Upper Tribunal (Immigration and asylum chamber), 2014-04-17, AA/08395/2012 & AA/09042/2012
| Jurisdiction | UK Non-devolved |
| Date | 17 April 2014 |
| Published date | 10 November 2014 |
| Hearing Date | 05 February 2014 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Unreported |
| Appeal Number | AA/08395/2012 & AA/09042/2012 |
Upper Tribunal AA/08395/2012
(Immigration and Asylum Chamber) AA/09042/2012
THE IMMIGRATION ACTS
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Heard at Field House |
Determination promulgated |
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On 5 February 2014 |
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………………………………… |
Before
UPPER TRIBUNAL JUDGE O’CONNOR
DEPUTY UPPER TRIBUNAL JUDGE RIMINGTON
Between
SQ
MQ
(ANONYMITY DIRECTION MADE)
Appellants
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellants: Mr M Symes, instructed by Duncan Lewis Solicitors
For the Respondent: Ms L Busch, instructed by The Treasury Solicitor
DETERMINATION AND REASONS
Introduction
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MQ, born in October 1997, arrived in the United Kingdom from Pakistan with his mother SQ on 24 June 2012; each having had leave to enter as a visitor conferred on them until 21 November 2012. On 27 June 2012 SQ contacted the Asylum Screening Unit and she subsequently claimed asylum, with MQ as her dependent, on 31 July 2012. This application was refused by the Secretary of State on 30 August 2012 and on the same date the Secretary of State made decisions in relation to both appellants, (i) varying their leave to enter so that each had “none remaining” and (ii) to remove them from the United Kingdom pursuant to section 47 of the Immigration, Asylum and Nationality Act 2006.
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Judge Kanagaratnam dismissed the appellants’ appeals to the First-tier Tribunal in a determination of 21 November 2012, both on asylum and human rights grounds. The appellants’ asylum claims are no longer being pursued and nothing more need be said about them.
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MQ has a serious medical condition – Beta Thalassaemia Major – for which he was receiving treatment in Pakistan prior to his arrival in the United Kingdom, and has been receiving treatment here since his arrival. The appellants advanced human rights claims to the Secretary of State by reference to Articles 3 and 8 of the European Convention on Human Rights and Fundamental Freedoms (ECHR). These were founded upon the assertion that to return MQ to Pakistan would be to subject him to inhuman treatment or lead to an unlawful interference with his right to respect for his private life as a consequence of the fact that, if returned, he would probably die in his late teens or early twenties, whereas in this country he would have a much longer and better life.
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Permission to appeal to the Upper Tribunal was refused, first by Designated Judge Murray and then, upon renewal, by Upper Tribunal Judge Latter. The appellants thereafter applied to the Administrative Court for permission to bring Judicial Review proceedings challenging the Upper Tribunal’s refusal to grant permission to appeal. On 19 April 2013, Cox J refused permission on the papers. There being no right to renew this application to the Administrative Court orally the appellants then appealed to the Court of Appeal. Permission to appeal was granted by Sir Stanley Burnton on 17 July 2013, and, in a decision of the 22 October 2013, the Court of Appeal (the Vice President, Lewison and Underhill LJJ) allowed the appellants’ appeals against Cox J’s decision, granted the appellants permission to apply for Judicial Review and, upon dealing with the Judicial Review substantively, quashed the Upper Tribunal’s refusal to grant permission to appeal, remitting “the case to the UT for it to determine the appeal”. We treat the latter decision from the Court of Appeal as incorporating an order granting the appellants permission to appeal to the Upper Tribunal; neither party before us has suggested otherwise.
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It is by this rather circuitous route that the appeal came before us.
