Upper Tribunal (Immigration and asylum chamber), 2021-08-23, [2021] UKUT 232 (IAC) (MY (Suicide risk after Paposhvili))
| Jurisdiction | UK Non-devolved |
| Judge | Upper Tribunal Judge McWilliam, Deputy Upper Tribunal Judge Thomas |
| Status | Reported |
| Date | 23 August 2021 |
| Published date | 15 September 2021 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Subject Matter | Suicide risk after Paposhvili |
| Hearing Date | 06 May 2021 |
| Appeal Number | [2021] UKUT 232 (IAC) |
Upper Tribunal
(Immigration and Asylum Chamber)
MY (Suicide risk after Paposhvili) [2021] UKUT 00232 (IAC)
THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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On 6 May 2021 |
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………………………………… |
Before
UPPER TRIBUNAL JUDGE McWILLIAM
DEPUTY UPPER TRIBUNAL JUDGE THOMAS
Between
M Y
(ANONYMITY DIRECTION MADE)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Amended decision pursuant to Rule 42 (The Tribunal Procedure (Upper Tribunal) Rules 2008)
Representation:
For the Appellant: Mr B Fullbrook, Counsel, instructed by Duncan Lewis & Co Solicitors
For the Respondent: Ms J Isherwood, Home Office Presenting Officer
Where an individual asserts that he would be at real risk of (i) a significant, meaning substantial, reduction in his life expectancy arising from a completed act of suicide and/or (ii) a serious, rapid and irreversible decline in his state of mental health resulting in intense suffering falling short of suicide, following return to the Receiving State and meets the threshold for establishing Article 3 harm identified at [29] – [31] of the Supreme Court’s judgment in AM (Zimbabwe) v Secretary of State for the Home Department [2020] UKSC 17; [2020] Imm AR 1167, when undertaking an assessment the six principles identified at [26] – [31] of J v Secretary of State for the Home Department [2005] EWCA Civ 629; [2005] Imm AR 409 (as reformulated in Y (Sri Lanka) v SSHD [2009] EWCA Civ 362) apply.
Direction Regarding Anonymity – Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008
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
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The Appellant claims to be a citizen of the Occupied Palestinian Authority (OPA). His date of birth is 1 January 1992.
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It is the practice of the Tribunal that an anonymity order is made in all appeals raising asylum or international protection claims.1 We see no reason to interfere with the direction to anonymise the Appellant made by UTJ Pitt on 28 October 2020.
The background
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The Secretary of State seeks to deport the Appellant pursuant to a deportation order dated 27 May 2015. This followed the Appellant’s conviction on 10 July 2014 at Southwark Crown Court for robbery and assault occasioning actual bodily harm for which he was sentenced to 22 months’ imprisonment. The Appellant made an application to have the deportation order revoked. The Secretary of State refused to revoke the deportation order in a decision dated 16 March 2016. The Appellant appealed against this decision of the Secretary of State on the grounds that deportation breaches the United Kingdom’s obligations under 1951 UN Convention Relating to the Status of Refugees (‘Refugee Convention’) and his rights under Articles 2, 3 and 8 of 1950 European Convention on Human Rights (‘ECHR’). His appeal was dismissed by the First-tier Tribunal (First-tier Tribunal Judge Myers) in a decision that was promulgated on 5 September 2016, following a hearing on 22 August 2016.
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The Appellant was refused permission to appeal against the decision of Judge Myers by the First-tier Tribunal and the Upper Tribunal. However, he sought a judicial review of the Upper Tribunal decision refusing him leave by way of a Cart challenge2. Permission was refused in the Administrative Court. The Appellant sought permission to appeal this refusal to the Court of Appeal and eventually permission was granted by Hickinbotton LJ on 17 March 2018. In granting permission, Hickinbotton LJ stated as follows:
“In the circumstances, I consider that the appropriate course is to grant permission to proceed with the judicial review, and remit the matter to the Administrative Court. The Secretary of State may wish to consider whether to concede the judicial review, so that the matter is remitted to the Upper Tribunal which might be regarded as the most appropriate forum for the issue of whether the First-tier Tribunal determination is wrong to be considered and determined.”
