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URL: http://www.bailii.org/eu/cases/ECHR/2011/1316.html
Cite as: [2011] ECHR 1316
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FOURTH SECTION
Application no.
18815/11
by Farzand ALI
against the United
Kingdom
lodged on 18 March 2011
STATEMENT OF FACTS
THE FACTS
The applicant, Mr Farzand Ali, is a Pakistani national who was born in 1980 and is currently detained in a hospital in Ealing. He is represented before the Court before the Court by Lawrence Lupin Solicitors based in Wembley.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant arrived in the United Kingdom on 22 February 1991 with his parents and three siblings when he was eleven years of age. In June 1991, the applicant’s father made an application for asylum, with the applicant and his family members as dependants upon his claim. In December 1997, the Secretary of State refused that asylum application.
On 8 January 1997, the applicant’s parents divorced. On 10 June 1997, the applicant’s mother submitted an asylum application with the applicant and his siblings as her dependants. In November 1998, the Secretary of State refused that application, but the applicant’s mother, the applicant and his siblings were later granted exceptional leave to remain in the United Kingdom until 2 August 2001.
In November 1999, the applicant’s father was removed from the United Kingdom to Pakistan. He continues to live there, having re-married and fathered two more children and has limited telephone contact with the applicant.
Between December 1995 and January 1999, the applicant received four police cautions for, inter alia, the possession of a bladed article; criminal damage to a bicycle; the possession of cannabis; and the criminal damage of a window. On 17 February 1998, at Acton Youth Court, the applicant was sentenced to a twelve month probation and compensation order in respect of four burglaries.
In 1998, the applicant started to develop mental health problems including hallucinations. On 30 November 1999, at the Central Criminal Court, the applicant was convicted of manslaughter. He was indicted for murder but his plea of guilty to manslaughter on the grounds of diminished responsibility was accepted. Pursuant to sections 37 and 41 of the Mental Health Act 1985 (see relevant domestic law and practice below), the applicant was sentenced to a hospital order. The applicant has remained detained in Ealing Hospital under the provisions of the Mental Health Act 1983 until the present day.
On 12 July 2001, the applicant, his mother and three of his siblings were granted indefinite leave to remain in the United Kingdom.
On a number of occasions between 2002 and 2005, the Mental Health Review Tribunal rejected the applicant’s applications for discharge from hospital.
1. The decision to deport the applicant
On 31 January 2007, the Criminal Casework Directorate wrote to the applicant advising him that his deportation from the United Kingdom was considered to be conducive to the public good. The letter stated:
“We are aware that you suffer from a mental illness, namely paranoid schizophrenia. We have been informed by your Responsible Medical Officer that your mental health made good progress in 2006 and that you will soon be ready to live within the community. It has been decided, in light of your criminal conviction, that it would not be conducive to the public good for you to be in the community in the United Kingdom when you are discharged from the Three Bridges Unit. There are sufficient facilities in Pakistan for you to receive aftercare upon your return, furthermore your deportation will not be effected until you are considered fit for discharge. As such, your removal from the United Kingdom is not considered a preface to any breaches or your human rights.”
Furthermore, the letter concluded that, in light of the seriousness of the applicant’s criminal offence, his removal from the United Kingdom was necessary in a democratic society for the prevention of disorder and crime and for the protection of health and morals. As such, it was not believed that his deportation would breach Article 8 of the Convention.
On 13 June 2007, the Secretary of State for the Home Department signed a deportation order against the applicant.
2. Proceedings before the Asylum and Immigration Tribunal
The applicant appealed against the decision to deport him relying on Articles 3 and 8 of the Convention. The applicant’s appeal against deportation was heard by the then Asylum and Immigration Tribunal (“the AIT” – see domestic law and practice below) sitting at Ealing hospital on 19 November and 18 December 2007.
