England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)

		Royal Courts of Justice Strand London, WC2A 2LL
		23 July 2015

SIR TIMOTHY LLOYD:

1. This is a renewed application for permission to appeal against a decision of the Upper Tribunal which allowed an appeal by the Secretary of State for the Home Department against the decision of the First-tier Tribunal, Judge Adio, on 27 January 2014 allowing the applicant's appeal against the Secretary of State's refusal to vary leave to enter and her decision to remove the applicant in the decision reached on 30 May 2013. The applicant appealed successfully to the First-tier Tribunal. The Secretary of State then appealed with permission granted by the Upper Tribunal. The appeal was allowed on the basis that the decision would be re-made by the Upper Tribunal.
2. A further hearing took place before Upper Tribunal Judge Deborah Taylor on 11 June 2014. As I say, the upshot of that was that the applicant's appeal against the immigration decision was dismissed. The Upper Tribunal refused permission to appeal to the Court of Appeal on an application that was made slightly out of time. An appeal notice was then lodged in the Court of Appeal. Permission to appeal was refused on the papers by Sales LJ, who said two things:

"(1) The appeal is out of time ... no good explanation or justification for this... ;

(2) In any event, even if time were extended, the appeal fails to satisfy the test for a second appeal. The decision of the Upper Tribunal was lawfully open to it on the evidence before it. The appeal turns on the particular facts and gives rise to no important point of principle or practice. There is no other compelling reason to grant permission to appeal."

3. So far as that is concerned, it is true that the appeal was out of time and earlier appeals were out of time, but not by much, and for my part I would not dispose of the case on that basis.
4. So far as the second point is concerned, Mr Ahmed, who appears before me as he did before the Upper Tribunal, submits that although it is in form a second appeal, in substance it is a first appeal because it is an appeal against the negative decision of the Upper Tribunal and he invites me, therefore, not to apply the second appeal test and submits that the first appeal test is satisfied. I do not for a moment criticise Sales LJ for dealing with it in the way that he did, but since the arguments have been put to me on the basis of a first appeal test I propose to deal with them.
5. I have been assisted by Mr Ahmed's oral submissions and by his brief written statement under paragraph 16, which admittedly reached the court very late, but Mr Ahmed has explained the reasons for that, and they are short and succinct and have been well elaborated in his oral submissions this morning.
6. The applicant's case is only under Article 8. It was put more widely in the First-tier Tribunal. It is essentially on the basis of the prejudicial effect on him that removal to Pakistan would have on him on his medical treatment for what are said to be the effects on him of a road traffic accident suffered in January 2012. The original refusal by the Secretary of State was on the ground that, even if the medical facilities are less favourable in Pakistan, suitable medical treatment would be available in Pakistan.
7. The First-tier Tribunal judge rejected the appellant's evidence as to the non-availability of the drug warfarin in Pakistan and held that there was no adequate evidence that other treatment would not be available in Pakistan. But the First-tier Tribunal judge observed that the applicant is on long-life treatment due to the accident which he suffered while he was lawfully in the United Kingdom and said that the United Kingdom had taken responsibility for his treatment. Judge Adio commented, on the basis of his having seen the applicant giving evidence, on the traumatic effect on the applicant of his condition and said that it will be "too early" to terminate the United Kingdom's treatment of him and therefore disproportionate to remove him.
8. The Upper Tribunal held that this was wrong in law as an approach in the light of absence of evidence as to the non-availability of treatment in Pakistan and the absence of any evidential basis for saying that the applicant could not, through himself or his friends or family, afford such treatment as might be available in Pakistan. So that was the basis on which the Upper Tribunal set aside the First-tier Tribunal's ruling and directed a further hearing at which it gave directions for further evidence to be adduced. That therefore had the consequence that Judge Adio's findings, while they could no doubt be referred to, were themselves set aside, because clearly it was for the Upper Tribunal to make its own conclusions and findings as to the position on the basis of whatever evidence was put before it.
9. At the rehearing, Judge Taylor did not find the applicant credible as to the availability or not of treatment and found that the evidence as to the financial position was inadequate. Mr Ahmed focuses on a number of points made in the part of Judge Taylor's determination headed "Findings and conclusions". The judge for herself said that she did not find the applicant to be a credible witness and referred to the issue about the availability of warfarin in Pakistan. She said at paragraph 15:

"Neither do I accept that the Claimant would be unable to afford the treatment. The clear evidence in his application made [in 2011] was that he was being given £400 per month from his parents. From that he paid £200 per month rent. There is no evidence from them that they are unable or unwilling to pay for treatment in Pakistan. The affidavit from his mother is entirely silent on the point. His parents have paid £8,000 to finance his studies here from 2010. I conclude they have the means to pay for his treatment in Pakistan and there is no indication whatsoever that they would not be willing to do so."

