(Immigration and Asylum Chamber) Appeal Number: IA/29308/2011
THE IMMIGRATION ACTS
Heard at Field House
On 12 February 2013
On 15 July 2013
UPPER TRIBUNAL JUDGE CRAIG
mr ransford kusi
For the Appellant: Mr D O’Callaghan, Counsel, instructed by Hackney Law Centre
For the Respondent: Ms M Tanner, Home Office Presenting Officer
DETERMINATION AND REASONS
1. The appellant is a national of Ghana, who was born on 5 May 1984. He entered this country on 5 July 2008 as a working holidaymaker, permission having been granted for this purpose valid from 30 May 2008 until 30 May 2010. His visa had been granted in Cyprus, to where he returned on 26 September 2008. He then returned to the UK on 10 July 2009, having obtained his degree in Cyprus. His visits to the UK have always been lawful and but for the circumstances set out below, it is not suggested that he would not have abided by all the conditions of his visa.
2. For the purposes of this appeal it is relevant to note there is no suggestion that when he first entered this country, or when he returned from Cyprus, the appellant was aware that he was anything other than a fit young man with no serious medical condition.
3. While in this country, lawfully, in or about September 2009, the appellant was diagnosed with end stage renal failure. It is not necessary for the purposes of this determination to set out the precise extent of his illness. It is sufficient that I record that he was and remains required to undergo regular dialysis, three times a week, and that should this treatment stop, he will die, probably within a week to ten days.
4. There is no doubt whatsoever but that this appellant is very seriously ill indeed; he is currently being kept alive because of the treatment he is continuing to receive under the NHS.
5. On 3 June 2010, that is very shortly after his visa expired, the appellant applied for leave to remain outside the Immigration Rules on human rights grounds.
6. This application was refused by the respondent on 26 September 2011. The refusal letter is dated the same date.
7. The appellant appealed against this decision, and his appeal was heard before Immigration Judge Braybrook, sitting at Taylor House on 22 March 2012, but in a determination dated 6 April 2012 and promulgated on 13 April 2012, Judge Braybrook dismissed the appellant’s appeal.
8. The appellant appealed against this decision and was granted permission to appeal by First-tier Tribunal Judge McDade on 2 May 2012. In setting out the reasons for granting permission, Judge McDade stated as follows:
“1. The appellant has applied for permission to appeal a determination of Judge of the First-tier Tribunal Braybrook promulgated on 13th April 2012 in which she dismissed the appellant’s appeal against the Secretary of State’s refusal to grant him leave to remain in the United Kingdom under Article 3 of the ECHR.
2. The grounds of application for permission to appeal assert, inter alia, that the judge has failed to take a proper account of the difficulty in accessing dialysis treatment in Ghana and the fact that were the appellant fail to do so he would face death within ten days.
3. The judge has properly cited the case of N although it is arguable that too strict a construction has been placed on it in the appellant’s circumstances and that she has not properly considered the appellant’s difficulties in accessing treatment…”.
9. Standard directions were sent to the parties along with the grant of permission and the appeal then came before me in September 2012.
10. On 20 September 2012, I considered this appeal on the papers and found that Judge Braybrook’s determination had contained a material error of law, such that her decision must be set aside and re-made by the Upper Tribunal. I made this Decision on the papers for reasons which were set out within my decision, in the following terms:
“1. No response having been received from the respondent to the directions issued by Principal Resident Judge Southern, which were served on the parties together with the grant of permission to appeal, and in particular the respondent having not made any submissions as to the need for an oral hearing, this Tribunal determines without a hearing, pursuant to Rule 34 of the Tribunal Procedure (Upper Tribunal) Rules 2008 that the determination of First-tier Tribunal Judge Braybrook contains a material error of law, such that her decision must be set aside and remade by the Upper Tribunal. My reasons for so finding are as follows.
2. The appellant was diagnosed with acute kidney failure in 2009 while in this country lawfully. The medical evidence, which was accepted by the First-tier Tribunal, was that he needs regular dialysis and that without it he will die, probably within about ten days. It is also acknowledged that dialysis is available in Ghana but at a very significant cost and at very limited locations. The cost is getting on for £10,000 per year, and it is said in the grounds that dialysis is available only in Accra and Kamasi.
