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

A picture containing text Description automatically generated

 

Upper Tribunal

(Immigration and Asylum Chamber) Appeal Number: HU/13140/2019

hu/07595/2019

hu/07605/2019

 

 

THE IMMIGRATION ACTS

 

 

Heard remotely via video (Skype for Business)	Decision & Reasons Promulgated
On 6 September 2021	On 06 October 2021

 

Before

 

UPPER TRIBUNAL JUDGE blum

 

 

Between

 

BBS

RS

SS

(anonymity direction MADE)

Appellants

and

 

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

 

 

Representation :

For the appellant: Mr P Turner, Counsel, instructed by MBK Solicitors

For the respondent: Mr P Whitwell, Senior Home Office Presenting Officer

 

This decision follows a remote hearing in respect of which there has been no objection by the parties. The form of remote hearing was by video (V), the platform was Microsoft Teams. A face-to-face hearing was not held because it was not practicable and all issues could be determined in a remote hearing. 

 

 

DECISION AND REASONS

1.              This is a remade decision following the identification of a material error of law in the decision of Judge of the First-tier Tribunal Khawar who, in a decision promulgated on 9 April 2020, dismissed the appeals of BBS ("1 ^st appellant"), his wife RS ("2 ^nd appellant"), and their daughter SS, ("3 ^rd appellant") against the decisions of the Secretary of State for the Home Department ("respondent" or "SSHD") dated 9 July 2019 (in respect of the 1 ^st appellant) and 9 April 2019 (in respect of the 2 ^nd and 3 ^rd appellants), refusing their human rights claims.

2.              In an 'error of law' decision promulgated on 13 October 2020 I found that judge Khawar erred in his legal approach to an All-Party Parliamentary Group (APPG) report on TOEIC test cheating insofar as it related to his finding that the 1 ^st appellant used a proxy test-taker in respect of a TOEIC English language test he took in 2012 with Educational Testing Services (ETS). I additionally and independently found that the judge failed to consider the 2 ^nd appellant's evidence that her husband became depressed and that the deterioration in his proficiency in English, as noted by Judge Spicer in an earlier appeal decision and by Judge Khawar based on the 1 ^st appellant's oral evidence at the hearing before him, could have been attributed to this.

3.              Prior to the 'error of law' hearing the appellants provided new evidence in the form of a letter from Great Ormond Street Hospital for Children (GOSH) dated 11 August 2020 indicating that their youngest daughter, OS, who had been born in the UK on 11 September 2019, was diagnosed with a Heptoblastoma, a rare form of childhood malignant liver cancer, and that she was currently under the care of that hospital. The appellants' solicitors requested that the Upper Tribunal treat this as a 'new matter' pursuant to the decision in Birch (Precariousness and mistake; new matters) [2020] UKUT 86 (IAC) ("Birch"). Birch was not however relevant at the 'error of law' stage, a point agreed by Mr Martin, the appellants' barrister at the time. I indicated at the 'error of law' hearing that, if I identified material legal errors in the judge's decision, it was open to the appellants, at that stage, to invite the Upper Tribunal to apply Birch. Mr Melvin, the Presenting Officer, indicated that the respondent believed Birch was wrongly decided and that if the appellants sought to rely on it she would provide a detailed written argument in opposition.

4.              I found that the legal errors in Judge Khawar's decision required it to be set aside. I ring-fence however the judge's rejection of the appellants' evidence that their respective families did not approve of their marriage. Judge Khawar made clear and reasoned findings in relation to this point that were supported by cogent evidence. As a Presidential panel of the Upper Tribunal would be hearing an appeal in December 2020 concerning the APPG Report I considered it appropriate to stay the present appeal pending the handing down of that decision.

5.              On 27 January 2021 an Upper Tribunal panel consisting of the President and the Vice-President issued an interim decision - DK and RK (Parliamentary privilege; evidence) [2021] UKUT 61 (IAC) - holding inadmissible the APPG report. The panel did however indicate [4] that it would admit a factual record of what was said at the APPG hearing by, inter alia, Professor Peter Sommer and Dr Philip Harrison.

6.              At a Case Management Review hearing conducted by Upper Tribunal Judge Sheridan on 29 January 2021 both parties agreed that the case should continue to be stayed until the final APPG decision was published.

7.              In May 2021 the appellants, through their legal representatives, requested the Upper Tribunal to list the instant appeal for hearing as a matter of urgency due to the financial and emotional strain caused by OS's health problems even though the final Upper Tribunal decision concerning the APPG evidence was not yet promulgated. The appeal hearing was consequently listed before me on 2 July 2021. A further bundle of evidence running to 152 pages was filed and served by the appellants.

