Upper Tribunal (Immigration and asylum chamber), 2019-08-29, HU/08861/2016
| Jurisdiction | UK Non-devolved |
| Date | 29 August 2019 |
| Published date | 22 October 2019 |
| Hearing Date | 27 February 2019 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | HU/08861/2016 |
Appeal Number: HU/08861/2016
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/08861/2016
THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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On 27 February 2019 |
On 29 August 2019 |
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Before
UPPER TRIBUNAL JUDGE CANAVAN
Between
MOURAD HENNICHE
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the appellant: Ms F. Shaw, instructed by Kamberley Solicitors
For the respondent: Mr S. Whitwell, Senior Home Office Presenting Officer
DECISION AND REASONS
1. The appellant appealed the respondent’s decision dated 10 March 2016 to refuse a human rights claim. First-tier Tribunal Judge Clarke allowed the appeal in a decision dated 11 January 2018. Deputy Upper Tribunal Judge Taylor set aside the decision because it involved the making of an error of law on 19 July 2018. The appeal was listed for a further hearing for the decision to be remade.
2. I am conscious of the delay in promulgating this decision. Unfortunately, it has taken longer than usual to prepare due to the complexity of some of the issues, the nature of the evidence and the pressure of other work.
Background
3. The appellant is an Algerian citizen who entered the UK in July 2000 with leave to enter as a visitor. He remained in the UK after his visa expired in the full knowledge that he did not have permission to do so. He says that he lived with his brother from 2000 to 2008. He now lives with friends, but his brother continues to provide financial support.
4. In 2003 he was diagnosed with coeliac disease. On 21 March 2013 he was served with a notice of liability to removal (IS 151A). On 12 August 2013 the appellant was refused leave to remain without a right of appeal.
5. The appellant made an application for leave to remain on human rights grounds on 27 November 2015. The respondent refused the application on 10 March 2016. The appellant did not meet the requirement of 20 years’ long residence under paragraph 276ADE(1)(iii) of the immigration rules. There were no ‘very significant obstacles’ to his integration in Algeria so he did not meet the requirements of paragraph 276ADE(1)(vi). The respondent considered whether the appellant’s medical condition constituted exceptional circumstances that might justify a grant of leave to remain on human rights grounds but concluded that it did not. The evidence indicated that treatment was likely to be available in Algeria.
Legal framework
6. Article 3 of the European Convention on Human rights provides that no one shall be subject to torture, inhuman and degrading treatment. In cases where the sole reason why the person asserts that they will be subjected to such treatment if removed from the UK is a medical or psychiatric condition a person must show a very exceptional case featuring compelling humanitarian circumstances before their removal would breach Article 3: see N v SSHD [2005] UKHL 31 and N v UK (2008) 47 EHRR 39. The courts have concluded that there is no medical care obligation on signatory states to the European Convention even when removal might significantly shorten a person’s life expectancy due to less adequate medical care in their country of origin.
7. The more recent decision of the European Court in Paposhvili v Belgium [2017] Imm AR 867 found that the principles were not confined solely to deathbed cases. The ‘other very exceptional cases’ referred to in N v UK: “should be understood to refer to situations involving the removal of a seriously ill person in which substantial grounds have been shown for believing that he or she, although not at imminent risk of dying, would face a real risk, on account of the absence of appropriate treatment in the receiving country or the lack of access to such treatment, of being exposed to a serious, rapid and irreversible decline in his or her state of health resulting in intense suffering or to a significant reduction in life expectancy.”
8. In AM (Zimbabwe) v SSHD [2018] EWCA Civ 64 and MM (Malawi) v SSHD [2018] EWCA Civ 2482 the Court of Appeal observed that if there was some relaxation of the test it was “only to a very modest extent”. The decision of the House of Lords in N v SSHD was still binding. The Article 3 threshold in medical cases remained high.
