Mudibo v Secretary of State for the Home Department [2015] EWCA Civ 1588

Case No C2/2015/0424

[2015] EWCA Civ 1588

IN THE SUPREME COURT OF JUDICATURE

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE IMMIGRATION APPEAL TRIBUNAL

Venue Royal Courts of Justice

Date Tuesday, 15th December 2015

Strand

London, WC2

B E F O R E:

LADY JUSTICE GLOSTER

MRS MILDREA MUTHOKI MUDIBO

Claimant/Applicant

-v-

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Defendant/Respondent

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Mr S Harding (instructed by Quality Solicitors) appeared on behalf of the Applicant

J U D G M E N T

Between

MudiboAppellant

Secretary of State for the Home DepartmentRespondent

LADY JUSTICE GLOSTER:

[1]This is a renewed application for permission to appeal against the decision of the Upper Tribunal refusing the applicant permission to bring judicial review proceedings.

[2]The decision of the Upper Tribunal was dated 13th January 2015. Permission to appeal was refused on the papers by Sales LJ. The reasons he gave were as follows:

"There is no real prospect of success on appeal. The applicant cannot show that there are insurmountable obstacles to carrying on the relationship abroad within the meaning of para. Ex.1 of Appendix FM. The test of insurmountable obstacles is a stringent one (see now R (Agyarko) v SSHD [2015] EWCA Civ 440) and there is no arguable case that it can be met here. Although the applicant's husband is in receipt of medical treatment here, it would not be contrary to his Convention rights to expect him to go to Tanzania (according to the standards established in N v SSHD and N v UK). It will be a matter of choice for him. As for consideration of Art 8 outside the Immigration Rules, the applicant and her husband formed their relationship under conditions of known precariousness, and so would only be entitled to leave to remain in exceptional circumstances. There is no arguable case that the applicant can bring herself within the exceptional circumstances (since it is compatible with his Convention rights to expect him to go to Tanznia), nor does his British citizenship (see Agyarko at [33]). The error as to the place of birth of the applicant's husband is plainly immaterial. There is no other compelling reason to grant PTA."

[3]In his advocate statement Mr Harding has forcefully argued that notwithstanding what appeared to be the compelling reasons given by Sales LJ as to why permission to appeal in this case should be refused, nonetheless, given what Mr Harding submits is the low arguability test that is applicable in judicial review proceedings - see R v Secretary of State for the Home Department ex parte Begum

[1990] WLR 753

, 267 and given the low threshold for appeal in this court, (a real prospect of success on appeal) there is every reason, submits Mr Harding, for permission to appeal to be given in this case.

[4]With considerable hesitation I have come to the conclusion that Mr Harding is right that there are arguments that can be put forward, notwithstanding this court's decision in Agyarko

[2015] EWCA Civ 440

, a decision to which Sales LJ and I were party.

[5]I am persuaded that, with considerable hesitation, that it is arguable that both the decision taker and the Upper Tribunal did not adequately consider, or give reasons for the decision, that it was not an insurmountable obstacle that the quality of care for the husband's AIDS condition would not, to put it at its highest, be equivalent to the treatment that he could obtain in the UK.

[6]The husband, as Mr Harding points out, is a British citizen. He is entitled to be here. He was not, contrary to the view taken by the Upper Tribunal Judge, born in Tanzania "and is no stranger to its customs". He was not born in Tanzania, he was born in Somalia. In any event he has been a British citizen for some years and there is no way in which, as it were, he would be used to navigating the medical health institutions in Tanzania.

[7]Mr Harding distinguished the cases referred to by Sales LJ of NBS v SSHD and NB v UK in support of the proposition that it would not be contrary to the husband's Convention rights to expect him to go to Tanzania. Mr Harding points out that those cases can clearly be distinguished because they were not referring to a British citizen who was in a situation where the UK had accepted responsibility for his care, as the UK has clearly in this case. Those were cases, Mr Harding points out, relating to unsuccessful asylum seekers, or their partners, where there was no entitlement on the part of the ill person to have treatment in the UK and no accepted responsibility by the UK for such treatment. Here, Mr Harding also rhetorically, that if the husband's fear of death and the uncertainty as to whether, as a British citizen and a non-Tanzinian national, he would be entitled to healthcare in Tanzania and the risk of having inadequate treatment in that country, giving rise to a fear of death, is not an insurmountable obstacle, then what is?

[8]Mr Harding submits that, whatever the test, this is in reality a situation in which there are indeed insurmountable obstacles to family life with the husband continuing outside the UK.

[9]Mr Harding submits that neither the Upper Tribunal, nor the Secretary of State, gave proper consideration as to precisely what treatment was available, in Tanzania for the husband's very serious HIV condition and gave no reasons for the decision that she took that that the difference in healthcare did not constitute an insurmountable obstacle. It could of course be said, and no doubt will be said against the applicant, that no adequate evidence was before the Tribunal or the Secretary of State in relation to the healthcare available in Tanzania.

[10]It also seems to me arguable that the Upper Tribunal did apply too high a standard to the arguability test. The bottom line of this case, as it seems to me, is that as Mr Harding puts it, this is not really a case where the British citizen, the partner of the applicant, has a choice whether to relocate to Tanzania or to stay in the UK. It is really a life and death choice for him in the absence of certainty that as a British citizen, without capital funds, he would be entitled to obtain appropriate or indeed any healthcare in Tanzania. The medical evidence shows that the husband is very seriously ill. It is therefore, on Mr Harding's argument, a life and death choice and, as Mr Harding submits, that that is really no choice at all.

[11]For all those reasons, and with considerable hesitation in relation to whether the issue of law raised here really provide a platform for appeal, I do give permission to appeal. I am not going to grant permission to bring judicial review proceedings. I do not think that is appropriate. Mr Harding will have to persuade this court that it is appropriate for such an order to be made. I should also say that this is one of those cases where, even if there is not a real prospect of appeal, nonetheless there are other compelling reasons why it is appropriate for the court to hear an appeal.