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)
DEPUTY UPPER TRIBUNAL JUDGE RAMSHAW
Appeal No IA/37435/2013

		Royal Courts of Justice Strand, London, WC2A 2LL
		07/08/18

The Court certifies that this judgment may be cited in other cases

Lord Justice Hickinbottom:

1. The Applicant is a national of St Lucia, born in 1970. She lived in St Lucia until she was 32.
2. She arrived in the United Kingdom ("the UK") on 7 October 2002, on a six-month visitor visa. On 22 April 2003, she was granted leave to remain as a student, which was successively extended until 31 May 2011. During that eight-and-a-half-year period, the Applicant was lawfully in the UK; but then she unlawfully overstayed.
3. On 4 July 2012, she applied for leave to remain on private life grounds under article 8 of the European Convention on Human Rights ("the ECHR"), on the basis of paragraph 276ADE(vi) of the Immigration Rules as they stood at the relevant time, namely she was aged 18 years or above, had lived continuously in the UK for less than 20 years but had "no ties (including social, cultural or family)" with St Lucia. On 27 March 2013, that application was refused both under paragraph 276ADE and as an application outside the Rules.
4. The Applicant appealed, but her appeal was dismissed by the First-tier Tribunal (Immigration and Asylum Chamber) on 13 October 2014. However, the Upper Tribunal (Immigration and Asylum Chamber) set aside the decision on procedural grounds, and remitted it to the First-tier Tribunal for full rehearing.
5. In a determination promulgated on 29 October 2015 following that hearing, First-tier Tribunal Judge E B Grant ("Judge Grant") refused the appeal. The Appellant again appealed; but, in a determination promulgated on 29 June 2016, Deputy Upper Tribunal Judge Ramshaw ("the Deputy Judge") refused the appeal. The Applicant now seeks to appeal against that refusal.
6. Judge Grant found that the Applicant was seriously mentally ill, and unable to give oral evidence. As a result, the account she gave in her witness statement could not be tested, and Judge Grant proceeded on the basis that her account was true (see [9] of her determination). That account was, briefly, as follows.
7. The Applicant was the subject of harsh physical and emotional ill-treatment at school and within her family, effectively being rejected by her mother. She was born with a severe squint, for which her mother would not allow her to wear prescribed glasses with the result that she suffered chronic headaches. At the age of about 17, her squint was rectified when her elder sister took her to an eye surgeon.
8. At about the same age, the Applicant looked to her local pastor for support; but, instead, he took advantage of her vulnerability and abused her for a period of several years. He obtained an office job for her at his wife's place of work. The abuse continued until the pastor's wife came home early one day, to find him lying naked on the Applicant who was fully clothed. The Applicant refused to have any further contact with him. She was made redundant from her job. That is when she decided to come to the UK. Her family remained in St Lucia.
9. The Applicant remains traumatised by these events. Judge Grant found that she suffers from chronic mental health problems for which she requires ongoing treatment, and that she is at serious risk of suicide and self-harm, a risk that was increased by the prospect of removal to St Lucia (see [12]).
10. However, the judge also found that well-established treatment for mental illness is available in St Lucia, including ongoing drug and non-drug treatment – and that the Secretary of State could put in place effective mechanisms for the Applicant's removal to St Lucia (including medical escorts, if necessary) and her immediate admission to a mental health clinic in St Lucia in order to minimise the risk of suicide during the removal process (again, see [12]). Those findings of fact were upheld in the Upper Tribunal, and are no longer the subject of any challenge. As a result, Judge Grant found that article 3 of the ECHR (which prohibits torture, and inhuman and degrading treatment), was not engaged. The Applicant no longer relies upon article 3.
11. Turning to article 8 (the right to respect for private and family life), before Judge Grant, the Applicant did not rely upon her family life in the UK; nor does she now. She apparently has some relatives here, but they are estranged, and she has had no contact with them.
12. However, the Applicant did and does rely upon her private life. Judge Grant noted that, where an individual is receiving treatment in the UK, a mental health condition and suicide risk that is not severe enough to engage article 3 may nevertheless engage article 8, at least in principle (see [13]). However, given that appropriate mental health services and support facilities were available in St Lucia, she concluded that "it cannot be argued that the [Applicant's] return to St Lucia will have such grave consequences that article 8 is engaged with respect to the right for private life encompassing mental stability" (at [14]).
13. Judge Grant also found, at [15] of her determination, that the Applicant had provided scant evidence of a private life in the UK. The judge accepted that she had received assistance from the Black Women's Rape Action Project ("BWRAP"), and that she had some support from those who attended her church. However, she concluded that the Applicant had no network of friends, and did not make or retain friends easily. Two witnesses gave evidence in her support at the hearing. One was from BWRAP; and the other was someone who had lost contact with the Applicant several years earlier, but who had been contacted to give evidence at the hearing. No other friends or acquaintances gave evidence in support of her appeal. The only other social or other contacts upon which she relied were those from within BWRAP; but Judge Grant was satisfied that similar assistance could be obtained in St Lucia.
14. Finally, Judge Grant found that the pastor no longer posed any risk to the Applicant (see [16]).
15. The Applicant accepted those factual findings. Indeed, in the Upper Tribunal, the Deputy Judge observed as much (at [13]). She said:

