Upper Tribunal (Immigration and asylum chamber), 2022-08-08, PA/03435/2020
| Appeal Number | PA/03435/2020 |
| Hearing Date | 17 June 2022 |
| Published date | 23 August 2022 |
| Date | 08 August 2022 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
Appeal Number: UI-2021-001016
PA/03435/2020
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: UI-2021-001016
PA/03435/2020
THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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On 17th June 2022 |
On 8th August 2022 |
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Before
UPPER TRIBUNAL JUDGE KEITH
Between
The secretary of State for the Home department
Appellant
and
‘JJY’
(ANONYMITY DIRECTION MADE)
Respondent
Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the respondent is granted anonymity. No-one shall publish or reveal any information, including the name or address of the respondent, likely to lead members of the public to identify her. Failure to comply with this order could amount to a contempt of court. The reason is because of the allegations concerning the respondent’s claimed sexual mistreatment in her country of origin and her claim to have been the victim of FGM.
Representation:
For the appellant: Ms A Nolan, Senior Home Office Presenting Officer
For the respondent: Ms P Solanki, instructed by Duncan Lewis Solicitors
DECISION AND REASONS
Introduction
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These are the approved record of the decision and reasons which I gave orally at the end of the hearing on 17th June 2022.
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This is an appeal by the Secretary of State against the decision of First-tier Tribunal Judge C Scott (the ‘FtT’). I refer to the respondent in this appeal, who was the appellant before the FtT, as the ‘Claimant,’ for the remainder of these reasons, to avoid confusion.
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The FtT considered the Claimant’s appeal in the context of a deportation order having been made against her, pursuant to the automatic deportation provisions of section 32 of the UK Borders Act 2007. This was as a result of an index offence, for which the Claimant was convicted on 10th October 2014, of six years’ imprisonment, later reduced to four and half years, for false imprisonment and three years for offences of assault occasioning actual bodily harm, to be served concurrently. The FtT also considered whether the Claimant had rebutted the presumption that she constituted a danger to the community of the UK pursuant to section 72 of the Nationality, Immigration and Asylum Act 2002, such that her protection claim fell for refusal, and if she had, whether she had a well-founded fear of persecution. Persecution was said to be on the basis that on her return to Somalia, her country of origin, the Claimant had a well-founded fear, as a lone female, with no family or clan support. The Secretary of State contested this. The FtT also considered her human rights claims by reference to articles 2,3 and 8 of the ECHR. The latter in particular related to the Claimant’s claimed mental health issues. The Secretary of State did not regard the Claimant as a credible witness. She had claimed in 2004 to have no family in Somalia, but also referred to relatives of her husband living there.
The FtT’s decision
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The FtT considered at §26 onwards expert medical evidence as to the Claimant’s PTSD and depression. This was in the context of the Claimant having been severely traumatised as a victim of sexual assault in Somalia. At §28, the FtT noted country expert evidence in relation to Somalia, and at §§30 to 53, set out at length the relevant law and country guidance, as to which there has been no challenge.
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The FtT began with an analysis of a previous Tribunal determination in 2004, and at §§67 to 75, analysed and concluded that the Claimant had not rebutted the presumption that she constituted a danger to the community of the UK. Her appeal on protection grounds therefore fell to be dismissed.
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The FtT went on to consider the article 3 and 8 ECHR claims. He made findings at §82 respect of the Claimant’s mental health and at §83 in relation to her physical health. He concluded that it was likely she would struggle to adapt to life in Somalia and that there was not a functioning healthcare system there (§86). Moreover, she would be highly stigmatised for her mental health conditions in Somalia (§92) and her mental health would suffer as a result of her return (§98). She would be unable to access medical facilities (§100). Although at §107, the FtT concluded that the Claimant would initially be assisted by ‘clan’ members for support, that support would be short-term. In the long term, she would end up displaced. Her prospects for remunerative work be limited (§121) and she will be at risk of sexual and/or gender-based violence on return. As a vulnerable woman with mental health conditions, she was at real risk of inhuman or degrading treatment contrary to article 3 ECHR (§122) and her article 2 rights would also be breached (§123). Applying the facts in relation to article 8 ECHR and the provisions of section 117C of the 2002 Act, the FtT carried out a detailed balancing exercise and concluded that there were very compelling circumstances over and above ‘Exceptions 1’ and ‘2’ as set out in section 117C of the 2002 Act (§135).
The grounds of appeal and grant of permission
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The Secretary of State contends that the FtT erred in finding that the article 3 threshold was met, noting the high threshold, for example in medical cases as discussed in AM (Zimbabwe) [2020] UKSC 17. It was unclear on what basis any withdrawal of current treatment would result in such a rapid and irreversible decline. The Secretary of State also contends that with the benefit of remittances, which the FtT had accepted will occur, the FtT failed to look at the evidence holistically and consider why the Claimant’s family would not provide ongoing assistance. The FtT had impermissibly separated consideration of that factor from others when assessing the feasibility of return. On a third ground, the FtT had erred when concluding that very compelling circumstances existed, based on the same flawed assessment.
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First-tier Tribunal Judge O’Garro granted permission on 13th October 2021. The grant of permission was not limited in its scope.
The hearing before me
The Secretary of State’s submissions
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In terms of the submissions that were developed before me today, Ms Nolan relied upon the analysis in AM (Zimbabwe). In contrast, at §43 onwards of the FtT’s decision, the FtT had only referred to Bagdanavicius [2013] EWCA Civ 1605 and HKK (Article 3: burden/standard of proof) Afghanistan [2018] UKUT 00386 (IAC) and had not referred to, let alone applied, the substantive analysis required under AM (Zimbabwe) and in particular consideration of the staged approach, including whether she had shown she was seriously ill and that her removal would result in the relevant suffering.
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The medical reports, as referred to at §26 of the FtT’s decision, did not support the conclusions about the consequences for the Claimant of her return. They certainly referred to a serious condition of PTSD but not the alleged consequences of removal. The further analysis at §§96 to 99 did not engage with AM (Zimbabwe). The FtT’s findings that the Claimant would struggle to cope with life in Somalia, that there would be a deterioration in her health and that treatment would be unavailable, did not come close to the Article 3 test as now understood after AM (Zimbabwe).
The Claimant’s response
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In her Rule 24 reply, the Claimant says that the Secretary of State has, in her grounds, misunderstood the article 3 claim. This was not a case where the...
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