3. Judge Braybrook’s reasoning supporting her finding that the appellant had not established that there was no funding available to pay for his treatment from members of his extended family is in my judgment inadequate, in particular where she appears to rely on the appellant’s failure to provide an “explanation why on an earlier occasion his uncle had been willing to help fund the appellant’s holiday in the UK”, because the costs of this holiday would clearly have been much less than the cost of the treatment he would require for dialysis in Ghana. There also appears to be no consideration of whether logistically the appellant would actually be able to be placed on dialysis within ten days of returning to Ghana, even if the funds for this treatment could be made available.
4. Even though the appellant does not appear to have argued that his appeal should be allowed under Article 8, as distinct from under Article 3, I consider that this aspect of the Appellant’s case should have been considered, particularly in the absence of a sustainable finding as to whether or not the Appellant would be able to access the treatment he would need within the very limited timeframe available. I consider that Judge Braybrook’s failure to consider the appeal under Article 8 was also a material error of law.
5. When considering whether it was proportionate for Article 8 purposes to remove this appellant now, in circumstances where it had arguably not been established that his treatment could be continued immediately on return, Judge Braybrook should also have had in mind (and this Tribunal will have to consider) the decision of the Court of Appeal in JA (Ivory Coast) and ES (Tanzania) v SSHD  EWCA Civ 1353.
6. The position of people such as this appellant who have suffered renal failure while in this country has been considered by this Tribunal in GS, which was remitted back to this Tribunal by the Court of Appeal; it is likely that the decision in this case will have been promulgated before this appeal is relisted.”
11. I also directed that the appeal was to be listed before me for a hearing on the merits and the parties were given permission to adduce further evidence with regard to whether or not the appellant would be likely to be able to commence treatment on return to Ghana. In particular, I gave permission to the respondent to adduce evidence of any steps she may have taken before the hearing to ensure that the appellant would be able to access treatment which was available in Ghana immediately on his return, and for what period such treatment would be expected to continue without any financial contribution being provided by or on behalf of the appellant. I directed that this evidence should be filed with the Tribunal and served on the other party by no later than seven days before the hearing.
12. The respondent chose not to adduce evidence of steps taken to ensure that the appellant would be able to access any treatment available in Ghana immediately on his return (she had taken no steps) and before the hearing, the Tribunal’s decision in GS & EO (Article 3 - health cases) India  UKUT 387 had been promulgated.
13. I heard evidence from the appellant, who was cross-examined. I also heard submissions on behalf of both parties. I recorded the evidence and submissions contemporaneously and my notes of the hearing are contained within my Record of Proceedings. Accordingly, I shall not set out verbatim everything which was said during the course of the hearing, but shall refer below only to such parts of the evidence and submissions as are necessary for the purposes of this determination. I have, however, had regard to everything which was said during the course of the hearing as well as to all of the very many documents contained within the file.
14. At the outset, Ms Tanner accepted that the respondent had written to the appellant confirming that his application would be dealt with as an in-time application, and that this remained the case. Accordingly he should be treated as someone who has remained in this country lawfully pursuant to section 3C of the Immigration Act 1971. The letter from the respondent of 8 November 2010 confirmed that the application would be treated as an in-time Article 8 application outside the Rules. Ms Tanner also stated that she only wished to ask the appellant questions with regard to how much his father was paying for the education at university and college of two of his siblings. She would be submitting that whether or not the father would choose to pay for the appellant’s medical treatment in Ghana was a question of priorities.
15. The appellant relied on the witness statements which he had made and gave further evidence as to his current medical condition. For the purpose of these proceedings I can summarise this as being that he is very seriously ill indeed and that he is dependent at the moment on assistance which is being provided by the Hackney Migrant Centre which is a charity based in Hackney. This charity provides him with food every week. It also provides him with other assistance.
16. In cross-examination, the appellant was asked detailed questions about his finances, in particular as to how much his father was earning. Although the appellant was not able to provide detailed figures, his best estimate was that his father would earn about 600 to 800 cedies a month if his crops were doing well and the market was good, but his income would fluctuate. (This would equate to between £200 and under £300 per month). Certainly, he did not have a lot of money coming in. So far as his sponsorship was concerned when he was a working holidaymaker, his uncle had sponsored him for his air fare which was about £600. He had earned money while he was being educated, during the vacation.
