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

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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER	Case No: UI-2024-000305
	First-tier Tribunal No: HU/54105/2023 LH/05033/2023

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

 

26th February 2025

 

 

Before

 

UPPER TRIBUNAL JUDGE SHERIDAN

DEPUTY UPPER TRIBUNAL JUDGE STERNBERG

 

 

Between

 

DA

(ANONYMITY DIRECTION MADE)

Appellant

and

 

Secretary of State for the Home Department

Respondent

Representation :

For the Appellant: Mr Ajala, Legal Representative, Almond Legals

For the Respondent: Ms Cunha, Senior Home Office Presenting Officer

 

Heard at Field House on 14 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 and/or her children. Failure to comply with this order could amount to a contempt of court .

DECISION AND REASONS

Introduction

1.              The appellant is a citizen of Nigeria who entered the UK on a visit visa in February 2022 and did not leave when her visa expired. She has two children living with her in the UK. The youngest was born in the UK shortly after she arrived.

2.              The appellant has complex physical health problems, including breast cancer. She claims that returning her to Nigeria would breach article 3 ECHR because she would not be able to obtain life-sustaining treatment that is currently provided by the NHS. She also claims that removing her to Nigeria would violate article 8 ECHR.

3.              The respondent refused the appellant's application. She appealed to the First-tier Tribunal where her appeal came before Judge of the First-tier Tribunal Reid ("the judge"). In a decision dated 7 December 2023 the judge dismissed the appeal. The appellant appeals against this decision.

4.              The First-tier Tribunal refused permission to appeal. The Upper Tribunal granted permission to appeal and made an order granting the appellant anonymity. We maintain that order given the sensitive personal and medical matters relied on by the appellant.

Decision of the First-tier Tribunal

5.              The judge found that prior to applying for a visit visa (in October 2021) the appellant, who was pregnant at the time, underwent testing in Nigeria in respect of breast cancer. This included a CT scan identifying a tumour (in August 2021) and an ultrasound identifying a malignant breast lesion and invasive carcinoma (in September 2021). The judge found that the appellant's purpose in coming to the UK was to obtain a final confirmation of the diagnosis and obtain free treatment on the NHS. In addition, the judge found that her intention was to give birth in the UK.

6.              The judge made several adverse credibility findings. These include:

a.        The appellant misrepresented her situation by stating that she was "taken ill" with cancer after arriving in the UK, when she knew she was likely to require treatment for cancer before she left Nigeria.

b.       Her husband (who entered the UK in April 2022 with the appellant's eldest child) gave factually inaccurate information to the registrar when registering the birth of the appellant's child in the UK.

c.        The appellant has been inconsistent about the reason for, and timing of, her separation from her husband.

d.       The timing of the (threatening) emails sent by the appellant's husband suggests that they were sent to assist the appeal and it was not accepted that the appellant's husband intends to harm the children or remove them from the appellant.

7.              The judge found that the appellant had a mastectomy in August 2022; and radiotherapy starting November 2022. It is noted in the decision that no further surgery or radiotherapy was planned. In paragraph 37 the judge summarised the appellant's current medical situation, as explained by the appellant in her oral evidence. He noted that the most recent medical letter in the evidence before the First-tier Tribunal was dated February 2023 (10 months earlier). The judge noted that the appellant would be discharged from specialist care in January 2025.

8.              In paragraph 38 judge considered a report by a private GP, Dr Waheed. The judge noted that Dr Waheed expressed an opinion on the availability of treatment in Nigeria despite not having any expertise on Nigerian healthcare. The judge stated that he gave greater weight to the NHS consultant treating the appellant. In paragraph 38 the judge referred, again, to the letter of February 2023 that had been referred to in paragraph 37.

9.              The judge found, based on consideration of the respondent's country and information note on medical treatment in Nigeria dated December 2021 (which was in the bundle before the First-tier Tribunal), that the treatment the appellant requires is available in Nigeria, even if it is not identical to that which she receives in the UK.

10.          The judge found that the appellant would need to pay for medication and treatment in Nigeria, and that this would be expensive. However, the judge found that the appellant would be able to afford the treatment and medication, given that she (i) is well educated and had a profession in Nigeria before coming to the UK; (ii) will be able to work; and (iii) was previously financially supporting her parents in Nigeria.