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A consent order was subsequently approved in the Administrative Court whereby the decision of the Upper Tribunal refusing permission to appeal against the First-tier Tribunal was quashed following the grant of permission to apply for judicial review.
The “Error of Law” decision
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The matter came before Upper Tribunal Judge Craig on 19 September 2019. He found that the judge materially erred and set aside Judge Myers’ decision in a decision dated 22 May 2020. The salient parts of the error of law decision read as follows:-
“28. Since the hearing, as had been anticipated when AM (Zimbabwe) had been argued in the Court of Appeal, the applicant in that case had appealed further to the Supreme Court and his appeal was heard on 4 December last year.
29. Judgment in that case has only very recently been given (on 29 April 2020) and the Supreme Court’s decision as set out at paragraph 34 was that ‘in the light of the decision in the Paposhvili case, it is from the decision of the House of Lords in the N case that we should depart today’.
30. In the judgment of this Tribunal now, the jurisdictional background under which this Appellant’s case falls to be determined is potentially very different from that which applied when Judge Myers reached her decision. Although she was obliged to apply the law as it was believed to be at the time she made her decision (as was the Court of Appeal in AM (Zimbabwe)), the Supreme Court decision in AM (Zimbabwe), having regard to the ECtHR decision in Paposhvili, has retrospect effect the consequences of which is that Judge Myers’ decision in this case was not reached after careful analysis of the law which, in light of the Supreme Court decision in AM (Zimbabwe) applied. While it may be that even applying the most recent authority the Appellant’s appeal will still not succeed, he is at least entitled to have the case considered in light of the most recent authority, which may include consideration of whether, and if so to what extent the decision of the Court of Appeal in J is compatible with Paposhvili as considered by the Supreme Court in AM (Zimbabwe).
31. One of the reasons why Judge Myers may not have analysed the Sprakab Report more fully is because in the light of the jurisprudence it was then believed to be, as she observed (e.g. at paragraph 32), even if the Appellant was to be returned to the Palestinian territories he still would not be able to succeed under Article 3; however, in light of the Supreme Court’s decision in AM (Zimbabwe) this might not continue to be the case, because there has been no analysis as to the availability of treatment which the Appellant might require, let alone with regard to the suicide risk itself.
32. It follows that, although the judge was bound to follow the jurisprudence such as existed at the time of her decision, technically her failure to have regard to decisions which had not been made by that time was an error of law, and accordingly her decision must be set aside and remade.
33. Accordingly, I make the following directions:-
Directions
1. The appeal will be relisted for a hearing in the Upper Tribunal.
2. Consideration will be given as to whether the appeal should be reheard by a panel, and further directions will be given to the parties in due course”.
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On 28 October 2020 Upper Tribunal Judge Pitt issued directions following a case management hearing. She refused the Appellant leave to obtain an expert report on health provision available in OPA and Morocco given the delay and cost that this would require and where material on these matters will be available from other sources.
The Grounds of Appeal
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The Appellant appeals against the decision of the Respondent of 16 March 2016 on the basis that return to OPA would mean he was at a risk of treatment such as would breach the UK’s obligations under the Refugee Convention and his rights under Articles 2 and 3 ECHR. Additionally, he submits that removal to either Morocco or OPA would breach his rights under Article 3 ECHR (on health grounds) and Article 8 ECHR.
The issues
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We have to determine the following questions of fact;-
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Whether the Appellant is excluded from protection of the Refugee Convention: Article 33(2) of the Refugee Convention and Article 14(5) of the Council Directive (2004/83/EC) (Qualification Directive) with reference to s.72 Nationality, Immigration and Asylum Act 2002.
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Whether the...
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