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

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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER	Case No: UI-2023-003525
	First-tier Tribunal No: PA/50456/2022

IA/01471/2022

THE IMMIGRATION ACTS

Decision & Reasons Issued:

 

26 ^th February 2025

 

Before

 

UPPER TRIBUNAL JUDGE MAHMOOD

DEPUTY UPPER TRIBUNAL JUDGE JOLLIFFE

 

Between

 

AK

(ANONYMITY ORDER MADE)

Appellant

and

 

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation :

For the Appellant: Matthew Sowerby counsel, instructed by Orwillo & Co solicitors

For the Respondent: Edward Terrell, Senior Presenting Officer

 

Heard at Field House on 11 February 2025

 

Order Regarding Anonymity

 

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant is granted anonymity.

 

No-one shall publish or reveal any information, including the name or address of the appellant, likely to lead members of the public to identify the appellant. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS

 

Introduction

1.              The appellant is a national of Sierra Leone. He is now aged 49.

2.              The issue in the hearing before the Upper Tribunal was whether if, because of the appellant's serious medical conditions, it would breach his rights under Article 3 of the European Convention on Human Rights to be returned to Sierra Leone.

Procedural history

3.              The appellant's immigration history is that he entered the United Kingdom on 9 February 2009 with leave as a visitor. When his leave expired, he remained unlawfully. He claimed asylum on 13 October 2020.

4.              The respondent refused his application by a decision letter dated 14 September 2021. The appellant appealed, and his appeal was dismissed by First-tier Tribunal Judge Ruth by a determination dated 18 January 2023. The judge found the appellant not to be a truthful witness. He gave his evidence "no credence whatsoever" and found it "remarkably vague". The judge rejected his claims to refugee leave and humanitarian protection.

5.              The appellant has HIV, and also suffers from diabetes and high cholesterol. He had made a separate claim in respect of these health problems. Judge Ruth found that the appellant had a family network including a teenage son who lives in Sierra Leone as well as other relations in that country. He reviewed the medical evidence and concluded that the appellant's case on Article 3 medical grounds did not get close to the high threshold required by the case law of the appellate courts.

6.              The appellant's representative withdrew the Article 8 claim, and so the judge did not need to determine it.

7.              The Appellant had sought permission to appeal, which was granted by Upper Tribunal Judge Reeds by a decision dated 3 October 2023. The appellant's representative was directed to clarify the grounds by reference to the evidence.

8.              The appeal came for an Error of Law hearing on 5 August 2024 before a panel of the Upper Tribunal comprising Upper Tribunal Judges Norton-Taylor and Mahmood. The Tribunal heard the parties' submissions and gave an oral judgment at the hearing. It was noted in the judgment that there were procedural issues in that the bundle had not been filed with the Upper Tribunal or served on the respondent. The appellant's solicitor, Mr Sourbah, apologised for these failings and stated that there would be no repetition.

9.              At the Error of Law hearing, Mr Sourbah submitted that the Upper Tribunal should consider Article 8, despite it having been conceded before the First-tier Tribunal that that was not a live issue.

10.          The Presenting Officer at that hearing, Ms McKenzie, conceded that Judge Ruth had not considered the report of Dr Molly Fitzgerald concerning the appellant's HIV status and what would happen if he were returned to Sierra Leone, and that this was an error of law. The Upper Tribunal found there was an error of law and that to that extent Judge Ruth's judgment was set aside - but it was otherwise affirmed.

11.          The Upper Tribunal stated in terms in its oral judgment on 5 August 2024 that at the resumed hearing "We will not be dealing with the protection claim. We will not be dealing with the Article 8 claim because there was a very clear and lawful concession in respect of Article 8 at the First-tier Tribunal." The matter was then to be relisted for a remaking hearing.

12.          That remaking hearing came before Upper Tribunal Judge Mahmood on 23 October 2024. The appellant's solicitor Mr Sourbah failed to attend and failed to instruct counsel to attend, and so the appellant attended without the benefit of any representation. The appeal had to be adjourned.

13.          The Upper Tribunal noted that again there had been numerous failures to comply with directions made at the 5 August 2024, including that there should be a bundle of documents and a skeleton argument. Those directions had not been complied with. 2 days before the hearing, Mr Sourbah had applied for an adjournment because he had been unwell and had had a flu injection. That application was refused because there was no explanation for the failure to file a bundle and skeleton argument. Upper Tribunal Judge Mahmood noted that "the approach of the Appellant's solicitors is wholly unsatisfactory. I have been compelled to adjourn this matter through no fault of the appellant and through no fault of the respondent."

14.          It was directed that the matter would be relisted to determine the Article 3 health claim only. The appellant's solicitor was directed to file and serve a bundle of documents in "electronic navigable form" not later than 28 days before the hearing. Direction (6) required Mr Sourbah to provide a witness statement explaining why he did not attend the hearing, why he did not comply with the 5 August 2024 directions regarding the bundle and skeleton argument, and why he did not arrange for alternative people to prepare the bundle and attend the hearing. The witness statement was to be provided by no later than 4pm on 26 November 2024.

