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

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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER	Case No: UI-2022-006332
	First-tier Tribunal No: HU/16945/2017

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 20 February 2025

 

 

Before

 

UPPER TRIBUNAL JUDGE CANAVAN

 

 

Between

 

A P

(ANONYMITY ORDER MADE)

Appellant

and

 

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation :

 

For the Appellant: Mr D. Chirico KC, instructed by Birnberg Peirce & Partners

For the Respondent: Ms H. Gilmore, Senior Home Office Presenting Officer

 

 

NOTICE OF DECISION

 

Further to the error of law decision sent by the Upper Tribunal on 03 October 2024 (annexed).

 

And having heard submissions on the issue of whether to set aside the First-tier Tribunal decision, and the scope and appropriate forum for remaking, at a case management hearing held on 06 February 2025.

 

And while recognising that there are areas of agreement between the parties relating to the factual background of the case that can be agreed before the next hearing.

 

And there being no objection to the appeal being remitted to the First-tier Tribunal for a fresh decision to be made.

 

Notice of Decision

 

The First-tier Tribunal decision sent on 08 November 2022 is set aside

 

The appeal is remitted to the First-tier Tribunal for a fresh hearing

 

1. The Upper Tribunal is conscious of the lengthy history of this appeal and the further delay arising in the determination of the error of law decision. Many of the First-tier Tribunal's findings were open to the judge to make on the evidence that was before him at the time. However, it is not practicable to preserve individual findings made in relation to certain aspects of the legal definition when (i) those findings were made on the basis of evidence that is now nearly 3 years old and any remaking would need to be assessed by reference to up to date evidence; and (ii) in any event, an assessment of Article 3 on medical grounds needs to be considered in the round by the judge who will rehear the case.

 

2. A fresh decision will need to be made. Mr Chirico indicated that those representing the appellant needed to take instructions as to whether there is likely to be any current argument relating to Article 8. Remittal to the First-tier Tribunal would allow time for up to date evidence and for all relevant arguments to be prepared and presented.

 

 

M. Canavan

Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

06 February 2025

 

 

 

[ANNEX]

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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER	Case No: UI-2022-006332
	First-tier Tribunal No: HU/16945/2017

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

 

.........03 October 2024.........

 

 

Before

 

UPPER TRIBUNAL JUDGE CANAVAN

DEPUTY UPPER TRIBUNAL JUDGE KELLY

 

 

Between

 

A P

(ANONYMITY ORDER MADE)

Appellant

and

 

SECRETARY OF STATE FOR THE HOME DEPARTMENT

 

Respondent

Representation :

For the Appellant: Mr D. Chirico (now KC), instructed by Birnberg Peirce & Partners

For the Respondent: Mr E. Tufan, Senior Home Office Presenting Officer

 

Heard at Field House on 27 November 2023

 

Order Regarding Anonymity

 

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant 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. Failure to comply with this order could amount to a contempt of court .

DECISION AND REASONS

1.              The Upper Tribunal has been conscious of, and apologises for, the lengthy delay in promulgating this decision. The delay was in large part caused by an unavoidable and fairly lengthy period of fitness absence of one of the panel members, which was followed by a phased return to work.

2.              This case has a long factual and procedural history, which is set out in detail in the First-tier Tribunal's decision. It is not necessary to reproduced it for the purpose of this decision.

3.              The decision that is the subject of this most recent appeal, which itself has a lengthy history, is a decision dated 01 December 2017 to refuse a human rights claim in the context of deportation proceedings.

4.              Nor is it necessary for the purpose of this decision to set out the details of the appellant's antecedents save to say that, since the latest human rights decision was made, the appellant continued to commit further offences. The most serious was a conviction on 19 February 2020 for robbery, possession of an offensive weapon, possession of heroin and cocaine, and driving without insurance. The appellant was sentenced to a total of 12 years' imprisonment and is not expected to be released from prison until at least 2027.