8.              On 18 June 2021 the Presidential decision in Hydar (s 120 response; s 85 "new matter": Birch) [2021] UKUT 176 (IAC) was promulgated, overturning Birch. At the hearing on 2 July 2021 Mr Whitwell, the respondent's Presenting Officer, indicated that the respondent gave her consent to the Tribunal considering the medical condition of OS as a "new matter" under s.85(5) of the Nationality, Immigration and Asylum Act 2002. The hearing was however adjourned and directions issued to enable the appellants to provide a medical report on OS and to enable either party to provide any further evidence relating to the availability of appropriate medical treatment/support/monitoring for OS in Nepal. A further bundle of documents was provided by the appellants' new solicitors. This included, inter alia, further statements from the 1 ^st and 2 ^nd appellants, a report by Giuseppe Barone, Consultant Oncologist in charge of OS's treatment at GOSH, and a report by Dr Vandana Jain, Consultant Paediatric Heptologist at Kings College Hospital. The bundle additionally contained email correspondence, primarily between the 2 ^nd appellant and various hospitals in Nepal, and background evidence in respect of medical treatment in Nepal. Mr Turner, counsel representing the appellants, provided a skeleton argument for the remaking hearing.

Background

9.              The appellants are all nationals of Nepal. The 1 ^st appellant arrived in the UK on 16 February 2007 as a student. He was granted further periods of leave and, although there was previously a dispute as to whether his leave had been extended by virtue of section 3C of the Immigration Act 1971 following a decision refusing a human rights claim made by him on 29 September 2014, which was served on him on 18 January 2016, Judge Khawar concluded that his leave did continue pursuant to section 3C and that he had leave to remain in the UK up to and including 9 August 2018. No issue has been raised by the respondent with this finding. The 1 ^st appellant appealed the refusal of the human rights claim that he made on 29 September 2014 but Judge of the First-tier Tribunal Spicer dismissed this appeal on 2 February 2018.

10.          The 2 ^nd appellant arrived in the UK on or around 30 December 2010 pursuant to a grant of entry clearance as a student. A subsequent grant of leave was curtailed so as to expire on 25 May 2012. An application for leave to remain as a Tier 4 Student made on 24 October 2013 was granted on 21 November 2013. A subsequent in-time application for further leave to remain based on her family and private life, made on 19 January 2016, was refused on 17 January 2017 and an appeal dismissed on 2 February 2018. The 2 ^nd appellant became appeal rights exhausted on 9 August 2018. The 3 ^rd appellant was born in the UK on 5 December 2015. Although she applied for leave to remain on the basis of her family and private life on 19 January 2016, this application was refused and an appeal dismissed on 2 February 2018. The 3 ^rd appellant was appeal rights exhausted on 9 August 2018.

11.          On 21 August 2018 all three appellants made human rights claims, the 1 ^st appellant on the basis that he met the requirements for a grant of Indefinite Leave to Remain (ILR) on the basis of 10 years continuous lawful residence and on the basis of his family/private life. The 2 ^nd and 3 ^rd appellants' human rights claims were based on their private and family life. The 1 ^st and 2 ^nd appellants claimed, inter alia, that their respective families did not approve of their marriage and that the appellants would receive no support from their families in Nepal. OS was born in September 2019.

12.          The respondent was not satisfied that the 1 ^st appellant met the criteria under paragraph 276B of the immigration rules for a grant of leave based on his continuous lawful long residence. Nor was the respondent satisfied that the 1 ^st appellant met the criteria under paragraph 276B(ii)(c) in relation to the Suitability requirements of the Immigration Rules because on 31 May 2013 he submitted a TOEIC English-language certificate from Educational Testing Services (ETS) which was cancelled by ETS on the basis that he had used deception by using a proxy test taker. Nor was the respondent satisfied that the 1 ^st appellant met the requirements for a grant of leave under Appendix FM or paragraph 276ADE of the Immigration Rules. The respondent was not satisfied that the 2 ^nd and 3 ^rd appellants met the criteria of Appendix FM or paragraph 276ADE of the Immigration Rules.