17. Ms Tanner did not seek to challenge in cross-examination the assertion made by Mr O’Callaghan that the evidence showed that the tuition/living costs of the appellant’s two siblings currently being educated amounted to around 4,000 cedies per year (2,000 each) (which was under £1,500 in total).
18. At the outset, Ms Tanner made it clear that the respondent’s position was that she did not intend to do anything to ensure that transitional arrangements were in place should the appellant be returned. Her position was that even if this appellant could not afford dialysis, and the consequence would be that if returned he would die, that still did not place any obligation on this country. This country did not have a moral responsibility with regard to this appellant.
19. It was clear from the decision in GS that an appeal under Article 3 could not succeed. It was however accepted that in GS, at paragraph 85(8) at page 23, the Tribunal had considered Article 8 and had found, at paragraph 85(8)(b) that “in principle Article 8 can be relied upon in cases of this sort”. This was because removal in these circumstances would on the face of it engage Article 8(1). The appellant’s physical and moral integrity would be affected as per Bensaid v UK  33 EHRR 10.
20. However, the Tribunal in GS acknowledged that Article 8 was not an absolute right, and the economic well-being of the country would be relevant when considering proportionality. This was a weighty matter.
21. It was acknowledged that the Tribunal in GS, at paragraph 85(8)(c) did consider that the type of leave which an applicant had was relevant. In the cases considered there, the applicant had no leave, whereas in this case this appellant had 3C leave pending the outcome. The court in GS had stated that it would be very rare for an appellant to succeed under Article 8 if he had absolutely no right to be in the UK, but it was acknowledged that that was not the case here.
22. Although in the refusal letter, it was said that the appellant had not established a private life in this country, this was not now relied upon. For the purposes of this appeal, it was accepted that the appellant did have a private life in this country. It was accepted that the fact that he was receiving life saving treatment without which he would be dead was part of his physical and moral integrity.
23. The issue for this Tribunal was how far Article 8 could be engaged when Article 3 was not breached. In this case, although it was argued that the appellant would be unable to afford the treatment and it was not widely available, it was not suggested that he would be discriminated against with regard to the availability of treatment, nor would such treatment be unavailable because of internal turmoil within the country.
24. In this case, the Tribunal had to consider, on the evidence presented, to the balance of probabilities, whether it could be believed that the appellant’s father was in as poor a financial position as claimed. On the evidence presented, it would seem that the appellant’s father’s income fluctuated. The appellant could not say what it was but claimed it was around £300 per month. The cost of the treatment would appear to be £1,600 per two months, plus living accommodation.
25. The Tribunal also had to consider the type of family support, physical and emotional, which the appellant could expect to receive. On the evidence, both his father and uncle had supported him when he wanted to travel abroad and the family also continued to support his two siblings who were in further education. This did not indicate anything more than the normal support provided to children. This support would be open to the appellant.
26. Ms Tanner submitted further that following GS, although it was relevant whether or not an applicant was in the UK lawfully, that was just one aspect of what had to be considered. It would still be unusual for a case to succeed under Article 8 unless that case would also succeed under Article 3. The Tribunal should not give undue emphasis to the fact that the appellant was in this country lawfully. Article 8 should not be used as a back-door to mop up cases which could not succeed under Article 3. The respondent would also re-emphasise that the public interest has to be of paramount importance in such cases.
27. For completeness, Ms Tanner wished the Tribunal to be reminded, without criticising the Tribunal, that Article 8 had not been raised before the First-tier Tribunal, or in the grounds.
28. In response to this last point, I reminded Ms Tanner that I had raised Article 8 myself, having in mind the decision of the Court of Appeal in JA (Ivory Coast).
