MY v The Secretary of State for the Home Department [2021] UKUT 232 (IAC)

[2021] UKUT 00232 (IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
Date 6 May 2021
THE IMMIGRATION ACTS
Before
UPPER TRIBUNAL JUDGE McWILLIAMDEPUTY UPPER TRIBUNAL JUDGE THOMAS
Between
M YAppellant(ANONYMITY DIRECTION MADE)AppellantTHE SECRETARY OF STATE FOR THE HOME DEPARTMENTRespondentAmended decision pursuant to Rule 42 (The Tribunal Procedure (Upper Tribunal) Rules 2008)R epresentation:Mr B Fullbrook, Counsel, instructed by Duncan Lewis & Co Solicitors for AppellantMs J Isherwood, Home Office Presenting Officer for RespondentWhere an individual asserts that he would be at real risk of (i) a significant, meaning substantial, reduction in his life expectancy arising from a completed act of suicide and/or (ii) a serious, rapid and irreversible decline in his state of mental health resulting in intense suffering falling short of suicide, following return to the Receiving State and  meets the threshold for establishing Article 3 harm identified at [29] – [31] of the Supreme Court’s judgment in AM (Zimbabwe) v Secretary of State for the Home Department[2020] UKSC 17; [2020] Imm AR 1167, when undertaking an assessment the six principles identified at [26] – [31] of J v Secretary of State for the Home Department[2005] EWCA Civ 629; [2005] Imm AR 409 (as reformulated in Y (Sri Lanka) v SSHD [2009] EWCA Civ 362) apply.Direction Regarding Anonymity – Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008Unless and until a Tribunal or court directs otherwise, the Appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of his family. This direction applies both to the Appellant and to the Respondent. Failure to comply with this direction could lead to contempt of court proceedingsDECISION AND REASONS

Directions

[1]The Appellant claims to be a citizen of the Occupied Palestinian Authority (OPA). His date of birth is 1 January 1992.[2]It is the practice of the Tribunal that an anonymity order is made in all appeals raising asylum or international protection claims. All asylum appeals are anonymised in the First-tier Tribunal in accordance with Presidential Guidance Note No 2 of 2011. UTIAC will follow the same general practice properly applying Upper Tribunal (IAC) Note No 1 of 2013: Anonymity Orders. We see no reason to interfere with the direction to anonymise the Appellant made by UTJ Pitt on 28 October 2020.

The background

[3]The Secretary of State seeks to deport the Appellant pursuant to a deportation order dated 27 May 2015. This followed the Appellant’s conviction on 10 July 2014 at Southwark Crown Court forrobbery and assault occasioning actual bodily harm for which he was sentenced to 22 months’ imprisonment. The Appellant made an application to have the deportation order revoked. The Secretary of State refused to revoke the deportation order in a decision dated 16 March 2016.The Appellant appealed against this decision of the Secretary of State on the grounds that deportation breaches the United Kingdom’s obligations under 1951 UN Convention Relating to the Status of Refugees (‘Refugee Convention’) and his rights under Articles 2, 3 and 8 of 1950 European Convention on Human Rights (‘ECHR’). His appeal was dismissed by the First-tier Tribunal (First-tier Tribunal Judge Myers) in a decision that was promulgated on 5 September 2016, following a hearing on 22 August 2016.[4]The Appellant was refused permission to appeal against the decision of Judge Myers by the First-tier Tribunal and the Upper Tribunal. However, he sought a judicial review of the Upper Tribunal decision refusing him leave by way of a Cart challenge R (on the application of Cart) v the Upper Tribunal[2011] UKSC 28; [2011] Imm AR 704. . Permission was refused in the Administrative Court. The Appellant sought permission to appeal this refusal to the Court of Appeal and eventually permission was granted by Hickinbotton LJ on 17 March 2018.In granting permission, Hickinbotton LJ stated as follows:
“In the circumstances, I consider that the appropriate course is to grant permission to proceed with the judicial review, and remit the matter to the Administrative Court. The Secretary of State may wish to consider whether to concede the judicial review, so that the matter is remitted to the Upper Tribunal which might be regarded as the most appropriate forum for the issue of whether the First-tier Tribunal determination is wrong to be considered and determined.”
[5]A consent order was subsequently approved in the Administrative Court whereby the decision of the Upper Tribunal refusing permission to appeal against the First-tier Tribunal was quashed following the grant of permission to apply for judicial review.

