US (Pakistan) v Secretary of State for the Home Department

In an Article 8 claim based on inferior medical treatment on return, the tribunal must consider all circumstances, including every aspect of the claimant’s private life and the health consequences of removal. A disparity between treatment available in the United Kingdom and the country of nationality remains relevant, but ordinarily carries limited weight against the public interest in removal and the proper allocation of NHS resources. Such a claim will succeed on that feature only in a very rare case. Where the evidence does not establish inability to obtain or afford treatment, and the challenge discloses no arguable error of law, permission to appeal should be refused.

The applicant challenged removal to Pakistan after refusal to vary his leave to enter. His case relied on Article 8 and the effect of removal on treatment for injuries following a road traffic accident. The First-tier Tribunal allowed the appeal, but the Upper Tribunal allowed the Secretary of State’s appeal, set aside that decision, reheard the case and dismissed the applicant’s appeal. The applicant renewed an out-of-time application for permission to appeal to the Court of Appeal. He argued that the Upper Tribunal had inadequately assessed treatment availability, affordability, private life and proportionality, relying on Akhalu. The central issue was whether those complaints disclosed an arguable point of law with a reasonable prospect of success.

The renewed application for permission to appeal was refused. The court declined to dispose of the matter solely because it was out of time. Although the application formally concerned a second appeal, the court considered the proposed grounds on the more favourable assumption that the first-appeal test applied. They nevertheless had no reasonable prospect of success.

1. In an Article 8 health claim, the proportionality assessment must take account of all circumstances relied on by both parties, including every aspect of the claimant’s private life and the consequences for health of removal. The guidance in [2013] UKUT 400 was applicable.
2. Inferior or less accessible medical treatment in the country of nationality remains relevant, but the disparity will very rarely outweigh the public interest in removal and in ensuring that NHS facilities are principally available to those lawfully present with a right to remain.
3. The Upper Tribunal was entitled to find that the applicant had not shown that treatment in Pakistan was unavailable or unaffordable. There was no reliable evidence that his parents could not or would not pay, and the evidence concerning the alleged loan was unexplained. The credibility findings and treatment of the medical report disclosed no arguable error of law.
4. The evidence concerning the applicant’s private life was limited. The Upper Tribunal had sufficiently addressed the interference and proportionality balance. The proposed appeal was essentially a challenge to factual findings rather than an arguable legal error.

1. Court of Appeal (Civil Division): refused the renewed application for permission to appeal, notwithstanding the delay and on the assumption that the first-appeal test applied.
2. Upper Tribunal (Immigration and Asylum Chamber): allowed the Secretary of State’s appeal against the First-tier Tribunal, set aside its decision and directed a rehearing. On rehearing, the applicant’s immigration appeal was dismissed and permission to appeal was refused.
3. First-tier Tribunal: Judge Adio allowed the applicant’s appeal against the refusal to vary leave to enter and the removal decision.