Upper Tribunal (Immigration and asylum chamber), 2023-03-14, PA/04768/2019
| Appeal Number | PA/04768/2019 |
| Hearing Date | 07 February 2023 |
| Published date | 29 March 2023 |
| Date | 14 March 2023 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
Appeal Number: PA-04768/2019
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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER |
First-tier Tribunal No: PA/04768/2019 |
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THE IMMIGRATION ACTS
Decision & Reasons Promulgated
On 14 March 2023
Before
UPPER TRIBUNAL JUDGE LANE
DEPUTY UPPER TRIBINAL JUDGE ALIS
Between
MR I M I Q
(ANONYMITY ORDER MADE)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr Lermer, Counsel
For the Respondent: Mr Tifan, Senior Home Office Presenting Officer
Interpreter: Mr Al Harbi
Heard at Field House on 7 February 2023
Order Regarding Anonymity
Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant (and/or any member of his family, expert, witness or other person the Tribunal considers should not be identified) is granted anonymity. No-one shall publish or reveal any information, including the name or address of the appellant, likely to lead members of the public to identify the appellant (and/or other person). Failure to comply with this order could amount to a contempt of court.
DECISION AND REASONS
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The Appellant is a citizen of Palestine who was born on 10 August 1982. He came to United Kingdom on 24 March 2017 and claimed asylum. The Respondent rejected his application in a decision dated 3 May 2019. The Appellant appealed this decision under Section 82 of the Nationality, Immigration and Asylum Act 2002 and his appeal was listed before Judge of the First-tier Tribunal Turner (hereinafter referred to as the “FTTJ”) on 23 October 2019. In a decision promulgated on 5 November 2019, the FTTJ dismissed the Appellant’s asylum and humanitarian claims but allowed his appeal under article 3 ECHR.
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The Respondent sought permission to appeal that decision on 24 November 2019 and on 9 January 2020 Judge of the First-tier Tribunal Bulpitt found it arguable the FTTJ had erred. The operative part of the grant being in the following terms:
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The grounds assert that the Judge erred in (1) making a material error of law by allowing the appeal on article 3 Human Rights grounds and refusing it on Humanitarian Protection grounds and (2) failing to give adequate reasons.
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It is arguable that the Judge’s central findings in relation to Humanitarian Protection and article 3 ECHR are contradictory and therefore irrational and perverse. As the Judge recognises at [34] the definition of serious harm for the purposes of the Humanitarian Protection includes “torture or inhumane treatment or punishment of a person in the country of return”- a definition which mirrors the protection provided by article 3. In the circumstances it is arguable the Judge’s decision is irrational.
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The grounds argued are not clearly defined and although numbered separately they appear to relate to the same issue. In any event all grounds may be argued.
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Directions were issued for the appeal to be dealt with on the papers given the onset of the Covid-19 pandemic. On 28 July 2020 Upper Tribunal Judge Hanson (hereinafter referred to as UTJ Hanson) considered the application on the papers and in a decision promulgated on 20 August 2020 found there had been an error in law. The operative part of UTJ Hanson’s decision being in the following terms:
“23 The Judge’s findings that internal relocation was not reasonable is not adequately reasoned. There is reference to [76] pf the refusal letter in which it is written:
76. It is noted that due to the restriction of movement of Palestinians in Gaza strip and the West Bank make internal relocation extremely difficult.
24 The test for internal relocation is whether it is unreasonable in all the circumstances which may not be the same as it being difficult. Also, IQ is the holder a valid Palestinian passport. What is commonly referred to as Palestine, recognised officially as the State of Palestine by the United Nations and other entities, includes the West Bank and Gaza Strip. There is merit in the assertion by the Secretary of State that the Judge failed to consider the reasonableness of IQ living in another part of the Palestine such as the West Bank.
25 The grounds assert the Judge erred as the country material refers to Israel’s control and restriction of movement from Gaza to the West Bank which is possible rather than moving in the other direction which is said not to be permitted.