9. Article 8 of the European Convention protects the right to ‘physical and moral integrity’, which can include a person’s health: see Bensaid v UK (2001) 33 EHRR 10. Unlike Article 3, Article 8 is not an absolute right. In the absence of any additional factors that might engage Article 8 the threshold for showing a breach of Article 8 solely on medical grounds is equally high: see GS (India) v SSHD [2015] EWCA Civ 40 and MM (Zimbabwe) v SSHD [2012] EWCA Civ 279. The Court of Appeal in SL (St Lucia) v SSHD [2018] EWCA Civ 1894 concluded that the decision in Paposhvili did not affect this principle.
“27. … I am entirely unpersuaded that Paposhvili has any impact on the approach to article 8 claims. As I have described, it concerns the threshold of severity for article 3 claims; and, at least to an extent, as accepted in AM (Zimbabwe), it appears to have altered the European test for such threshold. However, there is no reason in logic or practice why that should affect the threshold for, or otherwise the approach to, article 8 claims in which the relevant individual has a medical condition. As I have indicated and as GS (India) emphasises, article 8 claims have a different focus and are based upon entirely different criteria. In particular, article 8 is not article 3 with merely a lower threshold: it does not provide some sort of safety net where a medical case fails to satisfy the article 3 criteria. An absence of medical treatment in the country of return will not in itself engage article 8. The only relevance to article 8 of such an absence will be where that is an additional factor in the balance with other factors which themselves engage article 8 (see (MM (Zimbabwe) at [23] per Sales LJ). Where an individual has a medical condition for which he has the benefit of treatment in this country, but such treatment may not be available in the country to which he may be removed, where (as here) article 3 is not engaged, then the position is as it was before Paposhvili, i.e. the fact that a person is receiving treatment here which is not available in the country of return may be a factor in the proportionality balancing exercise but that factor cannot by itself give rise to a breach of article 8. Indeed, it has been said that, in striking that balance, only the most compelling humanitarian considerations are likely to prevail over legitimate aims of immigration control (see Razgar at [59] per Baroness Hale).
28. Therefore, in my firm view, the approach set out in MM (Zimbabwe) and GS (India) is unaltered by Paposhvili; and is still appropriate. I do not consider the contrary is arguable.“
10. Paragraph 276ADE(1)(vi) of the immigration rules is said to reflect the respondent’s position as to where a fair balance should be struck for the purpose of assessing a person’s private life under Article 8. At the date of the respondent’s decision the requirements were:
“276ADE (1). The requirements to be met by an applicant for leave to remain on the grounds of private life in the UK are that at the date of application, the applicant:
(i) does not fall for refusal under any of the grounds in Section S-LTR 1.1 to S-LTR 2.2. and S-LTR.3.1. to S-LTR.4.5. in Appendix FM; and
(ii) has made a valid application for leave to remain on the grounds of private life in the UK; and
…
(vi) subject to sub-paragraph (2), is aged 18 years or above, has lived continuously in the UK for less than 20 years (discounting any period of imprisonment) but there would be very significant obstacles to the applicant’s integration into the country to which he would have to go
11. In Kamara v SSHD [2016] EWCA Civ 813 the Court of Appeal considered the test set out in section 117C(4)(c) of the Nationality, Immigration and Asylum Act 2002 (“NIAA 2002”). Although the assessment related to a somewhat different test, which applies in deportation cases, the wording ‘very significant obstacles’ to integration forms part of the test and is equally applicable to a proper interpretation of paragraph 276ADE(1)(vi).
“14. In my view, the concept of a foreign criminal's ‘integration’ into the country to which it is proposed that he be deported, as set out in section 117C(4)(c) and paragraph 399A, is a broad one. It is not confined to the mere ability to find a job or to sustain life while living in the other country. It is not appropriate to treat the statutory language as subject to some gloss and it will usually be sufficient for a court or tribunal simply to direct itself in the terms that Parliament has chosen to use. The idea of ‘integration’ calls for a broad evaluative judgment to be made as to whether the individual will be enough of an insider in terms of understanding how life in the society in that other country is carried on and a capacity to participate in it, so as to have a reasonable opportunity to be accepted there, to be able to operate on a day-to-day basis in that society and to build up within a reasonable time a variety of...
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