COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
Mr Andrew Nicol QC (sitting as a Deputy High Court Judge)
Case No: CO/3085/2004
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE LLOYD
LORD JUSTICE RICHARDS
| The Queen (on the application of Mehmet Tozlukaya)
|- and -
|Secretary of State for the Home Department
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Hugh Southey (instructed by Trott & Gentry) for the Respondent
Crown Copyright ©
Lord Justice Richards :
"My opinion is that an attempt to remove Ms Tozlukaya from this country could indeed trigger a suicide attempt. There are a number of reasons for this, but probably three stand out.
The first reason is that she has a Depressive Disorder. This increases the risk of self-harm and suicide.
She appears to believe that deportation to Germany would simply trigger a return to Turkey. Similarly, she seems to believe that return to Turkey would place her and her family at risk. If this is what she believes (and here the objective facts about Germany and Turkey matter less than what she actually believes) then she will inevitably see removal as an act associated with substantial threats both to herself and to her family. In my view, the perception of threat of this type is likely to be associated with an increase in her suicide risk.
The final mechanism to consider relates to the fact that she has been detained and that during detention, she was able to avoid removal. Now as I have already indicated, my opinion is that she was suffering from Major Depressive Disorder. However, she also had the experience of learning that her behaviours can affect the decisions made by the authorities concerning removal. My opinion is that this process of learning will make it more likely that she will act in a disturbed way if she were to face detention and removal again ….
To that degree, therefore, my opinion is that the experience of detention probably has heightened her risk of completed suicide. I would say that if she faced a future attempt to remove her from this country then the risk of deliberate self-harm of some sort would be very high. With regard to the risk of completed suicide, I would describe this as being at least a moderate risk. By this I mean that it would be substantially elevated over the general population …."
"On their arrival [at Frankfurt airport] they will be initially received into the care of the Bundesgrenzschutz [the German Border Control Police]. The Bundesgrenzschutz at Frankfurt confirmed that, if and when the United Kingdom notifies them … of the date of the family's return they would ensure that a suitably qualified doctor is at the airport to meet the family upon their arrival there. From my own knowledge of German procedures I am aware that, as a routine, all asylum seekers … are medically examined upon arrival in Germany. The Bundesgrenzschutz confirmed that, in the light of the situation for this family, in particular the Claimant's wife's psychiatric condition, and the fact that they will be informed well in advance of the family's arrival, they will arrange for a specialist in mental health to be in attendance. They also stated that they would provide the specialist with any medical information from doctors in the United Kingdom, provided the Claimant's wife, Mrs Tozlukaya, gives her consent to this.
The Ausländerbehörde [the administrative office in the federal State (Land) which deals with accommodation and support of asylum seekers] will be responsible for the family once they have left the airport. The Ausländerbehörde have confirmed that, in their experience, the family would have no difficulty in accessing appropriate medical/psychiatric treatment, if necessary, on their return to Frankfurt. The degree and level of treatment required will, of course, depend upon the results of the assessment to be carried out by the mental health specialist who will examine the Claimant's wife upon her return to Frankfurt. Germany has a highly developed system of health care. It has not been suggested that the treatment the Claimant's wife would receive in Germany would be inferior in any way to that which she has received in this country.
The Ausländerbehörde have also confirmed that they foresee no problems in providing the family with suitable accommodation if, as will be the case, they are given sufficient advance notice of the date of their return to Frankfurt. Rather than accommodate the family in an Accommodation Centre, the family will be provided with a flat or small house, depending on what is available at the time …."
"In my opinion, the risk of suicide following removal to Germany will be higher than it presently is.
My opinion [on how long it will remain higher] is that the answer to this question depends upon what happens to Ms Tozlukaya – and what she perceives is likely to happen. There will be a transient effect simply to do with relocation ….
However, in addition, she seems to perceive removal to Germany as the first step in her return to Turkey. My opinion is that the risk of deliberate self-harm and the risk of suicide derives from a number of elements. One of these is the presence of a depressive illness. Another is what appears to be her perception of risk if returned to Turkey. Here, from a psychiatric perspective, what matters is not the objective likelihood of return, or even the objective likelihood that return would be associated with harm. What is important is her subjective perceptions regarding these matters since it is her subjective sense which will affect her emotional state. In other words, it is her own appraisal which will affect her mood."
"(a) … From the documents I have seen I presume that there will be a female escort who will be in continuous attendance if Mrs Tozlukaya's suicide risk remains high. With such close care I believe that the risk of her actually harming herself will be low. …
(c) Mrs Tozlukaya has been in the UK for seven years and has established a network of support. Being forcibly removed from that network will increase her sense of helplessness and lack of control of her life.
