Upper Tribunal (Immigration and asylum chamber), 2019-11-18, [2019] UKUT 397 (IAC) (AXB (Art 3 health: obligations; suicide))

 
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Upper Tribunal

(Immigration and Asylum Chamber)


AXB (Art 3 health: obligations; suicide) Jamaica [2019] UKUT 00397 (IAC)

THE IMMIGRATION ACTS


Heard at Field House, London


On Thursday 3 October 2019



Before

THE HONOURABLE MR JUSTICE LANE, PRESIDENT

UPPER TRIBUNAL JUDGE SMITH

DR HUGO STOREY, JUDGE OF THE UPPER TRIBUNAL


Between


AXB

[A protected party, by his litigation friend, NB]

[ANONYMITY DIRECTION MADE]

Appellant


and


THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent


Representation:


For the Appellant: Mr D Chirico and Ms A Nicolaou, Counsel instructed by Duncan Lewis solicitors

For the Respondent: Dr C Staker Counsel instructed by Government Legal Department


  1. In a case where an individual asserts that his removal from the Returning State would violate his Article 3 ECHR rights because of the consequences to his health, the obligation on the authorities of a Returning State dealing with a health case is primarily one of examining the fears of an applicant as to what will occur following return and assessing the evidence. In order to fulfil its obligations, a Returning State must provide “appropriate procedures” to allow that examination and assessment to be carried out. In the UK, that is met in the first place by an examination of the case by the Secretary of State and then by an examination on appeal by the Tribunal and an assessment of the evidence before it.


  1. There is no free-standing procedural obligation on a Returning State to make enquiries of the Receiving State concerning treatment in that State or obtain assurances in that regard. Properly understood, what is referred to at [185] to [187] of the Grand Chamber’s judgment in Paposhvili concerns the discharge of respective burdens of proof.


  1. The burden is on the individual appellant to establish that, if he is removed, there is a real risk of a breach of Article 3 ECHR to the standard and threshold which apply. If the appellant provides evidence which is capable of proving his case to the standard which applies, the Secretary of State will be precluded from removing the appellant unless she is able to provide evidence countering the appellant’s evidence or dispelling doubts arising from that evidence. Depending on the particular circumstances of the case, such evidence might include general evidence, specific evidence from the Receiving State following enquiries made or assurances from the Receiving State concerning the treatment of the appellant following return.


  1. Where an individual asserts that he would be at real risk of committing suicide, following return to the Receiving State, the threshold for establishing Article 3 harm is the high threshold described in N v United Kingdom [2008] ECHR 453, unless the risk involves hostile actions of the Receiving State towards the individual: RA (Sri Lanka) v Secretary of State for the Home Department [2008] EWCA Civ 1210; Y and Z v Secretary of State for the Home Department [2009] EWCA Civ 362.


Anonymity

Rule 14: The Tribunal Procedure (Upper Tribunal) Rules 2008

The appeal is on protection grounds. Accordingly, it is appropriate that the Appellant’s identity be protected. Unless and until a tribunal or court directs otherwise, the Appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify the Appellant or any member of his family. This direction applies both to the Appellant and to the Respondent. Failure to comply with this direction could lead to contempt of court proceedings.


DECISION AND REASONS

BACKGROUND


  1. The Appellant appeals against a decision of First-tier Tribunal Judge O’Keeffe promulgated on 23 April 2019 (“the Decision”) dismissing the Appellant’s appeal on protection grounds against the Secretary of State’s decision dated 22 December 2017 refusing his protection and human rights claims but allowing the appeal on human rights grounds (Article 8 ECHR). The Appellant’s claims were made in the context of a decision to deport him to Jamaica.


  1. Broadly, the Appellant claims that he will be at risk from gang members in Jamaica. He also claims to be entitled to humanitarian protection due to the level of violence in that country coupled with his own circumstances. The Appellant suffered a stroke in 2011 and was left wheelchair bound. He also suffers from mental health issues (although does not himself appear to recognise that he does and refuses any treatment to deal with his problems). He lacks capacity to provide instructions in his appeal; hence the appointment of a litigation friend. He did not give oral evidence before Judge O’Keeffe although he has been interviewed in connection with his claims (by the Respondent and, to some limited extent, by experts assessing his health issues).


  1. The Judge did not accept the credibility of the Appellant’s asylum claim. She rejected it on that account. She accepted the broad thrust of the medical and other expert evidence produced on the Appellant’s behalf but did not accept that this disclosed an entitlement to humanitarian protection or enabled the Appellant to succeed on Article 3 ECHR grounds. However, she accepted that the Appellant’s circumstances considered cumulatively established a breach of Article 8, ECHR – in other words, deportation to Jamaica would be a disproportionate response. The Respondent has not appealed those findings and has granted the Appellant thirty months’ leave to remain. However, the Respondent does not dispute that the Appellant remains entitled to appeal against a hypothetical deportation on protection and Article 3 grounds more generally as, if he were to succeed on those other grounds, he may be entitled to a more preferential status. He is entitled to have his appeal considered in relation to those issues in any event, whether or not success would lead to any different status.


  1. Permission to appeal to this Tribunal was refused by First-tier Tribunal Judge Saffer on 16 May 2019 but granted by Deputy Upper Tribunal Judge Storey on 5 July 2019. His reasoning is as follows:


“It is arguable that the judge’s adverse credibility findings in respect of the issue of whether the appellant, a national of Jamaica, qualified as a refugee failed to take into account relevant matters as set out in ground 1.

I do not consider ground 2 (which concerns the judge’s rejection of humanitarian protection status) raises any issue distinct from the judge’s consideration of the issue of refugee status.

However, ground 2 [should be 4], which concerns Article 3, raises the issue of whether the judge’s assessment of risk on return in light of the appellant’s mental health and disability stood in conflict with Strasbourg Article 3 jurisprudence, Paposhvili (app 41738/10) in particular. It has arguable merit. It is the principal contention of this ground that Paposhvili laid down a procedural obligation whereby when an applicant adduces evidence “capable of” demonstrating an Article 3 breach, “it is for the authorities of the returning State, in the context of domestic procedures, to dispel any doubts raised by it”: (paras 186-7) and the burden of proof is on the authorities “to verify on a case by case basis whether the care generally available in the receiving State is sufficient and appropriate in practice for the treatment of the applicant’s illness” so as to avoid a breach of Article 3 (para 189); and that “if serious doubts persist regarding the impact of removal on the persons concerned…the returning State must obtain individual and sufficient assurances from the receiving State as a precondition for removal, that appropriate treatment will be available and accessible to the persons concerned so that they do not find themselves in a situation contrary to Article 3” (para 191). There is nothing to indicate that the judge understood that in the context of the Article 3 claim there was such a procedural obligation whose applicability to this case needed to be considered and this arguably vitiated the judge’s Article 3 assessment.

It appears that apart from the concession by the respondent in R (MM (Malawi)) [2018] EWCA Civ 1365, UK courts and tribunals have not addressed the UK’s procedural obligation under Article 3 as identified in Paposhvili. For this reason, it is possible that this case will be put before a panel.”


  1. It is as a result of the issue raised in the Appellant’s ground four that the appeal comes before the Tribunal sitting as a Presidential panel, in order to provide some guidance on this issue. However, the Appellant pursued all grounds and we therefore need to determine whether there is an error of law in relation to any of the four grounds, which we now turn to do in the order they are pleaded.


  1. We were greatly assisted in our task by the detailed skeleton arguments and oral submissions of both Counsel. We were provided with a consolidated bundle of documents to which we refer as necessary below as [AB/xx] by reference to the internal tab and page...

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