First-tier Tribunal decision (2022)

5.              The most recent decision made by the First-tier Tribunal, which is the subject of this particular appeal to the Upper Tribunal, is a decision made by First-tier Tribunal Judge Bulpitt (as he then was) ('the judge'), which was sent on 08 November 2022. He dismissed the appeal on human rights grounds.

6.              Having set out the history of the case in detail, the judge began his findings by taking an earlier First-tier Tribunal decision from 07 July 2014 as his starting point. He considered the findings relating to the nature of the appellant's familial relationships. The appellant had a close relationship with his mother, who visited Trinidad every year. His mother visited her siblings and their children. She also had close friends in Trinidad. It was also found that the appellant had a close relationship with his daughter ('RAB') although he was not in contact with her at the time. His relationship with RAB's mother was 'long over' [52].

7.              The judge went on to consider what had happened since that decision. The appellant entered into a new relationship with 'CD'. They had two children who were born in 2015 and 2017. The judge found that there was little evidence to support the appellant's claim that he was living with them in the periods when he was not in prison. He observed that the limited GP records produced suggested that he was living with his mother rather than CD [53].

8.              The judge set out a detailed chronology of events with reference to the relevant evidence before him. Evidence from 2015 and 2017 suggested that he still did not have any contact with RAB and referred to the appellant commencing Family Court proceedings to gain contact [54]. Following his release from immigration detention in October 2017, the appellant said that his relationship with CD broke down.

9.              The judge described the appellant's account of sinking into a spiral of depression. He moved to Portsmouth where he 'got lost' in drug taking [18]. In October 2019 he was beaten and stabbed by drug dealers. After this incident, he moved back to London [56]. This seems to have been a low point for the appellant. His attempts to 'get clean' with the help of the sister failed [57]. When he first saw Dr Bell, a retired consultant psychiatrist, on 11 February 2020, he was so unwell that Dr Bell did not feel able to complete an assessment. Dr Bell stated that, at that time, his working diagnosis was that the appellant was suffering from Severe Depressive Disorder, with Suicidality and Psychotic features co-morbid with drug addiction (heroin and crack cocaine) [58].

10.          The judge noted that within two weeks of that meeting with Dr Bell the appellant had committed the serious index offences, which led to a total sentence of 12 years' imprisonment [59]. The evidence indicated that, since the appellant had been in prison, he had gone 'cold turkey' and has received support to help him make changes surrounding his drug use. As a result, his physical and mental health had improved [60].

11.          Dr Bell conducted a second interview with the appellant on 24 February 2021. He noted that the appellant appeared to be in better physical and mental condition although he described feeling down from time to time. The appellant told Dr Bell that when he is feeling down he thinks of his children and his mother and at these time he does not feel that life is not worth living. The appellant was taking Mirtazapine (an anti-depressant) and was no longer suffering paranoid ideation or other psychotic phenomena. In his report from May 2021, Dr Bell considered the appellant to be much improved since he was imprisoned, but 'must be regarded as continuing to be vulnerable and predisposed to recurrence of his severe psychiatric disorder.' [61].

12.          The evidence showed that the appellant was referred to the Health and Wellbeing Team at HMP Pentonville in February 2022. It was noted that he was experiencing distressing symptoms of PTSD. An assistant psychiatrist had been working with the appellant through a 'CBT approach' to help the appellant understand his symptoms and to build coping strategies. He had shown insight and developed clear goals to build resilience with his mental health. The appellant was still having weekly CBT sessions [62].

13.          Judge Bulpitt went on to consider the third report prepared by Dr Bell in May 2022. Dr Bell saw the appellant again on 08 March 2022. The appellant was reported to still be clean from drugs but he was disturbed by the length of the sentence and concerned about his immigration status. The appellant had become more depressed and suffered from a 'significant degree of paranoid ideation'. He continued to engage with support services but was still far less deteriorated then he was on the first occasion he met him. Dr Bell's opinion relating to diagnosis and prognosis remained the same as in his previous report [63].

