Upper Tribunal (Immigration and asylum chamber), 2018-03-19, IA/10915/2015
| Jurisdiction | UK Non-devolved |
| Date | 19 March 2018 |
| Published date | 06 April 2018 |
| Hearing Date | 18 January 2018 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Unreported |
| Appeal Number | IA/10915/2015 |
Appeal Number: IA/10915/2015
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/10915/2015
THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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On 18 January 2018 |
On 19 March 2018 |
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Before
UPPER TRIBUNAL JUDGE KOPIECZEK
Between
mr Osasu Osasuyi
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: No appearance and not represented
For the Respondent: Mr N Bramble, Senior Home Office Presenting Officer
DECISION AND REASONS
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This appeal comes back before me after a hearing on 23 June 2017 following which I decided that the decision of the First-tier Tribunal (“FtT”) in relation to the appellant’s appeal against a refusal of further leave to remain must be set aside for error of law.
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The appeal was listed before me again on 29 September 2017 but the appellant did not appear. No explanation was offered by him and he was not legally represented. Giving him the benefit of the doubt, and erring on the side caution, I decided to adjourn the hearing. My reasons for having done so will be apparent from what follows. In order to set out the context for this appeal, I reproduce the error of law decision, described as a Decision and Directions, in full as follows:
“1. The appellant is a citizen of Nigeria born in 1965. He is said to have arrived in the UK under a different name as a visitor on 21 September 1989.
2. In February 2013 he made an application for leave to remain which was refused with no right of appeal. Thereafter, in April 2014 he made the application for further leave which is the subject of the decision in this appeal.
3. On 1 May 2014 the respondent refused the application and the appellant’s appeal against that decision came before a First-tier Tribunal Judge (“the FtJ”) on 13 June 2016 following which the appeal was dismissed.
4. The appellant’s appeal is based primarily on his medical condition, about which I shall refer in more detail below. He also relies on his length of residence in the UK.
5. In the grounds of appeal in relation to the FtJ’s decision, it is argued, in summary, that the FtJ failed sufficiently to engage with the appellant’s health condition, either in terms of Article 8 or Article 3. The appellant would be returning to Nigeria without any family support or without any means of earning a living. It is asserted that his condition is progressive and will ultimately be fatal. His return to Nigeria would accentuate the degree of physical and mental suffering that he would experience prior to the inevitable conclusion of the disease, such that it would breach both Articles 3 and 8. Various authorities in relation to Article 3 are referred to in the grounds. Reference is also made to what is described as the palliative care that he requires.
6. The renewed grounds, after permission was initially refused, contend that it was argued before the FtJ that his removal to Nigeria would separate him from his support network in the UK, and the FtJ had failed to consider the issue of the appellant’s physical and moral integrity and his ability to meet his death in a dignified manner.
7. It is further contended that the FtJ “wholly ignored” the arguments put forward and instead relied on the concession that the appellant’s death was not expected immediately and could not therefore meet the Article 3 threshold, thus disregarding the argument made under Article 8. The additional grounds also make reference to the decision in Paposhvili v Belgium [2016] ECHR 1113 (which was handed down after the FtJ’s decision was promulgated).
Submissions
8. Mr Wells submitted that the argument before the FtJ was advanced purely on medical grounds under both Articles 3 and 8, in terms of the appellant’s physical and moral integrity. He suggested that there was perhaps a misunderstanding on the part of the FtJ in terms of Article 3 not being relied on. In any event, the FtJ’s consideration of Article 8 outside the Rules was wholly inadequate.
9. The appellant’s condition is a deteriorating one. There was only very brief consideration of his medical condition and of the very serious and grave difficulties that he faced on return to Nigeria. The FtJ was wrong to conclude that the appellant would be able to find an occupation on return there. There was similarly no consideration of the issue of a lack of family ties there. There was evidence of support from friends in the UK helping him with cooking and shopping.
10. Mr Melvin submitted that it is clear that Article 3 was conceded before the FtJ. Furthermore, it was very difficult to succeed under Article 8 if the Article 3 claim could not succeed. It was not suggested in the appellant’s grounds that he could succeed under the Article 8 Rules. He was unable to show very significant obstacles to integration. He was not receiving much by way of medical care.
11. In reply, Mr Wells submitted that if the decision in Paposhvili was available at the time of the hearing, Article 3 would not have been conceded. At the time the threshold was as set out in N v Secretary of State for the Home Department [2005] UKHL 31 and N v United Kingdom [2008] 47 EHRR 39.
Conclusions
12. Notwithstanding that it was suggested that the FtJ had failed to take into account arguments advanced on behalf of the appellant, nothing was provided to me on behalf of the appellant in terms of what arguments were actually advanced. For example, Mr Wells’ own notes of the hearing were apparently not available, and it appears that no effort had been made to obtain an agreed note of any arguments or submissions advanced before the FtJ. That is plainly unsatisfactory.
13. Mr Melvin was able to provide a typed minute in relation to the proceedings prepared by the Presenting Officer who appeared. However, that note is not of particular assistance in terms of what was advanced before the FtJ. That is unsurprising in a sense, since it was the appellant’s case, not the respondent’s, that arguments advanced were not considered by the FtJ.
14. Furthermore, the FtJ’s decision makes it clear that it was accepted on behalf of the appellant that he was not able to succeed under Article 3. However, it was suggested before me that this was perhaps based on a misunderstanding by the FtJ. Again, in that respect it would have been helpful if any notes of the hearing prepared by Mr Wells had been provided. In any event, the submissions on behalf of the appellant before me were obviously inconsistent in terms of whether or not it had been accepted that the Article 3 claim could not succeed.
15. Although the grounds in support of the appeal before the Upper Tribunal refer to the issue of physical and moral integrity under Article 8, no such argument is reflected in the FtJ’s decision. Again, the absence of any note from the advocate, or any agreed note, hampers the assessment of the merit of that contention. Likewise, in terms of what is suggested as to the FtJ’s failure to take into account submissions in relation to separation of the appellant from his support network in the UK.
16. It seems to me to be essential that if grounds are advanced on the basis of a failure on the part of an FtJ to take into account submissions, or indeed evidence, advanced at the hearing before the FtJ, such a contention needs to be made good with reference to any notes of the hearing prepared by the advocate, preferably supported by a witness statement. Efforts should be made to obtain the respondent’s agreement as to what was or was not argued or conceded before the FtJ, in advance of the hearing before the Upper Tribunal. Otherwise, the scenario of the Upper Tribunal Judge having to have resort to the FtJ’s (usually) manuscript record of proceedings arises.
17. That is unsatisfactory for three immediately obvious reasons. In the first place, whilst the FtJ can be expected to have made a note of the main submissions, it will not always be the case that everything that was said in submissions would be recorded. Secondly, it may not even be possible to read what the FtJ has written in manuscript. Thirdly, seeking to establish what was advanced in submissions with reference to the FtJ’s record of proceedings is not a process that should be undertaken during the hearing before the Upper Tribunal, with the Upper Tribunal Judge either reading out or showing the parties the FtJ’s notes. That sort of ‘on the hoof’ consideration of what may be a significant issue is plainly undesirable.
18. In this case, the FtJ concluded that the appellant was not able to succeed under the Article 8 Rules with reference to paragraph 276ADE, stating that the appellant did not claim to come within any aspect of the Rules. He concluded in particular, that the appellant had failed to show that “even with his condition” he would face very significant obstacles to integration in Nigeria. He went on to state that there was no...
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