The “Error of Law”decision

[6]The matter came before Upper Tribunal Judge Craig on 19 September 2019. He found that the judge materially erred and set aside Judge Myers’ decision in a decision dated 22 May 2020. The salient parts of the error of law decision read as follows:- “28. Since the hearing, as had been anticipated when AM (Zimbabwe) had been argued in the Court of Appeal, the applicant in that case had appealed further to the Supreme Court and his appeal was heard on 4 December last year.29. Judgment in that case has only very recently been given (on 29 April 2020) and the Supreme Court’s decision as set out at paragraph 34 was that ‘in the light of the decision in the Paposhvili case, it is from the decision of the House of Lords in the N case that we should depart today’.30. In the judgment of this Tribunal now, the jurisdictionalbackground under which this Appellant’s case falls to be determined is potentially very different from that which applied when Judge Myers reached her decision. Although she was obliged to apply the law as it was believed to be at the time she made her decision (as was the Court of Appeal in AM (Zimbabwe)), the Supreme Court decision in AM (Zimbabwe), having regard to the ECtHR decision in Paposhvili, has retrospect effect the consequences of which is that Judge Myers’ decision in this case was not reached after careful analysis of the law which, in light of the Supreme Court decision in AM (Zimbabwe) applied. While it may be that even applying the most recent authority the Appellant’s appeal will still not succeed, he is at least entitled to have the case considered in light of the most recent authority, which may include consideration of whether, and if so to what extent the decision of the Court of Appeal in J is compatible with Paposhvili as considered by the Supreme Court in AM (Zimbabwe).31. One of the reasons why Judge Myers may not have analysed the Sprakab Report more fully is because in the light of the jurisprudence it was then believed to be, as she observed (e.g. at paragraph 32), even if the Appellant was to be returned to the Palestinian territories he still would not be able to succeed under Article 3; however, in light of the Supreme Court’s decision in AM (Zimbabwe) this might not continue to be the case, because there has been no analysis as to the availability of treatment which the Appellant might require, let alone with regard to the suicide risk itself.32. It follows that, although the judge was bound to follow the jurisprudence such as existed at the time of her decision, technically her failure to have regard to decisions which had not been made by that time was an error of law, and accordingly her decision must be set aside and remade.33. Accordingly, I make the following directions:- Directions 1. The appeal will be relisted for a hearing in the Upper Tribunal. 2. Consideration will be given as to whether the appeal should be reheard by a panel, and further directions will be given to the parties in due course”.[7]On 28 October 2020 Upper Tribunal Judge Pitt issued directions following a case management hearing. She refused the Appellant leaveto obtain an expert report on health provision available in OPA and Morocco given the delay and cost that this would require and where material on these matters will be available from other sources.

The Grounds of Appeal

[8]The Appellant appeals against the decision of the Respondent of 16 March 201 6 on the basis that return to OPA would mean he was at a risk of treatment such as would breach the UK’s obligations under the Refugee Convention and his rights under Articles 2 and 3 ECHR. Additionally, he submits that removal to either Morocco or OPA would breach his rights under Article 3 ECHR (on health grounds) and Article 8 ECHR.

The issues

[9]We have to determine the following questions of fact;- a). Whether the Appellant is excluded from protection of the Refugee Convention:Article 33(2)of the Refugee Convention and Article 14(5) of the Council Directive (2004/83/EC) (Qualification Directive) with reference to s.72 Nationality, Immigration and Asylum Act 2002. b). Whether the Appellant is a citizen of Morocco or OPA. c). Whether the Appellant is at risk of persecution under the Refugee Convention on return to the country of his nationality or (if excluded from protection of the Refugee Convention) he is at risk of treatmentincluding torture or "inhuman or degrading treatment or punishment" breaching his rights underArticles 2 and3ECHR. d). Whether returning the Appellant to OPA or Morocco will breach his rights under Article 3 ECHR on the grounds that because of his mental illness he would face a real riskof being exposed to a serious, rapid and irreversible decline in his state of health resulting in intense suffering and a significant, meaning substantial, reduction in life expectancy(‘Article 3 health grounds’). If not, whether the decision breaches the Appellant’s rights under Article 8 ECHR.[10]The final question involves a question of law, arising from submissions advanced by Ms Isherwood concerning the application ofY (Sri Lanka) v SSHD [2009] EWCA Civ 362 and J v SSHD [200 5] EWCA Civ629; [2005] Imm AR 409following Paposhvili v Belgium2016 ECHR 41738/10; [2017] Imm AR 867and AM (Zimbabwe) v SSHD[2020] UKSC 17; [2020] Imm AR 1167.