The decision of the First-tier Tribunal

13.          Judge Khawar considered in some detail the earlier appeal decision of Judge Spicer and approached that earlier decision pursuant to the principles established in Devaseelan v SSHD [2002] UKIAT 00702 ("Devaseelan"). Because of a delay in awaiting a Nepalese interpreter the 1 ^st appellant gave his evidence before Judge Khawar in English. At [28] Judge Khawar found the 1 ^st appellant's evidence "highly unsatisfactory" because the 1 ^st appellant variously did not understand the questions put or his answer was not immediately discernible. At [29] the judge found that the manner in which the 1 ^st appellant gave his evidence was similar to that observed by Judge Spicer. At [31] Judge Khawar set out extracts from Judge Spicer's decision detailing an adverse credibility finding relating to the 1 ^st appellant's claim that his spoken English had deteriorated since 2012 and his explanation for that deterioration (the 1 ^st appellant claimed he had been prevented from working, had spent more time with Nepalese speakers and had therefore been unable to speak English). Judge Spicer found that the 1 ^st appellant would have needed to speak English whenever he engaged with the outside world such as going shopping or to the doctors or to his solicitors, and Judge Spicer did not accept that it was reasonable to suppose that the 1 ^st appellant's proficiency in English, having achieved a "highly intelligible" level of pronunciation in his ETS test, would have deteriorated so markedly. At [32] Judge Khawar concurred with the views of Judge Spicer.

14.          At [33] Judge Khawar considered evidence given by the 2 ^nd appellant, who had adopted her witness statement and who confirmed that she had provided evidence at the 2018 appeal hearing. The 2 ^nd appellant was not asked any further questions by either representative. Judge Khawar however asked her why, in the 2018 hearing, Judge Spicer recorded her evidence that she and her husband's families were happy with their marriage. Judge Khawar did not accept the 2 ^nd appellant's response ("I was not well prepared and maybe at that time I forgot to tell them") as credible. The judge noted in any event that the appellants were being supported by family members in the UK (the 1 ^st appellant's brother and sister).

15.          At [38] Judge Khawar concluded that the fresh evidence did not justify his departure from the conclusions of Judge Spicer. Judge Khawar rejected the claim by the 1 ^st and 2 ^nd appellants to the effect that their respective families disapproved of their marriage. At [40] the judge considered the appellants' position outside the immigration rules under Article 8 but concluded that there were no features which required additional consideration outside the immigration rules. Judge Khawar noted that the position of the 2 ^nd and 3 ^rd appellants had been given detailed and intelligible consideration in the decisions relating to their application under both Appendix FM and paragraph 276ADE.

The 'error of law' decision

16.          In the 'error of law' decision I found that Judge Khawar's approach to the APPG report was legally flawed. However, given the findings in DK and RK that the APPG report is not an admissible document this aspect of my error of law decision falls away. I was however additionally and independently satisfied that Judge Khawar failed to consider the 2 ^nd appellant's evidence that her husband became depressed and that the alleged deterioration in his proficiency in English may be attributed to this. Although there was no independent medical evidence supporting the 1 ^st appellant's claimed depression, and although Judge Khawar had rejected as incredible one aspect of the 2 ^nd appellant's evidence relating to her and the 1 ^st appellant's families view of their marriage, I was satisfied it was possible for an individual to have undiagnosed depression. I noted that the 1 ^st appellant claimed in his statement of 10 June 2020 (at paragraph 6) that he became depressed, had reduced contact with people, did not really go out much, and did not seek treatment because of stigma attached to mental health in his culture. The 2 ^nd appellant stated (at paragraph 4 of her statement dated 10 June 2020) that her husband became withdrawn into himself, that he was not interested in talking and that his Nepali and his English regressed. Whilst it may have been open to the judge to reject this evidence it did require consideration and the provision of brief but adequate reasons for the rejection. I found that Judge Khawar's failure to consider this explanation anywhere in his decision constituted a failure to take account of relevant evidence and to give adequate reasons.

17.          I was also persuaded, but only just, that Judge Khawar's assessment of the Article 8 claim, as it was then advanced, was inadequately considered and inadequately reasoned. Whilst the judge was unarguably entitled, for the reasons he gave, to reject the claim by the 1 ^st and 2 ^nd appellant that their respective families did not approve of their marriage, there was a range of evidence before the judge relating to the economy in Nepal and the position of women in society, as well as the further integration of the appellants in the UK, that had not been advanced in the appeal before Judge Spicer. I could not discount the possibility that, had Judge Khawar properly engaged with this evidence, he may have concluded that removal for this particular family, in light of their length of residence in the UK and the conditions in Nepal, would constitute a disproportionate interference with Article 8.

18.          I consequently found that Judge Khawar's decision involved the making of errors on points of law requiring it to be set aside. I however ring-fenced Judge Khawar's findings relating to and rejection of the appellants' evidence that their respective families did not approve of their marriage.