14.          The judge went on to consider what weight to place on the evidence relating to the appellant's health. He concluded that weight could be given to the opinion of Dr Bell because he had seen the appellant every year for three years. The GP records were broadly consistent. Having considered all the evidence in the round, the judge was satisfied that the appellant suffered from a severe psychiatric disorder, which is exacerbated when he takes drugs. He concluded that the appellant was a 'serious ill person' for the purpose of the relevant legal test [64]-[65].

15.          The judge then turned to consider the most up to date evidence relating to his familial relationships in the UK. He found that it was likely that the appellant continued to have a close relationship with his mother and siblings. He no longer had any contact with CD and their two children. He only had occasional telephone contact with RAB when she was visiting his mother. The judge accepted that the appellant had not been to Trinidad since he was first sent to prison over 14 years before. However, he did have extended family members there who his mother was in close contact with. The judge found that the appellant tried to minimise the extent of his family connections in Trinidad, which he found to be more extensive than the appellant was prepared to admit. While recognising that his ties with those relatives was likely to be weaker, there were people there who might be able to provide him with accommodation and support [66]-[69].

16.          In light of his factual findings, the judge then took a structured approach to the legal framework. He directed himself to the relevant decisions in AM (Zimbabwe) v SSHD [2020] UKSC 17, AM (Article 3, health cases) Zimbabwe [2022] UKUT 131 (IAC), and the Grand Chamber decision in Savran v Denmark [2021] ECHR 1025 [41]-[44]. It is worth setting out the headnote to AM (Zimbabwe) (2022) for the purpose of this decision because it distilled various points from the relevant case law at that stage:

1.       In Article 3 health cases two questions in relation to the initial threshold test emerge from the recent authorities of AM (Zimbabwe) v Secretary of State for the Home Department [2020] UKSC 17 and Savran v Denmark (application no. 57467/15):

(1)                Has the person (P) discharged the burden of establishing that he or she is "a seriously ill person"?

(2)  Has P adduced evidence "capable of demonstrating" that "substantial grounds have been shown for believing" that as "a seriously ill person", he or she "would face a real risk":

(i) "on account of the absence of appropriate treatment in the receiving country or the lack of access to such treatment,

(ii) of being exposed

(a) to a serious, rapid and irreversible decline in his or her state of health resulting in intense suffering, or

(b) to a significant reduction in life expectancy"?

2.       The first question is relatively straightforward issue and will generally require clear and cogent medical evidence from treating physicians in the UK.  

3.       The second question is multi-layered.  In relation to (2)[ii][a] above, it is insufficient for P to merely establish that his or her condition will worsen upon removal or that there would be serious and detrimental effects.  What is required is "intense suffering". The nature and extent of the evidence that is necessary will depend on the particular facts of the case.  Generally speaking, whilst medical experts based in the UK may be able to assist in this assessment, many cases are likely to turn on the availability of and access to treatment in the receiving state.  Such evidence is more likely to be found in reports by reputable organisations and/or clinicians and/or country experts with contemporary knowledge of or expertise in medical treatment and related country conditions in the receiving state.  Clinicians directly involved in providing relevant treatment and services in the country of return and with knowledge of treatment options in the public and private sectors, are likely to be particularly helpful.

4.       It is only after the threshold test has been met and thus Article 3 is applicable, that the returning state's obligations summarised at [130] of Savran become of relevance - see [135] of Savran.