(d) Mrs Tozlukaya's depression is responsive to her situation. I noted previously that, during her time in the UK there had been some improvement in her mood. With stability and security she becomes less depressed. Moving her to a place where she believes she was badly treated will have the opposite effect. It is likely that, whatever reassurances she is given, she will fear that she will not be allowed to remain in Germany and live a normal life there and that she may even be returned to Turkey. Because of that she will be more anxious and depressed and in consequence there will be an increase in the risk of suicide.
(e) If she is given appropriate treatment in Germany, and also as she begins to feel safe and secure there, the risk will gradually diminish, but I believe that that will take many months."
"It is my opinion that Ms Tozlukaya will remain a severe suicide risk so long as she is threatened with removal to Turkey. It is unclear to me what mental health provision would be available to Ms Tozlukaya in Germany. If she were to remain in Germany with her family and be monitored by a full mental health team without the threat of removal to Turkey, this would be adequate. It is the threat of removal to Turkey which Ms Tozlukaya perceives as inevitable that re-evokes all her fears. It is this fear that she is unable to cope with and which destabilises her, prompting suicidal behaviour. It is therefore my opinion that removing Ms Tozlukaya to Germany will increase her risk of suicide and may well prompt suicidal behaviour which will continue after any mental health provision provided in Germany has ceased.
It is likely that any treatment provided in Germany is unlikely to be sufficient to ensure that Ms Tozlukaya does not pose a severe risk of suicide in future given the threat of removal to Turkey."
The correct approach to certification of a claim as clearly unfounded
The decision at first instance
"In view of those reports, I cannot conclude that the Claimant and his wife would be bound to fail in showing that removal to Germany, notwithstanding the measures proposed by the Home Office in carrying out the removal or the treatment available to Mrs Tozlukaya in Germany, would lead to a real risk of her attempting and successfully attempting to commit suicide and that that risk would be significantly greater than if there was no attempt to remove her. There is an arguable case that there is a real risk of this happening either in the UK when further measures are taken to remove her, in transit or after her arrival in Germany."
"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' ….
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 ….
Thirdly, in the context of a foreign case, 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 ….
Fourthly, an article 3 claim can in principle succeed in a suicide case ….
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 an applicant's claim that removal will violate his or her article 3 rights."
"The Court accepts the seriousness of the applicant's medical condition. Having regard however to the high threshold set by Article 3, particularly where the case does not concern the direct responsibility of the Contracting State for the infliction of harm, the Court does not find that that there is a sufficiently real risk that the applicant's removal in these circumstances would be contrary to the standards of Article 3. It does not disclose the exceptional circumstances of the D case … where the applicant was in the final stage of a terminal illness, AIDS, and had no prospect of medical care or family support on expulsion to St Kitts."
"it would need to be shown that the applicant's medical condition had reached such a critical stage that there were compelling humanitarian grounds for not removing him to a place which lacked the medical and social services which he would need to prevent acute suffering while he is dying" (per Lord Hope of Craighead at para 50; see, to the same effect, Baroness Hale of Richmond at para 69).
"This appellant is a person who is suffering from depression and has on two occasions taken overdoses of medication which required her to be admitted to hospital. There is uncontroverted evidence that, if she is removed to France, there is a real risk that she may commit suicide …. We agree with the judge that the issue was the degree of risk that there would be an increased likelihood of suicide. If it was arguable on the evidence that there was a real risk of a significantly increased risk that, if she were removed to France, the appellant would commit suicide, then in our view her claim based on article 3 could not be certified as manifestly unfounded" (emphasis added).
"The true position in our judgment is that the Human Rights Act 1998 and section 65(1) [of the Immigration and Asylum Act 1999] require the adjudicator to allow an appeal against removal or deportation brought on article 8 grounds if, but only if, he concludes that the case is so exceptional on its particular facts that the imperative of proportionality demands an outcome in the appellant's favour notwithstanding that he cannot succeed under the Rules."
"… The consequence is that the Tribunal in the present case would have been entitled to consider, and if the matter is returned to the Tribunal will have to consider, what the true policy is and decide whether it does or does not apply to the appellant [on] the facts as we understand them ….
The policy does not strictly apply to the appellant but, nonetheless, [counsel for the appellant] is entitled, it seems to me, to argue that if and insofar as a rationale can be discerned for the policy the Tribunal can consider whether or not as a consequence the Adjudicator was wrong to conclude that this was merely a concession which the Secretary of State is entitled either to depart from or require strict adherence to, but goes further than that and justifies the conclusion that his is an exceptional case."
