MI (Palestine) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Flaux,Lady Justice King |
| Judgment Date | 31 July 2018 |
| Neutral Citation | [2018] EWCA Civ 1782 |
| Docket Number | Case No: C5/2015/4162/AITRF |
| Court | Court of Appeal (Civil Division) |
| Date | 31 July 2018 |
[2018] EWCA Civ 1782
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
DEPUTY UPPER TRIBUNAL JUDGE ALIS
AA104362104
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice King
and
Lord Justice Flaux
Case No: C5/2015/4162/AITRF
Mr Manjit Gill QC & Mr Vijay Jagadesham (instructed by Greater Manchester Immigration Aid Unit) for the Appellant
Ms Julie Anderson (instructed by Government Legal Department) for the Respondent
Hearing date: Thursday 19 July 2018
Judgment Approved
Introduction
The appellant is a national of the Occupied Palestinian Territories born on 24 December 1983, who arrived in the United Kingdom after leaving Gaza on 20 October 2013. He claimed asylum but his claim was refused in a refusal letter dated 13 November 2014. A decision was made to remove him on 18 November 2014, which he appealed to the First-tier Tribunal. By a decision promulgated on 13 April 2015, the First-tier Tribunal Judge dismissed his appeal on all grounds, finding that his claim that he was in need of international protection because of the risk of persecution on return to Gaza lacked credibility.
The appellant appealed to the Upper Tribunal and his appeal was heard by Deputy Upper Tribunal Judge Alis on 20 August 2015. The Judge found that there had been an error of law by the First-tier Tribunal Judge in considering Article 3 of the ECHR, in failing to engage with the country evidence which was before him and adjourned the appeal to a hearing on 12 October 2015 for further evidence and submissions. By his decision promulgated on 22 October 2015, the Judge remade the decision in respect of Article 3 and dismissed the appeal.
The appellant now appeals to this Court with the permission of Arden LJ.
The decision of the Upper Tribunal
The Judge identified the starting point in considering the risk to the appellant and his wife (also Palestinian and dependent on him) as being the position set out in the Country Guidance case of HS (Palestinian-return to Gaza) Palestinian Territories CG [2011] UKUT 124 (IAC), [221]–[222] of which he cited:
“221. We do not see any material difference in this case between the level of risk and the nature of the risk to which the appellants are exposed in respect of asylum and Article 3 claims. We note that it is not argued that Article 15(c) of the Qualification Directive is applicable in this case.
222. Our assessment of the background evidence is that it clearly shows a harsh state of affairs in Gaza which reflects a deterioration beyond the situation prior to the Operation Cast Lead hostilities. The infrastructure of Gaza is significantly depleted, and there are problems of access to electricity and clean water and there are limits on the amount of products that are brought into the territory. We do not seek to undervalue the level of difficulty that the appellants in this case, and indeed other residents of Gaza, face in the territory. But we consider that the tests set out in the Refugee Convention as applied in the case law and under Article 3 are set at a level of risk which is higher than that which would be experienced by the appellant and her family in this case on return.”
At [6] of his decision the Judge said that to succeed the appellant would either have to demonstrate a significant worsening of the situation since that Country Guidance or some other factors that would lead the Tribunal to conclude that returning the appellant would be a breach of the appellant's rights.
The Judge then summarised the parties' submissions, referring first to the submissions of Ms Kerry Smith, then counsel for the appellant who submitted that the general situation facing Gaza citizens and general facts facing the appellant and his wife gave rise to a claim for protection under Article 3. She referred to the medical evidence in relation to the appellant's wife who was then 36 weeks pregnant, that there were serious concerns that her mental condition would deteriorate if the claim were refused. Ms Smith submitted that the situation on the ground was bleak, referring to the expert report of Dr George. The country evidence made clear the majority of the population were refugees and only a small proportion of promised funds had been delivered to the authorities by donating nations. Each case had to be considered on its merits and here the family issues tipped the balance in favour of the appellant.
The Home Office Presenting Officer accepted the conditions in Gaza were not good and the majority of the population were refugees. However, he relied upon the fact that the UNRWA was fully operational in Gaza and providing support for most of the population. Whilst the wife's health issues had to be taken into account, the medical evidence was not sufficient for the appeal to be allowed.