17.          The judge considered the 'first question' identified by the Upper Tribunal in AM (Zimbabwe) (2022) i.e. is the person a 'serious ill person'. The judge placed weight on the evidence provided by Dr Bell, but did not accept his conclusions uncritically. He noted that, despite the appellant's claim that he intended to commit suicide when at his lowest ebb in February 2020, there was little evidence of any serious attempt to do so at the time. The GP records at the time recorded anxiety and depression but no mention was made of a suicide attempt [74]. Nevertheless, the judge acknowledged Dr Bell's opinion that removal to Trinidad, and the sudden disruption in the emotional and social context, was likely to be a serious traumatic event in itself that was likely to cause a serious decline in his mental state [75]. Considering the evidence relating to the appellant's medical history as a whole, the judge was satisfied that there was a 'real risk that, untreated, his severe psychotic disorder would expose him to a serious, rapid and irreversible decline in his health resulting in a significant reduction in life expectancy.' [76].

18.          The judge turned to the 'second question' identified in AM (Zimbabwe) (2022) i.e. is there a real risk of a serious, rapid and irreversible decline in his state of health or a significant reduction in life expectancy due to the absence or lack of access to appropriate treatment. The judge reminded himself that this required a 'multi-layered' approach on the facts of the case [77].

19.          In assessing this aspect of the legal framework, the judge noted that the evidence from Dr Bell showed that the appellant's condition had improved since he was sent to prison in February 2020. This indicated that his condition could be managed by appropriate treatment. This treatment involved a daily does of Mirtazapine and talking therapy [77]. The judge went on to consider whether appropriate treatment was likely to be available in Trinidad. He considered the report of Kevin Peters, who is a criminologist in Trinidad. The judge noted that he did not have any relevant experience or expertise relating to the mental health system in Trinidad [80]. Nevertheless, his evidence suggested that, even if the appellant had to pay privately for treatment, it was likely that he would be able to access support sessions at the cost of about £50 a week. There was nothing in the evidence relating to his current treatment in prison to suggest that the appellant had any particularly complex needs. What the appellant needed was on-going support and structure, which could be provided in Trinidad by psychological support services and familial support. For these reasons, the judge concluded appropriate treatment and support was likely to be available with emotional and financial support from his family [81].

20.          The judge went on to consider whether the appellant would be able to access the treatment that was likely to be available in Trinidad. He concluded that the evidence provided by Mr Peters suggested that he would be able to access such treatment. However, he took into account what Dr Bell had said about the difficulties that people suffering from psychiatric disorders co-morbid with drug addition have in engaging with services, even if they are available. Dr Bell also had concerns that the instability and lack of structure caused by removal might also act as a barrier to engagement. The judge acknowledged that this was born out by the appellant's failure to engage with support in the United Kingdom when it was offered. He observed that: 'the sad reality is that to date the only time the appellant has accessed support and treatment has been when he is in prison.' [82].

21.          The judge concluded as follows:

'83. Applying this to the question at hand I am unable to conclude that any exposure to a serious rapid and irreversible decline in the appellant's health or significant reduction in his life expectancy the appellant might face as a result of his illness is on account of the absence of appropriate treatment in the receiving country or the lack of access to such treatment. On the evidence before me it is likely that the treatment the appellant needs for his severe psychotic disorder is available and accessible in Trinidad. That the appellant may not access that treatment and may consequently suffer, is a sad reality whether he is in the United Kingdom (as he has demonstrated), or in Trinidad. This does not mean that any suffering he faces is on account of the lack of treatment or lack of access to treatment in Trinidad. His history suggests it is the likely outcome whether in the United Kingdom or in Trinidad.

84. It follows that I find that the appellant has not established the high bar that the threshold test in an article 3 cases represents, that is to say he has not proved to the required level a case which unchallenged would establish the infringement of his article 3 rights. Although I accept he suffers from a serious illness I do not accept that it is likely that on account of the absence of appropriate treatment in the receiving country or the lack of access to such treatment he would suffer a serious, rapid and irreversible decline in his state of health resulting in intense suffering or a significant reduction in life expectancy. Accordingly the burden does not shift to the respondent to dispel any doubts and his article 3 claim must fail.'