29. On behalf of the appellant, Mr O’Callaghan relied on the submissions which are cogently made in his skeleton argument. With regard to this Tribunal’s consideration of Article 8, although this had not been argued in the First-tier Tribunal and was not argued in the grounds, the Tribunal was entitled to look at the application and, if a point was obvious, take it. Further, it was open to the respondent to have challenged this by way of reply, but the respondent chose not to do so. The appellant’s main arguments can be summarised as follows:
30. The appellant was in this country lawfully when he became unwell, having been here for over a year. Because his application is being treated as having been made in-time, he is entitled to remain here until his appeal has been determined, and accordingly he is entitled to receive healthcare treatment in this country. His treatment is accordingly lawful. The medical evidence was clear. He required dialysis, three times per week, for four hours at a time, and without this treatment he would die within seven to ten days.
31. The Tribunal had to bear in mind that people on dialysis such as this appellant were subject to infection. This appellant had been hospitalised for two weeks recently and also in December 2011. Two places had been identified in Ghana where dialysis treatment was available, in Accra and Kumasi, but they were respectively four and a half hours and five hours from where his parents lived and this appellant could not be expected to travel to either one of them three times a week. So looking at the cost of medical care, together with accommodation and living expenses, the appellant would have to find about £13,000 per year.
32. On the basis of the evidence before the court, these funds were simply not available. Although the appellant’s uncle had agreed to sponsor the air flight of the appellant when he was a working holidaymaker, the sum required for this journey was far less than the sums required now.
33. It was accepted on behalf of the appellant that in light of GS (India), the appellant could not succeed under Article 3.
34. The appellant relied on the decision of the Court of Appeal in JA (Ivory Coast), although this authority had not been referred to in GS (India). It was the appellant’s case that there was an assumption of responsibility in this case. The appellant was lawfully in this country and receiving medical help. The responsibility remained until this country was able to return him in circumstances where he would not die within about ten days. The point was not whether or not this country should assume responsibility forever, but when such responsibility would be ended. In suicide cases, it was recognised that a person at risk of suicide could not be returned until this country had ensured that he or she would have appropriate care and support on return. That is when responsibility would come to an end. The appellant did not seek to argue that this country had a responsibility forever, but it did not end the moment of return. An appropriate period of care should be ensured.
35. In answer to a question from the Tribunal as to what it was suggested such an appropriate period would be, Mr O’Callaghan replied that every case was fact-specific. However, in this case, the respondent had said she would not take any steps. In suicide cases, arrangements would normally be made to ensure that someone would meet the returnee at the airport and/or that that person was placed into hospital on return. In this case, the appellant’s position was that he should not be returned unless and until arrangements had been made to ensure that he would not die, painfully, almost immediately.
36. In terms of proportionality, Mr O’Callaghan relied on the Huang approach. There had to be a fair balance between, on the one hand the public interest but on the other hand the deleterious effect upon a person of having to leave the country in circumstances such as the present. As per Sedley LJ, in particular at paragraphs 16 and 17 of JA (Ivory Coast), the appellant was not required to show exceptional circumstances “as compelling” as those in D. The fact that in this case this appellant was in this country lawfully was important. It was a weighty factor.
37. I am grateful to both Ms Tanner and Mr O’Callaghan for the careful and balanced way in which their submissions were presented. I make the following findings of fact.
38. The appellant should be treated as a person whose presence in this country has always been lawful. At the time when he was diagnosed with renal failure, he was in this country lawfully, and he had not been aware before he came here that his health would deteriorate in the way in which it did. This is not what might sometimes be described as a case of “health tourism”.
39. The appellant is only alive today because of the care which he has been receiving, lawfully, under the NHS. He is also dependent on assistance which is given to him by the Hackney Migrant Centre, a charity based in Hackney, both in the form of food but also in the form of advice and other assistance.
40. The appellant is very seriously ill indeed. Unless he continues to receive regular dialysis treatment he will die, probably within seven to ten days of this treatment being discontinued. If he were to be removed, he would need to receive treatment immediately before his flight, but in any event, his situation on return would be very dangerous indeed. There are only two places in Ghana where dialysis is currently available, one in Accra and the other in Kumasi. The cost of this treatment is around £10,000 per year. Also, because the appellant could not travel from his parents’ home to either of these places three times a week (the journey time is far too long) he would need to find about another £3,000 per year for accommodation and subsistence. The subsistence would in those circumstances be fairly basic, and the appellant would be on his own.