The law

[11]For the reasons we go on to explain, this appeal is allowed on the Article 3 health grounds. We will start with setting out the law in respect of Article 3 health cases because, in our view, this is the determinative issue in this appeal.[12]The Grand Chamber in Paposhvilirecast the test to be applied in Article 3 health cases. It expressed the view in paragraph 182 that the approach to health cases should be clarified. The court then stated as follows:- “183. The Court considers that the “other very exceptional cases” within the meaning of the judgment in N. v. the United Kingdom (§ 43) which may raise an issue under Article 3 should be understood to refer to situations involving the removal of a seriously ill person in which substantial grounds have been shown for believing that he or she, although not at imminent risk of dying, would face a real risk, on account of the absence of appropriate treatment in the receiving country or the lack of access to such treatment, of 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. The Court points out that these situations correspond to a high threshold for the application of Article 3 of the Convention in cases concerning the removal of aliens suffering from serious illness.”[13]The Court of Appeal analysed the effect ofPaposhvili (AM (Zimbabwe) v SSHD [2018] EWCA Civ 64; [2018] Imm AR 737). It was the court’s view that the decision relaxed the N test (N v United Kingdom2008 ECHR 26565/05; [2008] Imm AR 657) for violation of Article 3 in the case of a foreign national with a medical condition “only to a very modest extent”. On appeal, the Supreme Court in AMin explaining why it disagreed with the Court of Appeal’s approach stated as follows:29. The criticism of the above passage made by the appellant and by the AIRE Centre largely relates to the second sentence. In relation, however, to the first sentence, they suggest that, irrespective of the precise meaning, in context, of “a significant reduction in life expectancy” in para 183 (as to which see para 31 below), the paraphrase of “death within a short time” favoured by the Court of Appeal may not be entirely accurate. In relation to the second sentence, their criticism is directed to the words “the imminence (i.e., likely ‘rapid’ experience) of … death in the receiving state” attributable to the non-availability of treatment. They point out that the Grand Chamber was addressing exposure “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” (italics supplied); and they contend that the Court of Appeal has misinterpreted those words so as to refer to a serious, rapid and irreversible decline in his or her state of health resulting in intense suffering or in a significant reduction in life expectancy. The Secretary of State, for her part, rejects their criticism as narrow and syntactical, apt perhaps to the construction of a statute but inapt to the present context in which the meaning of para 183 should be informed by “case law and realism”. Her reference to case law turns out to be an indorsement of the questionable conclusion of the Court of Appeal that in the Paposhvili case the Grand Chamber approved its decision in the N case. What remains is her reference, rather undeveloped, to realism.30. There is, so I am driven to conclude, validity in the criticism of the Court of Appeal’s interpretation of the new criterion. In its first sentence the reference by the Grand Chamber to “a significant reduction in life expectancy” is interpreted as “death within a short time”. But then, in the second sentence, the interpretation develops into the “imminence … of … death”; and, as is correctly pointed out, this is achieved by attributing the words “rapid … decline” to life expectancy when, as written, they apply only to “intense suffering”. The result is that in two sentences a significant reduction in life expectancy has become translated as the imminence of death. It is too much of a leap.31. It remains, however, to consider what the Grand Chamber did mean by its reference to a “significant” reduction in life expectancy in para 183 of its judgment in the Paposhvili case. Like the skin of a chameleon, the adjective takes a different colour so as to suit a different context. Here the general context is inhuman treatment; and the particular context is that the alternative to “a significant reduction in life expectancy” is “a serious, rapid and irreversible decline in … health resulting in intense suffering”. From these contexts the adjective takes its colour. The word “significant” often means something less than the word “substantial”. In context, however, it must in my view mean substantial. Indeed, were a reduction in life expectancy to be less than substantial, it would not attain the minimum level of severity which article 3 requires. Surely the Court of Appeal was correct to suggest, albeit in words too extreme, that a reduction in life expectancy to death in the near future is more likely to be