Upper Tribunal (Immigration and asylum chamber), 2020-12-09, HU/00860/2019
| Jurisdiction | UK Non-devolved |
| Date | 09 December 2020 |
| Published date | 07 January 2021 |
| Hearing Date | 12 November 2020 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | HU/00860/2019 |
Appeal Number: HU/00860/2019
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/00860/2019 (V)
THE IMMIGRATION ACTS
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Heard at Cardiff Civil Justice Centre Remotely by Skype For Business |
Decision & Reasons Promulgated |
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On 12 November 2020 |
On 9 December 2020 |
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Before
UPPER TRIBUNAL JUDGE GRUBB
Between
NA
(ANONYMITY DIRECTION MADE)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr P Blackwood instructed Qualified Legal Solicitors
For the Respondent: Mr C Howells, Senior Home Office Presenting Officer
DECISION AND REASONS
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Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698) I make an anonymity order. Unless the Upper Tribunal or court directs otherwise, no report of these proceedings shall directly or indirectly identify the appellant (“NA”). This direction applies to both the appellant and to the respondent and a failure to comply with this direction could lead to Contempt of Court proceedings.
Introduction
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The appellant is a citizen of Pakistan who was born on 15 May 1985. He arrived in the United Kingdom with entry clearance as the spouse of a British citizen on 16 October 2008 with leave valid until 3 January 2011. On 5 January 2011, the appellant applied for indefinite leave to remain as the spouse of a British citizen. Having been granted limited leave to remain on 5 January 2011, an application for ‘No Time Limit’ was granted on 20 August 2013.
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Between 23 January 2014 and 12 January 2018, the appellant was convicted on six occasions of eleven offences, including an offence against the person and a number of offences involving driving a vehicle whilst disqualified and uninsured. A number of different penalties were imposed upon the appellant, including a six weeks’ period of imprisonment on 8 December 2015, a twelve week period of imprisonment on 13 November 2017 and a four month period of imprisonment on 19 January 2018.
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Prior to the appellant’s conviction on 18 January 2018, on 22 November 2017 he was served with notice of a decision intending to deport him on the basis that his deportation was conducive to the public good under s.3(5)(a) of the Immigration Act 1971. The appellant made submissions that amounted to a human rights claim. He relied upon both Art 8 and 3 of the ECHR in relation to the impact on his family and private life, including the impact upon his health as he suffered from a rare congenital condition known as thrombotic thrombocytopenic purpura (TTP) which required him to receive a regular infusion of a blood product, Factor VIII (Type 8Y).
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On 9 October 2018, the Secretary of State refused his human rights claims under Arts 3 and 8 of the ECHR.
The Appeal to the First-tier Tribunal
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The appellant appealed to the First-tier Tribunal. In a decision sent on 27 November 2019, Judge Richardson dismissed the appellant’s appeal. In relation to Art 3, the judge applied the approach set out in the House of Lords in N v SSHD [2005] UKHL 31 and concluded that, despite accepting the evidence that without treatment the appellant would die within months, his situation did not fall within the “exceptional circumstances” to establish a breach of Art 3 in a medical case following N v SSHD. In addition, in any event, treatment for the appellant’s condition was available in Pakistan.
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The judge made no decision in relation to Art 8 on the basis that that claim had been withdrawn at the commencement of the hearing.
The Appeal to the Upper Tribunal
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The appellant sought permission to appeal to the Upper Tribunal. The appellant’s grounds challenged the decision on a number of bases. First, the judge failed to consider (because the Secretary of State had not referred the judge to these) a number of policies which were relevant to disposal of the appellant’s appeal. Secondly, the judge erred in failing to apply the correct threshold to Art 3 claims based upon a health condition set out in the Strasbourg Court’s decision in Paposhvili v Belgium [2017] Imm AR 867. Thirdly, the judge failed to give anxious scrutiny to the evidence, and adequate reasons for her finding, that treatment in Pakistan was available and accessible. Finally, the judge failed to consider Art 8 of the ECHR.
