(b) in failing to assess Article 3 in light of the Grand Chamber judgment in the case of Paposhvili v Belgium , application number 41738/2010;
(c) in concluding at [13] that no satisfactory evidence had been submitted to suggest that the health facilities for the First Appellant's treatment in China are either unavailable or inadequate, which was contrary to the evidence set out at pages 56 through to 76 of the Appellants' supplementary bundle which set out the problems with healthcare in China and the limited mental health facilities available; and
(d) in his consideration of Article 8 outside the Rules in that he failed to take account of the very exceptional circumstances which had caused the First Appellant to be in his present predicament, in particular that the assault, as a consequence of which he suffered traumatic head injuries which had in turn led to his serious mental health problems, had meant that he had not been able to leave the UK as intended and his partner would not have needed to travel to the UK to join him if he had not been assaulted and needed her care. He had no intention to become an overstayer. His injuries were not naturally occurring and were the results of the actions of an individual never apprehended in the UK when the First Appellant was living here lawfully.
Permission to appeal was granted by Resident Judge Appleyard in a decision dated 29 December 2017 on the following basis:-
" 3. The grounds seeking permission to appeal are all arguable. They assert that the Judge has failed to give adequate reasons for his findings and failed to consider, fully, new medical evidence. Secondly, that the Judge failed to adequately consider the appeal under Article 3. Thirdly, that he erred in coming to conclusions in relation to the availability of health facilities in the Appellants' country of origin and finally in considering Article 8 outside the Immigration Rules the Judge did not fully take into account the exceptional circumstances relating to the first Appellant.
As I say these are all arguable grounds. "
Hearing
At the hearing before me, I heard submissions from Mr Rooney on behalf of the Appellants. His challenge was essentially focused on the judge's finding at [13] of the decision, which provides:
" In line with Devaseelan , I take the findings in the determination of Judge Rintoul as a starting point. Whilst acknowledging that the Appellant had suffered serious injuries, he concluded at paragraph 4.9 that the Appellant's health condition did not meet the threshold to engage Article 3. The medical evidence submitted in the current appeal does not suggest any significant deterioration such as to suggest that I can come to any different conclusion. The Appellant's claim was encapsulated by Judge Rintoul at paragraph 4.18 in that the Appellant seeks to remain in the UK to continue to receive medical treatment which he is unable to afford in China. On the evidence before me the basis of the Appellant's claim remains the same, however no satisfactory evidence has been submitted to suggest that the health facilities for the Appellant's treatment in China are either unavailable or inadequate. Accordingly, I find that there are no obstacles in relation to the Appellants' integration back into China. "
Mr Rooney submitted that the judge entirely failed to consider that the First Appellant's mental health had deteriorated since the decision of Judge Rintoul and that process had begun following the dismissal of his appeal and had included a suicide attempt and ongoing suicidal ideation. This was not evidence that was before Judge Rintoul and thus could not be taken into account by him since the First Appellant had been under the care of psychiatrists since December 2007 as was clear from the expert medical evidence that was submitted before the First-tier Tribunal. Mr Rooney also sought to rely on his remaining grounds, albeit acknowledging in respect of ground 2 that the interpretation of Paposhvili must now be considered in light of the Court of Appeal judgment in AM (Zimbabwe) [2018] EWCA Civ 64 .
In his submissions Mr Nath stated that the judge had been correct to rely on Devaseelan [2002] UKIAT 00702 as the starting point following Judge Rintoul's decision on 19 December 2007. He accepted that there however had been a substantial passage of time since then, but he submitted that the judge encapsulated the decision at that time in relation to Article 3 and Judge Rintoul's finding at [4.9] that the First Appellant's health condition did not meet that threshold. Mr Nath submitted that the judge clearly considered the First Appellant's health condition in the round and does refer to the medical evidence submitted in the current appeal, so it should be taken that he has looked at it and that his findings were open to him.
In his reply, Mr Rooney returned to the Judge's decision at [13] and reiterated that none of the evidence now relied upon was available to Judge Rintoul so that when that judge came to the conclusion that the Article 3 threshold was not met, it was of course based on the evidence available to him at the time, at which time there was no suggestion of suicide attempts or suicidal ideation which must clearly constitute a deterioration in his health overall. Mr Rooney further submitted that the First Appellant has been in the UK for almost seventeen years and would suffer very significant difficulties reintegrating into Chinese society pursuant to paragraph 276ADE(vi) of the Rules. He submitted that the judge had failed to consider this, despite the fact that it was addressed in the Respondent's refusal decision and raised in the skeleton argument.
My Findings
I find material errors of law in the decision of First-tier Tribunal Judge Mr R Hussain. Whilst it is correct that the starting point for the judge's consideration was the previous decision by Judge Rintoul of 19 December 2007, in light of the decision of Devaseelan [2002] UKIAT 00702 , the fact of the matter is that by the time the appeal came before him approximately nine-and-a-half years had passed and the First Appellant's medical situation is not the same as it was at the time of the hearing before Judge Rintoul. In particular, it is clear from the medical evidence, in particular, the reports of the consultant psychiatrist, Dr Borrell, at pages 10 to 12 and 13 to 15 of the Appellants' bundle, and from the First Appellant's clinical neuropsychologist Dr Owen, at pages 19 through to 28, that the First Appellant's mental health has clearly deteriorated since the time of Judge Rintoul's decision. I find accordingly that the judge's conclusion at [13] that " The medical evidence submitted in the current appeal does not suggest any significant deterioration such as to suggest that I can come to any different conclusion " is unsustainable in light of the evidence that was actually before him.
I further accept Mr Rooney's submission also in relation to [13] of the judge's decision that in finding there was no satisfactory evidence that health facilities for the First Appellant's condition were unavailable or inadequate the judge failed to take into account the clear evidence of a lack of provision for mental health treatment in China as set out at pages 56 to 76 of the supplementary bundle.
Thirdly, although it was not a point raised expressly in the grounds of appeal, I consider it is a Robinson obvious point that the judge erred in finding there were no obstacles to the Appellants' integration back into China in light of his errors in relation to the medical evidence and the background evidence as to mental health treatment in China.
Decision
I find material errors of law in the decision of First-tier Tribunal Judge R Hussain. I set it aside and remit the appeal for a hearing de novo before the First-tier Tribunal at Hatton Cross.
There is no anonymity order.
Signed Rebecca Chapman Date 9 April 2018
Deputy Upper Tribunal Judge Chapman