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

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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER	Case No: UI- 2024-005116
Extempore	First-tier Tribunal No: HU /61993/2023

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On the 18 February 2025

 

Before

 

UPPER TRIBUNAL JUDGE RINTOUL

DEPUTY UPPER TRIBUNAL JUDGE BEACH

 

Between

 

Mr Tony Peters

(NO ANONYMITY ORDER MADE)

Appellant

and

 

The Secretary of State for the Home Department

Respondent

Representation :

For the Appellant: Mr N Ahmed, Counsel, Jasvir Jutla & Co

For the Respondent: Mr J Thompson, Home Office Presenting Officer

 

Heard at Field House on 31 January 2025 via CVP

DECISION AND REASONS

1.              The appellant appeals with permission against the decision of First-tier Tribunal Judge Parkes promulgated on 16 August 2024, dismissing his appeal against the decision by the Secretary of State made on 27 September 2023, refusing him leave to remain in the United Kingdom.

2.              In summary the appellant is a citizen of Nigeria, born on 14 April 1972, who entered the United Kingdom, he says, with the assistance of an agent, on 23 November 2004. His case is he has remained here ever since and that there are very significant obstacles to his integration again into Nigeria and for these reasons he falls with the Appendix PL paragraph 5.1. (b). It is also his case that his removal would be in breach of the United Kingdom's obligations pursuant to Article 8 of the Human Rights Convention. The Secretary of State did not accept that for the reasons set out in the refusal letter and as expanded upon in the response to the skeleton argument.

3.              The judge heard evidence from the appellant as well as two additional witnesses, his brother and sister. The judge then made a significant number of findings, in particular relating to the provisions of paragraph PL 5.1. (a), that is length of residence in the United Kingdom. The judge reached findings on those matters relating to how long he had lived here, concluding at paragraph 18 that he had not lived here for twenty years.

4.              The judge found that the appellant had grown up in Nigeria, that his mother still lives there and that this would not be a barrier to reintegration. He noted also that the appellant's siblings were supporting him in the United Kingdom and that he had a knee condition, for which he was receiving treatment in the United Kingdom. The judge then went on to find that given the high threshold in Article 3 cases, this was not engaged. He had not shown that he was in the United Kingdom before 2006, did not have a family life, which went beyond the usual ties between siblings, had not shown he could not access required treatment to Nigeria or that there would be very significant obstacles to his reintegration or that his removal would have unduly harsh consequences for him or anyone else.

5.              The appellant sought permission to appeal on the grounds that the judge had erred by:

                     (i)                     misdirecting himself in law, in failing properly to address paragraph PL 5.1. (b) instead focusing on paragraph PL 5.1. (a), which was not a matter which had been in front of him; taking into consideration Article 3 of the Human Rights Convention, which was not a matter raised; and failing to take into account the relevant considerations in assessing paragraph PL 5.1. (b);

                   (ii)                    failing to make a proper assessment of the evidence when assessing significant obstacles to integration, in particular the medical condition, indicating extreme difficulty in walking or mobility such that he was incapable of working and had no prospects of employment in his condition;

                (iii)                    in failing to assess Article 8 properly given the matters pleaded in grounds (i) and (ii).

6.              On 4 November 2024 First-tier Tribunal Judge Rodger granted permission to appeal on all grounds, noting it was unclear why the judge had made findings on a twenty-year residence claim when that issue had not been relied upon.

7.              When the matter came before us, Mr Ahmed relied on his skeleton argument, submitted for the hearing and on the grounds of appeal. Mr Thompson for the Secretary of State sought to persuade us that there was no material error in the judge focusing on PL 5.1. (a) rather than 5.1 (b) and that this was understandable given the manner in which the respondent had set out material relating to 5.1 (a) in her response to the appellant's skeleton argument and the First-tier Tribunal.

8.              He submitted further that there were sustainable findings in respect of PL 5.1. (b) and that it had been open to the judge to make the findings he did with regard to the health condition and that there was no error in the judge referring to Article 3 of a material nature. He submitted further that many of the findings made with respect to PL 5.1. (a) were relevant to the findings made in respect of very significant obstacles to integration. In reply, Mr Ahmed submitted that this was simply not a sustainable decision and that the grounds were made out.

9.              We are mindful that an appellate tribunal should be reluctant to interfere with the decision, particularly findings of fact made by a lower Tribunal, which had the advantage of hearing all the evidence before it, rather than the selective approach that may be taken on appeal. A Judge of the First-tier Tribunal can be taken to know the law and to have applied it properly.

10.          It is clear that Article 3 was not raised in this case. It is not at all clear why the judge made findings with respect to Article 3 and bearing in mind the applicable test for Article 3, this appears to have coloured his approach to the medical evidence.

11.          We accept also that paragraph PL 5.1. (a) was not in issue here. It is not raised in the appellant's skeleton argument and it is unclear to us why the judge could have spent so much of his decision focussing on what was not a relevant issue. He was not being asked to decide whether the appellant had been continuously resident for twenty years and we note with some concern that in some of the findings he appears to have gone behind what was accepted by the Secretary of State in terms of residence.

12.          The judge does not expressly address the very significant obstacles test relevant to paragraph PL 5.1 (b). His approach to the medical evidence is, with respect, flawed and simply does not engage with the difficulties that the appellant currently faces. Rather, he focuses on the fact that there may be a possibility of curing the injury, but not of whether this could cause the appellant any difficulty in obtaining employment or otherwise surviving on return to Nigeria.

13.          Viewing the determination as a whole, and bearing in mind, the reluctance with which we should take in interfering with the decision on the First-tier Tribunal, we find that the decision is fundamentally flawed through a failure to engage with what was actually in issue, a focus on irrelevant matters and a failure to focus on the proper test applicable to finding whether there are very significant obstacles, with reference to the appellant's health conditions, in particular relating to the serious impediment, it is said that in difficulty in walking and mobility. We find therefore that grounds (i) and (ii) are made out. Given that ground 3 is to a significant extent parasitic on grounds 1 and 2, we find that that ground is made out also. Accordingly, for these reasons, we are satisfied that the decision of the First-tier Tribunal involved the making of an error of law and we set it aside.

14.          Having had regard to the fact that there will need to be a wholesale reconsideration of all the fact-finding and the significant amount of fact-finding with specific reference to the issue of very significant obstacles, we are satisfied, having had regard to the relevant guidance, that it would in this case, be appropriate to remit this decision to the First-tier Tribunal for a fresh decision on all matters to be heard by a judge other than Judge Parkes.

Notice of Decision

1.              The decision of the First-tier Tribunal involved the making of an error of law and we set it aside.

2.              We remit the decision to the First-tier Tribunal for a fresh appeal on all issues to be heard by a judge other that Judge Parkes.

Signed Date: 16 February 2025

Jeremy K H Rintoul

Judge of the Upper Tribunal