15.          Direction (7) stated that the costs of the adjourned 23 October 2024 hearing were reserved, and that Mr Sourbah should explain through his witness statement why his firm should not pay those costs.

16.          Accordingly, the only issue for us to determine is the appellant's Article 3 health claim. The issues about the appellant's solicitors conduct of proceedings will be returned to at the end of this judgment.

The hearing

17.          The appellant was called to give evidence and answered questions from his counsel Mr Sowerby and from the Presenting Officer Mr Terrell. He stated that his present health issues were diabetes, cholesterol, hepatitis C and HIV, and he was taking medication for them. He stated that he had seen the doctor last month and that his HIV was getting better. He gave his opinion that the availability of medication in Sierra Leone was not good and that there were a lot of issues with those medications. In his view it would be difficult to obtain them in Sierra Leone.

18.          When questioned by the Presenting Officer, the appellant stated that he lived in Freetown, i.e. the capital city of Sierra Leone, where his son also lived, and that he would probably return there. He had worked as a market trader for 5-6 yrs prior to coming to the United Kingdom.

19.          The Presenting Officer had filed a skeleton argument and cited AM (Article 3, health cases) Zimbabwe [2022] UKUT 131 (IAC) as the leading Upper Tribunal authority on Article 3 health.

20.          He submitted that it was reasonable to assume that the appellant's health would decline without medication, but asked what evidence there was to show that the decline would be serious, rapid and irreversible as contemplated in AM, or that there would be a significant reduction in life expectancy. The evidence did not show that, and it was inappropriate for the Upper Tribunal to speculate.

21.          He cited the statistical evidence to support the submission that over 90% of the people in Sierra Leone with HIV were receiving treatment, and that it was not established that that treatment was unaffordable. The evidence also showed that only a small minority of people were subject to any kind of stigma.

22.          Regarding A8 and para 276ADE, he submitted that the issue had been withdrawn before the First-tier Tribunal and the Upper Tribunal had not granted permission on the issue and had in fact made it clear that it would not return to it. That was enough to dispose of the issue for the purposes of the appeal. If the Upper Tribunal was minded to consider Article 8 then he submitted in the alternative the test under 276ADE was high - it required that

"There would be very significant obstacles to the applicant's integration into the country to which he would have to go if required to leave the UK."

Judge Ruth had found that A had a network of family members in Sierra Leone including his son, and so it was clear that the appellant would not succeed under Article 8.

23.          For the appellant, Mr Sowerby relied on AM (Zimbabwe) v Secretary of State for the Home Department [2020] UKSC 17 and placed particular reliance on the report dated 11 July 2022 of Ms Molly Fitzgerald, a public health professional, as evidence that if the appellant were returned to Sierra Leone as a man who suffered with HIV, he would experience stigma, discrimination and hostility. He also cited a US Department of State Country Reports on Human Rights concerning the effect of disclosing HIV status among those who live in Sierra Leone with the disease.

24.          Regarding Article 8, Mr Sowerby submitted that notwithstanding the concession made by the appellant's representative before the First-tier Tribunal, the fact that permission had not been granted on the issue and that the Upper Tribunal had explicitly excluded the issue, nonetheless it was in some way still open as a matter of discretion for the Upper Tribunal to adjudicate on whether the appellant satisfied the requirements of paragraph 276ADE(vi) of the Immigration Rules. He said there would be very significant obstacles to the appellant's reintegration because of the stigma associated with HIV.

The legal framework

25.          There was no substantial dispute between the parties about the relevant case law and the applicable principles.

26.          AM (Article 3, health cases) Zimbabwe [2022] UKUT 131 (IAC) is the leading Upper Tribunal authority on Article 3 health cases. It requires that two questions be answered:

(1) Has the person (P) discharged the burden of establishing that he or she is "a seriously ill person";

(2) Has P adduced evidence "capable of demonstrating" that "substantial grounds have been shown for believing" that as "a seriously ill person", he or she "would face a real risk": i. "on account of the absence of appropriate treatment in the receiving country or the lack of access to such treatment, ii. of being exposed [a] to a serious, rapid and irreversible decline in his or her state of health resulting in intense suffering, or [b] to a significant reduction in life expectancy"?

27.          The Court of Appeal in THTN v SSHD [2023] EWCA Civ 1222 determined that an applicant must provide sufficient strong evidence about the seriousness of the disease from which he or she is suffering, and must establish sufficient doubt about whether there is reasonable availability of medication in the country of return.

Findings

28.          Unfortunately the appellant is unwell, and he has our sympathy. In particular, he suffers from HIV, which is currently being treated with medication, and he also has diabetes, cholesterol, hepatitis C. His evidence was that he was doing well, and that was not contradicted by the appellant's medical records. the Upper Tribunal accepts that his health is currently good and that he is not a seriously ill person.

29.          It is not the case that medication for HIV is unaffordable in Sierra Leone, and most people who are aware of having the condition are able to access medication.

