“I have thought about it. I don’t have the extra money to pay a barrister. You did the last hearing for me in the Upper Tribunal so you can do the next one. Sorry, I don’t think we need anyone else, that’s why I came to you in the first place. And I told you last summer I don’t need to go to a legal aid lawyer. So, what are our next steps?”, enquired my client.
“Thanks for letting me know, I will be reviewing your case once again and will be in touch in a day or two”, I responded, taking it all in stride. This was just three weeks prior to a complex Article 3 appeal hearing. I had tried and failed to persuade my client(FM) to let external counsel represent him at his hearing. I had even prepared a list of barrister’s profiles from different chambers to go over with FM. External counsel involvement was considered to give FM a good shot at his upcoming appeal hearing.
Weeks later in August 2022, whilst leaving the hearing venue, we revisited this particular conversation.
“I knew what I was doing”, said FM as he smiled, “you know everything about my case and I was not going let anyone new come in and handle my case.”
When I broke the news to FM yesterday over the phone that the First Tier Tribunal had allowed his appeal, this time he broke into loud joyous laughter whilst repeatedly asking, “Are you sure, did we win, did we really win? please let me sit down in case I fall!”
Whether the Secretary of State will apply for permission to appeal is another issue: what mattered to FM was that suddenly, he was no longer on the “losing” side.
FM had been through a lot since his application for leave to remain on medical grounds was refused by the Home Office in 2020. By the time he made his application, he had been an overstayer since 2018. He attempted last year in June to represent himself however his appeal was dismissed- it is how the Presenting Officer and First Tier Tribunal Judge handled his case at appeal that led the Upper Tribunal to subsequently set aside the FTT decision and direct that a fresh hearing be heard.
Home Office Presenting Officer and Judge’s conduct during the hearing:
FM approached me after his appeal was dismissed by a First Tier Tribunal Judge. Having regard to the decision itself, on its face it appeared well reasoned. Upon taking further instructions however it emerged that:
- The Home Office Presenting Officer served during the appeal hearing itself, heard via remote video link, a new Home office Report – County Policy and information note: Medical Treatment and Healthcare, Zimbabwe, April 2021.
- The Judge subsequently noted in his decision that he asked the Presenting Officer to highlight what new information in the updated report FM wished to rely on, so that he could make an “informed” decision about whether he was disadvantaged by the late service of the new evidence. The Judge did not say express concern about the late reference to this new Report by the Presenting Officer.
- During the hearing FM kept recalling to himself the Directions given by the Tribunal: he understood the Home Office was required to provide a written review before the hearing as per directions. This was not done. Had the Home Office done so, perhaps he would have known about this Report before the hearing and possibly he could have tried to research in advance or said more in support of his case during the hearing.
- During the hearing FM was told to open the link to the Report and was referred to where he was required to read. He was given no more than 3minutes to read the section setting out the list of drugs considered available for the treatment of HIV in Zimbabwe. He had never seen the document before. The link opened to a long list of medication. He was told to specifically go to a certain drug and was told that it was available for him. The Judge controlled the navigation of the link. FM had no opportunity to read the entire Report.
- FM was told during the hearing that the drugs were available. The Judge concluded in his decision that both of the ARVs which FM took were available in Zimbabwe.
- It was noted by the Judge in his decision that FM confirmed that he had no objection to the Judge considering this evidence and was happy to proceed with the hearing.
- The Judge noted in his decision that FM did not have a legal representative. He asked whether AM wished to go ahead with the hearing to which FM responded yes.
- AM had not prepared a witness statement. He did not know how to do so( what he had titled a witness statement and served was his attempt at some arguments( which did not even lift off the ground).
- When FM tried during the hearing to explain that his relationship with his partner in Zimbabwe had broken down, the Home Office Presenting Officer sought to use this against FM stating he should have clarified this before the hearing( even though FM had not prepared a witness statement). The Judge agreed with the Home Office.
- FM informed the Judge and Presenting Officer that he came from a rural area which is about 299km from the Harare where the drugs are. The Judge asked FM to spell the name of the rural area for him, which he did. However when FM received the Judge’s decision, he noted that there was no mention of his concern that he lived far from where the drugs were said to be available.