significant than any other reduction. But even a reduction to death in the near future might be significant for one person but not for another. Take a person aged 74, with an expectancy of life normal for that age. Were that person’s expectancy be reduced to, say, two years, the reduction might well - in this context - not be significant. But compare that person with one aged 24 with an expectancy of life normal for that age. Were his or her expectancy to be reduced to two years, the reduction might well be significant.32. The Grand Chamber’s pronouncements in the Paposhvili case about the procedural requirements of article 3, summarised in para 23 above, can on no view be regarded as mere clarification of what the court had previously said; and we may expect that, when it gives judgment in the Savran case, the Grand Chamber will shed light on the extent of the requirements. Yet observations on them may even now be made with reasonable confidence. The basic principle is that, if you allege a breach of your rights, it is for you to establish it. But “Convention proceedings do not in all cases lend themselves to a rigorous application of [that] principle …”: DH v Czech Republic(2008) 47 EHRR 3, para 179. It is clear that, in application to claims under article 3 to resist return by reference to ill-health, the Grand Chamber has indeed modified that principle. The threshold, set out in para 23(a) above, is for the applicant to adduce evidence “capable of demonstrating that there are substantial grounds for believing” that article 3 would be violated. It may make formidable intellectual demands on decision-makers who conclude that the evidence does not establish “substantial grounds” to have to proceed to consider whether nevertheless it is “capable of demonstrating” them. But, irrespective of the perhaps unnecessary complexity of the test, let no one imagine that it represents an undemanding threshold for an applicant to cross. For the requisite capacity of the evidence adduced by the applicant is to demonstrate “substantial” grounds for believing that it is a “very exceptional” case because of a “real” risk of subjection to “inhuman” treatment. All three parties accept that Sales LJ was correct, in para 16, to describe the threshold as an obligation on an applicant to raise a “prima facie case” of potential infringement of article 3. This means a case which, if not challenged or countered, would establish the infringement: see para 112 of a useful analysis in the Determination of the President of the Upper Tribunal and two of its senior judges in AXB v Secretary of State for the Home Department[2019] UKUT 397 (IAC). Indeed, as the tribunal proceeded to explain in para 123, the arrangements in the UK are such that the decisions whether the applicant has adduced evidence to the requisite standard and, if so, whether it has been successfully countered fall to be taken initially by the Secretary of State and, in the event of an appeal, again by the First-tier Tribunal.[14]The above cases concerned appellants with physical health conditions. On 1 October 2019, in the Savran v Denmark2019 ECHR 5746 7/15 the European Court of Human Rightsapplied the Paposhvilitest in cases involving the expulsion of a criminal with a psychiatric condition. Richards LJ supported the application of the N test in psychiatric cases in RA (Sri Lanka) v SSHD [2008] EWCA Civ 1210; [2009] Imm AR 320 at [50]. This was endorsed by the same court in Y, which approved the six-part test in J, in suicide cases.[15]Brooke LJ in J said it was possible from the case law to amplify the test and made 6 points. The fifth point was reformulated in Y.[16]The J test, as formulated at [26] to [32] notes: - “First the test requires an assessment to be made of the severity of the treatment which it is said that the applicant will suffer if removed. This must attain a minimum level of severity. The court has said on a number of occasions that the assessment of its severity depends on all the circumstances of the case. But the ill-treatment must ‘necessarily be serious such that it is ‘an affront to fundamental humanitarian principles to remove an individual to a country where he is at risk of serious ill-treatment’: see Ullahparas [38]-[39]. Secondly, a causal link must be shown to exist between the act or threatened act of removal or expulsion and the inhuman treatment relied on as violating the applicant’s Article 3 rights. Thus, in Soering at para [91], the court said:
‘Insofar as any liability under the Convention is or may be incurred, it is liability incurred by the extraditing contracting state by reason of its having taken action which has as a direct consequence the exposure of an individual to proscribed ill-treatment’