In a determination promulgated on 7 February 2008, the AIT dismissed his appeal. The AIT accepted, inter alia, that the applicant suffered from paranoid schizophrenia, a borderline learning disability with an IQ of between 75 and 76 and diabetes; that his Responsible Medical Officer (RMO) did not consider that the applicant should be discharged from hospital given the risks regarding his relapse, concerns about his insight and his ambivalence regarding taking his medication; and that the applicant continued to require in-patient treatment in hospital. The AIT further found that the applicant’s mental health would deteriorate if he were not taking Clozapine or only taking it haphazardly and accepted that Clozapine was not available in Pakistan. The AIT also accepted that a relevant factor regarding the applicant’s mental state was the family support available to him and that, were he to be returned to Pakistan, he would not enjoy the immediate and close support that he received from his family in the United Kingdom, including his mother and siblings who saw him regularly and had supported him throughout his hospitalisation. The AIT noted that there was medical treatment available in Pakistan for mental disorders but proceeded on the basis that such treatment would have to be paid for and would not be as good as the treatment that the applicant was receiving in the United Kingdom. The AIT further accepted that the applicant’s RMO considered that the applicant would require a robust package of care upon discharge from hospital including a high level of social support, a community psychiatric nurse, occupational therapy sessions and a 24 hour staffed hostel; and agreed that such a package of care was not likely to be available in Pakistan.
Nevertheless, the AIT were satisfied that the applicant would not be left without a place to stay in Pakistan because he could live with his father notwithstanding the fact that the applicant and his father had difficulties in their relationship and had not seen each other for many years. Furthermore, the AIT were satisfied that, even if treatment had to be paid for, the applicant’s relatives in the United Kingdom would collectively be able to provide him with the necessary financial assistance even if that involved financial hardship for them. The AIT also considered that, despite the evidence regarding the applicant’s attitude and ambivalence towards his medication, it was reasonably likely that he would continue to take medication for a time in Pakistan; and that, even if he stopped taking his medication, there would be residential and day-care facilities available to him. The AIT accepted that there would be at least some deterioration in his mental health on return to Pakistan but were not satisfied that it had been established what the extent of the deterioration would be.
Additionally, the AIT were not satisfied that it had been established that there would be a risk of suicide in consequence of the decision to deport the applicant given the lack of concrete evidence regarding the same. The AIT commented that, even accepting a risk of suicide in general for those suffering from schizophrenia of 10%, they were not satisfied that such a risk reached the high threshold required by Article 3. The AIT considered that there was no evidence to establish that the applicant would be at risk of suicide when informed of the final decision to remove him given that he would be in hospital where any risk could be well managed. The AIT were also not satisfied that he would be at risk of suicide when physically removed from the United Kingdom given that it was reasonably likely that he would be escorted to Pakistan by officials. Finally, they were not satisfied that there was a real risk of suicide after his arrival in Pakistan given that he would be able to access treatment there. Having regard to the applicant’s mental state, the AIT accepted that there was a risk that the applicant would commit criminal offences in Pakistan.
Overall, the AIT were not satisfied that it had been established that the applicant’s deportation would reach the high threshold required to breach Article 3 in terms of his mental health, either alone or in combination with his physical illness, namely diabetes.
In relation to Article 8 of the Convention, the AIT were satisfied that the applicant had family life with his mother and siblings in the United Kingdom given the consistent and detailed evidence of the nature and extent of their relationships and the close bonds between them. In that regard, having regard to his mental state, the AIT were satisfied that, even though the applicant was aged twenty-seven years and was detained in hospital, there existed more than normal emotional ties between them. The AIT also accepted that the applicant’s deportation to Pakistan would amount to an interference with his family and private life in the United Kingdom given the length of time that he had lived in the United Kingdom, the fact that none of the applicant’s relatives in the United Kingdom would travel to Pakistan to live with him and the fact that his family life would have to be conducted by letters and phone calls.
The AIT were satisfied that the interference in his family and private life caused by his deportation would be for the legitimate aim of the prevention of disorder and crime given that the offence that he had committed was of the utmost seriousness and it was clear that his mental state was still such that there was a risk that he would continue to commit criminal offences in the future. The AIT were further satisfied that the need to deter others from committing criminal offences also amounted to a legitimate aim.
