Upper Tribunal (Immigration and asylum chamber), 2014-07-16, AA/03101/2013
| Jurisdiction | UK Non-devolved |
| Date | 16 July 2014 |
| Published date | 15 October 2014 |
| Hearing Date | 12 May 2014 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | AA/03101/2013 |
Appeal Number:AA/03101/2013
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/03101/2013
THE IMMIGRATION ACTS
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Heard at Newport |
Determination Sent |
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On 12 May 2014 |
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Before
UPPER TRIBUNAL JUDGE GRUBB
Between
JOO
(ANONYMITY DIRECTION MADE)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr C Howells instructed by Jackson & Canter Solicitors
For the Respondent: Mr I Richards, Home Office Presenting Officer
DETERMINATION AND REASONS
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This appeal is subject to an anonymity order made by the First-tier Tribunal pursuant to rule 45(4)(i) of the Asylum and Immigration Tribunal (Procedure) Rules 2005 (SI 2005/230). Neither party invited me to rescind the order and I continue it pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698).
Background
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The appellant is a citizen of Nigeria who was born on 7 July 1979. She came to the UK in June 2009 with leave as a dependent of her husband who was a student in the UK and who had leave valid until 21 April 2010. Subsequently, the appellant’s leave was extended in line with that of her husband until 4 March 2013. He unsuccessfully applied for further leave and as a consequence both his leave and that of the appellant expired. On 14 February 2013, the appellant claimed asylum. On 8 March 2013, the Secretary of State refused the appellant’s claim for asylum and on 12 March 2013 made a decision to remove her to Nigeria by way of directions.
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The appellant appealed to the First-tier Tribunal. In a determination promulgated on 30 May 2013, Judge B Lloyd dismissed the appellant’s appeal on asylum grounds, under the Immigration Rules and under Article 8 of the ECHR. First, he rejected the appellant’s account that she was at risk on return to Nigeria because she was a Christian. Secondly, he concluded that the appellant could not succeed under the Immigration Rules (HC 395 as amended) under Appendix FM or para 276ADE based upon her family and private life respectively in the UK. Thirdly, the Judge rejected the appellant’s claim under Article 8 of the ECHR which was based, in large part, upon the claim that her (then) three year old son (L) was autistic and that it would not be in his best interests to return to Nigeria.
Appeal to the Upper Tribunal
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The appellant sought permission to appeal to the Upper Tribunal principally upon the ground that Judge Lloyd had erred in law by failing to grant the appellant an adjournment in order that a further medical appointment scheduled for shortly after the date of the hearing could take place and a report assessing her son’s claimed autism could be obtained.
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In a determination promulgated on 7 August 2013, Deputy Upper Tribunal Judge Birrell concluded that the refusal to grant an adjournment was procedurally unfair and the Judge had failed to take into account the objective evidence relied upon by the appellant supporting the appellant’s contention that there was discrimination against persons perceived to be disabled physically or psychologically in Nigeria. As a result, DUTJ Birrell set aside Judge Lloyd’s decision in respect of Article 8. No challenge was brought to Judge Lloyd’s decision to dismiss the appellant’s appeal on asylum grounds and that decision stood.
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As a consequence, DUTJ Birrell directed that the appeal be relisted for a resumed hearing in order for the Upper Tribunal to remake the decision under Article 8. The appeal was initially listed for hearing on 24 March 2014. However, in the absence of the appellant or any representative, that hearing was adjourned by the Upper Tribunal (McCloskey J, President and Miss E Arfon-Jones, Vice President) out of a concern that the appellant may not have been given notice of the hearing.
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The appeal was relisted before me on 12 May 2014. It would appear that notice of the previous resumed hearing had not been received and the hearing proceeded before me.
The Upper Tribunal Hearing
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Mr Christian Howells, who represented the appellant, relied upon a consolidated bundle of documents, a number of which (including medical reports and an expert report) had not been relied upon before the First-tier Tribunal. Mr Irwin Richards, who represented the Secretary of State made no objection to their admission under rule 15(2A) of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698).