Upper Tribunal proceedings

22.          The appellant applied for permission to appeal to the Upper Tribunal on the following grounds:

(i)                  The First-tier Tribunal erred in [83]-[84] in appearing to find that the appellant needed to show that his situation would be worse in the receiving state than in the removing state. The approach was not consistent with the decision in Paposhvili v Belgium [2017] Imm AR 867, which was considered in detail in AM (Zimbabwe) (2020).

(ii)                The First-tier Tribunal erred in its approach to the evidence about the availability of potential family support in Trinidad.

(iii)              The First-tier Tribunal erred in the application of the relevant burden and standard of proof.

23.          First-tier Tribunal Judge Boyes granted permission in an order dated 29 December 2022.

24.          We have considered the First-tier Tribunal decision, the evidence before the First-tier Tribunal, the grounds of appeal, and the submissions made at the hearing, before coming to a decision in this appeal. It is not necessary to summarise the oral submissions because they are a matter of record, but we will refer to any relevant arguments in our decision.

25.          The Supreme Court in HA (Iraq) v SSHD [2022] UKSC 22 reiterated that judicial caution and restraint is required when considering whether to set aside a decision of a specialist tribunal. In particular, judges of the specialist tribunal are best placed to make factual findings. Appellate courts should not rush to find misdirections simply because they might have reached a different conclusion on the facts or expressed themselves differently: see AH (Sudan) v SSHD [2007] UKHL 49 and KM v SSHD [2021] EWCA Civ 693. Where a relevant point is not expressly mentioned by the tribunal, the court should be slow to infer that it has not been taken into account: see MA (Somalia) v SSHD [2020] UKSC 49. When it comes to the reasons given by the tribunal, the court should exercise judicial restraint and should not assume that the tribunal misdirected itself just because not every step in its reasoning is fully set out: see R (Jones) v FTT (SEC) [2013] UKSC 19. We have borne those considerations in mind when reaching our decision.

Decision and reasons

Upper Tribunal Judge Canavan:

Error of law

26.          The judge prepared a detailed, careful, and well-structured decision. Many of his findings of fact have not been challenged and were open to him to make on the evidence. The issue for determination in this appeal is narrow.

27.          The judge took a structured approach to the steps set out in AM (Zimbabwe) (2022). He found in favour of the appellant in relation to the first question i.e. finding that the appellant was a seriously ill-person. This finding has not been challenged.

28.          This appeal focuses on his approach to the second 'multi-layered' question i.e. whether the appellant had adduced evidence capable of demonstrating that, if removed, he would face a real risk of being exposed to a serious, rapid and irreversible decline in his state of health resulting in intense suffering on account of (i) the absence of appropriate treatment in the receiving country ('availability of treatment'); or (ii) the lack of access to such treatment ('access to treatment').

29.          In relation to the first issue, regarding the availability of treatment, the judge found that the treatment the appellant was receiving in the UK was not complex. It consistent of a prescription of Mirtazapine and regular talking therapy. It is unclear why those representing the appellant obtained a report from a criminologist in Trinidad rather than making direct contact with mental health and drug treatment services there. Nevertheless, on the evidence provided by Mr Peters, the judge found that the treatment that the appellant required was likely to be available in the receiving state. In other words, the appellant had failed to show that he would be exposed to a serious, rapid and irreversible decline in his state of health because of the absence of appropriate treatment in the receiving country.

30.          This narrowed the assessment to the second issue i.e. whether there was a real risk that the appellant would be exposed to a serious, rapid and irreversible decline in his state of health because he would be unable to access the treatment. This was a multi-layered question, which included considering the availability and effectiveness of family support as well as evidence relating to the appellant's engagement with treatment services in the UK. In relation to this question, I find that the judge took a wrong turn for broadly the same reasons outlined in the first ground of appeal.