The hearing to remake the decision

19.          Both the 1 ^st and 2 ^nd appellants gave evidence at the remote hearing. Although a Nepalese interpreter was provided neither appellant required his services. LS, the 1 ^st appellant's sister, a British citizen resident in the UK, adopted her statement dated 30 August 2021. She was asked no questions by the representatives or the Tribunal.

20.          I maintained a record of the oral evidence and submissions made at the hearing. Both parties are aware of the evidence, both written and oral, that was before me. This evidence is, in any event, a matter of record. I shall refer to the written and oral evidence presented at the hearing and the submissions made at the hearing only in so far as it is necessary for me to lawfully determine this appeal. In reaching my decision I have carefully read and considered all the documents presented to me even if they are not specifically identified later in this decision.

Findings relating to the ETS allegation

21.          In a decision dated 2 February 2018 Judge Spicer found that the 1 ^st appellant had used a proxy-test taker in respect of a TOEIC English language test he undertook in 2012 with ETS. Judge Spicer found that the 1 ^st appellants oral evidence was not fluent and his pronunciation was neither clear nor intelligible, such that it was inconsistent with the "highly intelligible" classification of his test certificate awarded by ETS. Judge Spicer properly directed himself according to the relevant legal test and permission was not granted to appeal his decision. I approach the decision of Judge Spicer as my starting point pursuant to the principles established in Devaseelan.

22.          In his statement the 1 ^st appellant confirmed that the recording of his speaking test obtained from ETS did not contain his voice. The 1 ^st appellant did not know how another person's voice was recorded in respect of his speaking test. He maintained that he had undertaken the English speaking test himself and that he became depressed as a result of the allegation of cheating but had not seen a doctor because of social stigma in the Nepalese community concerning mental health issues. In his oral evidence the 1 ^st appellant claimed his proficiency in English had deteriorated as he had no-one to talk to except his family. the 2 ^nd appellant's evidence was consistent with that of her husband in respect of his alleged depression and stigma concerning mental health issues.

23.          The appellants have not produced any independent or objective evidence that stigma is attached to mental health issues such as depression in Nepalese culture. Although they have consistently maintained that this is so, there assertions are unsupported by any cogent evidence. There remains an absence of any medical evidence that the 1 ^st appellant is, or has, been suffering from clinical depression. Nor is there any evidence that, even if the 1 ^st appellant was suffering from depression, this would affect a person's language proficiency. In her statement of 10 February 2020 the 2 ^nd appellant claimed that her husband's Nepali had also regressed as well as his English. There is no medical or other evidence before me to support the assertion that a person's proficiency in their own language can 'regress' because of depression. I have taken account of the various education certificates awarded to the 1 ^st appellant, and his description of travelling to the test centre, but I am not persuaded, having considered the evidence before me 'in the round', that the new evidence relating to the ETS allegation justified a departure from the finding of Judge Spicer.

The legal principles relating to Article 3 medical cases

24.          In AM (Zimbabwe) (Appellant) v SSHD (Respondent) [2020] UKSC 17 the Supreme Court considered and endorsed the judgment of the Grand Chamber of the European Court of Human Rights (the ECtHR) in Paposhvili v Belgium [2017] Imm AR 867 which gave an expanded interpretation of Article 3 ECHR in the context of medical treatment cases.

25.          The appellant in AM (Zimbabwe) was settled in the UK when a deportation order was made against him because of very serious criminal offences. He was also HIV+ and claimed that he would be unable to access the appropriate antiretroviral therapy in Zimbabwe which would cause him to become prey to opportunistic infections and which, if untreated, would lead to his death.

26.          The Supreme Court, having analysed Paposhvili and several other judgments, concluded that the Grand Chamber's pronouncement about the procedural requirements of Article 3 were not merely clarificatory and that the Grand Chamber had modified the earlier approach in N v United Kingdom (2008) 47 EHRR 39.

27.          The formula posited in Paposhvili was that there must be a real risk of a person:

"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".

28.          At [23] the Supreme Court stated:

"Its new focus on the existence and accessibility of appropriate treatment in the receiving state led the Grand Chamber in the Paposhvili case to make significant pronouncements about the procedural requirements of article 3 in that regard. It held

(a)     in para 186 that it was for applicants to adduce before the returning state evidence "capable of demonstrating that there are substantial grounds for believing" that, if removed, they would be exposed to a real risk of subjection to treatment contrary to article 3;

(b)    in para 187 that, where such evidence was adduced in support of an application under article 3, it was for the returning state to "dispel any doubts raised by it"; to subject the alleged risk to close scrutiny; and to address reports of reputable organisations about treatment in the receiving state;

(c)     in para 189 that the returning state had to "verify on a case-by-case basis" whether the care generally available in the receiving state was in practice sufficient to prevent the applicant's exposure to treatment contrary to article 3;

(d)    in para 190 that the returning state also had to consider the accessibility of the treatment to the particular applicant, including by reference to its cost if any, to the existence of a family network and to its geographical location; and

(e)     in para 191 that if, following examination of the relevant information, serious doubts continued to surround the impact of removal, the returning state had to obtain an individual assurance from the receiving state that appropriate treatment would be available and accessible to the applicant."

