heard at Cardiff Civil Justice Centre on 17 January 2024

DECISION AND REASONS
Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant is granted anonymity.
No-one shall publish or reveal any information, including the name or address of the appellant, likely to lead members of the public to identify the appellant. Failure to comply with this order could amount to a contempt of court.

1. The appellant a national of Nigeria born in 1984 appealed against the decision of First-tier Tribunal Judge A K Leith (the judge) dated 7th February 2022 refusing the appellant’s appeal against the Secretary of State’s decision dated 23rd March 2021 to refuse her protection and human rights claim.
2. The appellant had entered the United kingdom in 2010 on a student visa valid until 2013. She claimed asylum in 2018 and that was refused on 15th June 2018. She appealed and her appeal was dismissed by the FtT (Judge Richards-Clarke) on 13th May 2019 (following the birth of the appellant’s first child). The appellant was refused permission to appeal and became appeal rights exhausted on 4th July 2019. Further submissions were refused and generated this appeal.

Grounds of appeal
3. The grounds of appeal advanced that the appellant asserted her father was abusive and that she could not return to the family home. She would be returning to Nigeria as a single mother with limited education and a criminal conviction. Her son was ‘potentially’ autistic and the daughter at risk of FGM.
4. The judge had accepted that the son had autism and that he would be subject to discrimination and the family would face significant difficulties. The appellant would struggle to rent a property and find employment. The first ground of appeal was that the judge failed to consider the best interests of the appellant’s son (born on 4th January 2018) further to Section 55 of the Borders, Citizenship and Immigration Act 2009. The judge should have considered the report of MIND Professionals dated 8th December 2021 in relation to the support/therapy. The judge had accepted the contents of the report of Adaobi Nkeokelonye for the purposes of the position in Nigeria and the objective materials.
5. Secondly, the judge had failed to consider the accessibility of any such support for the child, which, since AM (Zimbabwe) [2020] UKSC 17, was a factor for consideration. The judge had failed to consider how the appellant would rent a home. There was no consideration of how the family would have the means to provide the significant extra expenditure which was required.