31.          In my assessment, the judge was required to consider whether, at the date of the hearing, the act of removing the appellant would expose him to a real risk of treatment amounting to a breach of Article 3 of the European Convention of Human Rights. The European Court of Human Rights has made clear that in cases involving naturally occurring illness (albeit it is exacerbated by drug use in this case), it is the act of expulsion that engages the obligation of the expelling state for any consequences that might occur in the receiving state. In Paposhvili the Strasbourg Court explained the principle as follows:

'188. As the Court has observed above (see paragraph 173), what is in issue here is the negative obligation not to expose persons to a risk of ill-treatment proscribed by Article 3. It follows that the impact of removal on the person concerned must be assessed by comparing his or her state of health prior to removal and how it would evolve after transfer to the receiving state.'

32.          This was reiterated by the Strasbourg Court in the more recent decision in Savran v Denmark [2019] ECHR 651 (01 October 2019):

'131. ... In cases concerning the removal of seriously ill persons, the event which triggered the inhuman and degrading treatment and which engaged the responsibility of the returning State under Article 3, was not the lack of medical infrastructure in the receiving State. Likewise, the issue was not one of any obligation for the returning State to alleviate the disparities between its healthcare system and the level of treatment existing in the receiving State through the provision of free and unlimited healthcare to all aliens without a right to stay within its jurisdiction. The responsibility was that of the returning State, on account of an act - in this instances, expulsion - which would result in an individual being exposed to a risk of treatment prohibited by Article 3.'

33.          At the date of the hearing before the First-tier Tribunal, it was said that the appellant had been receiving support and treatment to help him to stay off drugs since he went to prison in 2020. It was said that he had been clean for a period of nearly two years. In May 2022, Dr Bell reported that the appellant was significantly more healthy, both physically and mentally, than he had been when he first met him in February 2020. However, his depressive symptoms had deteriorated to some extent since his last assessment in November 2021 because of the length of the sentence imposed and concerns surrounding his immigration status.

34. This was the 'real world' situation in the UK that the judge was required to consider at the date of the hearing. Although the appellant's failure to engage with drug treatment services in the past was likely to be relevant to the overall assessment of whether he might struggle to do so again in Trinidad, it still needed to be considered in the context of the current situation, which showed that the appellant had been engaging with drug treatment services for the last two years, albeit in the controlled environment of a prison.

35. The appellant has a long history of criminality arising from his addiction to drugs, but the most recent conviction was by far the most serious. The appellant had engaged with services for a fairly length period of time (now likely to be even longer) and was said to be clean. It was the removal from this situation to one where he might not engage with services that was relevant.

36. It is only when the judge reached his findings at [83] (see [21] above), that the decision seems to have taken the wrong path. First, it includes somewhat contradictory findings that, on the one hand, treatment is available and accessible in Trinidad, but on the other, that the appellant might not access that treatment. The reason for the latter finding appeared to be rooted in Dr Bell's opinion that someone in the appellant's position with a psychiatric disorder comorbid with drug addiction is likely to find it 'extremely difficult to engage in services even where there are well organised outreach services' and that 'the lack of any structure in his life would act against such engagement.' As the judge noted, this was the difficulty that the appellant faced in the past when drug treatment orders were made in the community, even with the close family support that he has in the UK.

37. It is the finding in the penultimate line of [83] that, in my assessment, discloses an error of law. The 'sad reality' was not solely the comparison with the appellant's past failure to engage with drug treatment services in in the UK, although that was relevant to the assessment of whether he might engage with services in Trinidad. Nor was it by reference to what might happen if there was a hypothetical release from prison in the UK at the date of the hearing. At the date of the hearing, the evidence showed that the appellant was in a stable situation albeit in an institutional environment, was engaging with services, and was said to have been clean for a period of nearly two years. It was the act of removal from that situation which was relevant to the assessment of Article 3.

38. I have considered whether the error would have made any difference to the outcome of the appeal given that, on at least one of the findings in [83], the judge found that treatment would be both available and accessible in Trinidad. But because the judge went straight on seemingly to make a contrary finding about the 'sad reality' of the situation in the next line I find that it is not possible to predict the outcome had the situation at the date of the hearing been used for the purpose of the assessment.