"There was no evidence that she had strong social or economic ties to the UK…. The real basis of her claim to remain in the UK is her private life by reference to the medical treatment and support from counsellors which she receives here. The positive aspects of her private life in the UK do appear to be centred on the treatment she receives and the support that she receives from BWRAP."

16. The Deputy Judge accepted that Judge Grant erred in considering the medical basis of the article 8 claim discretely from the rest of the private life claim; but did not consider that error material, because the private life claim was very weak and in any event was centred upon the medical strand. On the basis of the findings of Judge Grant, the Deputy Judge concluded that the Applicant's appeal never had any real prospect of success. Judge Grant's determination thus contained no material error of law. The appeal was dismissed.
17. The Applicant, through Mr Ali Bandegani of Counsel, now seeks to rely on four grounds of appeal, the Applicant having submitted proposed amended grounds (drafted by other Counsel) at the court's request following the judgment of the Grand Chamber of the European Court of Human Rights ("ECtHR") in Paposhvili v Belgium [2017] Imm AR 867.
18. Mr Paposhvili was a Georgian national suffering from chronic lymphocytic leukaemia whom Belgium wished to return to Georgia. He claimed that his removal to Georgia would violate article 3 of the ECHR, because he would not receive effective medical care there and would therefore suffer "degrading treatment" for the purposes of article 3. "Degrading treatment" means treatment "such as to arouse in their victims feelings of fear, anguish and inferiority capable of humiliating and debasing them and possibly breaking their physical and moral resistance" (Republic of Ireland v United Kingdom (1978) EHRR 25 at [167]). For treatment to amount to a breach of article 3, it requires a "minimum level of severity" (see, e.g., Pretty v United Kingdom (2002) 35 EHRR 1 at [52]).
19. Mr Paposhvili's claim was dismissed by the Fifth Section of the ECtHR, by a majority, by reference to the test in N v United Kingdom (2008) 47 EHRR 39, under which the category of exceptional situations in which article 3 would prevent removal to another country with lesser standards of healthcare was confined to "deathbed cases", i.e. circumstances in which the death of the individual would be imminent if he were removed.
20. On the evidence, at the time of the European court judgment, Mr Paposhvili was stable, and he was not in imminent danger of dying; and, further, the court considered that though there were limits on treatment available in Georgia, the applicant was not without resources which might help in that regard.
21. The application was referred to the Grand Chamber. The effect of its judgment was considered by this court in AM (Zimbabwe) v Secretary of State for the Home Department [2018] EWCA Civ 64. First, of course, the court emphasised that the position in domestic law was authoritatively settled in favour of the criteria in N in N v Secretary of State for the Home Department [2005] UKHL 31; [2005] 2 AC 296, the House of Lords case which was endorsed by the European Court. But, in any event, in AM (Zimbabwe), Sales LJ (with whom Patten LJ and I agreed) considered that, in substantive terms, Paposhvili "only intended to make a very modest extension of the protection under article 3 in medical cases" (see [39]). He said (at [28]);

