Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-002951
UI-2024-002592

First-tier Tribunal No: HU/56740/2023
LH/01795/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 23 December 2024

Before

DEPUTY UPPER TRIBUNAL JUDGE WELSH

Between

MH
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr S Karim of Counsel
For the Respondent: Mr Parver, Senior Home Office Presenting Officer

Heard at Field House on 8 August 2024

DECISION AND REASONS

ANONYMITY ORDER

Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, I make an anonymity order. Unless the Upper Tribunal or a Court directs otherwise, no report of these proceedings or any form of publication thereof shall directly or indirectly identify the Appellant or members of his family. This direction applies to, amongst others, all parties. Any failure to comply with this direction could give rise to contempt of court proceedings. I make this order because the appeal concerns the health of the Appellant and I see no legitimate public interest in the disclosure of his identity as opposed to his circumstances.

Introduction
1. This is an appeal against a decision of First-tier Tribunal Judge Scott Baker (“the Judge”), promulgated on 16 May 2024. By that decision, the Judge dismissed the Appellant’s appeal against the decision of the Secretary of State to refuse his human rights claim made under Articles 8 and 3 of the European Convention on Human Rights (“ECHR”). The primary factor relied upon by the Appellant in relation to both Articles 3 and 8, and therefore the focus of the appeal, was the Appellant’s mental health.
Grounds of appeal and grant of permission
2. In summary, the grounds of appeal/renewed grounds (for the avoidance of doubt, there is no Ground 3), plead as follows:
(1) Ground 1: the Judge “has erred in underplaying the Appellant’s medical condition and failing to engage with the … medical evidence in reaching her conclusion is as to the Appellant’s mental health issues … Whether the Appellant has or has not been diagnosed with mania or psychotic episodes, ignores the fact that the Appellant hears voices and such presentation is likely to attract adverse attention and cause difficulties integrating.
(2) Ground 2: the Judge erred in her approach to the question of social stigma in that -
(i) she failed to take into account and/or made inadequate findings in relation to the Respondent’s CPIN on this issue;
(ii) her reasons for rejecting the expert evidence were based on factual errors;
(3) Ground 4: the Judge’s conclusion that the Appellant could travel to Dhaka for treatment was not based on any evidence adduced and was not a matter raised with the parties at the hearing.
(4) Ground 5: the Judge erred in -
(i) taking into account an irrelevant factor, namely the ability of the Appellant to take advantage of the voluntary return scheme and
(ii) in concluding that she could only give little weight to the Appellant’s private life, as a result of his precarious immigration status, misapplied the judgment of the Supreme Court in Rhuppiah v SSHD [2018] UKSC 58.
(5) Ground 6: the Judge’s assessment of the risk of suicide is “flawed” given the accepted history of self-harm and suicidal ideation. Further, the errors in grounds 1-5 have tainted the Judge’s conclusion in relation to Article 3.
3. Permission to appeal was granted by First-tier Tribunal Judge Dainty on grounds 4 and 6, with permission on the remaining grounds granted by Upper Tribunal Judge Macleman.
Upper Tribunal proceedings
4. I heard oral submissions from both advocates. During the course of this decision, I address the points made.
Discussion and conclusion
Ground 1
5. In the renewed grounds of appeal, it is submitted that the Judge “has not adequately or at all engaged with the evidence” relating to the visible symptoms of the Appellant’s mental illness; in his oral submissions, Mr Karim stated that the Judge did not “grapple” with this evidence in reaching her conclusion.
6. When considering the question of very significant obstacles to integration, the Judge considered the submission made on behalf of the Appellant that he would face social stigma and ostracization on return and stated at [70]:
He relies on an expert report from a barrister but his expertise in this sociological area has not been established. The Appellant does not suffer from mania or psychotic episodes and I do not find on the evidence that he is likely to face social stigma from his presentation. I do not accept the mere assertion made by him that he will be disowned by his family.
7. It is clear from this paragraph that the Judge was aware that she needed to consider whether the physical manifestation of the Appellant’s mental health condition was such that he will be likely to face social stigma and thereby face an obstacle to integration.