Conclusions
6. Mr Olphert at the hearing accepted that the appeal enlisted Article 3 grounds only and not Article 8. It was also submitted by Ms Rushforth which I accept that in effect the case was put forward on the basis of destitution rather than ill health.
7. The relevant case following AM (Zimbabwe) [2020] UKSC 17 is, similarly titled, AM (Zimbabwe) [2022] UKUT 131 (IAC) and the head confirms that the appellant in relation to Article 3 must first discharge the burden of establishing that he or she is seriously ill.
1. In Article 3 health cases two questions in relation to the initial threshold test emerge from the recent authorities of AM (Zimbabwe) v Secretary of State for the Home Department [2020] UKSC 17 and Savran v Denmark (application no. 57467/15):
(1) Has the person (P) discharged the burden of establishing that he or she is “a seriously ill person”?
(2) Has P adduced evidence “capable of demonstrating” that “substantial grounds have been shown for believing” that as “a seriously ill person”, he or she “would face a real risk”:
[i] “on account of the absence of appropriate treatment in the receiving country or the lack of access to such treatment,
[ii] of being exposed
[a] to a serious, rapid and irreversible decline in his or her state of health resulting in intense suffering, or
[b] to a significant reduction in life expectancy”?
2. The first question is relatively straightforward issue and will generally require clear and cogent medical evidence from treating physicians in the UK.
3. The second question is multi-layered. In relation to (2)[ii][a] above, it is insufficient for P to merely establish that his or her condition will worsen upon removal or that there would be serious and detrimental effects. What is required is “intense suffering”. The nature and extent of the evidence that is necessary will depend on the particular facts of the case. Generally speaking, whilst medical experts based in the UK may be able to assist in this assessment, many cases are likely to turn on the availability of and access to treatment in the receiving state. Such evidence is more likely to be found in reports by reputable organisations and/or clinicians and/or country experts with contemporary knowledge of or expertise in medical treatment and related country conditions in the receiving state. Clinicians directly involved in providing relevant treatment and services in the country of return and with knowledge of treatment options in the public and private sectors, are likely to be particularly helpful
8. The evidence in relation to health did not confirm that the son was seriously ill so that he would fall into the category of Article 3. That was acknowledged, sensibly, by Mr Olphert.
9. In relation to destitution, by contrast with the Court of Appeal in Said [2016] EWCA Civ 442, Ainte (material deprivation - Art 3 - AM (Zimbabwe)) [2021] UKUT 203 (IAC) suggests that
i) Said [2016] EWCA Civ 442 is not to be read to exclude the possibility that Article 3 ECHR could be engaged by conditions of extreme material deprivation. Factors to be considered include the location where the harm arises, and whether it results from deliberate action or omission.
(ii) In cases where the material deprivation is not intentionally caused the threshold is the modified N test set out in AM (Zimbabwe) [2020] UKSC 17. The question will be whether conditions are such that there is a real risk that the individual concerned will be exposed to intense suffering or a significant reduction in life expectancy.
10. First, it is important to identify that the judge at [24] relied for his starting point, as he was obliged to do, on the recent decision of Judge Richards-Clarke who found that the appellant had not been shown to have been rejected by her family, or that threats to kill were made by her father because she went to prison or that she had been or would be rejected by her family because she was a single parent. Further she had not demonstrated a real risk of gender based persecution or serious harm to the family. In the alternative, she could live away from her family. The upshot, however, was that Judge Richards-Clarke did not accept that the appellant could not turn to her family. That was critical to the findings of the judge in the instant case. Adverse credibility findings were made against the appellant not least for her ‘differing accounts given by her of the risk to her on return’.
11. The judge specifically considered the new material, that is, including the expert reports from Ms Nkeokelonye. The judge however found, for cogent reasons, these were overly informed by the appellant’s version of events which Judge Richards-Clarke had found to be incredible [46].
12. There is no foundation to the assertion that the judge failed to consider the best interests of the children. These were clearly enmeshed with those of the appellant. The judge considered the reports of the expert stated in terms at [58] that he had considered Ms Nkeokelonye’s evidence as a whole but found at [58]:
‘Ms Nkeokelonye recited in her evidence that it was not within her remit to ascertain if the Appellant’s claims were true. Notwithstanding that clear self-direction, I find that it is implicit throughout all three of her reports that she effectively accepted the appellant’s account. In particular, her evidence regarding the appellant’s circumstances on return was based throughout on the premises that;
a. The appellants would have no contact with and no support from her family on return to Nigeria.
b. A return to Nigeria as a single parent, with no family support, would render the appellant vulnerable to destitution.
c. It would not be possible for the appellant to escape her family (if indeed she needed to do so) by relocating within Nigeria.
Each of those premises is at odds with the findings of Judge Richards Clark. Miss Nkeokelonye had read judge Richards Clark determination. However, it was evident from her reports as a whole and in particular from paragraphs 28 to 30 of the second report, that she had either misunderstood it, or had not appreciated its significance’.
13. There was no challenge to this finding in the written grounds of appeal. These findings stand unchallenged and the finding that the appellant was not estranged from and could seek support from her family was a finding independent of the finding that she would return as a single parent facing destitution. The judge found the factual matrix underpinning the premises of the expert report had not changed since the decision of Judge Richards Clark's determination and that finding was not challenged. Thus, albeit the background evidence on Nigeria, in relation to this appellant, the judge for cogent reasons rejected the reports of the expert for the reasons set out above at [61].