"DEPORTATION IN CASES WHERE THERE ARE CHILDREN WITH LONG RESIDENCE
The purpose of this instruction is to define more clearly the criteria to be applied when considering whether enforcement action should proceed or be initiated against parents who have children who were either born here and are aged 7 or over or where, having come to the United Kingdom at an early age, they have accumulated 7 years or more continuous residence.
Whilst it is important that each individual case must be considered on its merits, the following are factors which may be of particular relevance:
(a) the length of the parents' residence without leave;
(b) whether removal has been delayed through protracted (and often repetitive) representations or by the parents going to ground;
(c) the age of the children;
(d) whether the children were conceived at a time when either of the parents had leave to remain;
(e) whether return to the parents' country of origin would cause extreme hardship for the children or put their health seriously at risk;
(f) whether either of the parents has a history of criminal behaviour or deception.
3. When notifying a decision to either concede or proceed with enforcement action it is important that full reasons be given making clear that each case is considered on its individual merits."
"For a number of years, it has been the practice of the Immigration and Nationality Directorate not to pursue enforcement action against people who have children under the age of 18 living with them who have spent 10 years or more in this country, save in very exceptional circumstances.
We have concluded that 10 years is too long a period. Children who have been in this country for several years will be reasonably settled here and may, therefore, find it difficult to adjust to life abroad. In future, the enforced removal or deportation will not normally be appropriate where there are minor dependent children in the family who have been living in the United Kingdom continuously for 7 or more years. In most cases, the ties established by children over this period will outweigh other considerations and it is right and fair that the family should be allowed to stay here. However, each case will continue to be considered on its individual merits."
"Whilst it is important that each individual case must be considered on its merits, there are specific factors which are likely to be of particular relevance when considering whether enforcement action should proceed or be initiated against parents who have children who have lengthy residence in the United Kingdom. For the purpose of proceeding with enforcement action in a case involving a child, the general presumption is that we would not usually proceed with enforcement action in cases where a child was born here and has lived here continuously to the age of seven or over, or where, having come to the United Kingdom at an early age, they have accumulated seven years or more continuous residence. However, there may be circumstances in which it is considered that enforcement action is still appropriate despite the lengthy residence of the child, for example in cases where the parents have a particularly poor immigration history and have deliberately seriously delayed consideration of their case. In all cases the following factors are relevant in reaching a judgment on whether enforcement action should proceed:
- the length of the parents' residence without leave; whether removal has been delayed through protracted (and often repetitive) representations or by the parents going to ground;
- the age of the children;
- whether the children were conceived at a time when either of the parents had leave to remain;
- whether return to the parents' country of origin would cause extreme hardship for the children or put their health seriously at risk;
- whether either of the parents has a history of criminal behaviour or deception.
It is important that full reasons are given making clear that each case is considered on its individual merits."
"The announcement of the concession made it clear that each case would be considered on its individual merits. The Secretary of State has again considered your client's case but is not prepared to grant the family the benefit of the concession given the particular circumstances of their case. They used the services of a people smuggler to gain entry to the United Kingdom in June 1998, travelling from Germany, where they had previously sought asylum. Their application for asylum in this country was certified on safe third country grounds in January 1999 after the authorities in Germany had accepted responsibility for the further consideration of their claim under the terms of the Dublin Convention. They have been aware since that time that they have no claim to remain in the United Kingdom and that they are properly returnable to Germany, and have only been able to remain until now by pursuing protracted legal challenges against their removal. In all the circumstances, the Secretary of State is not prepared to exercise discretion in their favour."
"(5) In this case, the Secretary of State was entitled to refer to the fact that he had taken an early decision to remove the Claimant and his wife under the Dublin Convention and that there have been proceedings to challenge this decision which in total have occupied a lengthy period of time. However, of that time some 22 months passed waiting for the resolution of an important general point in other lead cases, about 2 years were spent on appeals which the Claimant was entitled to pursue and the present application for judicial review was launched over a year ago. Although the Tribunal might need to investigate why Mrs Tozlukaya's mental health difficulties were not raised earlier than June 2004, this is not a procedural history of such manifest abuse that the family was bound to be excluded from the benefit of the policy.
(6) … when it comes to deciding whether removal would be disproportionate under Article 8, the Tribunal will be entitled to take account of the Secretary of State's policy and that it calls for an individualised decision with something of a bias in favour of the claimant …."
Lord Justice Lloyd :
Lord Justice Buxton :