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The appellant was refused permission to appeal first, by the First-tier Tribunal on 3 January 2020; and secondly, by the Upper Tribunal on 4 February 2020. The appellant lodged Cart proceedings in the High Court. Permission was granted by HHJ Jarman QC (sitting as a Judge of the High Court) on 6 March 2020. Thereafter, by order of HHJ Keyser QC (sitting as a Judge of the High Court) the Upper Tribunal’s refusal of permission to appeal was quashed. On 13 May 2020, the Upper Tribunal (VC Ockelton) granted the appellant permission to appeal.
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The appeal was initially listed before me on 23 July 2020 at the Cardiff Civil Justice Centre for a remote hearing. That hearing was, however, adjourned as the respondent did not attend the hearing via Skype. I will return to this adjournment later as the appellant’s legal representatives, subsequent to that hearing being adjourned, made an application for “wasted costs” under rule 10 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698 as amended).
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The appeal was again listed before me on 12 November 2020 at the Cardiff Civil Justice Centre for a remote hearing by Skype for Business. Mr Blackwood, who represented the appellant, and Mr Howells, who represented the Secretary of State, attended the hearing remotely.
The Judge’s Decision
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The evidence before the judge was that the appellant suffered from a congenital form of TTP which was to be distinguished from an autoimmune form of TTP. The judge summarised the evidence at paras 31–38 of her determination as follows:
“31. I have read carefully the written and oral evidence of Dr Rayment and I appreciate her attending at the hearing.
32. The appellant has a medical condition, TTP. He is receiving treatment in the UK on the National Health Service and is able to live a normal life apart from the requirement to ensure that he receives his medication at specific regular intervals. He is assisted in his day-to-day life by his former wife’s mother who cleans and cooks for him and helps with his injections.
33. The disease has two forms, autoimmune and congenital. Both versions of the disease are rare in the UK. There are only three cases in Wales – the appellant, his brother and a third person. The appellant’s condition is the congenital type. His brother [ ] also suffers from the disease.
34. It was claimed that the appellant’s siblings suffer from the disease and that two siblings have died, one in 2005 at the age of 25 and a sister in July 2019.
35. Dr Rayment states that the appellant would die within about four months if not receiving his medication. She has also found a medical/welfare charity which is able to treat the autoimmune variant of TTP.
36. Dr Rayment describes the treatment of congenital TTP in the UK as giving Factor VIII used for haemophilia which contains a small amount of 13 enzyme which is sufficient and stops the disease from manifesting. The other is infusions of fresh frozen plasma donated by donors which requires hospital attendance. Factor VIII can be given in the home by the patient himself.
37. Dr Rayment was asked but did not directly reply to the question are there any other charitable/welfare organisations providing treatment apart from the one identified at the hearing.
38. The respondent has demonstrated that there is treatment is [sic] available in Pakistan for the congenital TTP. I was referred to the MedCOI Report. There was no documentary evidence on cost or whether any medication is available free of charge. It was suggested it is likely to be expensive in Pakistan. Dr Rayment commented that the cost of the appellant’s treatment in the UK is £66,000. There was no documentary evidence to support that figure”.
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The judge then went on to consider case law, including N v SSHD, D v UK (1997) 24 EHRR 423 and Paposhvili. Then at paras 43–45, the judge reached her conclusions as follows:
“43. I am bound to follow N and the subsequent authorities which have endorsed N in the light of Paposhvili. The appellant’s case is not a ‘death bed’ case. Although two of his siblings have died for an unnamed reason, he has two siblings he believes who have congenital TTP although there is no diagnosis and they are in their late 30s and late 40s respectively. The appellant has not shown very exceptional circumstances to bring him within Paposhvili.
44. Dr Rayment describes the claimant’s treatment for TTP on the NHS as being Factor VIII as used in treating haemophilia. Factor VIII contains a small amount of Enzyme 13 which the claimant requires to provide the disease from manifesting. That is the medication currently being provided by the NHS to the appellant for congenital TTP. The claimant, unlike his siblings in Pakistan has a diagnosis. He has lost two siblings to an unnamed cause of death. His older siblings are in their late...
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