11.          The judge recognised that the appellant's evidence was that her home village is 4-5 hours from the nearest city, Abuja, to which she would need to travel to obtain treatment. The judge found that she could live in Abuja (as she had done previously) or travel there for treatment. The judge found that she would have support from her parents and siblings to look after her children when travelling to appointments.

12.          The judge found that, as treatment and medication will be available and accessible to the appellant in Nigeria, she will not face a significant reduction in life expectancy on return; and therefore the threshold for a claim to succeed under article 3 ECHR on medical grounds was not met.

13.          The judge also found that returning the appellant to Nigeria would not breach article 8 ECHR. This was because she would not face very significant obstacles integrating in Nigeria and her private life in the UK, to which only little weight could be given (as required by Part 5A of the Nationality Immigration and Asylum Act 2002), did not outweigh the public interest in the maintenance of effective immigration controls. The judge attached significant weight to this public interest in the light of the appellant travelling to the UK to access free medical care. The judge found that the best interests of the appellant's children are to be with her, whether in Nigeria or the UK.

Grounds of Appeal

14.          The appellant has advanced four grounds of appeal.

15.          Ground 1 argues that the judge "mishandled the issue of credibility at the hearing" and that this tainted the entire decision. It is stated that the judge's summary of events was "skewed against" the appellant.

16.          Ground 2 argues that the judge did not apply the facts of the case to the applicable test set out in the case law; and that the judge's conclusion that the appellant would not face a significant reduction in life expectancy was contrary to the objective evidence which, inter alia, shows that in Nigeria fake and substandard drugs are prevalent, much of the population lacks access to medicine, and that the cost of medication (in particular cancer medication) is prohibitive.

17.          Ground 3 argues that the judge misunderstood, or failed to properly consider, the medical evidence including in particular Dr Waheed's report and the letter from consultant clinical oncologist Dr Castell.

18.          Ground 4 argues that the judge failed to consider that the appellant's children would be forced to live with their father. Reference is made to EM Lebanon v SSHD [2008] UKHL 64, which is said to be analogous.

Ground 1: credibility

19.          Mr Ajala repeated the submission in the grounds that the judge mishandled credibility and made findings that were skewed against the appellant. He argued that the judge's findings were "skewed against" the appellant because credibility was irrelevant to the appellant's article 3 claim and the judge improperly carried over his negative credibility findings into the assessment of the medical evidence relevant to article 3.

20.          Mr Ajala also submitted that the judge's assessment of whether the appellant could pay for treatment Nigeria was flawed because he failed to engage with the evidence of the appellant that her husband supported her financially when she received treatment in Nigeria previously.

21.          Ms Cunha argued that the judge made sustainable credibility findings that were relevant to article 3, and therefore it was open to the judge take these findings into account. She also submitted that the judge looked at the medical evidence independently.

22.          We agree with Ms Cunha. Firstly, the judge gave several sustainable reasons, none of which have been challenged, for finding that the appellant had not given a truthful account. The judge was entitled, in these circumstances, to proceed on the basis that the appellant's evidence was not reliable.

23.          Secondly, negative credibility findings can be - and in this case plainly were - relevant to an article 3 claim. One of the arguments advanced by the appellant, as to why return to Nigeria would violate article 3, was that she would not be able to access and afford medication and treatment, and that she would not have meaningful family support. Consideration of these issues required the judge to consider both objective evidence about Nigeria (where the reliability of the appellant's subjective evidence was irrelevant) and the appellant's evidence about family support and employment prospects (where the reliability of her evidence was relevant). The judge recognised this distinction. The judge's finding that treatment is available (although expensive) in Nigeria was made because of his understanding of the objective evidence, not because the appellant was found to lack credibility. In contrast, the judge's findings about the availability of family support depended on his assessment of the appellant's credibility.

24.          We are not persuaded that there is merit to Mr Ajala's argument that the judge's assessment of whether the appellant would be able to afford medication is deficient because of a failure to consider that, previously, her husband paid for her medical expenses. This is because it does not appear that it was ever contended in the First-tier Tribunal that the appellant's husband paid for the medical expenses and Mr Ajala was unable to identify anywhere in the appellant's witness statement (or elsewhere in the evidence) where the appellant made this claim.