14. In relation to the interests of the children, it is evident from the determination that the judge was aware that the children, who are Nigerian nationals, were young, the son was born in April 2018 and the second child in May 2020. It is also clear that the judge assessed the objective evidence on the treatment of those with disabilities identifying at [36]-[37] that
‘36. A 2010 Refugee Documentation Centre (Ireland) report quoted a number of sources indicating that the facilities available for children with autism are extremely limited.
37. The Response to an Information Request Nigeria: Autism, dated 28 April 2021,dealt with societal attitudes towards autism. The report noted that attitudes vary, but are most often negative. It further noted that the family-level experience is not always negative, and that most families try their best to take good care of their family member. It noted that children with autism are seen as a burden in part because they are not diagnosed in a timely fashion. The report noted that there are a number of organisations providing services to people with autism.’
15. The judge identified that Nigeria had recently signed the Discrimination of Persona with Disability (Prohibition) Act 2018 and there were existing anti-discrimination frameworks [38] and further there were speech and language therapists available in Nigeria [39].
16. Having considered the previous decision, the expert report and the objective material, the judge from [62] onwards addressed the individual needs of the children. The judge specifically addressed the Mind report in relation to the son albeit it was over 1 ½ years old and undertaken when the child was only 3. Nothing suggested that the family unit would be altered on return to Nigeria. As noted, the family had no leave to remain in the United Kingdom and would remain as a family unit on return. Additionally, it is clear that Judge Richards-Clarke had considered the best interests of the child born in 2018 and this judge had adopted the previous judge’s findings.
17. The judge from [64] made findings on the younger child’s autism finding that he met the criteria for a diagnosis of Autistic Spectrum Condition and that ‘if he is not adequately supported, there is a risk that he will struggle to manage his emotions and be prone to tantrums and meltdowns’ and that his speech and language ‘is delayed’. The judge accepted, notwithstanding, that he may however be subjected to discrimination but that did not pose a very significant obstacle to return to Nigeria.
18. The judge also assessed the objective evidence in relation to FGM (of which the daughter was said to be at risk). The judge also considered the risk of FGM to the other child. Finding at [68] that ‘there was no objective evidence before me to support the Appellant’s description of her family’s approach to FGM – namely, that only the oldest daughter would be subjected to it’. The judge found the ‘best indication of the risk faced by the appellant’s daughter was the situation of the appellant herself’. The judge therefore rejected at [68] the appellant’s evidence on this issue as being contrary to the objective country material. Her daughter’s interests were considered and she was found not to be at risk.
19. Again the judge confirmed at [74] that he was reliant on the findings of Judge Richards Clarke in relation to the appellant’s relationship with her family. The appellant’s evidence was rejected. Judge Richards Clarke also dealt with the point that the appellant was a single mother. The judge was entitled to find that the birth of the second child would not have materially affected the approach to the appellant as a single mother or the interests of the children. Further the appellant would have the benefit of the diagnosis of the younger child to assist.
20. Nothing in the diagnosis of the son suggested that he fell within the classification of someone ‘seriously ill’ and indeed there was no suggestion he was in anything other than a mainstream nursery school when assessed. Neither the circumstances of the child who was described as having an autistic spectrum condition and having delayed speech and language skills bring the child into the parameters of AM (Zimbabwe) [2020] UKSC 17 or AM cited above in terms of being ‘seriously ill’.
21. It is clear that the judge has considered the best interests of the children in practice and overall albeit that the phrase was not specifically cited.
22. The Secretary of State’s refusal letter noted that the appellant had the option to take advantage of Assisted Voluntary Return (AVR) to return to Nigeria, which would provide monetary, education, housing and medical support to re-establish her life there. Although the judge did not allude to this, the judge, having considered the interests of the children, manifestly did not accept there would be very significant obstacles to reintegration in Nigeria because although it was accepted that the appellant may struggle, the judge reasoned, in a balanced assessment, at [87]:
‘Set against all of that, the Appellant is an intelligent woman, who completed her formal high school education in Nigeria and obtained a place to study at college in the United Kingdom (albeit that she did not complete her course). She lived in Nigeria until the age of 26, so she is not a stranger to the country. Importantly, in light of my conclusions above she would have the opportunity to seek support from her family.’
23. On the basis of the findings adopted by the judge in relation to the appellant being highly educated and able to seek support from her family even if Ainte does not run counter to Said, nothing in the circumstances of the appellant as accepted or the possible difficulties facing her fall into the remit of extreme material deprivation or unjustifiably harsh consequences on removal.
24. I find no material error of law in the judge’s decision.
Notice of decision.
The decision of the First-tier Tribunal stands and the appellant’s appeal remains dismissed.

Helen Rimington
Judge of the Upper Tribunal Rimington
Immigration and Asylum Chamber

Signed 19.2.2024