"So far as the ECtHR and the [ECHR] are concerned, the protection of article 3 against removal in medical cases is now not confined to deathbed cases where death is already imminent when the applicant is in the removing country. It extends to cases where 'substantial grounds have been shown for believing that [the applicant], although not at imminent risk of dying, would face a real risk, on account of the absence of appropriate treatment in the receiving country or lack of access to such treatment, of being exposed to a serious, rapid and irreversible decline in his or her state of health resulting in intense suffering or to a significant reduction in life expectancy' (paragraph 183). This means cases where the applicant faces a real risk of rapidly experiencing intense suffering (i.e. to the article 3 standard) in the receiving state because of their illness and the non-availability there of treatment which is available to them in the removing state or faces a real risk of death within a short time in the receiving state for the same reason. In other words, the boundary of article 3 protection has been shifted from being defined by imminence of death in the removing state (even with the treatment available there) to being defined by the imminence (i.e. likely 'rapid' experience) of intense suffering or death in the receiving state, which may only occur because of the non-availability in that state of the treatment which had previously been available in the removing state."

22. The relationship between the article 3 criteria and the article 8 criteria in the context of healthcare cases was considered by this court in the earlier case of GS (India) v Secretary of State for the Home Department [2015] EWCA Civ 40; [2015] 1 WLR 3312, which, in the words of Sales LJ in AM (Zimbabwe) at [6], "brought the test under article 3 and the approach under article 8 into close alignment" in the sense that, if a medical claim failed under article 3, it was unlikely to succeed under article 8. In GS (India), Laws LJ said:

"86. If the article 3 claim fails (as I would hold it does here), article 8 cannot prosper without some separate or additional factual element which brings the case within the article 8 paradigm – the capacity to form and enjoy relationships – or a state of affairs having some affinity with the paradigm. That approach was, as it seems to me, applied by Moses LJ (with whom McFarlane LJ and the Master of the Rolls agreed) in MM (Zimbabwe) v Secretary of State for the Home Department [2012] EWCA Civ 279 at [23]:

'The only cases I can foresee where the absence of adequate medical treatment in the country to which a person is to be deported will be relevant to article 8, is where it is an additional factor to be weighed in the balance, with other factors which by themselves engage article 8. Suppose, in this case, the appellant had established firm family ties in this country, then the availability of continuing medical treatment here, coupled with his dependence on the family here for support, together establish 'private life' under article 8. That conclusion would not involve a comparison between medical facilities here and those in Zimbabwe. Such a finding would not offend the principle expressed above that the United Kingdom is under no Convention obligation to provide medical treatment here when it is not available in the country to which the appellant is to be deported.'

87. With great respect this seems to me to be entirely right. It means that a specific case has to be made under article 8…".

23. To that, having also referred to the same passage from MM (Zimbabwe), Underhill LJ added this (at [111]):

"I think it is clear that two essential points are being made. First, the absence or inadequacy of medical treatment, even life-preserving treatment, in the country of return, cannot be relied on at all as a factor engaging article 8: if that is all there is, the claim must fail. Secondly, where article 8 is engaged by other factors, the fact that the claimant is receiving medical treatment in this country which may not be available in the country of return may be a factor in the proportionality exercise; but that factor cannot be treated as by itself giving rise to a breach since that would contravene the 'no obligation to treat' principle."