At [9] to [13] of his decision, the Judge then summarised the country evidence which had been placed before him. At [14] he summarised the medical evidence that the wife currently suffered depression and anxiety disorder and had suffered PTSD, being prescribed Fluoxetine. She was viewed as posing a high risk of deterioration. She had suicidal thoughts. The doctor concluded that her condition was exacerbated by the stress associated with the appeal and the threat of deportation and was likely to worsen if the appeal failed.
In the Discussion section of his decision, the Judge noted that the Upper Tribunal in the Country Guidance case of HS in 2011 considered the situation against the background of the infrastructure of Gaza being significantly depleted with problems of access to electricity and clean water and limits to products brought into the territory, but still considered the circumstances had not reached a level where Article 3 was engaged. At [16] the Judge commented that arguably little had changed since 2011 save for further conflict and destruction following a period of rebuilding and development. He said: “Events on the ground may have happened but in reality nothing else has changed”. At [17] he noted that aid to rebuild the country was being brought in, albeit more slowly than anyone would like. He said: “For my purposes it matters little who is to blame as I am concerned with the position on the ground”.
At [18] the Judge said that Ms Smith accepted that without any additional factors, the appeal on Article 3 grounds would fail but that the wife's medical condition tipped the decision in the appellant's favour. In relation to medical facilities available in Gaza the Judge noted that the country evidence indicated that medical facilities were affected, hospitals and clinics were still operating.
At [20], the Judge said that the bar in medical cases for an Article 3 claim was very high, relying on the decision of the House of Lords in N v SSHD [2005] UKHL 31where the test laid down was whether the claimant's medical condition had reached such a critical stage (i.e. he was dying) that there were compelling humanitarian grounds for not removing him to a place which lacked the medical and social services needed to prevent acute suffering whilst he was dying. That decision was upheld by the European Court of Human Rights: N v United Kingdom (2008) 47 EHRR 39 which said that in medical cases Article 3 only applied in very exceptional cases particularly as the suffering was not the result of an intentional act or omission of a State or non-State body. The Judge noted that in GS (India) [2015] EWCA Civ 40; [2015] 1 WLR 3312, this Court held that the case of a person whose life would be drastically shortened by the progress of natural disease if removed to his home state did not fall within the paradigm of Article 3.
The Judge noted at [21] that the appellant and his wife did have family in the Gaza Strip. Her family were UNRWA refugees and had access to healthcare facilities albeit criticisms of the facilities were made by the appellant in his witness statement. The Judge said at [22] that the country conditions were not good but did not in themselves engage Article 3. He said at [23] that Ms Smith accepted that the situation currently existing in the Gaza Strip did not reach the necessary threshold.
The Judge said at [24] that the appellant's wife's problems were supported by the medical evidence but he was not satisfied that they tilted the scales sufficiently in their favour so as to engage Article 3 of the ECHR or Article 15(c). The fact that medical facilities are better here does not mean the appeal succeeded. The wife was pregnant but pregnancy was not unheard of in the Gaza Strip. She may be depressed about their plight but that did not engage Article 3. The evidence was that there were medical facilities available albeit under different conditions. The appeal was dismissed.
The grounds of appeal
In summary the grounds of appeal are as follows:
(1) The Deputy Upper Tribunal Judge misdirected himself in law in applying the test in N v SSHD since (i) this was not a case where it was argued that the wife's medical condition per se rendered their removal a breach of Article 3. Rather the appellant's case was that whether the conditions in Gaza gave rise to a breach depends upon the characteristics of the individuals and a highly relevant characteristic was the state of the wife's health; (ii) the predominant cause of the humanitarian crisis in Gaza was the conflict between Israel and Hamas so that the N test is not applicable: see Sufi & Elmi v United Kingdom (2012) 54 EHRR 9;
(2) In considering whether the removal of the appellant and his wife would breach Article 3, the Judge failed to consider cumulatively all the relevant factors, instead finding the country conditions in themselves did not engage Article 3...
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