Upper Tribunal (Immigration and asylum chamber), 2016-04-15, AA/00844/2014
| Jurisdiction | UK Non-devolved |
| Date | 15 April 2016 |
| Published date | 23 March 2017 |
| Hearing Date | 09 March 2016 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Unreported |
| Appeal Number | AA/00844/2014 |
Appeal Number: AA/00844/2014
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/00844/2014
THE IMMIGRATION ACTS
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Heard at Newport |
Decision & Reasons Promulgated |
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On 9th March 2016 |
On 15th April 2016 |
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Before
UPPER TRIBUNAL JUDGE GRUBB
Between
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and
NA
(ANONYMITY DIRECTION MADE)
Respondent
Representation:
For the Appellant: Mr I Richards, Home Office Presenting Officer
For the Respondent: Mr S Ahmed instructed by 12 Bridge Solicitors
DETERMINATION AND REASONS
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Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698 as amended) I make an anonymity order. Unless the Upper Tribunal or Court directs otherwise, no report of these proceedings shall directly or indirectly identify the respondent (NA) and her children. This direction applies to both the appellant and to the respondent and a failure to comply with this direction could lead to Contempt of Court proceedings.
Introduction
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This is the Upper Tribunal’s decision following a resumed hearing of this appeal consequent upon the decision of the UT on 16 July 2015 (UTJs Renton and Smith) to set aside the decision of the First-tier Tribunal and to direct that the UT remake the decision.
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Although this is, in form, an appeal by the Secretary of State to the UT against a decision of the FtT allowing the appeal, for convenience I will refer to the parties as they appeared before the FtT.
Background
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The appellant is a citizen of Pakistan who was born on [ ] 1974. She arrived in the United Kingdom on 14 May 2011 with her (then) two children. (The appellant has subsequently had two further children (C1 and C2) with a partner in the UK.) The appellant entered with leave as a visitor valid until 11 April 2013. On 6 December 2011 she claimed asylum. The basis of her claim was that she feared her husband as a result of committing adultery in the UK. Her asylum claim was refused on 9 January 2012 and a decision made not to grant her further leave and to curtail her existing leave as a visitor. An appeal against that decision was dismissed by the FtT (Judge Kanagaratnam) on 7 March 2012 and subsequently the appellant was refused permission to appeal to the UT.
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On 9 April 2013, the appellant made a human rights claim relying upon Article 8 of the ECHR and s.55 of the Borders, Citizen and Immigration Act 2009 (the “BCI Act 2009”). That application was refused on 20 January 2014 and a decision was made to remove the appellant to Pakistan by way of directions as an over-stayer under s.10 of the Immigration and Asylum Act 1999.
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The appellant appealed to the First-tier Tribunal on asylum, humanitarian protection and human rights grounds. On 17 March 2014 Judge Prior dismissed the appellant’s appeal on all grounds. The appellant sought permission to appeal that decision but only to the extent that Judge Prior dismissed her appeal under Article 8. An essential part of that claim then (and now) was the claimed impact upon the health of the appellant’s two youngest children born in the UK if returned to Pakistan - C1 born on 10 July 2012 and C2 born on 1 November 2013. Both children have a genetic metabolic disorder known as Congenital Disorder Glycosylation Type 1a (“CDG1a”).
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On 4 August 2014, the Upper Tribunal (Judge Eshun) concluded that Judge Prior’s decision to dismiss the appeal under Article 8 involved the making of an error of law. The appeal was, consequently, remitted to the First-tier Tribunal.
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On remittal, the appeal was heard by Judge B Lloyd. On 22 January 2015, Judge Lloyd allowed the appellant’s appeal under Article 8.
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The Secretary of State sought permission to appeal that decision to the Upper Tribunal on the basis that the Judge had failed, firstly properly to consider the public interest and factors set out in s. 117B of the Nationality, Immigration and Asylum Act 2002 (the “NIA Act 2002”) and, secondly properly to apply the approach to the Article 8 where the claim is based upon the impact of removal upon an individual’s health.
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On 4 March 2015, the First-tier Tribunal (Judge V A Osborne) granted the Secretary of State permission to appeal.