10. Mr Ahmed submits that the findings involved in that paragraph are entirely inadequate having regard to the evidence. But from what he tells me, and from the documents that I have been shown, the comment that there is no evidence from the parents that they are unable or unwilling to pay for treatment is entirely justified. He points to a loan agreement which was entered into, he says, in order to finance the studies, but that document stands by itself and is otherwise unexplained. It would be quite impossible, even if it were relevant, to seek to challenge the judge's findings on that issue on the basis of that evidence.
11. Then the Upper Tribunal judge refers to a medical report from a Dr Gaba, which was clearly prepared in order to support the application to remain in the United Kingdom, and it seems to me that Mr Ahmed's criticisms of what the judge said about that are entirely beside the point.
12. More substantively, Mr Ahmed criticises what the judge went on to say about the applicant's private life and about the balance and proportionality as between his private life and removal. It is true that what she says about his private life is limited, but it is also clear that the evidence before her as to his private life was pretty limited and it does not seem to me that it is a pertinent criticism to say that she should have gone further into the evidence.
13. The nub of the application and the proposed appeal lies in reference to an Upper Tribunal decision, Akhalu (Health claim: ECHR Article 8) [2013] UKUT 400, a case of great interest and importance in this area and a case on facts which could hardly be more different from those of the present case. The Upper Tribunal in that case set out some propositions between paragraphs 43 and 46 which provide valuable guidance where a tribunal or court is considering an Article 8 claim where an aspect of the claim is difficulty or inability to access health care in the country of nationality. At paragraph 43, the Tribunal said:

"43 ... The correct approach is not to leave out of account what is, by any view, a material consideration of central importance to the individual concerned but to recognise that the countervailing public interest in removal will outweigh the consequences for the health of the claimant because of a disparity of health care facilities in all but a very few rare cases.

44. When a judge arrives at the question of proportionality he is required to have regard to all of the circumstances relied upon by both parties. If he left out of account aspects of the claimant's private life established here because it could not be shown that they had a direct bearing on her prognosis, the balancing exercise would be fundamentally flawed and legally deficient.

45. The correct approach is for the judge to have regard to every aspect of the claimant's private life here, as well as the consequences for her health of removal, but to have in mind when striking the balance of proportionality that a comparison of levels of medical treatment available is something that will not in itself have any real impact on the outcome of the exercise. The judge must recognise, as did Judge Saffer, that it will be a rare case that succeeds where this is an important aspect of the claimant's case.

46. Put another way, the consequences of removal for the health of a claimant who would not be able to access equivalent health care in their country of nationality as was available in this country, are plainly relevant to the question of proportionality. But when weighed against the public interest in ensuring that the limited resources of this country's health service are used to the best effect for the benefit of those for whom they are intended, those consequences do not weigh heavily in the claimant's favour but speak cogently in support of the public interest in removal."

14. Mr Ahmed submitted that Judge Taylor failed to carry out the task indicated there by failing to have proper regard to all the circumstances relied upon by the parties and in particular by not giving sufficient attention to the extent of the applicant's private life. She accepted that there was a private life and that removal would be an interference with it, but it has to be said it is clear to me that the extent of the applicant's private life was very different indeed from that which was shown in clearly substantial and explicit evidence by the appellant in Akhalu.
15. So far as proportionality is concerned, essentially, as it seems to me, what it comes to is that the applicant seeks to stay here because certainly he suffered this most unfortunate accident while he was lawfully here; treatment has been afforded to him through the National Health Service, which I am willing to accept is more favourable and more suitable for him than the treatment that will be available for him in Pakistan, and what is more it does not involve any payment on his part. There is no doubt that he will be in a less favourable position in Pakistan, but as it seems to me, that is an issue which, as indicated in the paragraphs that I have read from Akhalu, is very rarely going to be sufficient to outweigh the public interest in removal and (as the Upper Tribunal put it in that case) the public interest in ensuring that the facilities of the National Health Service are principally applied to those who are lawfully here and who have the right to remain.
16. As I see it, the essence of the appeal involves no arguable point of law and is essentially a criticism of the judge's decision on the facts and accordingly it has no prospect of success. Accordingly, therefore, even waiving the issue of extension of time, and even treating the appeal by applying the first appeal tests instead of the second appeal tests, this appeal has no reasonable prospect of success and I accordingly refuse permission.