The evidence relating to OS's medical treatment and needs

29.          The detailed medical report dated 26 July 2021 from Mr Barone, the Consultant Oncologist, indicated that OS had been diagnosed with a standard risk Heptoblastoma in July 2020. Heptoblastoma was described as a form of aggressive cancer which is lethal if left untreated. OS received 6 cycles of chemotherapy and then underwent a full liver transplant at Kings College Hospital on 1 January 2021. Scans conducted in May 2021 did not show any evidence of tumour recurrence. OS attends regular hospital appointments at GOSH (3 monthly for the next 17 months, then four monthly for the following 12 months and then 6 monthly for 2 years) which is described as a surveillance period during which the medical staff will be on the lookout for signs and symptoms of relapse. OS will have Abdominal US scan as well as Chest x-ray and regular blood tests to measure the tumour marker AFP. OS is currently receiving no treatment for her previous cancer although medical staff are carrying out an intensive surveillance program. Following her liver transplant OS is receiving immunosuppressant medication to avoid rejection. This treatment is monitored regularly by King's College Hospital.

30.          The current medication taken regularly by OS includes magnesium aspartate sachets for low levels of magnesium, mycophenolate mofetil 1g/5ml oral suspension to prevent rejection of the transplanted liver, sodium feredetate 190mg/5ml oral suspension as an iron supplement to improve iron storage in the liver, prednisolone to prevent rejection of her transplanted liver, and TACrolimus (PROGRAF) to prevent rejection of the transplanted liver.

31.          Mr Barone described OSes prognosis at the moment as being "very good from an oncology point of view. Her survival is over 85% at 5 years." Dr Barone noted that OS is bound to have intensive surveillance and that the main risks for her would be a Hepatoblastoma relapse, the development of Liver Rejection, Viral Infection (due to intense immunosuppression) and development of hearing loss. She was currently under GOSH-Oncology for the risk of relapse, and under the Kings College Hospital Liver Paediatric Liver team for the risk of Liver Rejection and Viral Infections. If OS had a relapse, she would need to have further chemotherapy and possibly surgery, and in the case of liver rejection the immunosuppression will have to be increased and, should that not be sufficient, she would have to receive another liver transplant. Viral infections would be lethal if not treated promptly and appropriately by reducing the immunosuppression as this would increase the risk of rejection. Should the relevant expertise not be available for her in Nepal OS could relapse and die of cancer, or develop liver rejection and die of liver failure, or develop an infection and die of disseminated viral infection. Mr Barone noted that these risks need "constant and expert attention and the interruption of the current care could have a catastrophic effect on her life expectancy." A change in OS's current treatment plan, including a potential inability to meet the current frequency of appointments, the possibility of inexperienced hospital staff and the unavailability of medication could also have the same effect.

32.          The detailed report of 18 August 2021 from Dr Jain, Consultant Paediatric Hepatologist at King's College Hospital confirmed that OS was taking multiple medications which suppress her immune system in order to protect her transplanted liver. It was noted that, since her transplant, she had developed a blockage of one of the veins supplying the liver which required a surgical procedure to unblock the vein and needed regular monitoring to make sure that the vein remained unblocked. More recently investigations (low haemoglobin, blood in stool, EBV virus) have been pointing towards a possible post-transplant lymphoproliferative disorder (PTLD) which involves the overgrowth of white blood cells and which can lead to lymph node cancer. If PTLD was confirmed then OS would need an intensive course of anti-white blood cell therapy or even chemotherapy, requiring inpatient stay and regular blood monitoring. According to Dr Jain due to OS's medical complexities and ongoing investigations she will need regular medical review, blood tests and scans (ultrasound and CT scans) and, depending on results, may need further investigations. These assessments need to be conducted in a specialist liver centre.

33.          Dr Jain noted that OS will need ongoing medical treatment, in particular anti-”rejection medication, which puts her at risk of developing infections. If she develops a fever or infective symptoms she will need to be reviewed medically in hospital and may need an inpatient stay for antibiotics. Dr Jain outlined the treatment regime if OS did have PTLD, and then indicated that even if PTLD was not identified OS required minimum 3 monthly reviews of the portal vein and that she remained susceptible to infection, surgical complications and developing PTLD.

