England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
(MR JUSTICE COLLINS)

		Royal Courts of Justice Strand London WC2 Thursday, 12th July 2001

Thursday, 12th July 2001

1. LORD JUSTICE SCHIEMANN: Before the court is an application on behalf of the Home Secretary to set aside a permission to apply for judicial review which I gave after considering papers supplied by the applicant, and also an application by the Secretary of State to discharge an injunction which I gave at the same time restraining the Secretary of State from removing Mr Pyotr Lamonovs from this country until further order.

2. The background to this case is that the Lamonovs family made various applications for asylum. These were refused and all avenues of challenge against those decisions have failed. The Secretary of State gave directions for the removal of Pyotr Lamonovs to France on 4th May. In principle he was entitled so to do.
3. The applicant, however, is someone who is liable to epileptic attacks and has been for most of his life. On the day he was supposed to be removed he had such an attack, notwithstanding that he was taking anticonvulsive tablets. We gather that the direction to remove him was cancelled by the Home Office when they perceived that he was not fit to be removed. On that very day an application was made for a stay of removal directions on behalf of Pyotr (if I may call him that) by his solicitors. They faxed this on 4th May. They asked for a stay of the removal on the grounds that it would be inhuman and degrading to proceed with it and therefore a breach of Article 3 of the Human Rights Convention. That claim was eventually rejected by the Secretary of State by a letter of 18th May which he wrote in the context of the procedures set out in the Immigration and Asylum Act 1999. The provisions of that Act have not been examined in front of us today and we have not been subjected to any arguments about them. I simply record this. Under section 65 of the 1999 Act it is provided that:

"A person who alleges that an authority has, in taking any decision under the Immigration Act relating to that person's entitlement to enter or remain in the United Kingdom, acted in breach of his human rights may appeal to an adjudicator..."

4. Section 75 of that Act indicates that an applicant must disclose his grounds when he wishes to rely on the Human Rights Convention. Section 72(2) indicates that:

"A person who has been, or is to be sent, to a member State or to... is not, while he in the United Kingdom, entitled to appeal -

(a) under section 65 if the Secretary of State certifies that his allegation that a person acted in breach of his human rights is manifestly unfounded."

5. It is with that section in mind that the Home Office wrote on 18th May as follows:

"After full and careful consideration, the Secretary of State has concluded that this allegation is manifestly unfounded for the following reasons:

a) Epilepsy is a recognised medical condition and the Secretary of State is confident that Pyotr Lamonovs will be entitled to appropriate and at least equivalent medical treatment in France. He is to be returned to France under medical escort.

b) The Secretary of State is satisfied that the return of your client to France would not place the United Kingdom in breach of its obligations under Article 8 of the ECHR. Your client will be returned to France accompanied by his other family members, who form a mutually supportive family unit, so there is no breach of Article 8."

6. We have not been required to examine the interrelation between the applicant's rights under section 6 of the Human Rights Act 1999 and those provisions of the Immigration and Asylum Act, and I would not think it right to comment on them.
7. We have in what is an urgent application been concerned essentially with the question whether or not here what is threatened to be done by the Home Secretary to this applicant can be regarded as a breach of his rights under Article 3. We have made that examination in the light of some medical evidence and some undertakings by the Secretary of State. The undertakings by the Secretary of State are three-fold. First, that the applicant will be medically examined before removal to establish whether he is medically fit for removal; second that he will be accompanied by a medical escort; and third that the Home Office will inform the French immigration authorities of the medical condition of Pyotr and the medical escort will hand him over to the appropriate French immigration authorities and will not leave until he has done so.
8. We therefore have to look at the medical evidence which is before the court. There is a certain amount of conflict between the evidence, but for my part I think it would be right to proceed on the basis of the medical evidence produced by the applicant, which is evidence prepared by Dr Henry Zapata-Bravo who is a consultant psychiatrist. In a long report prepared by Dr Zapata-Bravo after the decision of the Secretary of State to which I have referred (because he had not had time to prepare one in time) the consultant indicates that there have been many epileptic attacks since childhood which the family have looked after, that the family have detected an association of such attacks with emotional upheaval and that there was, as an example of this, an attack whilst Pyotr was on detention on 4th May, a few hours before the Home Office was due to remove him from the United Kingdom to France; and that the recordable seizures used to occur once a month but during the last four months (from February to May of 2001) the average has been three attacks per month with as many as six attacks recorded in May of 2001. We understand there have been even some attacks since then. There is reference in the report to suicidal feelings on the part of Pyotr. Dr Zapata-Bravo formed the view that he suffered from symptoms which were characteristic of a severe depressive episode, and that this condition was causally related to a whole series of unfortunate things in the applicant's past which are described at great length but which include his most recent stresses with the Home Office. The doctor says that in his opinion Pyotr's condition deserves full investigation by a specialist team including a neurologist, and he concludes as follows:

"It is unfortunate that this vulnerable patient who has been in the UK since November 1999 and is about to be expelled from the country, was seen for the first time by a neurologist only in February 2001 and has not yet had the benefit of a full neurological assessment. This situation is compounded by the development of a depressive condition apparently only recognised during the present assessment, and not yet treated.