In the balancing exercise, the AIT took into account in his favour, inter alia, the length of time that he had been in the United Kingdom; the fact that he had indefinite leave to remain in the United Kingdom; the fact that he had left Pakistan aged eleven years and would have to readjust to cultural and social life there; the fact that he had been mentally unwell when he had committed the offence; the likely deterioration in his mental state and potential for criminal offending on return to Pakistan which may add to any mental distress; the negative impact upon the applicant’s relatives, and particularly his mother and two younger sisters, of his return to Pakistan; and the fact that the applicant and his father were unlikely to have a relationship that would be as conducive to his well being as the relationship that he enjoyed with his family members in the United Kingdom. The AIT also accepted that the fact that the applicant was not fit to be discharged from hospital was a relevant factor.
However, the AIT considered that the following matters were against the applicant in the balancing exercise. First, the applicant had committed various, albeit minor offences, prior to his conviction for manslaughter and could not be considered to be a man of previous good character. Second, the Secretary of State was entitled to discharge the applicant under section 42 of the Mental Health Act 1983 (see relevant domestic law and practice below) and such an issue did not weigh significantly in favour of the applicant even if the Secretary of State had changed his mind about not removing the applicant until he was fit to be discharged.
In all of the above circumstances, the AIT were not satisfied that the decision to deport the applicant prejudiced his family and/or private life in a manner sufficiently serious to amount to a breach of Article 8.
On 3 March 2008, a Senior Immigration Judge refused his application for reconsideration of the appeal determination.
3. The High Court’s decision to order reconsideration of the AIT determination
On 3 July 2008, the High Court (Dobbs J) ordered that the AIT reconsider its decision on appeal because she was troubled by:
“a. the fact that the evidence is that the appellant is not fit to be discharged and the Respondent now seeks to discharge him irrespective of that fact, having gone back on the original decision, particularly with no evidence provided by the Respondent as to what medical facilities are available to accommodate him on return. It is highly unlikely that, were the appellant discharged into this jurisdiction under Section 42, the discharge would be unconditional and therefore this aspect is important. This is not properly dealt with by the Panel.
b. The issue of the seriousness of the offence in paragraph 145/6 seems to mean, that it doesn’t matter how low your culpability is, you will be deported (individual deterrence) and people must know that (general deterrence). It is arguable that this approach is flawed.”
4. The Upper Tribunal’s reconsideration of the applicant’s appeal
Further to a reconsideration hearing, in a decision promulgated on 27 August 2010, a Senior Immigration Judge sitting at the Upper Tribunal dismissed the applicant’s appeal. In relation to the High Court’s second concern regarding culpability and deterrence, the Immigration Judge found that the proper purpose of preventing crime and disorder included using deterrent powers which went beyond something that would deter an individual. Whilst acknowledging that a mentally ill person like the applicant would not be deterred by the prospect of deportation, the Immigration Judge was entirely satisfied that there was a deterrent effect upon a person contemplating wrongdoing who realised that the United Kingdom would not tolerate certain kinds of activity even if they had been committed by people who could not help themselves.
In relation to the High Court’s first concern relating to the applicant’s discharge from hospital, the Immigration Judge found that:
“The difficulty is that this is a sad case involving a person who has done a very wrong thing but who is not responsible for what he did. Many people find this invokes in them a sense of compassion and concern. The man is not wicked. He is ill. It seems beyond argument that the best thing for him is to remain in the United Kingdom and benefit, as he is entitled to, from the healthcare that is available there. The concern that people will feel for this man has, I find, blurred the issues inappropriately.
The difficulties involved in removing people who are ill are a well-trodden area in human rights law. In this case the Tribunal reached a sustainable conclusion that removing the appellant would not contravene his Article 3 rights. It was not suggested that the appellant would take his own life. It was not suggested that he would suffer a collapse of health such as that known in the country of which he is a national. This is not a disproportionate interference but a proper interference for the purpose of maintaining immigration control.
I have asked myself if anything turns on the appellant being given leave to remain in the United Kingdom after he committed the offence complained of. I do not think it does. The leave was given because he was at that time a dependant on his mother. This is not a case where I think it can be said the Home Office somehow acquiesced in or excused the wrong that he had done.
