Upper Tribunal (Immigration and asylum chamber), 2018-04-16, HU/21408/2016
| Jurisdiction | UK Non-devolved |
| Date | 16 April 2018 |
| Published date | 01 May 2018 |
| Hearing Date | 08 February 2018 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | HU/21408/2016 |
Appeal Number: HU/21408/2016
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: hu/21408/2016
THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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On 8 February 2018 |
On 16 April 2018 |
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Before
RIGHT HONOURABLE LORD BOYD OF DUNCANSBY
SITTING AS A JUDGE OF THE UPPER TRIBUNAL
Between
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and
AA
(ANONYMITY DIRECTION MADE)
Respondent
Representation:
For the Appellant: Mr Clarke, Home Office Presenting Officer
For the Respondent: Ms Akinbolu, Counsel
DECISION AND REASONS
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This is an appeal by the Secretary of State against a decision of Judge C M Phillips promulgated on 1 June 2017. Judge Phillips allowed an appeal against a decision of the Secretary of State refusing the appellant asylum and humanitarian protection. The appeal on these grounds was dismissed but Judge Phillips allowed the appeal under article 3 ECHR and paragraph 276ADE of the Immigration Rules. In this decision I will refer to the respondent as the appellant as he was before the First-tier Tribunal.
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The appellant was born in Kurdistan, Iraq on 1 July 1965. He arrived in the United Kingdom on 23 February 2000 and claimed asylum on arrival. That was refused (see below) but he has remained in this country since then. He suffers from serious physical and mental health problems. In brief these are that he is HIV positive and has insulin dependent diabetes mellitus. He has severe PTSD, a major depressive disorder with psychotic features and is suicidal.
History
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There is a long and significant history and it is right that I set it out in some detail. What follows is an abridged version of the chronology in the appellant’s bundle.
27 February 2004 – claim refused
5 March 2004 - appeal lodged
11 June 2004 – appeal allowed under article 3 ECHR
4 November 2005
3 May 2005 application for further LTR (it expired the following day).
5 October 2007 – conviction (see below)
20 February 2008 – sentenced to 2 years 6 months imprisonment
19 March 2008 – Liability to Deportation notice
11 April 2008 – appellant makes representations against deportation
26 March 2010- granted LTR for a reason outside IR 395
10 June 2011 – LTR expires
15 November 2011 - application for further LTR
6 July 2016 – application refused
7 November 2016 – appeal lodged
28 April 2017 – appeal heard by Judge C M Phillips in FtT
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On 5 October 2007 the appellant was convicted at Southwark Crown Court of six counts of being knowingly concerned in fraudulently dealing in dutiable goods. On 20 February 2008 he was sentenced to 2 years 6 months imprisonment.
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In 2008 following the service of the notice of Liability to Deportation the appellant made an application for assisted voluntary removal. That was approved but shortly thereafter the appellant withdrew the application.
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As will be seen there is a long delay between the application for further LTR made in November 2011 and its subsequent refusal in July 2016. Shortly after the application was made further representations were made on the appellant’s behalf. Thereafter the solicitors for the appellant chronicle six requests for progress made during 2012 and 2013. On 26 March 2013 the Home Office acknowledged receipt of the application but were unable to give a time frame. After further correspondence, including a pre-action protocol a Judicial Review was lodged on 28 April 2016 challenging the delay. That was subsequently settled by consent.
First- tier Tribunal Hearing
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In preparation for the hearing before the First-tier Tribunal the appellant lodged a voluminous bundle of medical records, correspondence and reports. I note that six of the reports are dated within a year of the date of the hearing (though two are from the general practitioner). I will return to this but it should be noted that one of these reports expresses the opinion that should the appellant be returned to Iraq the writer feels certain that the appellant would end his life before deportation.
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All of the reports were before the Home Office prior to the hearing on 28 April 2017. In light of the history of this case and the difficult medical issues that the appellant has sought to place before the Secretary of State it is surprising and disappointing that the Secretary of State chose not to be represented at the First-tier Tribunal. Judge Phillips records correspondence that the appellant’s solicitors had with the Home Office in January and February 2017 including further representations raised by section 120 notice. It appears that there was no response.