(emphasis added). See also [108] of Vilvarajah where the court said that the examination of the Article 3 issue ‘must focus on the foreseeable consequences of the removal of the applicants to Sri Lanka …’ Thirdly, in the context of foreign cases, the Article 3 threshold is particularly high simply because it is a foreign case. And it is even higher where the alleged inhuman treatment is not the direct or indirect responsibility of the public authorities of the receiving state, but results from some naturally occurring illness, whether physical or mental. This is made clear in para [49] of D and para [40] of Bensaid. Fourthly, an Article 3 claim can in principle succeed in a suicide case (para [37] of Bensaid). Fifthly, in deciding whether there is a real risk of a breach of Article 3 in a suicide case, a question of importance is whether the applicant’s fear of ill-treatment in the receiving state upon which the risk of suicide is said to be based is objectively well-founded. If the fear is not well-founded, that will tend to weigh against there being a real risk that the removal will be in breach of Article 3. Sixthly, a further question of considerable relevance is whether the removing and/or the receiving state has effective mechanisms to reduce the risk of suicide. If there are effective mechanisms, that too will weigh heavily against the applicant’s claim that removal will violate his or her Article 3 rights”.[17]In Y the Court of Appeal stated: - “15. …The corollary of the final sentence of §30 of J is that in the absence of an objective foundation for the fear some independent basis for it must be established if weight is to be given to it. Such an independent basis may lie in trauma inflicted in the past on the appellant in (or, as here, by) the receiving state: someone who has been tortured and raped by his or her captors may be terrified of returning to the place where it happened, especially if the same authorities are in charge, notwithstanding that the objective risk of recurrence has gone. 16. One can accordingly add to the fifth principle in J that what may nevertheless be of equal importance is whether any genuine fear which the appellant may establish, albeit without an objective foundation, is such as to create a risk of suicide if there is an enforced return.”[18]Thefifth point was reformulated as follows: - “[...] whether any genuine fear which the appellant may establish, albeit without an objective foundation, is such as to create a risk of suicide if there is an enforced return. [15]”[19]Sir Duncan Ouseley in R (Carlos) v SSHD [2021] EWHC 986 (Admin)stated at [159]: “Article 3 and suicide risk: this is another facet to which Paposhviliand AM (Zimbabwe) apply. It is for EC to establish the real risk of a completed act of suicide. Of course, the risk must stem, not from a voluntary act, but from impulses which he is not able to control because of his mental state”.[20]Insofar as the judgment in AXB v SSHD [2019] UKUT 397relates to the procedural aspects arising from Paposhvili, what is stated at [112] (replicated at paragraph 3 of the headnote) was endorsed by the Supreme Court in AM:- “The burden is on the individual appellant to establish that, if he is removed, there is a real risk of a breach of Article 3 ECHR to the standard and threshold which apply. If the appellant provides evidence which is capable of proving his case to the standard which applies, the Secretary of State will be precluded from removing the appellant unless she is able to provide evidence countering the appellant’s evidence or dispelling doubts arising from that evidence. Depending on the particular circumstances of the case, such evidence might include general evidence, specific evidence from the Receiving State following enquiries made or assurances from the Receiving State concerning the treatment of the appellant following return.” 2 1. In respect of the obligations on the Respondent following Paposhvili, the Supreme Court stated at [33] as follows:- “In the event that the applicant presents evidence to the standard addressed above, the returning state can seek to challenge or counter it in the manner helpfully outlined in the judgment in the Paposhvili case at paras 187 to 191 and summarised at para 23(b) to (e) above. The premise behind the guidance, surely reasonable, is that, while it is for the applicant to adduce evidence about his or her medical condition, current treatment (including the likely suitability of any other treatment) and the effect on him or her of inability to access it, the returning state is better able to collect evidence about the availability and accessibility of suitable treatment in the receiving state. What will most surprise the first-time reader of the Grand Chamber’s judgment is the reference in para 187 to the suggested obligation on the returning state to dispel “any” doubts raised by the applicant’s evidence. But, when the reader reaches para 191 and notes the reference, in precisely the same context, to “serious doubts”, he will realise that “any” doubts in para 187 means any serious doubts. For proof, or in this case disproof, beyond all doubt is a concept rightly unknown to the Convention.”