30.          There is a research paper from 2023 concerning perceived stigma by George Yendewa, an assistant professor of medicine (infectious diseases) at University Hospitals Cleveland, and others. 96% of those who were aware of having a diagnosis of HIV were receiving treatment. It is notable that of those surveyed, 56% were unemployed and 35% had had no formal education - the paper's findings had a substantial base in people who might not fully understand their HIV status and who at other times might be expected to have difficulty in accessing appropriate treatment.

31.          The burden of proof is on the appellant to establish sufficient doubt about whether there is reasonable availability of medication in Sierra Leone. He has not discharged that burden. We come to this conclusion for the following reasons.

32.          The research paper reported that a majority (68%) of those with HIV perceived that they were the subject of stigma, but that only 6% reported one or more instance of enacted stigma. Of that 6% of people with HIV who had experienced enacted stigma, 9% had experienced the loss of a spouse or partner, 7% had experienced a loss of resources and 5% had been excluded by family members. It is thought that these encouragingly low levels of enacted stigma are the result of awareness campaigns and community education programmes in recent years.

33.          The appellant is aware that he has HIV, and has for several years taken medication to treat it with good effect. He worked previously as a market trader and is familiar with Sierra Leone, and so he would not be at any particular difficulty in accessing medication. There is no reason to think that he would either be affected by stigma or have difficulty in accessing medication. First-tier Tribunal Judge Ruth found that he has a son in Freetown and is likely to have other relations who would be able to help him in obtaining appropriate medication.

34.          If the appellant was unable to access treatment for his HIV then he might well decline. It is not established on the evidence that any such decline would be serious, rapid and irreversible, as required by AM (Zimbabwe) at paragraph 17(2). There is no evidence that his life expectancy would be rapidly reduced, and the Upper Tribunal will not assume that.

35.          Given the above findings, the Upper Tribunal finds that the appellant does not qualify for leave on the basis of Article 3 and his medical needs. Again we express our sincere sympathies to the appellant, but the case law is clear. Even though the appellant has serious illnesses, that is not sufficient of itself to enable us to allow the appeal. Whilst we also note that at paragraph 35 of her report, Ms Fitzgerald referred to the intensification of HIV stigma and discrimination, in this particular case, that is very much ameliorated by the appellant's personal circumstances which  we have referred to above.

36.          We considered the Appellant's submissions in respect of Article 8 ECHR/paragraph 276 ADE of the Immigration Rules on a de bene esse basis. We conclude that that the matter was not before us. That is because there was no permission granted in respect of Article 8 in any event. Additionally, the limit of the error of law was specifically dealt with at the hearing on 5 August 2024 as referred to at paragraph 11 above.

37.          Even if we had considered that we had jurisdiction to consider Article 8 and paragraph 276ADE, we would have found that the appellant's case did not satisfy the requirements of Article 276ADE. The reasons for that can be expressed briefly. They are that the appellant lived and worked for many years in Sierra Leone, and as found by First-tier Judge Ruth, he has a son in Freetown and other connections. In those circumstances he cannot show that there would be very significant obstacles to his integration.

Procedural issues

38.          The unfortunate procedural history of this appeal has been set out above in the introduction. The appellant's solicitor Mr Sourbah was directed to serve a witness statement by 4pm on 26 November 2024 to explain why he did not attend the hearing on 23 October 2024, why he did not comply with the 5 August 2024 directions regarding the bundle and skeleton argument, and why he did not arrange for alternative people to prepare the bundle and attend the hearing. The costs of the adjourned 23 October 2024 hearing were reserved, and it was explained that Mr Sourbah should explain through his witness statement why his firm should not pay the costs that had been wasted.

39.          Mr Sourbah filed a document dated 3 February 2025 entitled "Statement of Truth". It stated that the appellant had instructed him to act but could not pay for him to attend the hearing on 4 August 2024. Mr Sourbah had attended that hearing pro bono, and he and the appellant agreed that counsel would be instructed for the 23 October 2024 hearing. He had been unable to attend because of his health. He had been unable to continue to represent the appellant due to the circumstances. He accepted that should have informed the Upper Tribunal of the problems, and apologised to the Upper Tribunal for his failure to do so. He had since engaged counsel to represent the appellant.

40.          The Upper Tribunal does not consider that the "Statement of Truth" adequately explains the failings in this appeal and does not provide a sufficient response to why Orwillo & Co should not pay the costs of the 23 October 2024 hearing. It has therefore directed that a further witness statement be filed by 4pm on 11 March 2025 to respond to the issues identified above. The witness statement should also be sent to the Home Office email address. The respondent will have until 4pm on 25 March 2025 to make any response which it wishes.

41.          Thereafter the matter will be put before Upper Tribunal Judge Mahmood and Deputy Upper Tribunal Judge Jolliffe for a determination of what costs order to make.

Notice of Decision

The decision of the First-tier Tribunal contained a material error of law. We remake the decision. The appeal is dismissed on Human Rights grounds. For the avoidance of doubt, the appeal was previously dismissed on protection grounds and that dismissal also remains undisturbed. Therefore, the appeal has been dismissed on all grounds

The appellant's solicitor Mr Sourbah is to file and serve a witness statement as directed above.

 

 

John Jolliffe

 

Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

 

25 February 2025