34.          Dr Jain stated that post liver transplantation medical care for any child requires specialist medications, in particular immune-suppressing medication to help prevent rejection of the transplanted liver. In addition, any post-transplant child will be at risk of needing additional medications, ranging from antibiotics/antifungals/antivirals to more intense immune-suppressing medications as well as PTLD treatment. Dr Jain explained that if any of the above medications were needed and were not available in Nepal then OS's health could be significantly affected, which included a high risk of mortality. In Dr Jain's opinion if OS was unable to access frequent medical appointments in a specialist paediatric liver centre, in light of her need for regular ultrasound scans to monitor the portal vein as well as rigorous investigation for PTLD, her care would be significantly affected posing a high risk to her mortality. Dr Jain stated that it was vital that specialist assessment, diagnosis and treatment was available for OS, and if they were not available her mortality risk would be high.

35.          The 2 ^nd appellant sent many emails to various hospitals in Nepal outlining OS's medical circumstances. The main body of the emails accurately set out OS's medical history, noting that she underwent 6 courses of chemotherapy and that she had a liver transplant operation in January 2021. The emails noted that in June 2021 OS underwent a PV stricture dilation due to the narrowing of the portal vein. The emails stated that OS was receiving immunosuppressant medication such as Tacrolimus, prednisolone, and mycophenolate mofetil. The emails noted that OS was vulnerable and had received infections (a point corroborated in the other medical notes in the bundle of documents prepared for the hearing on 2 July 2021). The 2 ^nd appellant inquired about the treatment available for OS in Nepal in terms of check-ups, tests, and the availability of her medication as well as overall costs. The 2 ^nd appellant also enquired as to the treatment OS would receive in Nepal if there was a relapse, if she required a further PV stricture dilation or if she suffered from liver rejection or infection.

36.          In an email reply dated 11 July 2021 Professor Nil Mani Upadhyay, Chief of Clinical Services and Education at the Nepal Mediciti hospital indicated that they did not provide liver transplantation for children. They did have an oncology department and provided PVC dilatation. A further email from the hospital indicated that, following a discussion with doctors, treatment for OS was unavailable in Nepal.

37.          In a reply dated 12 July 2021 Dr Jay Dev Yadav, a paediatrician at the private Himal Hospital in Kathmandu, stated that there was "no specialised setup for liver transplantation and post transplantation complication management centre in Nepal is [sic] paediatric age group."

38.          An email reply dated 20 July 2021 from Hamro Doctor (an online healthcare service provider in Nepal) indicated that Nepal had just started liver transplantation (at the Tribhuwan University Teaching Hospital (TUTH) and at the Chitwan Medical College) and gave details of a Dr Ramesh Bhandari who was a specialist liver transplant surgeon at the TUTH. An email dated 26 July 2021 from Dr Ramesh Bhandari indicated that transplantation did occur in Nepal but there were definite limitations and that in complicated circumstances like those described by the 2 ^nd appellant patients were referred to big centres and that they usually sent patients to an Indian centre.

39.          An email from the Director of Programs at the organisation World Child Cancer indicated that post organ transplantation care was not available at the Kanti Children's Hospital, that liver transplantation was a very new thing in Nepal and that the total number of transplants done in all of the country was less than 10. There was very limited experience in Nepal on the management of children with organ transplants, and portal vein stricture dilation could not be done at the Kanti Children's Hospital. Although there were centres performing kidney transplantation which may have experience on post organ transplantation care, there was uncertainty about their experience with children. The email noted that if there were infections, most of them could be managed, although the treatment process would be better in the UK. If a transplanted liver was rejected, due to limited facilities and experience, management of the child could be difficult in Nepal. If there was a relapse of the cancer then chemotherapy could be provided and there were centres that could provide radiotherapy, however if repeat surgery was required then this again may be difficult.

40.          The bundle of documents provided by the applicant for the hearing on 6 September 2021 included several articles concerning healthcare in Nepal. This included a Final Draft of a 'National List of Essential Medicines Nepal' (4 ^th Revision) issued by the Government of Nepal Ministry of Health and Population, Department of Drug Administration 2009. This did not contain the immunosuppressant medications prescribed to OS. An article published in September 2016 in the Journal of Nursing Education and Practice, headed 'Healthcare in Nepal: an observational perspective' indicated that Nepal was one of several poor developing countries that faced significant challenges in providing universal health coverage. Some of the key barriers included a lack of regulation of hospitals in terms of quality assurance and accreditation, poor demand and supply of services such as workforce and essential medications, poor access to health care facilities in rural areas and lack of funding for the poor.