- During the hearing the Judge asked the Presenting Officer where it was stated within the document he relied upon that medication is accessible to everyone and it is free. The Judge however did not mention in his decision that he asked the Home Office this question. The Presenting Officer responded simply stating the drug FM needed would be available.
Preparation of the permission application – application to the First Tier Tribunal for permission to appeal to the Upper Tribunal:
A witness statement I prepared on FM’s behalf addressed issues of concern regarding the conduct of the hearing so far as he could recall. FM’s witness statement, in his own words was key to showing how his appeal had been conducted unfairly.
Researched extracts of other background evidence was presented. The background evidence showed the problems with Zimbabwe’s healthcare system.
Amongst other matters, in summary, the Grounds for permission which I prepared submitted that:
- the Appellant was unrepresented and inexperienced but was without prior notice, during the course of the appeal hearing, presented by the Presenting Officer with a new 39page Home Office Country Information Note of April 2021 material to the appeal being focused on medical treatment and healthcare in Zimbabwe. The Appellant was not given a fair opportunity to consider the document: even if the Appellant had fully considered the Report, there were doubts as to his ability to have been able to respond to the documentary evidence he had unexpectedly been referred to in matters concerning Article 3 medical condition claims, which are by nature quite complex.
- The Appellant started and completed his appeal hearing from an obvious disadvantage.
- In the face of late service of such a key material document, the FTT Judge did not suggest an adjournment. This was to the Appellant’s detriment.
- The April 2021 Note should have been treated like any other evidence sought to be relied upon by the Respondent and needed to be served before the hearing date. Having been presented with the April 2021 Note during the hearing, the Appellant was not given a fair opportunity in advance of the hearing to grapple with the contents of the Note.
- There was fundamental unfairness in the manner that the Appellant’s appeal hearing progressed.
- There were other relevant sections within the April 2021 Note that gave indication of the dire state of the health care system in Zimbabwe and problems with access beyond the list of medications the Appellant was referred to.
- The FTT Judge failed to consider how the Appellant would be able to access treatment/medication in the city when the Appellant would be living in an area quite some distance away.
- Other background evidence(as per the provided extracts of background evidence)showed problems regarding the cost, perennial shortages of ARVs in Zimbabwe and other problems bedevilling the healthcare system in Zimbabwe. If permission to appeal was granted, the Appellant requested that consideration be given to adducing the extracts of background evidence in also seeking to argue that the errors of law by the FTT Judge were material.
- It was more than obvious (from the contents of the bundle provided by the Appellant and his attempts at written “submissions”) that he could have benefited from legal representation. The Appellant prepared no witness statement in support of his appeal. Having regard to the tenor of the written “ arguments” as set out in the Appellant’s documents, the FTT Judge should have expressed some considerable hesitation in proceeding with the appeal without giving the Appellant an opportunity to source legal representation.
- There was a failure to consider the Appellant’s appeal justly and fairly.
- The omission to consider whether to adjourn had the same consequence that the proceedings were imbued with a sense of unfairness and therefore the principles arising from Nwaigwe (adjournment: fairness)  UKUT 418 (IAC),
- Without suggesting or granting an unrepresented Appellant an adjournment and giving him a fair opportunity to respond to what was very late service of a key document, the FTT Judge erred in concluding that the Appellant had failed to discharge the burden that was upon him to make out a prima facie case to show that he would be unable to access the necessary treatment for his medical conditions if returned to Zimbabwe.
Permission to appeal to the Upper Tribunal was granted by the First Tier Tribunal.
Upper Tribunal sets aside FTT Judge’s decision on grounds of procedural failing-FM did not receive a fair hearing:
For the purposes of the “error of law” hearing, out of an abundance of caution, an entire new Appellant’s Bundle was prepared in case the First Tier Tribunal’s decision was found to contain an error law and was set aside with the Upper Tribunal proceeding to remake the decision without an adjournment.