24. Sullivan LJ agreed with both judgments (see [116]).
25. In those observations, it was recognised that, although it may be said that article 3 and article 8 each translate the value of human dignity and freedom (which is "the very essence of the Convention" (Pretty at [65])) into specific rights of individuals, their focus is very different. Article 3 provides an absolute and non-derogable right to those who are faced with particular conduct which is extreme and where the demands of humanity are required to be at their most stringent. As I have indicated, that treatment must have "a minimum level of severity", a threshold with which Paposhvili was concerned. That threshold is regarded as being high. On the other hand, article 8 seeks to protect family and private life, and is concerned with the quality of life (see GS (India) at [45] per Laws LJ). It is wide in scope, and, given its nature, the rights that are derived from it inevitably come into conflict with the rights and interests of others, including those derived from the ECHR and the public interest. It therefore requires consideration of all aspects of an individual's family and private life in the form of a relative right, i.e. a right which can be the proper subject of interference by the state on lawful and necessary grounds. The threshold of engagement of article 8 is low – although it has been said that there must be a strong healthcare case before article 8 is even engaged (R (Razgar) v Secretary of State for the Home Department [2004] UKHL 27; [2004] AC 368 at [59] per Baroness Hale) – and, once engaged, it requires a balance to be performed of the interference with family and private life of all individuals involved, against the public interest and the private rights and interests of others. Therefore, the whole focus and structure of article 8 is different from article 3.
26. Before us, as his primary ground of appeal, Mr Bandegani submits that, when considering the materiality of Judge Grant's failure to consider the aggregate of article 8 factors – medical and non-medical – the Deputy Judge erred by not viewing the issue with the principles set out in Paposhvili in mind. That of course would be understandable, because the Deputy Judge's determination was some time before the judgment in Paposhvili was handed down; but, Mr Bandegani submits, as a result she erred in law. Paposhvili, he submits, lowered the evidential threshold for the engagement of article 8 if the relevant individual's mental health is the only or a material issue. It demonstrates that GS (India) – although binding on the tribunal and us – was wrongly decided. In any event, Mr Bandegani submitted, the guidance offered in GS (India) in the context of article 8 requires revisiting.
27. However, I am entirely unpersuaded that Paposhvili has any impact on the approach to article 8 claims. As I have described, it concerns the threshold of severity for article 3 claims; and, at least to an extent, as accepted in AM (Zimbabwe), it appears to have altered the European test for such threshold. However, there is no reason in logic or practice why that should affect the threshold for, or otherwise the approach to, article 8 claims in which the relevant individual has a medical condition. As I have indicated and as GS (India) emphasises, article 8 claims have a different focus and are based upon entirely different criteria. In particular, article 8 is not article 3 with merely a lower threshold: it does not provide some sort of safety net where a medical case fails to satisfy the article 3 criteria. An absence of medical treatment in the country of return will not in itself engage article 8. The only relevance to article 8 of such an absence will be where that is an additional factor in the balance with other factors which themselves engage article 8 (see (MM (Zimbabwe) at [23] per Sales LJ). Where an individual has a medical condition for which he has the benefit of treatment in this country, but such treatment may not be available in the country to which he may be removed, where (as here) article 3 is not engaged, then the position is as it was before Paposhvili, i.e. the fact that a person is receiving treatment here which is not available in the country of return may be a factor in the proportionality balancing exercise but that factor cannot by itself give rise to a breach of article 8. Indeed, it has been said that, in striking that balance, only the most compelling humanitarian considerations are likely to prevail over legitimate aims of immigration control (see Razgar at [59] per Baroness Hale).
28. Therefore, in my firm view, the approach set out in MM (Zimbabwe) and GS (India) is unaltered by Paposhvili; and is still appropriate. I do not consider the contrary is arguable.
29. Before us this morning, Mr Bandegani developed a somewhat different submission, namely that, when they considered article 8, the tribunals below failed to translate the procedural requirements imposed by article 3 in a healthcare case into their consideration of article 8. However, I see no breach of any procedural requirements here. The Applicant was given every opportunity to put forward her article 8 claim, including the healthcare element of it. Judge Grant was satisfied that appropriate healthcare facilities would be available in St Lucia on the Applicant's return, and appropriate mechanisms could be put in place during her removal. I do not see any force in this lately-developed sub-ground.
30. I can deal with the remaining grounds more briefly.
31. First, Mr Bandegani submitted that the Deputy Judge erred in concluding that the errors he identified in Judge Grant's determination – namely the discrete consideration of the medical and non-medical strands of the article 8 factors – was immaterial. Dr Staker for the Secretary of State submitted that, when read fully and fairly, Judge Grant did not err in that way. The first sentence of paragraph 14 which finds that article 8 is not engaged "with regard to respect to the right for private life encompassing mental stability", as indicated in the following sentence, is an overall conclusion in respect of article 8, and not simply a conclusion as to the medical strand of it.
