Upper Tribunal (Immigration and asylum chamber), 2018-06-05, PA/13774/2017

JurisdictionUK Non-devolved
Date05 June 2018
Published date28 June 2018
Hearing Date18 May 2018
CourtUpper Tribunal (Immigration and Asylum Chamber)
StatusUnreported
Appeal NumberPA/13774/2017

Upper Tribunal

(Immigration and Asylum Chamber) Appeal Number: PA/13774/2017


THE IMMIGRATION ACTS


Heard at Field House

Decision & Reasons Promulgated

On 18 May 2018

On 5 June 2018




Before


UPPER TRIBUNAL JUDGE DAWSON


Between


sc

(ANONYMITY DIRECTION made)

Appellant


and


THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent


Representation:


For the Appellant: Ms S Mustafa, Counsel instructed by Pillai & Jones Solicitors

For the Respondent: Ms J Isherwood, Home Office Presenting Officer



DECISION AND REASONS


  1. The appellant who is a citizen of Bangladesh was born in 1986. She appeals the decision of First-tier Tribunal Judge J Hamilton who for reasons given in his decision dated 11 February 2018 dismissed the appellant’s appeal on grounds under the Refugee Convention, for humanitarian protection and with reference to Articles 2, 3 and 8 of the Human Rights Convention against the Secretary of State’s decision refusing the asylum and humanitarian protection claim which had been made on 24 August 2016.

  2. The First-tier Tribunal Judge made an anonymity direction which I continue in the Upper Tribunal in the following terms:

Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 there is a prohibition on the disclosure or publication of any material likely to lead members of the public to identify the appellant and her child as AA. Failure to comply with this order may result in contempt proceedings.”

The First-tier Tribunal Judge (the judge) used the following initials which I shall continue in my decision:

H1 First husband

H2 Second husband

H3 Third husband

AA The appellant’s daughter

  1. The background to this case is that the appellant came to the United Kingdom as a student in March 2013. In 2006 she had married H1 and a son was born. They separated and H1 kept their child denying her contact. They divorced in April 2010. In March 2014 the appellant underwent an Islamic marriage in the UK to H2. No civil marriage took place. On 19 June 2014 the appellant’s leave was curtailed with effect from 23 August 2014. On 22 August 2014 the appellant applied for leave to remain under the Immigration Rules and on Article 8 grounds on the basis that she had been a victim of domestic violence during her second marriage. This was refused on 5 November 2014 on the basis that she had failed to provide sufficient evidence to establish her claim.

  2. The appellant appealed and on 30 July 2015 First-tier Tribunal Judge Fox dismissed her appeal against that decision. The appellant had originally requested an oral hearing. However, on 8 June 2015 her solicitors asked the Tribunal to consider the appeal on the papers only in the light of instructions that they had received from the appellant. Judge Fox dismissed the appeal and gave his reasons for doing so in a detailed decision which was sent out to the parties on 30 July 2015. The appellant did not appeal that decision.

  3. On 10 August 2015 the appellant undertook a further Islamic marriage to H3 and on 7 April 2016 a daughter was born. AA suffers from health problems summarised by Judge Fox at [13]:

I consider Article 8 ECHR and the 5 stage test as set out in Razgar v SSHD [2004] UKHL 39 (“Razgar). I remind myself that the starting point is that the respondent is entitled to control the entry of foreign nationals into the UK and she is afforded a margin of appreciation in the administration of this. A fair balance must be struck between the competing interests of the individual and the needs of wider society.”

  1. The appellant thereafter claimed asylum on which she was substantively interviewed on 31 January 2017. This was refused as I have noted above in August and led to the appeal before Judge Hamilton.

  2. The appellant relies on numerous grounds of challenge to Judge Hamilton’s decision. These related to certain credibility findings by the judge and the judge’s findings on Article 3 grounds in respect of AA’s medical difficulties. Specifically as to the latter, reference is made to the judge’s conclusions at [95] which were:

Looking at the evidence as a whole, I find that AA is a little girl living with serious medical difficulties. The majority if not all of these problems do not appear, in themselves, to be life threatening. However in order to address them and ensure AA has the best possible quality of life, she is very likely to require a high level of care for the rest of her life. The seizures she experiences currently can be severe enough to require medical intervention. The record of her hospital admission in January 2018, strongly suggests they can also potentially be life threatening.”