I am worried that a removal to another country, particularly if it occurs before his medical conditions are treated such that the fits are controlled and the depression is lifted, may worsen his neurological and mental state and/or postpone further investigation and management measures that might be necessary.

A removal to another country will expose him to further periods of detention, assessments, interrogation, moves to different locations and perhaps separation from family. For example, if he is removed to France, he will face the following scenario, as described in the section devoted to France of the UNHCR report entitled 'Reception Standards for Asylum Seekers in the European Union'.

Piotr (and his family) will be detained in a 'waiting zone' probably in a hotel with many other asylum seekers, where conditions have been described as 'insufficient'. If the hotel is full, they will stay 'in the police station at the Terminal, which is totally unsuitable'.

They can be detained up to 20 days while the French authorities decide on their claim. If they are not deported, they will be released as homeless and will have to struggle alone, since they will be only entitled subsistence allowance.

This scenario, as described in the already mentioned document from UNHCR, represents a most adverse situation for a depressed vulnerable young man with poorly controlled epilepsy."

9. That is the claimant's doctor's assessment of the situation.
10. So far as the law is concerned Article 3 provides:

"No one shall be subjected to torture or to inhuman or degrading treatment or punishment."

11. There are manifestly value judgments to be made as to whether the treatment to which on the face of it Pyotr is likely to be subjected by the United Kingdom authorities comes within that wording. Guidance, which I think is accepted as accurate by the applicant, has recently once more been affirmed in the case of Kudla v Poland 30201/96 where the European Court of Human Rights sitting as a grand chamber said this in paragraph 90:

"As the court has held on many occasion Article 3 of the Convention enshrines one of the most fundamental values of democratic society. It prohibits in absolute terms torture or inhuman or degrading treatment or punishment irrespective of the circumstances and the victim's behaviour...

91. However, ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is in the nature of things relative. It depends on all the circumstances of the case such as the nature and context of the treatment, the manner and method of its execution, its duration, its physical or mental effects and in some instances the sex, age and state of health of the victims..."

92. The court has considered treatment to be inhuman because inter alia it was premeditated, was applied for hours at a stretch, and caused either actual bodily injury or intense physical or mental suffering. It is deemed treatment to be degrading because it was such as to arouse in the victims feelings of fear, anguish and inferiority capable of humiliating and debasing them. On the other hand the court has consistently stressed that the suffering and humiliation involved must in any event go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment."

12. The court there was dealing with a man who was detained in prison in circumstances where he said this was bad for his mental health. The court went on to say in paragraph 95:

"The state must ensure that a person is detained in conditions which are compatible with respect for his human dignity, that the manner and method of the execution of the measure do not subject him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention. And that given the practical demands of imprisonment his health and well-being are adequately secured by among other things providing him with the requisite medical assistance."

13. At the time when I made the ex parte injunction I did not know, but it seems that the applicant had made an application to the European Court of Human Rights for a direction under Rule 39 of its procedural rules. That rule provides:

"The chamber, or where appropriate its President, may at the request of a party... indicate to the parties any interim measure which it considers should be adopted in the interests of the parties or of the proper conduct of the proceedings before it."

14. It seems that the Treasury Solicitor was informed by that court of the making of that application and gave an undertaking to the court that Pyotr would not be removed pending the court's consideration of that matter.
15. We have today been furnished with the results of the court's consideration which, in substance, was that the court refused to give any direction under Order 39. The Secretary of State is therefore no longer bound by his assurances to the court, and the matter comes back to us.
16. It is a matter of impression as to whether what is proposed for the applicant is, even on his own evidence, of sufficient severity to amount to an infringement of his rights in relation to Article 3. In my judgment having heard the matter well argued in front of us, it is not, particularly bearing in mind the undertakings which have been given on behalf of the Secretary of State before us. One has to remember that epilepsy is not a condition which is new to this applicant or by any means an unusual one for him or his family to deal with. What is threatened is a journey to France which will take less than an hour in the aeroplane, following a medical examination and in the presence of a medical escort. A journey moreover to French authorities who will have been warned of this man's condition. It is manifestly unfortunate for him that he is being shunted about but, as it seems to me, the treatment which is proposed to be meted out to him, and which in principle is completely in accord with that which is appropriate for someone in his immigration position, is not one which can be described as infringing either his Article 3 or his Article 8 rights. We have not been addressed on Article 8 because since it is proposed to remove him with his family the point hardly arises.
17. I would therefore set aside the injunction and the permission which I gave and allow matters to proceed.
18. LORD JUSTICE TUCKEY: I agree.
19. LORD JUSTICE MANSE: I agree also.
(Application granted; no order for costs).