25.          For these reasons, we find that ground 1 is without merit.

Ground 2: application of the correct legal test in the light of the objective evidence

26.          Where an appellant claims that removal will violate article 3 ECHR because of the impact on her health, there is an initial threshold test that must be satisfied. This is succinctly summarised in AM (Art 3; health cases) Zimbabwe [2022] UKUT 131 (IAC), where the headnote states:

1. In Article 3 health cases two questions in relation to the initial threshold test emerge from the recent authorities of AM (Zimbabwe) v Secretary of State for the Home Department [2020] UKSC 17 and Savran v Denmark (application no. 57467/15):

(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"?

[Emphasis added]

27.          One of the conditions, for the initial threshold test to be satisfied, is that there must be evidence capable of demonstrating a real risk of there being an absence of appropriate treatment or of the appellant not being able to access such treatment.

28.          The judge found (i) that the treatment and medication that the appellant requires is available in Nigeria; and (ii) that, despite the cost, she will be able to access the treatment and medication. This is an unambiguous and clear application of the condition set out in subsection (2)[ii][a] of the headnote in AM. The making of this finding, in the way it was made, demonstrates that the judge had in mind, and applied, the correct legal test, as formulated in AM.

29.          Mr Ajala argued in his oral submissions that the judge erred, not merely because the wrong test was applied (a contention that we reject for the reasons given above); but because the evidence before the First-tier Tribunal did not support the conclusion that the initial threshold test in AM was not satisfied. In summary, he maintained that because of the complexity of the appellant's condition (as set out in Dr Castell's letter of 20 February 2023), the cost of medication in Nigeria, the difficulty the appellant would have accessing treatment and medication (which would require travel of 4-5 hours to the nearest city when she has sole responsibility for two young children), and the prevalence of fake medication (as made clear in the country information note on healthcare in Nigeria), it followed that the initial threshold test was met.

30.          We are not persuaded by this argument. The evidence before the First-tier Tribunal, relevant to whether the appellant would be able to obtain and access the treatment she needs in Nigeria, can, in broad terms, be divided into three categories: (a) the medical evidence about the appellant's condition and the medication and treatment she needs; (b) the objective evidence about the availability and cost of relevant healthcare in Nigeria; and (c) the appellant's evidence about her family and other circumstances in Nigeria, that is relevant to her ability to access and afford the treatment that she needs. In our view, the judge's consideration of each of these three areas was adequate.

31.          First, the most up-to-date and relevant medical evidence about the appellant's health is that contained in Dr Castell's letter of 20 February 2023 and Dr Waheed's report of 6 May 2023. Although the judge did not set out all of the material information contained within Dr Castell's letter, it is clear that the judge had regard to it, as it is mentioned twice in the decision (in paragraphs 37 and 38). Moreover, it was not argued by Mr Ajala that the summary of the appellant's condition in the decision is inconsistent with the letter. We therefore do not accept that the judge did not have regard to the material evidence about the appellant's health and the treatment and medication she needs, as set out in Dr Castell's letter. The report by Dr Waheed (which is discussed below) does not, on any view, add anything to Dr Castell's letter in terms of understanding the appellant's current health condition and the treatment and medication she needs.

32.          Second, the objective evidence before the judge concerning the availability of treatment in Nigeria consisted of the country and information note on medical treatment in Nigeria dated December 2021. Mr Ajala drew our attention to parts of the information note discussing shortages of medication, the cost of medication, and the prevalence of fake medication. We agree with Mr Ajala that these parts of the information note are not mentioned in the decision. That does not, however, mean that they were overlooked or that it was legally erroneous for them not to be mentioned. The Court of Appeal has made clear that where a relevant point is not expressly mentioned the Upper Tribunal should be slow to infer that it has not been taken into account. See, for example, paragraphs 49-50 of Yalcin v Secretary of State for the Home Department [2024] EWCA Civ 74. In this case, it is clear from paragraphs 41-42 of the decision that (i) the judge engaged with the country information note; and (ii) drew from it a conclusion that was rationally open to him, which is that treatment for the appellant's conditions is available, but it will be expensive and not identical to the treatment available in the UK.

33.          Third, the appellant stated in her witness statement that she would not have any support in Nigeria. The judge did not accept that this would be the case, as he found that she would have support from family members. This conclusion was plainly open to the judge given the adverse credibility findings.