Error of Law in First-tier Tribunal’s determination
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At the outset of the hearing Ms Busch accepted, and we concluded, that the First-tier Tribunal’s determination contained an error of law requiring it to be set aside, for the reasons given in paragraph 24 of the judgment of the Vice President of the Court of Appeal, ([2013] EWCA Civ 1251):
“[24] In my judgment, the consideration of Article 8 by the FTT in the present case was similarly flawed. It was incumbent upon the Judge to identify all features of MQ’s private life which would be subjected to interference upon his removal. These were headed by the discontinuation of the treatment he is receiving in this country. It seems to me that the issue of interference admits of only one answer here and the FTT erred in coming to the contrary conclusion. The real issue is proportionality. Unfortunately, the FTT seems to have excluded health considerations and the discontinuation of the UK treatment from its ZH assessment. That was a material error of law.”
Re-making of Decision
Scope of the re-making
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As identified above, the Court of Appeal found there to be a material error of law in the First-tier Tribunal’s consideration of the Article 8 ECHR ground. It found no error in the First-tier Tribunal’s consideration of the appellants’ Article 3 claim. As to the Upper Tribunal’s task upon ‘remittal’ the following was said in the judgment of the Vice President:
“[27] I do not intend to predict or seek to influence the outcome of the present case on remittal. On the one hand, MQ can pray in aid his lawful entry and his status as a child with the protection of the ZH approach. On the other hand, he arrived with his serious medical conditions at an advanced stage and, although not an unlawful entrant, it will be relevant to consider whether his arrival here was a manifestation of “health tourism”. If it was, that would fall to be weighed in the balance. After all, this country is under no international obligation always to act as “the hospital of the world”. The difficult question is whether it would be disproportionate to remove this child in the light of all the evidence in the case, including the medical evidence which, at present, is not as clearly presented as it could be.”
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The appellants’ skeleton argument, prepared for the hearing before the Upper Tribunal, sought to pursue both Article 3 and Article 8 ECHR grounds. This prompted the following response from the respondent in her skeleton argument of the 31 January 2014:
“[6]…the suggestion that the Upper Tribunal should contemplate “extending the scope of the remittal” to consider Article 3, whether or not it admits the Appellants’ new evidence, is misconceived, and amounts to a proposed abuse of the procedures of the Court. It was, with respect, for the Court of Appeal to determine the scope of the remittal. That is not a matter for the Upper Tribunal. The Court expressly limited the scope of the remittal in this case to Article 8, and dismissed the Appellants’ appeal under Article 3 in clear terms…
[7] In her further submission, if the Appellants wish to make further submissions with respect to Article 3, the proper way for them to do so is by way of submissions to her under paragraph 353 of the Immigration Rules (HC395). They cannot circumvent that step (which might or might not lead to a further decision, with a further right of appeal), by requesting the Upper Tribunal to countenance a further appeal under Article 3, notwithstanding the Order of the Court of Appeal.
[8] The Respondent would respectfully invite the Upper Tribunal, at the outset of the hearing of this appeal (or indeed prior to its commencement, in writing) to direct that argument and evidence should be limited to matters pertaining to Article 8 of the ECHR, and that matters relating to Article 3 will not be heard”
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The respondent maintained this position at the hearing before us; although it is fair to say that she did so with significantly less vigour than had been the case in her skeleton argument.
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We gave our ruling at the hearing, concluding that we would determine both the Article 8 and Article 3 ECHR grounds. Our reasons for doing so are as follows.
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Once a determination of the First-tier Tribunal has been set aside the Upper Tribunal must either remake the decision under appeal or remit it to the First-tier Tribunal for it to determine: section 12(2)(b) of the Tribunals Courts and Enforcement Act 2007. If the Upper Tribunal remits the appeal to the First-tier Tribunal it has power to give directions which limit the scope of the re-making. If it decides to re-make the decision itself then it is for the Upper Tribunal to decide the nature and scope of the hearing that is required for such purpose. In the instant matter we have set aside the determination of the First-tier Tribunal for the reasons given above and it is agreed that the decision should be re-made by the Upper Tribunal. We have discretion as to scope of the re-making, and in particular as to the substantive grounds that should be considered. The existence of such discretion flows from the terms of the 2007 Act itself, and was identified by the Court of Appeal in Kizhakudan v Secretary of State for the Home Department [2012] EWCA Civ 566.
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Kizhakudan involved an appeal...
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