41.          An article published in 2015 in Global Health Action, referred to poor infrastructure in Nepal's healthcare services, inadequate supply of essential drugs and poorly regulated private providers. The free public healthcare service covered only basic health services with 40 essential drugs.

42.          An article in the South Asian Journal of Cancer, published in 2014, indicated that childhood cancer care delivery in Nepal was primary through two government hospitals, the Kanti Children's Hospital and the Bharatpur Cancer Hospital outside the Kathmandu Valley. The Kanti Children's Hospital had other essential paediatric specialities including surgery, gastroenterology and general paediatrics with tertiary level paediatric, surgical and neonatal intensive care. The cure rate of cancer at the Kanti Children's Hospital was around 40%, with 35% abandonment of therapy due to financial burden and 25% mortality (mainly due to infection, drug toxicity and relapse). Most cytotoxin's were expensive and there was an inconsistent supply of chemotherapy drugs and antibiotics. A tender system for the purchase of medicines resulted in delays of a few months for medicine supply.

Discussion in respect of the Article 3 medical claim

43.          The medical report prepared by Mr Barone indicates that OS has been successfully treated for her cancer by means of chemotherapy followed by a full liver transplant. She is not currently receiving any treatment for her previous cancer although she is subject to an intensive surveillance program. Mr Barone described OS's prognosis at the moment as being "very good from an oncology point of view." Although OS is currently undergoing investigations for PTLD, there is, as of the date of my decision, no clear evidence that she has this disorder. Her survival rate following her cancer is said to be at over 85% at 5 years. Although the consequences for OS, should she relapse or should there be liver rejection, would be life-threatening, the medical reports do not identify the likelihood of such a risk occurring.

44.          OS is however receiving immunosuppressant medication to ensure that her body does not reject her transplanted liver. Since the transplant she has developed a blockage of one of the veins supplying the liver which required a surgical procedure and regular monitoring to ensure that the vein remains unblocked. More recent investigations have disclosed low haemoglobin, blood in her stool and EBV virus which points towards a possible PTLD. Both the report from Mr Barone and Dr Jain confirm that OS is taking multiple medications which suppress her immune system and that she needs constant and expert attention. There was no challenge by Mr Whitwell to the evidence in both medical reports that a change to OS's current treatment plan, including the unavailability of medication in Nepal or the absence of specialist care, could significantly affect her health and pose a high risk of mortality. Mr Barone said this could have a catastrophic effect on OS's life expectancy. Dr Jain explained that if OS was unable to access frequent medical appointments in a specialist paediatric liver centre her care would be significantly affected posing a high risk to her mortality, and that it was vital that specialist assessment, diagnosis and treatment was available as otherwise her mortality risk would be high.

45.          The appellants rely on a Final Draft entitled National List of Essential Medicines Nepal (4 ^th Revision) issued by the Government of Nepal Ministry of Health and Population, Department of Drug Administration 2009. This document is approximately 12 years old. I therefore approach it with some caution, mindful of the possibility that in the intervening years the immunosuppressant medication prescribed to OS which is identified in Mr Barone's report, which the appellants maintain is not available in Nepal, may have been made available. Although Mr Whitwell invited me to consider the age of the document the respondent has not sought or obtained any more up-to-date information regarding the availability of the relevant immunosuppressant medication in Nepal. This is despite the issuance of directions specifically giving both parties an opportunity to investigate the availability of the appropriate medical treatment for OS in Nepal.

46.          I have considered with care the email sent by the 2 ^nd appellant to various hospitals in Nepal relating to her daughter's medical circumstances. Although I take into account that the 2 ^nd appellant was found incredible in respect of evidence she gave relating to the view of her marriage by her relatives in Nepal and the 1 ^st appellant's relatives in Nepal, I find that her email was sent with the genuine intention of obtaining information as to whether OS could receive the necessary specialist care, medication and specialist monitoring in Nepal. Her email accurately reflected the contents of the medical notes and the medical reports and she accurately reflected the timeline of events and the principal medications prescribed to OS.