34.          In conclusion, we find that ground 2 is not made out because the judge (a) applied the correct legal test; (b) engaged with all of the evidence before the First-tier Tribunal that was relevant to determining whether the test was satisfied (i.e.: the medical evidence about the appellant's treatment and medication in the UK, the objective evidence about the availability and accessibility of medication and treatment in Nigeria, and the witness evidence relevant to the appellant's ability to afford and access the medication and treatment in Nigeria); and (c) reached a conclusion, based on a consideration of the evidence, that was within the range of reasonable responses and therefore open to the judge.

Ground 3: consideration of the medical evidence

35.          There were two important documents relevant to the appellant's health before the First-tier Tribunal: the report by Dr Waheed and the letter from Dr Castell. Ground 3 submits that the judge misunderstood, or failed to properly consider, both of these documents.

36.          Dr Castell is the appellant's treating NHS consultant who wrote a detailed letter setting out the appellant's diagnosis and prognosis. The judge did not question the accuracy of the letter, and attached weight to it. He referred to it twice in the decision: in paragraphs 37 and 38. Mr Ajala did not identify anything in the decision that is inconsistent with the letter. The judge did not set out the contents of the letter. However, there was no need to do so given that the contents were not in dispute. Referring - and confirming that weight was attached - to the (undisputed) letter was sufficient. We do not accept that there is any basis to find that the judge misunderstood, or failed to properly consider, Dr Castell's letter.

37.          Dr Waheed is a private GP who prepared a report on the appellant. After setting out relevant background information, the report contains a brief concluding section under the heading "summary and opinion". In this section there is a single sentence about that treatment the appellant will need going forward. It is stated that she "requires regular surveillance and blood tests to monitor her condition as well as to ensure that immunosuppressive medication she has to take does not reactivate her hepatitis". Dr Waheed then goes on to express an opinion about the implications for the appellant of moving to Nigeria. Amongst other things, she comments on the availability and development of breast cancer treatment in Nigeria and the stigma associated with breast cancer. She concludes that the appellant's recovery and prognosis could be adversely affected by a return to Nigeria.

38.          The judge did not attach weight to Dr Waheed's opinion about the consequences of returning to Nigeria because she is not an expert on Nigeria and the opinion expressed about circumstances in Nigeria appears to have been based entirely on what she was told by the appellant. The judge also stated that he gave greater weight to the evidence of Dr Castell than to that of Dr Waheed.

39.          As Dr Waheed did not purport to have any expertise on Nigeria - and was instructed to give evidence on the appellant's health and prognosis - not the state of healthcare in Nigeria - it was plainly open to the judge to not attach weight to Dr Waheed's opinion about treatment and medication in Nigeria. The judge's approach to this aspect of Dr Waheed's evidence cannot be faulted.

40.          With respect to the appellant's condition and prognosis, Dr Waheed's opinion does not differ - and adds nothing to - the more comprehensive and thorough description of the appellant's condition and prognosis by Dr Castell. Accordingly, the weight attached to Dr Waheed's opinion on condition and prognosis is irrelevant in circumstances where the judge attached weight to (and accepted) the opinion of Dr Castell.

41.          For these reasons, we are not persuaded that there is merit to ground 3.

Ground 4: children being forced to live with their father and application of EM Lebanon.

42.          Foreign law is a question of fact, with the burden of proof resting on the party relying upon the relevant foreign law: see CS and Others (Proof of Foreign Law) India [2017] UKUT 199 (IAC). There was no expert (or objective) evidence before the First-tier Tribunal to support the contention that the law of Nigeria would result in custody of the appellant's children passing to their father. In the absence of such evidence, there was no basis for the judge to find that the children would be forced to live with their father or to treat the case as analogous to EM Lebanon (where, in contrast to this case, it was an accepted fact that the child's physical custody would pass by force of law to his father or to another male member of the family). We are therefore not persuaded by the arguments advanced in ground 4, which lack an evidential basis.

Notice of Decision

43.          The grounds do not identify an error of law. The appeal is dismissed and the decision of the First-tier Tribunal stands.

 

D. Sheridan

 

Upper Tribunal Judge Sheridan

 

Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

26 February 2025