41. Although the evidence relating to what income is currently available to the appellant’s family is not entirely clear, I am satisfied on the balance of probabilities that the income available to the appellant’s family is substantially below the sums which would be required to pay for his ongoing treatment. I also take into account that despite the indication from this Tribunal, in the directions which I gave, that the Tribunal would take into consideration any transitional arrangements which might have been made, the respondent has made no attempt to secure at the very least that there would be continuity of treatment for at least a limited period following the appellant’s return.
42. In these circumstances, I conclude, on the balance of probabilities, that it is more likely than not that if returned now this appellant would die within seven to ten days.
43. As accepted on behalf of the appellant, following the decision of the Presidential Tribunal in GS (India), which I regard as binding on me, the appellant’s appeal cannot succeed under Article 3. Treatment is available in Ghana, and it is clear from cases such as N, that the inability to pay for such treatment does not found a claim under Article 3. However, as was made plain by the Court of Appeal in JA (Ivory Coast), that does not necessarily preclude an appeal under Article 8 succeeding. I have in mind in particular the observations of Sedley LJ at paragraphs 16 and 17 of JA (Ivory Coast), as follows:
“16. This court has more than once stressed the need for structured decisions on proportionality. One of the elements of such a structure capable of having a bearing here is the need to relate the proportionality of an interference with private life to the purpose for which it is said to be necessary. Here the prescribed purposes are, or include, the economic wellbeing of the country, which cannot afford to be the world's hospital, and the prior right of a settled population to the benefit of its inevitably finite health resources. Against these may legitimately be weighed both the moral duty to help others in need and the fact that the United Kingdom has until recently found it both morally compelling and economically possible to extend such help to the appellants and others like them, alongside and not evidently to the detriment of the settled population.
17. There is no fixed relationship between Article 3 and Article 8. Typically a finding of a violation of the former may make a decision on the latter unnecessary; but the latter is not simply a more easily accessed version of the former. Each has to be approached and applied on its own terms, and Ms Giovannetti is accordingly right not to suggest that a claim of the present kind must come within Article 3 or fail. In this respect, as in others, these claims are in Mr Knafler's submission distinct from cases such as D and N, in both of which the appellant's presence and treatment in the UK were owed entirely to an unlawful entry.”
44. Then, at paragraph 21, the court in JA (Ivory Coast) emphasised that “the alien subject to expulsion in both D and N were foreign nationals who had never been lawfully admitted to the United Kingdom”, which was contrasted (at paragraph 22) with “the present appellants” who “are in a significantly different legal position from D and N”. The court then continued (at paragraph 22) as follows:
“This in turn, as Ms Giovannetti contingently concedes, gives them a toehold on Article 8”… [While there should not be] exaggerated importance [given for] the notion of assumption of responsibility… [nonetheless] the question is whether in either case the true toehold is sufficient to enable them to resist removal. This must depend in large part on the remainder of the material facts…”.
45. It is important to note that the Presidential Tribunal in GS (India) was specifically not invited to consider the applicants’ appeals before them under Article 8. This was stated by the Tribunal at paragraph 85(8)(a) where the Tribunal also stated that “in those circumstances, we do not express any conclusions on the issue [regarding Article 8]”.
46. However, the Tribunal in GS (India) then went on to find as follows, at paragraph 85(8)(b):
“However, in principle Article 8 can be relied on in cases of this sort. The removal of the individual would, on the fact of it, engage Article 8(1) on the basis of an interference with his or her private life as an aspect of that individual’s physical and moral integrity” (see Bensaid v UK  33 EHRR 10)…”.
At paragraph 85(8)(c) the Tribunal then stated as follows:
“It may be that although, in principle, the scope of Article 8 is wider than that of Article 3, in practical terms… in a case like this where the claimant has no right to remain [my emphasis] it will be a ‘very rare case’ indeed where such a claim could succeed… that reality may lie at the heart of the majority’s view of the Strasbourg Court in N v UK when, having rejected the individual’s claim under Article 3, stated that no “separate issue” arose under Article 8…”.