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Mr Richards also sought to rely upon a small bundle of background documents concerning Nigeria which had not been before the First-tier Tribunal. Mr Howells did not object in principle to their admission under rule 15(2A) but, as he had not seen the documents prior to the hearing, he invited me to grant a short adjournment in order that he could read and consider the documents. As a consequence, the hearing was adjourned for a little over one hour at the conclusion of which I heard oral submissions from both Mr Howells and Mr Richards.
The Appellant’s Case
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Mr Howells relied exclusively upon Article 8 of the ECHR. He submitted that the sole issue was one of proportionality and the best interests of L. He submitted that in considering L’s best interests there were two issues:
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Would there be educational or medical support for L in Nigeria? and
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Would there be discrimination (putting it at its lowest) faced by L because of his autism in Nigeria?
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Mr Howells submitted that on a balance of probabilities if L were returned to Nigeria he would not receive the treatment or support he was receiving in the UK for his autism. Additionally, he would face discrimination and violence because of his autistic condition and the risk that he would be perceived as a witch. Mr Howells submitted that taking into account either of these factors (but certainly both) made the appellant’s removal to Nigeria disproportionate even though she would be accompanied by her husband and their second child (S) who was born on 20 July 2013.
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Mr Howells drew my attention, and relied upon, a number of documents in the appellant’s consolidate bundle and some additional documents in the bundle prepared for the First-tier Tribunal hearing. First, he relied upon a number of documents which, he submitted, established L’s diagnosis of autism, his needs and that it was in his best interest to continue to receive his current support in the UK: “Statement of Special Educational Needs” page 56 at pages 57, 58, 59 and 61; a report of W Davenport, Specialist Speech and Language Therapist dated 27 January 2014, page 76 at page 77; report of Dr Kate Greening, Clinical Psychologist dated 11 November 2013, page 78 at pages 78, 79, 80 and 81; a letter from Dr Elspeth Webb, Reader and Honorary Consultant in Child Health at page 95. Secondly, in relation to the situation in Nigeria and the perception of autism as an attribute of witchcraft: an expert report of Gary Foxcroft dated 21 April 2014, pages 103, 104, 105 and 106; a report entitled “Report on Accusations of Witchcraft against Children in Akwa Ibom State, Nigeria” by Stepping Stones Nigeria (UK) dated 10 May 2014, page 112 at pages 113, 119, 120 and 121; the Country of Origin Information Service report on Nigeria dated 14 June 2014, page 133 at pages 138, 140 and 148-149.
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Mr Howells also referred me to the “US Department of State Country Report on Human Rights Practices: Nigeria 2012” page 25 of FTT bundle at page 28 in relation to the social stigma and discrimination faced by persons with disabilities; a paper entitled “Autism among Primary School Pupils in Benin Metropolis: Implications for Counselling” page 257 of FTT bundle at page 72 again dealing with the perception of children with autism in Nigeria; a paper from the Refugee Documentation Centre of Ireland dated 13 May 2010, page 189 of the FTT bundle at pages 190-192 dealing with again the perception of children with autism in Nigeria and the issues of discrimination and support provided to them.
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As regards the law, Mr Howells accepted that the situation of L could not engage the high threshold for Article 3 of the ECHR. Nevertheless, Mr Howells submitted that a number of decisions of the Court of Appeal and the Upper Tribunal made clear that even in a so-called ‘health case’ an individual could succeed under Article 8 of the ECHR even if a claim under Article 3 was bound to fail. Specifically, he referred me to the Upper Tribunal’s decision in Akhalu (Health Claims: ECHR Article 8) [2013] UKUT 00400 (IAC) and the Court of Appeal’s decision in R (SQ) Pakistan v UTIAC [2013] EWCA Civ 1251.
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Mr Howells sought to identify a number of factors in this appeal which, when taken with the evidence which he submitted established that L would face discrimination (at the very least) and an absence of support on return to...
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