  1. The ground then refers to [182] of Paposhvili v Belgium (Application No. 41738/10) and argues:

12. …it cannot reasonably be suggested that, in presence of the established significant medical problems (“life threatening”) of AA coupled with the unchallenged fact that the Appellant is pregnant again, AA would have an appropriate treatment and care in Bangladesh. The convention must always be interpreted and applied in a matter which renders rights practical and effective and not theoretical and illusory. The IJ has speculated that the adequate treatment is available in Bangladesh and alternatively affordable by the Appellant. This amount to material error of law rendering the decision to be flawed and warrants to be reviewed by the Upper Tribunal (IAC).

13. In paragraph 103-104, the IJ relied upon EA & Ors (Article 3 medical cases – Paposhvili not applicable) [2017] UKUT 445, and GS (India), and did not apply the more flexible test provided in paragraph 183 of ECtHR judgement of Paposhvili as compared to the test of D v UK and N v UK. Although the relaxed test has not been encapsulated into domestic law yet but AM (Zimbabwe) has sought from the Supreme Court to do so. Until than the similar matter may be stayed as per guidance by COA in AM (Zimbabwe).

14. However, the IJ has failed to give any regard to recent determination of AM (Zimbabwe) & Anor v The Secretary of State for the Home Department [2018] EWCA Civ 04 (30 January 2018), which concluded in paragraph 37 that Paposhvili has relaxed the test for violation of Article 3 with medical condition of foreign immigrants.

15. In paragraph 33-34 of the AM (Zimbabwe) above, it was concluded that the similar cases would be stayed until the Supreme Court modify domestic law according to the ECtHR determination of Paposhvili. It is respectfully submitted that the IJ has filed to apply the binding guidance given by the Court of Appeal in following paragraph 36 of AM (Zimbabwe) in light of Paposhvili case. This is a material error of law particularly in light of finding of the IJ as to significant medical problems amounting to life threatening in this matter coupled with the fact that AA is a child. Since the recent guidance AM (Zimbabwe) has not been applied as such it amounts to material error of law and thus permission to appeal to the Upper Tribunal (IAC) is being respectfully sought.

16. The IJ also has failed to give appropriate consideration to AA medical case in context of Article 8 ECHR having found that it is in the best interest of her remaining in the UK. That was a weighty factor and a primary consideration as such due weight should have been attached to the same.”

  1. After providing a summary of the grounds of challenge, in granting permission First-tier Tribunal Judge Grant-Hutchinson observed:

3. The judge has carefully considered all the evidence in relation to the Appellant’s application for protection under the Refugee Convention and has made appropriate findings which were open to him to make. It was open to the Judge to consider what weight he felt it appropriate to place on all the evidence before him. Even if the Appellant had contact with one friend through the phone not Facebook this is immaterial when considering all the evidence in the round and the fact that the Judge has given adequate reasons for his decision.

4. However it is arguable that the Judge has misdirected himself when considering the Appellant’s daughter’s health conditions by failing to take into account the recent case of AM (Zimbabwe) & Another v SSHD [2018] EWCA Civ 64 which was handed down on 30 January, 2018, a day after the hearing. Notwithstanding this, the case was in the public domain before promulgation of the decision. It is arguable that in applying said case it may have made a material difference to the outcome or to the fairness of the proceedings.

  1. Mr Mustafa confined his argument to the ground identified as arguable and did not advance any case on those that were not. The judge’s observations regarding AA’s medical difficulties are set out in detail in his decision from [89] of his decision. In respect of the claim that AA was medically unfit to travel the judge observed at [94]:

The Appellant claimed that AA was medically unfit to travel to Pakistan. There was no medical evidence about this. The Appellant said she had not in fact asked AA’s doctor if AA could make the journey. She based her belief on her own experience of caring for AA. I take into account the medical evidence when considering this issue. However, in the absence of medical evidence showing AA cannot travel, I do not find this to be the case.”

And in respect of medical treatment for AA in Bangladesh found at [96] to [99]:

96. The Appellant claimed that adequate medical treatment...

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