United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments

 

Upper Tribunal

(Immigration and Asylum Chamber) Appeal Number: PA/04023/2018

 

 

THE IMMIGRATION ACTS

 

 

Heard at Birmingham Civil Justice Centre

Decision & Reasons Promulgated

On 9 ^th August 2019

On 12 ^th September 2019

 

 

 

Before

 

DEPUTY UPPER TRIBUNAL JUDGE JUSS

 

 

Between

 

X K

(ANONYMITY direction made)

Appellant

and

 

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

 

 

Representation :

For the Appellant: Miss C Besso (Counsel)

For the Respondent: Mr A McVeety (Senior HOPO)

 

 

DECISION AND REASONS

1.              This is an appeal against a determination of First-tier Tribunal Judge Butler, promulgated on 11 ^th February 2019, following a hearing at Nottingham on 23 ^rd January 2019. In the determination, the judge allowed the appeal of the Appellant, whereupon the Respondent Secretary of State, subsequently applied for, and was granted, permission to appeal to the Upper Tribunal, and thus the matter comes before me.

 

The Appellant

2.              The Appellant is a male, a citizen of Albania, and was born on 22 ^nd September 1997. He appealed against the decision of the Respondent Secretary of State dismissing his claim for asylum and humanitarian protection, pursuant to paragraph 339C of HC 395, in a decision dated 4 ^th March 2018.

The Appellant's Claim

3.              The essence of the Appellant's claim is that he fears persecution by unknown persons in Albania. He had been beaten up by five people prior to his coming to the UK. He now has memory loss. He has other seriously complicating medical conditions. He cannot return.

The Judge's Findings

4.              The judge considered how, the Appellant in this appeal suffered very serious injuries after entering the UK illegally. These included a small acute subarachnoid haemorrhage overlying the right parietal lobe; intraventricular haemorrhage in right lateral ventricle; three fractures of his jaw and the loss of several teeth; a fractured ankle; and various cuts and bruises. He was in a coma for four weeks and detained in hospital until 19 ^th October 2015. He is noted to have made a good physical recovery from his injuries but his cognitive process is still causing problems. For example, he is noted as "having difficulty in processing his thoughts and carrying out relatively simple tasks" (paragraph 25).

5.              The judge went on to evaluate the Appellant's condition in the light of this background information. He observed that "the essential issue regarding the Appellant's medical condition is, however, his memory loss" and that his witness statement referred to his having flashbacks (paragraph 26). The judge referred to the expert report and noted that "Dr Thomas concludes that the Appellant will never fully recover from his psychological problems ..." (paragraph 27).

6.              In the same way Dr Thomas went on to say that the Appellant's "medication does not and cannot provide a cure for psychiatric illness nor is it in any way a substitute for a situation of external safety, necessary for lasting psychiatric recovery, together with skills, psychological help" (paragraph 28).

7.              There was also a report from Mr Young, and the judge observed that he had observed that "there is insufficient medical care and treatment available to support the Appellant in Albania" (paragraph 29).

8.              However, in evaluating all of this evidence, which the judge considered amounted to a degree of inconsistent background evidence, the judge observed that "in view of the inconsistencies in the Appellant's account, particularly regarding his family, I have considered whether this leads to the conclusion that he has not been credible in his various statements to the Home Office" (paragraph 30), before observing that the Appellant was a vulnerable witness and that this could affect his account "to the extent that the medical reports all conclude he was not fit to give evidence at this appeal" (paragraph 30).

9.              The judge ended by observing that "this is a very complex and difficult case" (paragraph 32). Ultimately, the judge's conclusion was that

"I accept that the Appellant will not have a realistic family support on return. I have also considered the country evidence as to the provision of mental healthcare in Albania. Having considered all the circumstances of this appeal, I find that the Appellant's psychiatric illness and the lack of proper healthcare provision and family support in Albania amounts to very significant obstacles to his integration in Albania if returned there" (paragraph 33).