An Appeal Skeleton Argument and a fresh new Witness statement was prepared on FM’s behalf. The Witness statement addressed the refusal decision of 2020 and brought facts up to date.
The Skeleton Argument also referred most relevantly to the following caselaw:
FM’S medical reports were updated- with reports obtained from his NHS Consultant and his GP.
The error of law hearing came up to be heard by the Upper Tribunal in February 2022.
I represented FM at the hearing before the Upper Tribunal:
As regards the legal issues in play the Upper Tribunal Judge summarised in this unreported decision www.tribunalsdecisions.service.gov.uk/utiac/hu-05336-2020 or HU/05336/2020 – Tribunal decisions – GOV.UK:
“2. The appellant is a citizen of Zimbabwe who is HIV positive and is currently in receipt of several different drugs in respect of his condition. His case is that he would be at risk on return to Zimbabwe on account of his medical condition, the lack of treatment for that available to him in Zimbabwe and the difficulties he would face on account of the current situation in Zimbabwe which would impact on his ability to live there, to re-integrate into life there and properly to access the treatment he needs to stay alive. The Secretary of State was not satisfied that he met the requirements of the Immigration Rules or that his removal would be in breach of the United Kingdom’s obligations pursuant to Article 3 of the Human Rights Convention or that his removal would be in breach of Article 8 of the Human Rights Convention”.
The Upper Tribunal Judge found an error of law in the FTT Judge’s decision and set it aside concluding:
“10. Turning then to the second ground, I consider that, as Ms Muzira submits, this is an appeal to which Nwaigwe applies and that the overall consideration is whether the hearing was unfair or not.
11. Unusually, this is a case in which the appellant did not himself request an adjournment but there are a number of factors which I consider do militate in favour of the appellant. First, the CPIN served on the day of the hearing was central to the appeal. Second, it was produced late and directly contrary to the directions issued. Third, the judge does not appear to have dealt with this document in the manner prescribed by the directions to which I have already referred. Further, the appellant was not served with the document but was rather given a link to it and was expected whilst maintaining a CVP connection to the Tribunal to deal with that and to access it and it appears he was given only a matter of minutes to look at it.
12. I accept, as Mr Walker submitted, the appellant was given time to look at it and I do note that he was directed to specific passages, but I bear in mind that there is a reason why directions are given.
13.Directions are given for service of documents before a specific date is to allow the other party time properly to understand them, to be able to formulate a response and to make submissions. The CPIN is lengthy, detailed and in addition to the list of drugs available, it makes mention that some are available privately and others through the state medical system. The document in question also refers to the difficulties that are generally with medical supplies in Zimbabwe. A professional representative may have been able to formulate a response to that, drawing attention to the issue of the drugs being available only privately, the wider difficulties that are in accessing drugs, but it is highly unlikely that a lay person might not have been able to do so on the day, they may well have been able to deal with it given adequate time.
14. The appellant did, I accept, indicate to the judge that he was happy to proceed. But I accept his evidence that he felt under pressure to do so, and I consider his consent was not fully informed.
15. In the circumstances I am satisfied that what happened did lead to unfairness, albeit that the judge might not have been fully aware of the difficulties in proceeding in this case. Given the combination of the difficulties with the document, its size and the circumstances in which the appellant was given access to it, I am satisfied that the hearing in this case was unfair for the reasons given and that accordingly the decision of the First-tier Tribunal ought to be set aside.
16. As the appeal falls to be set aside on the basis of ground 2, it is unnecessary for me to consider whether the appeal should also be set aside on the terms of ground 3.
17. Given that I have concluded that this is a decision which ought to be set aside on the grounds of procedural failing in that the appellant did not receive a fair hearing, I conclude that the only fair way of disposing of the appeal is to remit it to the First-tier Tribunal for a fresh hearing on all matters; none of the findings of the First-tier Tribunal are preserved”.
The First Tier Tribunal allows FM’s appeal:
FM’s appeal before the First Tier Tribunal came up to be heard in August 2022.
An appeal Bundle had already been served along with the Appeal Skeleton Argument and FM’s Witness Statement.
Updated medical reports were obtained once again from FM’s NHS Consultant as well his GP.
