Secretary of State for the Home Department v Starkey

In deportation cases, a tribunal applying anxious scrutiny must address material medical evidence and explain why evidence is considered unsatisfactory. A conclusion that there is no satisfactory evidence is inadequate where evidence exists but its rejection is unexplained. The demanding threshold under section 117C(6) of the Nationality Immigration and Asylum Act 2002 makes it especially important to identify, weigh and balance relevant factors on both sides. A material misunderstanding of evidence about a person’s stability when medicated, work history and access to treatment may invalidate the proportionality assessment. The appeal was allowed and remitted. The anonymity order was not continued.

Secretary of State for the Home Department v Starkey concerned an appeal from an Upper Tribunal decision allowing Mr Starkey’s appeal from a First-tier Tribunal decision. The First-tier Tribunal had dismissed his appeal against refusal of his human rights claim and the decision to deport him. He had serious convictions and suffered from paranoid schizophrenia controlled by Clozapine, which required regular blood monitoring. The Upper Tribunal set aside the First-tier Tribunal’s decision and allowed the appeal, finding very compelling circumstances under section 117C(6). The Secretary of State challenged both the First-tier Tribunal’s assessment of treatment availability in South Africa and the Upper Tribunal’s treatment of the medical evidence and statutory threshold.

The Secretary of State’s appeal was allowed on ground 2. The appeal was remitted to the First-tier Tribunal for reconsideration in light of any up-to-date evidence. The Upper Tribunal had not erred in law in setting aside the First-tier Tribunal’s determination.

1. The First-tier Tribunal’s approach to the treatment evidence was legally flawed. Dr Nimmagadda’s evidence showed that Clozapine required regular blood monitoring to guard against a serious reduction in white blood cells. Professor Ashforth’s evidence raised doubt about whether that monitoring was available in South Africa’s public health system. The failure to address that material evidence was a material omission.
2. The formula no satisfactory evidence was ambiguous. If it meant that there was no evidence, it was materially inaccurate. If it meant that evidence existed but was unsatisfactory, the First-tier Tribunal had to explain why. In the context of anxious scrutiny, its unexplained use in paragraphs 63 and 69 was an error of law.
3. The threshold in section 117C(6) of the Nationality Immigration and Asylum Act 2002 is exceptionally demanding. That does not lessen the obligation to marshal the relevant factors on each side, give them appropriate weight and balance them against one another.
4. The Upper Tribunal correctly understood the statutory test but materially misunderstood the evidence about the severity of the illness when treated. It appeared to think that Mr Starkey would have great difficulty finding a clinic and employment even while stable on medication. That was inconsistent with evidence that he had worked throughout his imprisonment and obtained vocational qualifications. The misunderstanding was an essential foundation of the assessment of the likely consequences of return, so the conclusion that section 117C(6) was satisfied could not stand.
5. The anonymity order was not continued. The concern that identifying Mr Starkey might identify his victim was not a good reason, because the victim was independently entitled to lifetime anonymity under section 1 of the Sexual Offences (Amendment) Act 1992. The seriousness of the offences and the open justice principle outweighed the Article 8 considerations in this case.

1. Court of Appeal (Civil Division): in [2021] EWCA Civ 421, allowed the Secretary of State’s appeal on ground 2 and remitted the appeal to the First-tier Tribunal for reconsideration.
2. Upper Tribunal (Asylum and Immigration Chamber): allowed Mr Starkey’s appeal from the First-tier Tribunal, set aside its decision and remade the decision in his favour.
3. First-tier Tribunal (Asylum and Immigration Chamber): dismissed Mr Starkey’s appeal against refusal of his human rights claim and the decision to deport him.