39. Because I have found an error of law in relation to the first ground, it is not necessary to go on to consider the second in any detail. The judge was fully aware of the fact that the appellant was not likely to have such close ties with relatives in Trinidad. It was within a range of reasonable responses to the evidence for him to conclude that, given his mother's continuing ties to her close relatives, that they might be able to provide him with some level of support and/or his family in the UK could also provide a certain level of support from afar. For these reasons, we conclude that the second ground does not disclose an error of law.

40. Because I have found an error of law relating to the first ground, it is not necessary to go on to determine the third ground relating to whether it was necessary for the judge to go on to consider whether the burden might shift to the respondent to 'dispel any doubts'. That would be a matter for remaking, if it were to take place (see our comments below).

41. For the reasons given above, I conclude that the First-tier Tribunal decision involved the making of an error on a point of law.

42. Highly unusually, the parties will note that the panel members were unable to come to an agreed conclusion on the assessment of whether the First-tier Tribunal decision involved the making of an error of law in relation to the first ground. This disagreement has contributed to some of the additional delay in issuing this decision. Although some thought was given to whether it might be appropriate to rehear the case before a different panel, in light of the lengthy delay, it was not considered to be in the interests of either party to rehear the case at this stage when statutory provision has been made for a decision to be made in such circumstances.

43. The First-tier Tribunal and Upper Tribunal (Composition of Tribunal) Order 2008 applies to the exercise of the powers conferred by section 145(1) of and paragraph 15 of Schedule 4 to The Tribunals, Courts and Enforcement Act 2007. Article 8 of the order states that if the decision of the tribunal is not unanimous, the decision of the majority is the decision of the tribunal; and the presiding member has a casting vote if the votes are equally divided. This is a panel of two rather than three judges so there can be no majority. The votes are equally divided. As the presiding member of the panel, the decision that I have made in relation to error of law is the decision of the Upper Tribunal. Although it is highly unusual for the Upper Tribunal to include a dissenting opinion, given that the parties have been notified of a disagreement, they are entitled to know the broad reasons for that disagreement, which Deputy Upper Tribunal Judge Kelly has set out in his brief dissenting opinion below.

Deputy Upper Tribunal Judge Kelly:

44. I would have dismissed this appeal on this ground. The reason for my disagreement with the decision does not lie in Judge Canavan's accurate, detailed and comprehensive exposition of the law. Rather, my disagreement lies in its application to the facts of this appeal.

45. The First-tier Tribunal judge made an evidence-based finding, which is not the subject of challenge, that whilst the appellant is 'clean' (that is to say, drug-free) when residing in the structured environment of imprisonment, he is likely to relapse upon his release due to him not engaging with any medical treatment that may be available to him when at liberty. That finding has not been challenged. In any event, it was supported by the evidence of the appellant's history and the opinion of Dr Bell, which is cited at paragraph 83 of the First-tier Tribunal's decision. The judge also found - and, again, this finding is not challenged - that the medical assistance that would be accessible to the appellant in managing his drug addiction whilst at liberty in Trinidad would be broadly comparable to that which would be available to him whilst at liberty in the United Kingdom. I cannot therefore fault the reasoning of the First-tier Tribunal judge in reaching his conclusion that if the appellant were to be hypothetically deported to Trinidad at the date of the hearing, then the predicted decline in his health would be attributable to his release from the structured environment of his current incarceration rather than to his deportation to Trinidad. The appellant's release from his sentence of imprisonment prior to deportation, whenever such deportation is assumed to occur, is an inevitable real-world fact. It would accordingly have been wrong, in my judgement, to ignore that fact when assessing the causative link between the predicted post-release decline in the appellant's health and his hypothetical deportation to Trinidad at the date of hearing. The First-tier Tribunal judge was accordingly right, in my judgement, to compare the appellant's post-release situation in Trinidad to what it would be in the United Kingdom, albeit otherwise based upon the facts appertaining at the date of the hearing. I do not therefore agree that the First-tier Tribunal judge made an error of law in relation to this ground of appeal.