What had happened however between February 2022 and August 2022 was that the Upper Tribunal had decided and published the judgement in AM (Article 3, health cases) ZIMBABWE  UKUT 131 (IAC) (22 March 2022).
AM(Zimbabwe) 2022 states in its Headnote:
“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  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”?
2.The first question is relatively straightforward issue and will generally require clear and cogent medical evidence from treating physicians in the UK.
3.The second question is multi-layered. In relation to (2)[ii][a] above, it is insufficient for P to merely establish that his or her condition will worsen upon removal or that there would be serious and detrimental effects. What is required is “intense suffering”. The nature and extent of the evidence that is necessary will depend on the particular facts of the case. Generally speaking, whilst medical experts based in the UK may be able to assist in this assessment, many cases are likely to turn on the availability of and access to treatment in the receiving state. Such evidence is more likely to be found in reports by reputable organisations and/or clinicians and/or country experts with contemporary knowledge of or expertise in medical treatment and related country conditions in the receiving state. Clinicians directly involved in providing relevant treatment and services in the country of return and with knowledge of treatment options in the public and private sectors, are likely to be particularly helpful.
4.It is only after the threshold test has been met and thus Article 3 is applicable, that the returning state’s obligations summarised at  of Savranbecome of relevance – see  of Savran”.
I represented FM at the hearing before the First Tier Tribunal.
It was confirmed before the Judge that the issue to be determined was whether the FM’s removal to Zimbabwe would constitute a breach of Article 3 on medical grounds.
The Presenting Officer was noted to have confirmed that FM’s witness statement was accepted as the Secretary of State did not dispute the contents therein, such that the appeal could proceed by way of submissions only:
- Submissions on FM’s behalf commenced by reminding the Judge that it was accepted FM suffers from a serious medical condition such that the first limb of AM(Zimbabwe)  UKSC 17 is satisfied. I referred in this connection to relevant paragraphs of FM’s medical reports.
- The focus of submissions also lay squarely upon a reliance on quite a few relevant paragraphs in AM(Zimbabwe) 2022 to the extent that they could be relied upon in FM’s favour.
- It was further submitted, for various reasons, that the Secretary of State’s April 2021 Information Note did not assist her position. Even if it could be considered the medication was available there were certainly issues with accessibility of medical treatment for FM.
- As regards the particular regimen that FM was on, the list set out in the April 2021 Information Note did not provide an answer to the availability and accessibility issues
By decision promulgated on 7 October 2022 FM’s Article 3 appeal was allowed by a First Tier Tribunal Judge.
The Judge concluded that he did not find that FM would have the necessary treatment available in Zimbabwe. Neither would the Appellant have access to the necessary medication. He found that there was a real risk, on account of the absence of appropriate treatment or lack of access to such treatment, of FM being exposed to a serious, rapid and irreversible decline in his health resulting in intense suffering or to a significant reduction in life expectancy. Applying the relevant test endorsed in AM(Zimbabwe), the Judge concluded that the return of FM to Zimbabwe would give rise to a breach of Article 3.
A whole lot more arguments were submitted during the hearing on FM’s behalf. The submissions were particularly specific to the facts of his case.
A thorough reading of the entire Upper Tribunal’s judgement of AM(Zimbabwe) 2022 is required to sustain a viable legal argument. Also relevant is a detailed analysis of the relevant Information Note on medical cases in comparison with the actual ARV regimen that a claimant is on.
There is a need to explain why it is being argued the treatment required will not be available and/or accessible. Just because there is evidence presented by the Home Office to show the treatment might be available should not deter from an argument that it might not be accessible.
The medical evidence put forward must be effective, uptodate and address relevant issues to be considered by the Tribunal in relation to the claimant such as:
- their medical condition
- their current treatment for their medical condition
- the likely suitability of any alternate treatment for their medical condition
- the effect that an inability to obtain effective treatment would have on their health
Article 3 health cases are quite complex and technical. Wherever possible the option of experienced external Counsel involvement should be put forward to a claimant so that they may make an informed choice as to how they are to be represented at their appeal hearings.