Then, at paragraph 85(8)(d), referring to the minority in N v UK who had “disagreed with the failure to address Article 8”, the Tribunal found as follows:
“We see some force in this. If it be the case that the Article 3 threshold is an exceptionally high one because of the absolute character of the prohibition and concerns that Contracting States could be swamped by health tourism claims by people with no prior connection to the state in question seeking to enter or remain to gain access to expensive medical treatment, an Article 8 proportionality analysis might yield a different outcome in other cases, possibly where the claimant had a lawful permission to reside in the host state before the disease was diagnosed”.
47. No doubt because the Tribunal in GS (India) had not been invited to consider the application under Article 8, there is no reference in that decision to JA (Ivory Coast).
48. It is clear, in my judgment, that this is a case where at the very least this appellant has a “toehold” on Article 8 (as per Sedley LJ in JA (Ivory Coast)). His case is, as was the case of the appellants in JA (Ivory Coast) clearly distinct from cases such as D and N, where the applicants were not in this country lawfully and, in the words of Sedley LJ at paragraph 17, their “presence and treatment in the UK were owed entirely to an unlawful entry”. While it is of course absolutely right that a factor which must be given great weight is the economic wellbeing of the country “which cannot afford to be the world’s hospital” (again as per Sedley LJ at paragraph 16 of JA (Ivory Coast)), in a case such as the present, this factor should be given less weight than it would in a case either of premeditated entry for the purpose of obtaining healthcare which would be unavailable otherwise in an applicant’s home country or a case where that applicant had never been entitled to be in this country in the first place.
49. This is, in my judgment, just the sort of case where, in the words of Upper Tribunal Judge Grubb, giving the decision of the Tribunal in GS (India) at paragraph 85(8)(d), “an Article 8 proportionality analysis might yield a different outcome in other cases, possibly where the claimant had a lawful permission to reside in the host state before the disease was diagnosed”.
50. In terms of the exercise this Tribunal is required to carry out in light of the guidance given by Lord Bingham in Razgar, I find, as accepted on behalf of the respondent, that this appellant does have a private life in this country, and that his removal would engage his Article 8 rights, because it would affect his physical and moral integrity. The removal would be lawful, and would be necessary in the sense that it would be required for the economic wellbeing of the country. However, as it so often is, the real question is whether that removal would be proportionate.
51. In light of all the factors set out above, I do not consider that the removal of this appellant now would be proportionate. I make it clear that I am not in this determination seeking to set out precisely what steps the respondent ought to have taken in this case to ensure continuity of care, or for how long such continuity of care should have been arranged. Nor am I suggesting that this appellant is entitled to be treated at the expense of the NHS forever. I am also not suggesting that the respondent must always ensure continuity of care, particularly in circumstances where either an applicant has come to this country with a pre-existing condition of which he or she was aware, with the implicit purpose of receiving treatment for that condition in this country, or where an applicant had no lawful right to be in this country. However, the circumstances in this case are entirely different, and I give great weight to what Sedley LJ at paragraph 16 of JA (Ivory Coast) considered to be “the moral duty to help others in need” (albeit that this must obviously be considered against other factors justifying removal in any given case).
52. The stark facts in this particular case are, on my findings, that if returned now, in circumstances where no arrangements have been made for this appellant to receive continuing care, on the balance of probabilities he would be dead within ten days. As the cost of providing continuity of care for at least a limited period is relatively low, I do not consider that the economic wellbeing of this country is so threatened by this appellant’s continued presence (or by the cost of ensuring continuity of care for a limited period following return) that this country now can properly just turn its back on him and cut off his only means of survival. However severe this country’s economic difficulties might be, they are not so severe as to justify this appellant’s removal now without ensuring at the very least that his care will be continued on return for a period which would allow him a chance of securing further financial backing to enable his treatment to continue. In other words, his removal now, in these circumstances, would not be proportionate.
53. It follows that this appellant’s appeal must succeed, and I will so order.
I set aside the decision of First-tier Tribunal Judge Braybrook as containing a material error of law, and substitute the following decision:
The appellant’s appeal is allowed, on human rights grounds, Article 8.
Signed: Date: 12 July 2013
Upper Tribunal Judge Craig