Upper Tribunal (Immigration and asylum chamber), 2024-04-15, UI-2024-000149

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-000149
First-tier Tribunal No: HU/57624/2022


THE IMMIGRATION ACTS


Decision & Reasons Issued:
On the 15 April 2024


Before

UPPER TRIBUNAL JUDGE O’CALLAGHAN


Between

EO (NIGERIA)
(ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr A Adewoye, Solicitor, Prime Solicitors Ltd
For the Respondent: Ms A Nolan, Senior Home Office Presenting Officer

Heard at Field House on 25 March 2024

Order Regarding Anonymity

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.

DECISION AND REASONS
Introduction

1. The appellant appeals a decision of Judge of the First-tier Tribunal Clarke (‘the Judge’) refusing his appeal on human rights (article 8ECHR) grounds. The decision was sent to the parties on 13 January 2024.

2. I indicated at the conclusion of the oral hearing that grounds 1, 2 and 4 were to be dismissed, having not called upon Ms Nolan to address these grounds. I took time to consider ground 3 as advanced. For the reasons detailed below, this ground is also dismissed.

Anonymity

3. The Judge issued an anonymity order in this matter and gave her reasons at [3] to [5] of her decision. Neither party requested that the anonymity direction be set aside. I confirm the anonymity order and detail it above.

Relevant Facts

4. The appellant is a national of Nigeria and presently aged 49. He entered the United Kingdom with entry clearance as a visitor on 25 April 2007. His leave expired on 6 June 2007, and he overstayed.

5. He was encountered working illegally on 1 April 2010 and served with a notice as to his liability to be removed. He served two separate applications upon the respondent seeking an EEA residence card; refused respectively on 7 July 2010 and 22 October 2012. He applied for leave to remain outside of the Immigration Rules on 11 October 2018. This application was refused and certified as clearly unfounded by the respondent on 25 February 2019. An application under the Windrush Scheme was refused by the respondent on 5 May 2020.

6. On 2 August 2021 the appellant applied for leave to remain on human rights grounds relying upon article 8 private life. He asserted that he was suffering from stress, anxiety and depression. Additionally, he stated that he had suicidal thoughts. The respondent refused the application by a decision dated 17 October 2022. The appellant’s health concerns were considered by the respondent under article 3ECHR. It was considered that adequate medical treatment was available in Nigeria. Noting the test identified by the Supreme Court in AM (Zimbabwe) v. Secretary of State for the Home Department [2020] UKSC 17, [2021] AC 633 and observing that the appellant had not provided evidence capable of demonstrating substantial grounds for believing that he would be exposed to a real risk of treatment contrary to article 3, the respondent did not accept that the appellant’s removal from the United Kingdom would breach protected article 3 rights.

7. The appellant filed grounds of appeal with the First-tier Tribunal on 22 October 2022, asserting that the respondent’s decision was unlawful under section 6 of the Human Rights Act 1998.

8. The appellant filed an appeal bundle with the First-tier Tribunal on 26 January 2023, running to 29 pages. By means of his witness statement, dated 25 January 2023, the appellant referenced his health concerns, detailing that his mood “is still very low”, he had “developed suicidal thoughts” and he was taking unnamed antidepressant medication. There is no mention of his previously having attempted suicide. He provided a letter from a senior CBT therapist dated 30 November 2022 referencing his attendance at a telephone screening interview where he referenced low mood. Also provided was a counsellor’s letter dated 17 January 2023, following an assessment, which records the appellant referring to suffering from stress and low mood.

9. The appellant’s skeleton argument (ASA) was filed by his then solicitors Rashid & Rashid on 27 February 2023. The ASA is considered below.

10. Over the course of the following months various documents were filed on behalf of the appellant, including photographs of a prescribed box of fourteen Mirtazapine 30 mgs tablets, to be taken once a day. Mirtazapine is an antidepressant.

11. Rashid & Rashid were intervened in by the Solicitors Regulation Authority on 31 July 2023 and the appellant transferred his case to Prime Solicitors.

12. On 1 December 2023, the appellant filed a supplementary bundle running to 84 pages, including a country expert report from Dr Akin Iwilade, Lecturer in African Studies, University of Edinburgh, dated 29 November 2023. Additionally, there was a letter from a senior psychological wellbeing practitioner, dated 2 October 2023, detailing the appellant reporting his struggles with anxiety and depression, along with low mood and difficulties in sleeping. Following the completion of questionnaires the appellant was assessed to be moderately depressed.

13. A psychiatric report from Dr Azmathulla Khan Hameed, Consultant Psychiatrist, dated 7 September 2022, was filed with the First-tier Tribunal prior to the hearing.

First-tier Tribunal Decision

14. The appeal came before the Judge sitting at Taylor House on 4 December 2023. The appellant was represented by Mr Adewoye, as he is before this Tribunal, and the respondent by Mr Reynolds, Counsel. The appellant gave evidence as did two of his cousins and a friend.

15. The Judge notes at [5] of her decision that Mr Adewoye sought to rely upon article 3. She records:

‘5. In the skeleton the issues for me to determine were identified as Paragraph 276 ADE (1)(vi) of the Rules and Article 8, and the Review agrees and at the start of the hearing the representatives agreed these issues. It is for this reason that I prevented Mr Adewayo from embarking on an Article 3 discrete health issue ground and confirmed that the standard of proof is the balance of probabilities. I also ruled that the Appellant would not be removed if at a moment in time he was not fit to fly but that does not of itself have an impact on my decision.’

16. The appellant was found not to be a credible witness. The Judge was critical of Dr Hameed for taking all that the appellant said at face value and not assessing the facts that were presented to him. She also noted that Dr Hameed had not considered whether the appellant was exaggerating or feigning. Ultimately, she placed limited weight upon the psychiatric report.

17. The Judge further found that she did not accept the evidence of the witnesses that they would cease supporting the appellant financially upon his return to Nigeria. She noted that they had been looking after him financially in this country for over ten years, paying his rent. It was observed that they travel to Nigeria. The Judge found that they would continue to support the appellant financially to aid his initial integration. The Judge concluded that the appellant had worked in the United Kingdom for a decade and would be able to work on his return to Nigeria. She was therefore satisfied that he would be able to secure employment, maintain himself and accommodate himself.

18. The Judge found as to the appellant securing appropriate health care on return to Nigeria:

‘16. The Appellant is using counselling and talking therapies but I can see that this is used by telephone and computer CBT can be undertaken. The objective evidence is found in the CPIN Nigeria: Medical Treatment and health care December 2021 confirms that the medication is available in Nigeria. In the case of this Appellant, the family/friend network in the UK ensured the Appellant sought medical assistance with his mental health and this is ongoing, and therefore, I find that it is more likely than not that this would continue upon the return of the Appellant to his country. I have read about a strong societal belief that mental illness is caused by evil spirits or supernatural forces and how many Nigerians suffering from mental health illness seek treatment from traditional or faith-based healers rather than mental health professionals. However, given the Appellant is returning from the UK and has a cousin who is a mental health nurse, I find it more likely than not that the Appellant would seek and obtain modern treatment. What the Appellant needs is also...