Disposal

46. Having found an error of law, another thorny issue that arises is what the best way forward might be in this appeal. We made clear at the start of the hearing that, given the length of the appellant's sentence, any current decision made in relation to this appeal is likely to be academic. We were told that the earliest possible release date was likely to be 2027. The situation with the appellant's health would need to be reviewed again nearer the time when he is due to be released from prison. If the appellant has continued to engage with services, by that date, it is likely that he would have received support and treatment for his psychiatric condition comorbid with drug addiction for many years.

47. In these circumstances, any detailed assessment of the appellant's health and risk on removal at the current time is unlikely to assist either party one way or the other. In our view, it would also not be an effective use of court time or public funds for the Upper Tribunal to remake the decision with reference to updated medical evidence if there is no realistic prospect of removal for several years.

48. We are conscious of the long history of this case. A deportation order has been withdrawn on at least one previous occasion. The decision that is the subject of this appeal was made on 01 December 2017. However, the situation changed markedly once the appellant was sentenced to a period of 12 years imprisonment, rendering his removal unlikely for the foreseeable future.

49. We also bear in mind that section 12 of The Tribunals, Courts and Enforcement Act 2007, which underpins the Upper Tribunal's statutory jurisdiction, confers discretion on the Upper Tribunal to decide whether it is appropriate to set aside a decision or not even if it has found an error of law ('the Upper Tribunal may (but need not) set aside the decision of the First-tier Tribunal'). The Upper Tribunal must also consider the overriding objective to deal with cases fairly and justly, which might include dealing with cases in ways which are proportionate to the circumstances, including the anticipated costs.

50. We conclude that it is not appropriate to make a decision about the disposal of the appeal without inviting further submissions from the parties. We encourage the parties, if possible, to come to some agreement as to what they consider the best way forward might be in light of the observations made above. Ultimately, it will be a decision for the Upper Tribunal. Pragmatic options that might be available are:

(i)                  For this error of law decision to stand, the First-tier Tribunal decision to be set aside, and for the decision in relation to the appeal to be remade (most likely in the Upper Tribunal given a previous remittal). Court time and public funds would be expended on remaking what would be an academic decision. The respondent would still need to review the situation again nearer the time when the appellant is due to be released. For the reasons indicated above, this would not be the preferred option;

(ii)                For this error of law decision to stand without setting aside the First-tier Tribunal decision. In this scenario, the appellant has the findings relating to the First-tier Tribunal decision, but no further expenditure of court time and public funds (for all parties) need be spent on remaking. The respondent would need to review the situation again nearer the time when the appellant is due to be released;

(iii)              For the respondent to withdraw the underlying decision to deport/refusal of a human rights claim. In this scenario, we envisage that the error of law decision would stand, the First-tier Tribunal decision might need to be formally set aside to 'reignite' the original appeal, and then the Upper Tribunal could give consent for the appellant to withdraw the appeal. The respondent would need to review the situation again nearer the time when the appellant is due to be released.

(iv)              Any other reasonable approaches suggested by the parties.

Directions

51. The parties shall consider their positions in light of this decision and are encouraged to discuss the best way forward.

(i)                  If an agreed position can be found, the parties shall file and serve an agreed position statement no later than 28 days from the date this decision is sent.

(ii)                If the parties cannot come to an agreed position, further written submissions shall be filed by both parties on the issue of disposal no later than 28 days from the date this decision is sent.

52. The Upper Tribunal make a decision on disposal following receipt of further submissions from the parties.

Notice of Decision

The First-tier Tribunal decision involved the making of an error of law

The Upper Tribunal will await further submissions before deciding how to dispose of the appeal

M. Canavan

Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

30 September 2024