The Appellant’s immigration history

[22]The Appellantclaims to have entered the UK in 2006. The Secretary of State does not have a record of his entry. In 2011 the Appellant was arrested for attempted theft. He was remanded in Feltham Young Offenders Institute (YOI). He applied for asylum on 22 June 2011. On 14 September 2011 he was convicted of attempted theft. He was sentenced to nine months in a YOI.[23]On 1 1 November 2011 his claim for asylum was refused. On 5 December 2011 the Appellant lodged an appeal against this decision. On 19 December 2011 the decision was withdrawn by the Secretary of State. The application was again refused by the Secretary of State on 20 April 2012.[24]The Respondent listed the Appellant as an absconder from 27 February 2013 until 19 March 2014. On 10 July 2014 the Appellant was convicted of robbery and ABH. On 29 August 2014 he was sentenced to 22 months’ imprisonment.A deportation order of 27 May 2015 was served on the Appellant on 5 June 2015. The Appellant made submissions on 23 July 2015 asserting that returning to the OPA would breach his rights under Articles 2, and 3 of the 1950 ECHR.[25]On 25 November 2015 the Appellant made further representations seeking to revoke the deportation order. He relied on a medical report from Dr Elizabeth Clark of 18 November 2015(AB/114-136). He submitted that he was a victim of torture and that inconsistencies in his account can be explained by medical evidence.[26]At the appeal before the First-tier Tribunal the Appellant relied on the evidence of Dr Clarkeand Dr Arthur Andersondated 6 April 2016 (AB/95-113). Before us the Appellant relied on a psychiatric assessment by Consultant Forensic Psychiatrist Dr Galappathiedated 30 December 2020 (AB/12-47) and a report concerning the background evidence prepared by Professor Joffédated 2 January 2021 (AB/48-94).

The basis of the Appellant’s protection claim

[27]The Appellant’s claim, in a nutshell, is that he fears return to the OPAbecause of imputed political opinion. His father was shot by the Israeli defence force because he was a spy for the Palestinians. The Appellant left Palestine when he was aged 11 and travelled to Egypt by lorry. He then travelled from Egypt to Turkey. In Turkey he was pursued by the people responsible for killing his family. He then travelled to Malta before coming to the UK by lorry.

The Respondent’s decision

[28]The Respondent’s case is that the Appellant is not credible. He is not from OPA. He is a national of Morocco. The Respondent relies on a linguistic analysis interview that was conducted on 4 November 2011and dated 7 November 2011 (the Sprakab Report) and inconsistencies in the accounts given by the Appellant specifically in his asylum interview.[29]The Respondent relies on s.8 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 concerning the delay in the Appellant having made a claim on protection grounds. The Appellant is excluded from protection of the Refugee Convention/grant of humanitarian protection because there are serious reasons for considering that he constitutes a danger to the community.[30]The Respondent acknowledges that the health system in the OPA is not a on par with that in western countries; however,there are organisations that the Appellant could approach there for help, support and assistance. In respect of Morocco, the Respondent’s position is that the Appellant would be able to receive sufficient medical treatment there.As will be seen below, the Respondent changed her position in post- hearing submissions. It is now conceded that if the Appellant is a citizen of the OPA, his claim should succeed under Article 3 (health grounds).