47.          I have additionally considered with care the email correspondence between the 2 ^nd appellant and various hospitals in Nepal. The evidence indicated that post transplantation care was not available at the Kanti Children's Hospital, the principal government hospital for children in Nepal. The email replies, holistically considered, indicated that liver transplantation is very new in Nepal and that there is very limited experience in this area, particularly in relation to the management of children who undergo organ transplants. Most of the hospitals indicated that post transplantation care management was not available for OS's paediatric age group. The one specialist liver transplant surgeon who operated from TUTH indicated that in complicated circumstances such as those described by the 2 ^nd appellant patients were usually sent to an Indian centre. The evidence presented suggested that the relevant immunosuppressant medication was not available. The general articles concerning healthcare in Nepal indicated that there is poor regulation of private hospitals, and that there are inadequacies and delays in the supply of drugs.

48.          In light of my assessment of the evidence presented to me, and applying the Paposhvili test endorsed in AM (Zimbabwe), I am satisfied that the appellants have presented sufficient evidence capable of demonstrating that there are substantial grounds for believing that OS could face a real risk of being exposed to a serious, rapid and irreversible decline in her state of health resulting in intense suffering or to a significant reduction in life expectancy, on account of the unavailability of the appropriate immunosuppressant medication and specialist treatment, monitoring and specialist care management needed for her particular care. OS's medical needs have been described as complex by the medical experts. Mr Barone indicated that OS needs constant and expert attention, and that the interruption of her current care could have a catastrophic effect on her life expectancy. In Mr Barone's view a change in OS's current treatment plan, including a potential inability to meet the current frequency of appointments, the possibility of inexperienced hospital staff and the unavailability of medication could also lead to a catastrophic effect on her life expectancy. Dr Jain indicated that OS will need regular medical review, blood tests and scans due to her medical complexities and ongoing investigations and tat this must occur in a specialist liver unit. The evidence upon which the appellants rely, considered above, indicate that the necessary medications and/or the necessary specialist expertise and monitoring and support for children with liver transplants is not available in Nepal. The medical experts agree that if this is not available in Nepal then there was a high risk to OS's mortality.

49.          In considering whether the respondent has dispensed any doubts raised by the evidence adduced by the appellants I note the respondent has chosen not to adduce any evidence in respect of inquiries she may have made on the availability of immunosuppressant medication for children of OS's age in Nepal. Whilst Mr Whitwell challenged the evidence adduced by the appellants no effort has been made to counter that evidence by means of separate inquiries, despite the respondent having the opportunity to do so following the directions issued on 2 July 2021. I note the observation by the Supreme Court in AM (Zimbabwe) that the returning state is better able to collect evidence about the availability and accessibility of suitable treatment in the receiving state (at [33]). I note that no individual assurance has been obtained by the respondent that appropriate treatment would be available and accessible to OS in Nepal.

50.          I am satisfied, for the reasons given and on the evidence made available to me, that the care available in Nepal for OS, in her particular circumstances and with her particular needs, is not in practice sufficient to prevent her exposure to treatment contrary to Article 3.

Determination of the appeals

51.          OS is not an appellant in these appeals, but she is only just 2 years old and is entirely dependent on her parents for her care and welfare. In order to prevent her expose to a real risk of Article 3 ill-treatment if she accompanies her family to Nepal she will need to remain in the UK. There has been no suggestion that she could remain in the UK without her parents. Nor has there been any suggestion that she could remain in the UK with just one of her parents. There is unchallenged evidence in the various statements before me of the strong Article 8 parental relationship between OS and both her parents.

52.          In assessing the appeals I have taken into account the public interest in the 1 ^st appellant's removal on the basis that he does not meet the Suitability requirements of the Immigration Rules. I have additionally taken into account the significant NHS debt owed by the appellants relating to OS's hospitalisation. I have taken account of the material factors in s.117B of the Nationality, Immigration and Asylum Act 2002. Their failure to meet the requirements of the Immigration Rules is a strong factor when considering the public interest in the maintenance of effective immigration controls. I note that both the 1 ^st and 2 ^nd appellants gave their evidence in English and that they are sufficiently proficient in the language, but this is a neutral factor. I note that the private lives of all three appellants was established when their immigration status was precarious. I additionally note that the appellants are likely to receive some family support from their relatives in Nepal, although this support does not affect my primary findings in respect of the real risk to OS considered above.

53.          Having weighed up the competing interests in this particular appeal I am persuaded that the decision to refuse the appellants' article 8 human rights claims, in circumstances where, if the family were removed as a single unit, OS would be exposed to a real risk of a breach Article 3, would result in a breach of the UK's obligations under section 6 of the Human Rights Act 1998. I consequently allow the appeals on human rights grounds.

 

Notice of Decision

The human rights appeals are allowed

 

 

Signed D.Blum Date: 27 September 2021

Upper Tribunal Judge Blum