10.          The appeal was allowed.

Grounds of Application

11.          The grounds of application state that the judge reached a conclusion that was irrational. This was because the judge had actually dismissed the appeal under Article 3, and if this was the case, then it could not be understood how the appeal was allowed under Article 8, on the basis of family support and so-forth.

12.          On 24 ^th May 2019 the Upper Tribunal granted permission to appeal.

Submissions

13.          At the hearing before me on 9 ^th August 2019, Miss Besso, appearing on behalf of the Appellant, handed up a Rule 24 response which she submitted provided a complete answer to the Respondent Secretary of State's appeal to this Tribunal. For his part, Mr McVeety relied upon the grounds of application. He stated that the judge had referred to the medical condition of the Appellant as one which did not breach Article 3. If this was the case then the appeal could not be allowed under Article 3.

14.          The judge has observed that there had been a disparity of standards of medical care that will be available in Albania compared to the UK. Mr McVeety submitted that there was evidence that the Appellant did have family support in Albania. This is because "in hospital he is recorded as having lived with his parents and siblings in Albania ..." and that moreover "that he appears to have been supported by relatives who gave him food in Albania" (see paragraph 26).

15.          For her part, Miss Besso relied upon the Rule 24 response. She submitted that the Appellant was a young man who had suffered life changing disabilities after an accident in the UK, following his arrival in this country escaping from fear of being beaten up by five men in Albania. He now had suffered very significant memory loss and was restricted in his many activities of daily living.

16.          Although reliance was placed by the Respondent Secretary of State on the case of GS (India) [2015] EWCA Civ 40 , where the House of Lords had said that, "it is not easy to think of a foreign healthcare case which would fail under Article 3 but not succeed under Article 8", this was a case where Judge Butler did not make any assessment of the Respondent's claim under Article 3 ECHR with respect to healthcare. Article 3 was considered but it was dismissed. It was in relation to the Appellant's protection claim. There was no distinct finding on whether his circumstances on return to Albania are capable of falling with an Article 3 ECHR.

17.          Secondly, it was not a purely healthcare case either. The judge's finding that there was "very significant obstacles", was dependent, not simply on the Appellant's healthcare needs, but on his significant disabilities, which would seriously interfere with his ability to integrate into life in Albania.

18.          In reply, Mr McVeety submitted that there were only a very few factors that fell outside the case of GS (India) , but that otherwise much of the Appellant's claim fell squarely within the factual matrix that had been considered by the House of Lords in GS (India) , and this being so, the appeal could not have succeeded.

No Error of Law

19.          I am satisfied that the making of the decision by the judge did not involve the making of an error on a point of law (see Section 12(1) of TCEA 2007) such that I should set aside the decision. My reasons are as follows.

20.          This is not a case where the decision is based purely on the basis of healthcare needs. Judge Butler is entirely clear about this. He states that, "I accept that the Appellant will not have a realistic family support on return", and that, "I find that the Appellant's psychiatric illness and the lack of proper healthcare provision and family support in Albania amount to very significant obstacles for his integration in Albania" (paragraph 33). What this means is that the judge had undertaken a broad evaluative assessment under Article 8 and paragraph 276ADE(1)(vi) with respect to whether the Appellant would have a realistic opportunity of being able to integrate into life in Albania (see Kamara [2016] EWCA Civ 83 ).

21.          The appeal by the judge was ultimately allowed on the basis that due to the Appellant's disabilities, the lack of family or social ties, and the damage to his memory, that he would not be able to integrate into the country of his origin. That is a very different assessment to one that is based simply on the lack of healthcare in Albania. It is as well to remember that "perversity" has a high threshold and that too often appeals are made on the basis of the decision was "irrational" when that epithet would not be appropriate (see Lord Justice Brooke in R (Iran) [1985] at paragraphs 11 and 12).

Notice of Decision

 

The decision of the First-tier Tribunal did not involve the making of an error on a point of law. The decision shall stand.

 

The appeal of the Secretary of State is dismissed.

 

An anonymity order is made.

 

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 their 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.

 

 

Signed Date

 

Deputy Upper Tribunal Judge Juss 10 ^th September 2019