26 The Secretary of State also asserts the Judge erred in finding there will be a breach of article 3 ECHR as the finding IQ’s family will be unable to assist is unfounded on the evidence. There is also UNWRA assistance in the Gaza strip which the Judge fails to factor into the assessment.
27 In N (Burundi) [2003] UKIAT 00065 the Tribunal said that, where the humanitarian situation is poor in the country to which a failed asylum seeker is to be returned that in itself will not generally reach the high threshold needed for a breach of article 3. The Tribunal was guided by the approach in SK [2002 UKIAT 05613 (starred) in which the Tribunal acknowledged that an individual’s personal circumstances could be relevant (example if he had a physical or mental disability) but, nonetheless, “there must be a threshold which is of general application. Croatia has suffered the ravages of a fierce and bitter civil war. Thus the mere fact that there will be a return to hardship resulting from that cannot produce a breach of human rights. The general situation must be taken into account as most what is generally accepted in the society in question.”
28 In relation to destitution, MB, YT, GA and TK v SSHD [2013] EWHC 123 it was held that case law establishes that article 3 imposes no general obligation on a contracting state to refrain from moving a person to another state or territory in which he would be destitute. It was not the function of article 3 to impose a minimum standard of social support for those in need. A breach of article 3 only occurred when deliberate state action was taken to prohibit a person from sustaining himself by work and when accommodation and the barest of necessities were removed.
29 In Said [2016] EWCA Civ 442 the Court of Appeal held that to succeed in resisting removal on article 3 grounds on the basis of suggested poverty/deprivation, which was not the responsibility of the receiving country, whether or not the feared deprivation was contributed to by a medical condition, the person liable to deportation was required to show circumstances which brought him within the approach in D v UK (1997) 24 EHRR 423 and N 47 EHRR 885. Reduced circumstances or life expectancy did not of itself give rise to a breach of article 3.
30 The Court of Appeal in MA Somalia [2018] EWCA Civ 994 have confirmed Said to be correct adopted what was said in that case. There was no violation of article 3 by reason only of a person being returned to a country which for economic reasons could not provide him with basic living standards. This the Court of Appeal has further reiterated the approach in Said in MS (Somalia) [2019] EWCA Civ 1345.
31 I find the judge has erred in law for the reasons set out in the Secretary of State’s grounds and lack of analysis and application of the article 3 case law referred to above. I set the decision of the First-tier Tribunal aside. The following directions shall apply to the future management of this appeal:
(a) The decision of the First-tier Tribunal shall be set aside. The findings in relation to IQ’s nationality, date of birth, possession of a valid passport, place of origin in Gaza, rejection of the core of his claim as a result of adverse credibility findings, personal qualifications, presence of family in Gaza, and immigration history, shall be preserved findings.
(b) List for a resumed hearing before Upper Tribunal Judge Hanson sitting at North Shields on the first available date after 1 September 2020. Time estimate three hours.
(c) IQ shall file with the Upper Tribunal and serve upon the Secretary of State’s representative and up to date are consolidated, indexed and paginated bundle containing all the documentary evidence upon which he seeks to rely in support of his appeal….Witness statements in the bundle must be signed, dated, contain a declaration of truth and shall stand as the evidence in chief of the maker who shall be made available for the purposes of cross-examination (if any) and re-examination only.
(d) an Arabic interpreter shall be provided by the Upper Tribunal.”
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An application was made to set aside this decision under Rule 42(2)(c) of the Tribunal Procedure (Upper Tribunal) Rules 2008. Directions were subsequently issued by Mr Justice Swift on 7 April 2021 following a hearing at Field House on 31 March 2021.
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Further directions were issued by Upper Tribunal Judge Blundell on 22 April 2021. This matter and linked appeals were listed before Mr Justice Swift and Upper Tribunal Judge Blundell initially on 10 and 11 June 2021 with a resumed hearing on 29 June 2021. The Upper Tribunal issued a reported judgement EP (Albania) & Ors (rule 34 decisions; setting aside) [2021] UKUT 233 (IAC).
The Upper Tribunal concluded between paragraphs [86] and [90] of EP the...
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