Upper Tribunal (Immigration and asylum chamber), 2014-10-24, IA/30255/2013 & Ors.
| Jurisdiction | UK Non-devolved |
| Date | 24 October 2014 |
| Published date | 18 February 2015 |
| Hearing Date | 27 August 2014 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | IA/30255/2013 & Ors. |
Appeal Number:
IAC-PE-SW-V1
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/30255/2013,
IA/30233/2013, IA/30242/2013,
IA/30246/2013 & IA/30251/2013
THE IMMIGRATION ACTS
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Heard at Manchester |
Determination Promulgated |
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On 27th August 2014 |
On 24th October 2014 |
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Before
DEPUTY UPPER TRIBUNAL JUDGE MCCLURE
Between
the SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and
CEI, LNI, LOI, JCI & JCI
Claimants
Representation:
For the Appellant: Mr Schwenk, instructed by Fursden,Knapper Solicitors
For the Respondent: Mr Harrison , Senior Home Office Presenting Officer
DETERMINATION AND REASONS
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The claimants are all citizen of Nigeria. These appeals relate to the mother and father of a family and their children.
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These proceedings concern the welfare, well being and interests of children. Taking account all of the circumstances, in order to protect the interests of the children, I consider it necessary to make an anonymity direction.
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This is an appeal by the Secretary of State for the Home Department. I have however for the purposes of the present determination described the original applicants/appellants to the First –tier Tribunal as the claimants. I refer to the Secretary of State for the Home Department as the SSHD.
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The SSHD seeks to appeal against the determination of First-tier Tribunal Judge Cameron promulgated on 9th January 2014. By the determination the judge allowed the appeals of each claimant against the decisions of the SSHD. The decisions taken in respect of each of the claimants was to refuse the claimant further leave to remain in the United Kingdom and thereupon to remove each of them to their country of nationality. The decisions are dated 27 August 2013.
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In allowing the appeals the judge allowed each appeal on the basis of article 8 of the ECHR. The judge had considered whether the appeal should be allowed under the Immigration Rules or Article 3 of the ECHR and determined that the claimants could not succeed under the Immigration Rules [paragraph 276ADE Private life or Appendix FM] or under Article 3.
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Leave to appeal was granted to the respondent on 8 April 2014. In granting leave to appeal it is suggested that the judge applied the wrong test in respect of the health of the appellant LOI submitting that the threshold in medical cases is a high one and there is a lack of adequate reasoning. There is a reply and the representative for the claimants before me sought to re-open other issues in the case.
Factual background
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The basis for these appeals relies upon the condition of the child, LOI, date of birth the 29 August 2006. There are several experts’ reports, which deal with the medical condition of the child. The remaining claimants are dependants upon the claim of LOI. Were it not for the condition of LOI, the remaining appellants would have limited prospects of remaining in the UK.
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The mother of the family obtained leave to enter the United Kingdom as a student prior to January 2009. Consistent with the leave granted the mother came to the United Kingdom as a student. The family came to the United Kingdom as dependants of a student and entered the UK on 2 January 2009.
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It has to be noted that at the time of entry LOI would have been two years and three months old.
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Subsequently the mother was granted further leave to remain as a Post-Study Work Migrant until 7 June 2013, with the family being granted leave in line with the mother. On 14 May 2013 applications were made for further leave to remain in the United Kingdom. The applications were refused on the 9th August 2013.
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The basis of the appellants’ case to remain relates to the medical condition of the child LOI. As noted by the judge in paragraph 21 LOI suffers from a series of medical conditions. The judge has carefully considered the medical reports submitted.
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As of 14 October 2013 Dr Curran , Consultant Paediatric Neurologist describes the condition of the child in the following terms:-
“[He]….. has profound and severe neuro-disability. He has quadriplegic cerebral palsy following hypoxic-ischaemic encephalopathy, epilepsy, long-term chronic oxygen requirement, recurrent chest infections and severe and profound developmental delay.
In dealing with the child's medical requirements in the same letter Dr Curran states: --
“His medical condition remains unstable, where he continues to have frequent chest infections requiring antibiotics. He is on continuous oxygen. This is essential for his health and continued well-being. He requires regular reviews by the multidisciplinary team which includes dieticians, physiotherapists, oxygen nurse specialist, consultant neurologist, consultant respiratory physician and the consultant palliative care specialist.”
In the conclusions it is questioned whether or not the appellant would receive appropriate healthcare in Nigeria. However there does not appear to be a definite opinion that the child would not.
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Other reports refer also to the cerebral palsy -- spastic quadriplegia secondary to birth asphyxia, scoliosis, epilepsy, significant developmental delay and “gastro-intestinal dysmotility”. There appears to be a technological dependency on a pump feed. There is some reference to his “spasticity and dystonia” having improved with his change of medication.
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The reference to birth asphyxia is significant as the cause of many of the symptoms emanates from problems at birth. By the time that the child was entering the UK there would have been a marked lack of his achieving developmental stages at least, if not clear evidence of some of his symptoms.
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The letter from Alder Hey Children's Hospital by Dr Susie Holt does refer to the fact that the child has had complex needs since birth. The letter also makes reference to the fact that the life of the child will be significantly shortened from the norm.
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LOI is wheelchair-bound and is oxygen dependent. He has a large number of daily medications. There is reference in the reports to his daily regime requiring the assistance of between one and two people on a regular basis. It is clear that the funding for that is being provided by public authorities, whether that be the NHS, the central government or local government is unclear.
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In a letter from Ms Leanne Turner Clinic Specialist Physiotherapist there is the following: --
“L has spastic quadriplegia cerebral palsy which has resulted in multi-complex medical problems which vary from him needing moderate intervention from multiple specialist professionals to higher levels of intervention. L has severe restriction in his mobility and requires full care from 1 to 2 people and specialist equipment to help him move around. He also needs specialist eating and pastoral care equipment to maintain his posture to prevent pain and discomfort.
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There is then reference to the chest problems which have to be monitored on a daily basis as the same could prove fatal. The child has a complex feeding regime to avoid reflux and seizures.
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There is in place an emergency care plan. There is reference to LOI experiencing seizures more often and suffering from a poor sleep pattern. There is an End of Life Care Plan in place with a placement being made at Claire House Hospice. The care plan makes provision for resuscitation and maintenance of bodily functions where there is reversible illness. The care plan does contemplate the prospect of further brain or cardiac damage and, whilst it acknowledges that necessary medication to ensure comfort would be appropriate, it concedes circumstances in which a natural death may be appropriate.
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The medical condition of the child appears to be accepted. The issue before the first-tier tribunal was how that was to be considered under article 8 including consideration of the best interests of the child.
Appeal and grounds
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The appeals were heard by First-tier Tribunal Judge Cameron on 23 December 2013 and the determination promulgated on the 9th January 2014.
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Application for leave to appeal was not lodged by the SSHD until 9 March 2014. There would normally be only five days in which to lodge an application for leave to appeal. In the normal course of events the application is over six weeks late. The judge dealing with the application extended time.
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The grounds of the application in essence are:-
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The findings by the judge are inadequate, specifically with regard to whether the LOI could access the quality of medical care in Nigeria comparable with that he is receiving in the United Kingdom. The judge has misapplied the law as set out in MM (Zimbabwe) v SSHD [2012] EWCA Civ 279.
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The case law makes clear that medical care is only relevant to article 8 where an individual has personal ties to the UK.
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The case of GS & EO (Article 3-health cases) India [2012]...
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