If I may respectfully say so [Counsel for the appellant] has gone to considerable length to present the appellant’s case in a most favourable light but he cannot get around the fact that the essential points on Article 3 and Article 8 grounds are not new and the law is not particularly generous towards people in these circumstances. It is a heavy burden to show removing a person to the country of which he is a national intervenes with his rights under Article 3 of the European Convention on Human Rights because he is ill. It is almost as difficult to show that removal is disproportionate. The original Tribunal did not reach a conclusion for wrong reasons and did not err in law.”
On 27 September 2010, the same Senior Immigration Judge refused to grant the applicant permission to appeal to the Court of Appeal from the Upper Tribunal.
5. Proceedings before the Court of Appeal
On 20 December 2010, Richards LJ refused an application for permission to appeal to the Court of Appeal on the papers. He noted that, whilst he was not entirely happy with the Senior Immigration Judge’s reasoning, the ultimate question was whether he had been right to find that there was no material error of law in the original AIT decision. He concluded that, notwithstanding the concerns expressed by Dobbs J, the AIT had dealt carefully with a difficult case, had avoided material errors of law and had reached a conclusion reasonably open to it.
On 16 March 2011, a renewed application for permission to appeal was refused by Longmore LJ after an oral hearing. He noted that although the case was a distressing one, he was unable to see any way to grant permission to appeal. First, he did not accept that there was any error of law in the AIT’s conclusions regarding the deterioration of the applicant’s mental state, the likelihood of his committing suicide, the availability of medication in Pakistan and the likelihood of self-medication. Second, he was not prepared to accept that there was no public interest in deporting someone with a serious mental health problem who had suffered from diminished responsibility at the time of the relevant offence. He considered that:
“the [applicant’s Counsel’s] argument, spiritedly put forward, really amounts to saying that someone who has committed a crime should be in a different and better position from someone who is ordinarily suffering from mental health problems. These are desperately sad cases but that just cannot possibly be right. It seems to me that in the light of current authority I have no option but to refuse this application.”
B. Relevant domestic law and practice
(a) Primary legislation concerning deportation
Section 3(5)(a) of the Immigration Act 1971 (as amended by the Immigration and Asylum Act 1999) provides that a person who is not a British citizen shall be liable to deportation from the United Kingdom if the Secretary of State deems his deportation to be conducive to the public good.
Sections 82(1) and 84 of the Nationality, Immigration and Asylum Act 2002 provide for a right of appeal against such a decision, inter alia, on the grounds that the decision is incompatible with the Convention.
Appeals in asylum, immigration and nationality matters were until 14 February 2010 heard by the AIT. Section 103A of the Nationality, Immigration and Asylum Act 2002 provided that a party to an appeal could apply to the High Court, on the grounds that the AIT had made an error of law, for an order requiring the Tribunal to reconsider its decision on the appeal. The High Court could make such an order if it thought that the AIT may have made an error of law. All applications for reconsideration went through a “filter procedure”, so that an application for reconsideration was first made to an authorised immigration judge of the Tribunal. If the immigration judge refused to make an order for reconsideration, the applicant was able to renew the application to the High Court, which would consider the application afresh.
Since 15 February 2010, appeals in asylum, immigration and nationality matters have been heard by the First-tier Tribunal (Immigration and Asylum Chamber). Section 11 of the Tribunals, Courts and Enforcement Act 2007 provides a right of appeal to the Upper Tribunal, with the permission of the First-tier Tribunal or the Upper Tribunal, on any point of law arising from a decision made by the First-tier Tribunal other than an excluded decision.
Section 2 of the Human Rights Act 1998 provides that, in determining any question that arises in connection with a Convention right, courts and tribunals must take into account any case-law from this Court so far as, in the opinion of the court or tribunal, it is relevant to the proceedings in which that question has arisen.
(b) Secondary legislation concerning deportation
Section 1(4) and 3(2) of the Immigration Act 1971 provide for the making of Immigration Rules by the Secretary of State.
Paragraph 364 of the Immigration Rules provides that, subject to paragraph 380, where a person is liable to deportation the presumption will be that the public interest requires deportation, and that it would only be in exceptional circumstances that the public interest in deportation would be outweighed in a case where it would not be contrary to the Human Rights Convention and the Convention and Protocol relating to the Status of Refugees to deport.