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On 16 July 2015, the Upper Tribunal (UTJs Renton and Smith) decided that the Secretary of State’s grounds were made out and so set aside Judge Lloyd’s decision to allow the appeal under Article 8 on the basis that he had erred in law in doing so. The appeal was adjourned in order that the decision under Article 8 could be remade at a resumed hearing before the Upper Tribunal.
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The appeal was eventually listed for a hearing in order to remake the decision before me on 9 March 2016.
The Hearing
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At the hearing before me, Mr Ahmed represented the appellant and Mr Richards represented the Secretary of State.
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In relation to the evidence before me, there was a bundle previously before the First-tier Tribunal running to some 349 pages including medical evidence relating to the appellant and C1 and C2 as well as a number of decisions of the higher courts and the Upper Tribunal in relation to the proper approach to Art 8 in health cases.
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In addition, without objection from Mr Richards, I admitted under rule 15(2A) of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698 as amended) a supplementary bundle of documents 9 pages long including updated medical evidence.
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In addition, I heard brief oral evidence from the appellant herself and also from Ms Suzanna Cross, a Specialist Metabolic Paediatric Nurse working at University Hospitals Bristol where C1 and C2 receive treatment.
The Issues and Submissions
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On behalf of the appellant, Mr Ahmed made a number of oral submissions before me. He relied exclusively upon Article 8 of the ECHR and placed no reliance upon Article 3.
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Mr Richards, who represented the Secretary of State relied upon the Secretary of State’s written submissions dated 13 October 2015 which had been prepared for a previous hearing of the Upper Tribunal.
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Mr Ahmed focussed his submissions upon the health of C1 and C2. He relied upon the oral evidence of the appellant and her written statement of 15 January 2015 (at pages 1-2 of the FtT bundle). He also placed reliance upon the medical evidence in the supplementary bundle together with that of Ms Cross given orally.
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He submitted that the evidence was that C1 and C2 (age 3½ and 2½ respectively) suffered from an inherited metabolic disorder, CDG1a. He invited me to accept the medical evidence of Dr Chronopoulou, a Paediatric Metabolic Consultant at University Hospitals Bristol in his report dated 4 March 2016 (at pages 4-5 of the supplementary bundle) and Dr Pierre also a Paediatric Metabolic Consultant at the Bristol Hospital in her report dated 4 March 2016 (at pages 6-9 of the supplementary bundle). That evidence, Mr Ahmed submitted, demonstrated that the inherited condition of C1 and C2 required specialist care as was provided at the Bristol Hospital. Mr Ahmed emphasised the specialist nature of the care and management required for the metabolic disorder suffered by C1 and C2 and reminded me of the evidence of Ms Cross that there was a need for more extensive intensive treatment and care given the complications that may arise even for conditions which might otherwise be relatively straightforward if the individual did not suffer from CDG1a. He relied on the conclusion of the two consultants that without this level of intensive medical surveillance and management there was, in the words of Dr Pierre: “risk of significant morbidity or even death”.
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Mr Ahmed submitted that given the consequences to C1 and C2 of their inherited disorder in the absence of appropriate specialist care, it would be disproportionate to remove them to Pakistan. Mr Ahmed referred me to, and relied upon, the Court of Appeal’s decision in MM (Zimbabwe) v SSHD [2012] EWCA Civ 279 and the Upper Tribunal’s decision in Akhalu (Health Claim: ECHR Article 8) Nigeria [2013] UKUT 00400 (IAC). He submitted that the availability of treatment was a relevant factor in assessing proportionality. He accepted that, in the light of GS (India) and Others v SSHD [2015] EWCA Civ 400 that C1 and C2’s medical condition was not a ‘trump card’. He invited me to take into account that the appellant had previously had difficulties in caring for the children and that there had been social services intervention. He accepted that I should apply the factors set out in s.117B of the NIA Act 2002, but, he submitted, it must be contrary to the public interest to return C1 and C2 to Pakistan where they would have no treatment.
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Mr Ahmed relied upon the Court of Appeal’s decision in R (SQ) (Pakistan) and Another v UTIAC and Another [2013]...
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