The hearing

[31]At the start of the hearing Mr Fullbrook indicated that the Appellant was able to give evidence in English, however it was decided that the interpreter would remain at the hearing to assist, if and when necessary. Ms Isherwood had not prepared a skeleton argument. We were surprised that in a case of such complexity, the Respondent had not thought it necessary to prepare a skeleton argument. What we had from the Respondent was an email with links to documents containing background evidence.[32]During submissions we wanted Ms Isherwood to specify parts of the background evidence relied on and explain its relevance as regards health care in both OPA and Morocco. However, this put her in difficulty and the information was not readily forthcoming. This was frustrating for us. We thought it would assist us to give her the opportunity to do this in writing after the hearing and to give Mr Fullbrook the opportunity to respond.[33]What we received in response were full written submissions presenting the Respondent’s case in a way which bears little, if any, resemblance to the oral submissions we heard. It goes well beyond the information we sought. It is a blatant attempt to re-argue the case. It is obvious that the document should have been prepared for the oral hearing. To seek to rely on it after the hearing potentially undermines the function of the UT.[34]There are two significant submissions now made that put the case on a different footing. Firstly, Ms Isherwood now concedes that the test in Paposhvili applies to mental health cases. She denied this in oral submissions. There is now a concession that the appeal should be allowed under Article 3, if the Appellant is found to be from the OPA. In oral argument she sought to persuade us otherwise. It is not accepted that there is a lack of medical treatment. The concession is made on the basis of “uncertainty surrounding UNSC’s most recent recommendation at this current time.” Secondly, submissions are made for the first time about how the approach inJshould be reformulatedfollowingPaposhviliand AM.[35]In response to Ms Isherwood’s written submissions, the Appellant has made further written submissions. It is submitted that the Respondent’s written submissions go well beyond the scope of the Tribunal’s direction and amount essentially to an attempt to re-argue the case. There is no reason why these submissions could not have been made at the substantive hearing. There is also no reason why the legal submissions contained therein could not have been made in a skeleton argument submitted before the hearing. The Appellant submits that it would be procedurally improper and unfair to the Appellant to admit these submissions since to do so(a) frustrates and undermines the purpose of oral arguments, and(b) creates additional costs contrary to the overriding objective.[36]We take on board that Ms Isherwood was placed in the unenviable position of advancing a case which had not been prepared, and thus struggled to make submissions; however, the Respondent did not have the permission of the Tribunal to make full written post hearing submissions. They are significantly different to oral submissions. They rely on legal argument which Mr Fullbrook has not had the opportunity to respond to orally.[37]It is incumbent on the parties to be ready to proceed to conclusion on the hearing date in furtherance of the overriding objective. Skeleton arguments should be produced prior to the hearing. There must be finality in litigation and the parties have a duty to be fully ready to conclude the hearing on the hearing date. Failure to be ready is contrary to Rule 2 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (“the 2008 Procedure Rules”), with reference to the parties’ obligations to help furtherthe overriding objective. Overriding objective and parties' obligation to co-operate with the Upper Tribunal 2.—(1) The overriding objective of these Rules is to enable the Upper Tribunal to deal with cases fairly and justly.(2) Dealing with a case fairly and justly includes— (a) dealing with the case in ways which are proportionate to the importance of the case, the complexity of the issues, the anticipated costs and the resources of the parties; (b) avoiding unnecessary formality and seeking flexibility in the proceedings; (c) ensuring, so far as practicable, that the parties are able to participate fully in the proceedings; (d) using any special expertise of the Upper Tribunal effectively; and (e) avoiding delay, so far as compatible with proper consideration of the issues.(3) The Upper Tribunal must seek to give effect to the overriding objective when it— (a) exercises any power under these Rules; or (b) interprets any rule or practice direction.(4) Parties must— (a) help the Upper Tribunal to further the overriding objective; and (b) co-operate with the Upper Tribunal generally. It is contrary to the principle of finality in litigation and raises issues of fairness, wasted costs and potentially wastes judicial time. If a party is not ready, any attempt to rely on post- hearing submissions, without the permission of the UT, should be resisted. It is an unsatisfactory way to conduct litigation.[38]We deprecate the approach taken by the Secretary of State in this case. However, having considered the written submissions de bene esse, we note(i) they contain concessions in favour of the Appellant(ii) they contain for the first time coherent submissions on key issues we need to resolve(iii) Mr Fullbrook has been able to respond as outlined below and(iv) for the reasons set out below they do not result in a finding adverse to the Appellant. For those reasons we have been prepared to consider the submissions and do not find it necessary to reconvene the hearing.

Cited in 1 later judgment