Upper Tribunal (Immigration and asylum chamber), 2016-01-04, AA/07830/2014
| Jurisdiction | UK Non-devolved |
| Date | 04 January 2016 |
| Published date | 19 August 2016 |
| Hearing Date | 25 November 2015 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | AA/07830/2014 |
Appeal Number: AA/07830/2014
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/07830/2014
THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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On 25 November 2015 |
On 4 January 2016 |
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Before
DEPUTY UPPER TRIBUNAL JUDGE G A BLACK
Between
N N
(ANONYMITY ORDER MADE)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr A Gilbert (Counsel instructed by Fadiga & Co)
For the Respondent: Mr D Clarke (Home Office Presenting Officer)
DECISION AND REASONS – RESUMED HEARING
1. This matter comes before the Tribunal as a resumed hearing to consider Article 8 private life. The matter was originally dealt with as an error of law hearing on 22 September 2015 where the Tribunal upheld the First-tier Tribunal’s decision to dismiss the appellant’s asylum claim and otherwise concluded that there was a material error of law in the decision by the failure of the First-tier Tribunal to deal with Article 8 ECHR.
2. For the background I refer to and rely on the Upper Tribunal decision and reasons promulgated on 29 September 2015.
3. For this hearing Mr Gilbert produced a skeleton argument dated 23 November 2015. The appellant and his witness I N gave evidence, the details of which are set out in the record of proceedings. Reliance was placed on a country expert report of Antonio Giustozzi dated 17 November 2015, correspondence from the British Red Cross, medical evidence found in the appellant’s bundle from pages 50 to 71 and letters of support found in the appellant’s bundle at pages 72 to 88. Further medical evidence was adduced at the hearing by way of a report typed on 20 April 2015, report typed 23 December 2014, letter dated 26 August 2014 and letter dated 5 December 2012. The appellant relied on a report entitled The 2015 Afghanistan Refugee and Returnee Overview.
4. Mr Clarke for the Secretary of State relied on the Country of Origin Information Response dated 17 September 2015, Akhalu (health claim: ECHR Article 8) [2013] UKUT 00400 (IAC), JL (medical reports – credibility) China [2013] UKUT 00145 (IAC) and R (on the application of Naziri and Others) v SSHD JR – scope - evidence) IJR [2015] UKUT 00437 (IAC).
Statutory Framework
5. The requirements to be met for leave to remain on the grounds of private life paragraph 276ADE(1) are that as at the date of application, the applicant:
(i) does not fall for refusal under any of the grounds in Section S-LRT1.2 to S-LRT2.3 and S-LRT3.1 in Appendix FM; and
(ii) has made a valid application for leave to remain on the grounds of private life in the UK; and
(vi) subject to sub-paragraph (ii), is aged 18 years or above, has lived continuously in the UK for less than twenty years (discounting any period of imprisonment) that there would be very significant obstacles to the appellant’s integration into the country to which he would have to go if required to leave the UK.
6. Article 8(1) the Right to Respect for Private and Family Life and Article 8(2) are relevant. The approach adopted by this Tribunal is first of all to consider whether or not the appellant meets the Article 8 provisions under the Rules in paragraph 276ADE and if not, then to consider whether there are compelling or other circumstances not covered by the Immigration Rules such that the appellant may have established a claim under Article 8 outside of the Rules (R (on the application of Nagre) v SSHD [2013] EWHC 720)). In such cases it must be shown that removal would be disproportionate having regard to non-standard and particular features of the case of a compelling nature to show that removal would be unjustifiably harsh.
7. Section 19 of the 2014 Immigration Act introduced into the Nationality, Immigration and Asylum Act 2002 Part 5A containing Sections 117A-117D. In considering Article 8 outside of the Rules and the question of proportionality the Tribunal must have regard to the factors listed as public interest considerations in Section 117.
117B Article 8: public interest considerations applicable in all cases.
(1) The maintenance of effective immigration controls is in the public interest.
(2) It is in the public interest, and in particular in the interests of the economic well-being of the UK, that persons who seek to enter or remain in the UK are able to speak English, because persons who can speak English –
(a) are less of a burden on taxpayers, and
(b) are better able to integrate into society.
(3) It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the UK are financially independent, because such persons –
(a) are not a burden on taxpayers, and
(b) are better able to integrate into society.
(4) Little weight should be given to –
(a) a private life, or
(b) a relationship formed with a qualifying partner,
that is established by a person at a time when the person is in the UK unlawfully.
(5) Little weight should be given to a private life established by a person at a time when the person's immigration status is precarious.
(6) In the case of a person who is not liable to deportation, the public interest does not require the person's removal where –
(a) the person has a genuine and subsisting parental relationship with a qualifying child, and
(b) it would not be reasonable to expect the child to leave the UK.
Submissions
8. Mr Clarke relied on the Reasons for Refusal Letter dated 9 September 2014 and the COIR. Mr Clarke conceded that the Article 8 Immigration Rule under 276ADE(vi) was the central issue to be considered and/or Article 8 outside of the Rules. There was no challenge to the medical evidence relied on.
9. It was submitted that the appellant was now an adult, had lived most of his life in Afghanistan and was effectively living independently in the UK and would be able to resettle in Afghanistan given that he speaks the language. Reliance was placed on the existence of the Assisted Voluntary Return Scheme as referred to in Naziri with particular reference to the assistance provided for vulnerable persons. The appellant would be given short-term assistance including accommodation. It was clear from the objective material that some mental health treatment was available including the particular drug prescribed to the appellant.
10. In terms of the medical evidence it was submitted that the reports were not capable of corroborating the credibility of the appellant’s claim simply the diagnosis as PTSD. There was no evidence of suicidal tendencies. Reliance was placed on the adverse credibility findings made by the First-tier Tribunal. It was clear the appellant did not wish to return to Afghanistan and his depressed mood was directly relevant to the possibility of removal.
11. As regards the tracing issue, it was submitted that there was effectively a period of five years before the appellant provided any information about the whereabouts of his family. Reference was made to a maternal grandmother and extended family members in a doctor’s letter. Article 3 medical grounds have not been established. Article 8 outside of the Rules was not engaged. Reliance was placed on Akhalu. The current evidence showed that the appellant’s mental health was improving and in terms of proportionality Section 117B was applicable to the extent that the appellant was not financially independent, the establishment of private life was not a route to settlement and the medical evidence was lacking.
Submissions by Mr Gilbert
12. It was the duty of the Secretary of State to meet the obligations for tracing. The appellant entered the UK as a child and his role needed to be considered in the context of his age and mental health difficulties. Reliance was placed on the evidence of the Red Cross to demonstrate the efforts made to secure the tracing of family members and this established that the appellant fully engaged with the Red Cross and that process. None of the evidence was consistent with any avoidance action on the part of the appellant as it was clear that he was positively engaging with the tracing process.
13. The medical evidence was strong. Two consultants had found the appellant to be suffering from symptoms of post traumatic stress disorder. It was submitted that it was the symptoms presented by the appellant that were capable of corroborating the account given. There were no concerns that the appellant was faking and it was clear he was seriously unwell and in need of treatment. There had been worsening of the symptoms over the last three months arguably because of difficulties with the new doctor (the appellant now being moved to the adult mental health team) and the appellant (as a vulnerable person) struggled with moving home and interruption of his treatment. It was submitted that the appellant was a vulnerable individual who had experienced suicidal ideation which...
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