32. But, on the basis that that was an error, I do not consider that the Deputy Judge erred in concluding it was immaterial on the facts as found by Judge Grant. On those facts, the Applicant's article 8 claim was extremely thin. She has no family in the UK, other than relatives from whom she is estranged and with whom she has no contact. She has no network of friends, and, on the evidence, very few friends or acquaintances. Those that she has are with her church – but few – or the BWRAP who provide her with assistance the equivalent of which, the judge found, would be available in St Lucia. Appropriate treatment for her medical condition, the judge concluded, would be available in St Lucia. The Applicant's status in the UK was always at least precarious, and, from 2011, has been unlawful.
33. In my view, the Deputy Judge was entitled to conclude that the Applicant's article 8 claim was "very weak and centred round the medical claim…" (see [37]); and that, given the findings of Judge Grant, had no real prospect of success because, even if article 8 is engaged, taking all the factors upon which the Applicant could rely into account, the removal of the Applicant would not arguably be disproportionate to the legitimate public interest in the maintenance of effective immigration control. This ground of appeal stands no real prospect of success.
34. Second, Mr Bandegani submitted that the Deputy Judge failed to examine the nature and degree of the very serious obstacles to the Applicant's reintegration on return to St Lucia. Although, at the relevant time, the criterion was "no ties", the change of wording made on 10 October 2014 to "very significant obstacles to reintegration" was expressed in the Explanatory Memorandum as reflecting no change in policy. The Deputy Judge should therefore have considered the obstacles to the Applicant's reintegration, which she did not.
35. However, in my view, the Deputy Judge did not arguably err in the way in which she dealt with this issue in [20]-[24] of her determination.
36. One ground of appeal before her was that the change to paragraph 276ADE was effective prior to the hearing before Judge Grant and this she should have considered the issue in line with the new wording. The relevant date was the date on which the Secretary of State made his decision, i.e. 27 March 2013. The rules pre-amendment then applied. The "no ties" criterion was correctly applied by Judge Grant.
37. The Deputy Judge also rejected the submission that that wording should be construed in the same way as the amended version of the paragraph, because the Explanatory Memorandum indicated that it intended no change of policy. As Dr Staker submitted, if there was no change in interpretation, then the latter wording should be construed in the light of the earlier wording, not vice versa. But, in any event, Judge Grant clearly did not err by applying the wording of paragraph 276ADE that applied at the relevant time.
38. Mr Bandegani developed a further point in his oral submissions this morning, namely that Judge Grant failed properly to consider the Applicant's ties with St Lucia. However, I do not accept that to have been the case. The judge referred particularly to the fact that the Applicant had lived most of her life – the first 32 years of it – in St Lucia, and has family there (albeit estranged) (see [11]). Additionally, the judge found that there was no credible evidence that the Applicant would not obtain medical treatment that is available from facilities in St Lucia, e.g. because of her inability to engage with local services there. Nothing in paragraph 3.5 of the report of Dr Jane Mounty – a psychiatrist engaged on the Applicant's behalf – upon which Mr Bandegani relied, assists his submission. It merely indicates that, if returned, then the Applicant will need to focus on "reconnecting with the community". The judge's approach to the "no ties" issue was at least adequate, and her conclusion that the Applicant had ties with St Lucia is unimpeachable.
39. Third and finally, Mr Bandegani submitted that the Deputy Judge erred in concluding the Judge Grant approached section 117B of the Nationality Immigration and Asylum Act 2002 correctly, by treating the Applicant's ability to speak English and (as and when she was able to work) financial independence as neutral rather than factors positively in the Applicant's favour.
40. However:

i) The approach of Judge Grant was in accordance with the judgment of this court in Rhuppiah v Secretary of State for the Home Department [2016] EWCA Civ 803; [2016] 1 WLR 4203, binding authority on him – and indeed this court.

ii) Before Judge Grant, it seems that the Applicant did not seek to argue that they should be treated as positive factors, but only as neutral. Judge Grant cannot be criticised for not dealing with a point not taken before him.

iii) I appreciate that Rhuppiah has been appealed to the Supreme Court and the appeal has been heard, although judgment not yet handed down. However, I do not consider that this appeal need be stayed pending that judgment, as Mr Bandegani submitted. Given the inherent weakness of the Applicant's article 8 claim, I accept Dr Staker's submission that, even if positive weight had been given to these two factors, that would not have made any difference because the balance would, in any event and unarguably, not have been the Applicant's favour.

41. For those reasons, I do not consider that any of the grounds of appeal stands any real prospect of success on appeal, nor do I consider that there is any other reason why the substantive appeal should proceed. Subject to my Lord, Bean LJ, I would dismiss this application.

Lord Justice Bean:

42. I agree.