Paragraph 380 of the Immigration Rules provides that:
“A deportation order will not be made against any person if his removal in pursuance of the order would be contrary to the United Kingdom’s obligations under the Convention and Protocol relating to the Status of Refugees or the Human Rights Convention [the European Convention on Human Rights].”
(c) The Mental Health Act 1983
Section 37 of the Act, as amended by the Mental Health Act 2007, provides:
“Powers of courts to order hospital admission or guardianship
(1) Where a person is convicted before the Crown Court of an offence punishable with imprisonment other than an offence the sentence for which is fixed by law,..., or is convicted by a magistrates’ court of an offence punishable on summary conviction with imprisonment, and the conditions mentioned in subsection (2) below are satisfied, the court may by order authorise his admission to and detention in such hospital as may be specified in the order or, as the case may be, place him under the guardianship of a local social services authority or of such other person approved by a local social services authority as may be so specified.
...
(2) The conditions referred to in subsection (1) above are that—
(a) the court is satisfied, on the written or oral evidence of two registered medical practitioners, that the offender is suffering from mental disorder and that either—
(i) the mental disorder from which the offender is suffering is of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment and appropriate medical treatment is available for him; or
(ii) in the case of an offender who has attained the age of 16 years, the mental disorder is of a nature or degree which warrants his reception into guardianship under this Act; and
(b) the court is of the opinion, having regard to all the circumstances including the nature of the offence and the character and antecedents of the offender, and to the other available methods of dealing with him, that the most suitable method of disposing of the case is by means of an order under this section.”
The relevant parts of Section 41 of the Act, as amended, provide:
“Power of higher courts to restrict discharge from hospital.
(1) Where a hospital order is made in respect of an offender by the Crown Court, and it appears to the court, having regard to the nature of the offence, the antecedents of the offender and the risk of his committing further offences if set at large, that it is necessary for the protection of the public from serious harm so to do, the court may, subject to the provisions of this section, further order that the offender shall be subject to the special restrictions set out in this section... ; and an order under this section shall be known as “a restriction order”.
(2) A restriction order shall not be made in the case of any person unless at least one of the registered medical practitioners whose evidence is taken into account by the court under section 37(2)(a) above has given evidence orally before the court.
(3) The special restrictions applicable to a patient in respect of whom a restriction order is in force are as follows—
(a) none of the provisions of Part II of this Act relating to the duration, renewal and expiration of authority for the detention of patients shall apply, and the patient shall continue to be liable to be detained by virtue of the relevant hospital order until he is duly discharged under the said Part II or absolutely discharged under section 42, 73, 74 or 75 below;
...
(5) Where a restriction order in respect of a patient ceases to have effect while the relevant hospital order continues in force, the provisions of section 40 above and Part I of Schedule 1 to this Act shall apply to the patient as if he had been admitted to the hospital in pursuance of a hospital order (without a restriction order) made on the date on which the restriction order ceased to have effect.”
The relevant parts of Section 42 of the Act, as amended, provide:
“Powers of Secretary of State in respect of patients subject to restriction orders.
(1) If the Secretary of State is satisfied that in the case of any patient a restriction order is no longer required for the protection of the public from serious harm, he may direct that the patient shall cease to be subject to the special restrictions set out in section 41(3) above; and where the Secretary of State so directs, the restriction order shall cease to have effect, and section 41(5) above shall apply accordingly.
(2) At any time while a restriction order is in force in respect of a patient, the Secretary of State may, if he thinks fit, by warrant discharge the patient from hospital, either absolutely or subject to conditions; and where a person is absolutely discharged under this subsection, he shall thereupon cease to be liable to be detained by virtue of the relevant hospital order, and the restriction order shall cease to have effect accordingly.
...”
COMPLAINTS
The applicant, who suffers from paranoid schizophrenia and has required continuous in-patient hospital treatment in the United Kingdom for over twelve years, complains that his deportation to Pakistan, where he would not receive adequate support or access to medical treatment, would breach Article 3 of the Convention because he would be at real risk of relapse and harming both himself and others.
He further complains under Article 8 of the Convention that his deportation to Pakistan would constitute a disproportionate interference with his rights to private and family life in the United Kingdom.
QUESTIONS TO THE PARTIES