Judge Phillips’ decision
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In allowing the appeal Judge Phillips relied on the case of Paposhvili v Belgium Application 41738/10, 13 December 2016. At paragraph 56 he notes that with the decision in Paposhvili there has been a change in the legal landscape post N v United Kingdon {GC} no 26565/05. At paragraph 66 Judge Phillips says that applying the findings in Paposhvili to the facts in this appeal he finds that the appellant has adduced sufficient, satisfactory evidence capable of demonstrating that there are substantial grounds for believing that if the appellant were deemed liable to be removed and steps taken to implement his removal he would be exposed to a real risk of being subjected to treatment contrary to article 3 ECHR. Because the appellant has discharged the evidential burden on him he found it was for the UK authorities to dispel any doubts raised by the evidence. He then noted the long delay in deciding the appellant’s application, their failure to respond to the section 120 notice or the additional grounds of appeal and their failure to provide representation at the hearing. He considers paragraphs 183 and 205 of Paposhvili. At paragraph 70 of his decision Judge Phillips concludes that from the principles set out in Paposhvili “a finding that the appellant can return, without the relevant factors being properly assessed and answered satisfactorily, violates article 3”.
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Judge Phillips then goes on to consider in paragraphs 72 and 73 the appeal in terms of article 8 in accordance with paragraph 276ADE (vi) of the Immigration Rules. He considers the issue to be whether or not there would be very significant obstacles to integration on his return. He considers the medical evidence and expert reports along with the appellant’s long absence from Iraq. He considers that on the balance of probabilities the test is met. On his return he will be a vulnerable stranger. He is highly likely to be discriminated against as an HIV positive ‘foreigner’ and highly likely to be ostracised.
Grounds of Appeal
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The Secretary of State’s grounds of appeal submit that Judge Phillips materially erred in law by failing to follow binding precedent; N v SSHD [2005] UKHL 31; GS (India) and others v SSHD [2015 EWCA Civ 40; and KH Afghanistan [2009] EWCA Civ 1354. He further erred in allowing the appeal under paragraph 276ADE(vi) in failing to apply the significantly high threshold; Treebhawon and others (NIAA 2002 Part 5A – compelling circumstances test) 2017 UKUT 00013 (IAC), at head note (iii). The first-tier Tribunal had not provided circumstances above those relied upon for article 3. When taking into account the findings in GS (India) the appellant should not succeed on article 8 grounds due to a disparity in health care. The Judge had not taken into account remittances from abroad or family links in considering whether there were very significant obstacles to integration.
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In a brief submission Mr Clarke said that in the light of the decision in the Court of Appeal in AM (Zimbabwe) [2018] EWCA Civ 64 it was clear that Judge Phillips was in error in following Paposhvili. However he submitted the cases cited in the grounds of appeal were not really in point given that the most significant feature of the medical history was the suicide risk. The cases that were in point were J v SSHD [2005] EWCA Civ 629 and Y and Z (Sri Lanka) v SSHD) [2009] EWCA Civ 362.
Error of law
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Judge Phillips followed Paposhvili in reaching his determination. It is a careful judgement in which he analyses the medical evidence in some detail. Unfortunately in the light of EA & others (Article 3 medical cases – Paposhvili not applicable; Afghanistan) [2017] UKUT 445 IAC and AM (Zimbabwe) the legal basis of the decision on article 3 grounds is wrong in law.
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Mr Clarke submitted that the case should be either remitted to the FtT to be reheard, or a date set for a further hearing in the UT. That option is deeply unattractive. I have already outlined the long delay that this case has suffered. Moreover the Secretary of State has failed to engage with the medical evidence either at the FtT or in the grounds of appeal to the Upper Tribunal. I considered that before I remitted the case I should be clear as to whether the error is material, or whether, applying the correct law to the facts found by Judge Phillips the decision would have been the same.
Judge Phillips’ findings
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Judge Phillips findings in fact are set out in paragraphs 34 to 71. I do not intend to set then narrate them in full but it important to set out the...
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