8. It is equally clear that the Judge was aware of the evidence relating to the Appellant’s behaviours. The decision of the Judge contains a detailed summary of the evidence and she specifically cited those aspects of the evidence relied upon in the renewed grounds: the letter of 24 May 2023 at [28], the email of 25 June 2023 at [29], the letter of 12 March 24 at [32], letter of 3 April 24 at [33]. The Judge also set out a very full summary of the nature and extent of the self-harm.
9. The substance of the Appellant’s submission is that the Judge gave inadequate reasons for reaching her conclusion given the evidence relating to the outward manifestation of the Appellant’s symptoms. Having reviewed those documents to which I was directed by Mr Karim, I am of the view that the Judge’s finding did require explanation. I reach that conclusion because the evidence discloses a number of outward behaviours that, if (i) were accepted as genuine (and there was no suggestion that they were feigned) and (ii) found to have taken place in view of others and on sufficiently frequent occasions, could amount to an obstacle to integration because they would mark the Appellant out as somebody to be avoided. In turn, this would have to be factored into the assessment of whether there are very significant obstacles to integration. This evidence was an important part of the Appellant’s case and yet it is unclear to me from her decision why the Judge concluded that these behaviours were insufficient to amount to an impediment to integration. I conclude that the failure to give reasons was an error and that it is a material error.
Ground 2
10. Ground 2 essentially covers the same issue as Ground 1 and I therefore conclude that, for the reasons set out in relation to Ground 1, the Judge erred in her assessment of whether the Appellant would face social stigma on return by reason of his mental health condition. I do not need to address the question of the approach of the Judge to the expert report of Mr Mahbub and I make no finding in this regard.
Ground 4
11. Mr Parver accepted that the Judge made assumptions about the transport available between Chandpur and medical facilities in Dhaka that were not based on the evidence and which were not canvassed with the advocates at the hearing. However, he submitted that the error was immaterial because the burden was on the Appellant to demonstrate that treatment was inaccessible or accessible only with any great difficulty and he had not adduced evidence on this point.
12. Mr Karim submitted that the Appellant had given evidence on this issue. In his witness statement he had stated that it would not be possible for him to access medical facilities because of travel difficulties.
13. The assumption made by the Judge was speculation, not a conclusion based on evidence. However, I agree with Mr Parver that the error is immaterial. The burden was on the Appellant to adduce cogent evidence that he could not access medical treatment or that it would be very difficult for him to access such treatment. A mere assertion in his witness statement of difficulties is insufficient and the Judge would inevitably have concluded that he had not discharged the burden of proof.
Ground 5
14. I agree with Mr Karim that, given that this would not be a case of voluntary return, the Appellant would not be entitled to the funds made available to those who return voluntarily. However, considered on its own, this error is immaterial because it was one of only a number of matters relied upon by the Judge and, as Mr Parver rightly points out, the Judge made findings as to the ability of the Appellant to retain support from people in the UK, have support from his family and find employment in Bangladesh.
15. In relation to the application of Rhuppiah, I find there is no error of law. This was an experienced Judge who can be taken to be very familiar with the principles in Rhuppiah and her conclusion in relation to the limited weight attached to the Appellant’s private life is entirely consistent with her understanding of the ambit of her discretion.
Ground 6
16. Given the Judge’s findings in relation to grounds 1 and 2 have informed her view in relation to Article 3, it follows that her findings in relation to Article 3 cannot stand.
Notice of Decision
17. The decision of the First-tier Tribunal involved the making of a material error on a point of law and so I set aside the decision.
Remittal
18. I conclude that the appropriate forum for the remaking of this decision is the First-tier Tribunal, not to be listed before Judge Scott Baker, with no findings of fact preserved (given the error in grounds 1 and 2 is capable of affecting all findings relating to integration and accessibility of treatment). In reaching this conclusion, I apply paragraph 7.2 of the Senior President’s Practice Statement and the guidance in Begum (Remaking or remittal) Bangladesh [2023] UKUT 00046 (IAC).

C E Welsh
Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

5 December 2024