Upper Tribunal (Immigration and asylum chamber), 2019-11-13, IA/12139/2012
| Jurisdiction | UK Non-devolved |
| Date | 13 November 2019 |
| Published date | 30 January 2020 |
| Hearing Date | 10 September 2019 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | IA/12139/2012 |
IA/12139/2012
Upper Tribunal
(Immigration and Asylum Chamber) IA/12139/2012
THE IMMIGRATION ACTS
|
Heard at Field House |
Decision & Reasons Promulgated |
|
On Thursday, 28 August 2019 and Tuesday, 10 September 2019 |
On Wednesday, 13 November 2019 |
Before
UPPER TRIBUNAL JUDGE DAWSON
DEPUTY UPPER TRIBUNAL JUDGE SUTHERLAND WILLIAMS
Between
GM
[ANONYMITY DIRECTION MADE]
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr A Eaton, Counsel, instructed Duncan Lewis Solicitors
For the Respondent: Mr S Kotas, Senior Home Office Presenting Officer
Anonymity
Rule 14: The Tribunal Procedure (Upper Tribunal) Rules 2008
Anonymity was granted at an earlier stage of the proceedings. It is appropriate to continue the order. Unless and until a tribunal or court directs otherwise, the appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him 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
Introduction
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This is an appeal that has, on any view, a lengthy history.
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The appellant, an Indian citizen, entered the United Kingdom on 9 September 2010 on a tier 4 general student visa. In November 2010, not long after his arrival, he was diagnosed with kidney failure.
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In November 2011, citing his medical condition, the appellant applied for leave to remain. That application was refused by the respondent on 8 May 2012.
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The appellant thereafter appealed under section 82 of the Nationality, Immigration and Asylum Act 2002 to the First-tier Tribunal. By the time of his hearing on 9 July 2012, the appellant was undergoing dialysis treatment three times a week and awaiting a kidney transplant. He maintained that article 3 of the European Convention on Human Rights (’ECHR’) would be breached (inhuman or degrading treatment), if he was to be returned to India without giving him the opportunity to take up the donor offer and to remain in the UK long enough to recuperate.
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The judge at first instance, while acknowledging the appellant’s condition was ‘undoubtedly very serious’, found that the appellant was not close to death and that the appellant had failed to demonstrate he could not be guaranteed nursing or medical care in India. Consequently, the judge found no breach of article 3.
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It is from the above decision that the history of this appeal flows. The Upper Tribunal concluded in November 2012 that the First-tier decision did not involve the making of an error of law, finding the judge had taken full account of the relevant case law in relation to health when removal is contemplated.
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From there the matter proceeded to the Court of Appeal, where permission to appeal was granted on 24 March 2014 as part of a series of linked appeals, all concerning applicants suffering from ‘grave medical conditions being effectively treated in the United Kingdom’.
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The Court of Appeal found that the appellant had major kidney disease (otherwise known as end-stage kidney disease), together with depression and evidence of a risk of suicide. The appellant’s hospital had indicated their willingness to assess the appellant for a live donor transplant. On 1 July 2014, the Court of Appeal found the proposed donor was compatible.
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At that stage, the Secretary of State consented to the appellant’s appeal being allowed and for the case to be remitted to the Upper Tribunal for further consideration of his claim under article 8 of the ECHR. The Court of Appeal also indicated that the further development relating to the possible transplant might touch upon article 3 and the appellant could therefore make a fresh article 3 claim. As a result, the removal decision was quashed.
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On 29 January 2015, the day before the Court of Appeal handed down its approved judgment, the appellant underwent a kidney transplant operation. The operation was successful, and he was discharged on 6 February 2015.
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Although the appellant’s appeal was remitted pursuant to article 8 of the ECHR, the appellant’s article 3 claim, although acknowledged as above, was dismissed.
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In common with the appellants in the other appeals before the Court of Appeal, the appellant sought permission to appeal to the Supreme Court on the article 3 aspect of his claim. Permission in that regard was refused on 30 July 2015. The parties then appealed to the European Court of Human Rights (‘ECtHR’).
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His case by this stage had evolved to the following extent: the appellant argued that if he was now to be returned to India, where he would not have access to the ongoing, post-transplant expert medical supervision and medication that he required, the consequences would be catastrophic.
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On 13 July 2017, the appellant’s representatives were informed by the ECtHR that a single judge had examined the application and, having regard to the UK Government’s undertaking to reconsider the complaint in the light of the Grand Chambers judgement in Paposhvili v Belgium [GC] [2016] ECHR 1113 (‘Paposhvili’), the ECtHR had decided to strike out the application.
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In short, the ECtHR did so because both parties agreed that the scope of the hearing before the Upper Tribunal would include consideration of both article 3 and article 8 of the ECHR.
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On 26 January 2018, Upper Tribunal Judge O’Connor stayed the appellant’s case pending a decision of the Court of Appeal in AM (Zimbabwe) and others (C5/2016/4178, C5/2016/4677 and C5/2017/0755). Various case management directions have since been given.
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Subsequently, AM (Zimbabwe) has been decided and now appealed to the Supreme Court. It is due to be heard in December 2019. As part of the case management in this matter, the decision was taken that this case could now proceed, notwithstanding that outstanding appeal. Nothing in the course of the instant proceedings has changed our view in that regard for the reasons set out herein.
The present proceedings
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On 16 February 2018, the respondent wrote to the appellant providing a supplemental letter, as requested by the Upper Tribunal, to be read in conjunction with the original decision of 8 May 2012. That letter states it is neither a fresh decision to refuse a human rights claim nor the rejection of further submissions as a fresh claim. It was essentially a letter to assist the parties in the current Upper Tribunal proceedings.
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This matter was listed before us originally on 28 May 2019 and then adjourned for further directions, which included that the parties provide a summary of the issues they are now asking the Upper Tribunal to resolve.
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In a statement of agreed issues, dated 28 May 2019, the appellant and the respondent indicated the following legal issues required resolution:
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Article 3 - medical;
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Article 3 - suicide;
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P aragraph 276 ADE (1)(vi) of the Immigration Rules;
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Article 8 - private life.
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Additionally, the appellant and the respondent agree the following new factual issue requires resolution, which it was submitted, impacted upon the above legal issues:
Whether or not the appellant is gay.
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In order to resolve these issues, and because this is a remitted appeal, we are also charged with making findings of fact.
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In coming to our decision, we have been greatly assisted by both Mr Kotas and Mr Eaton and their respective submissions and skeleton arguments.
Preliminary issues
Sensitive witness
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On the basis of the medical evidence available, the appellant’s representative submitted that the appellant should be treated as a sensitive or vulnerable witness in order to reduce any distress when giving evidence. We accept that. There is evidence of mental well-being issues sufficient for us to state at a preliminary stage that the appellant is vulnerable. We have made appropriate allowances in the appellant’s evidence, pursuant to the ‘Joint Presidential Guidance Note no. 2 of 2010 – Child, vulnerable adult and sensitive witnesses’.
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Further, we implemented the adjustments suggested by his counsel, including ensuring that the appellant had regular breaks throughout the hearing, pauses for relevant documentation to be shown to the appellant, we sat in camera while he gave his evidence, and it was explained that if there were any matters that he did not understand he should indicate.
Anonymity
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The appellant’s representative requested that anonymity was maintained. We were content to extend the anonymity direction given previously.
The evidence
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We do not intend to index every piece of evidence we have considered in coming to our decision. We acknowledge the helpful consolidated bundle provided on behalf of the appellant, which includes not only the appellant’s witness statements, but statements and letters from those supporting him, together with a...
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