COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(MR JUSTICE SULLIVAN)
B e f o r e :
LORD JUSTICE WALL
LORD JUSTICE MOSES
|THE QUEEN on the application of|
|FAWAD AHMADI and ZIA AHMADI||Appellants|
|THE SECRETARY OF STATE FOR THE HOME DEPARTMENT||Respondent|
Smith Bernal, 190 Fleet Street, London EC4A 2HD
Telephone 020 7421 4040
Official Shorthand Writers to the Court)
(instructed by Messrs Scudamore, London NW6) appeared on behalf of THE APPELLANTS
MR G CLARKE (instructed by the Treasury Solicitor)
appeared on behalf of THE RESPONDENT
Crown Copyright ©
Monday, 12 December 2005
LORD JUSTICE CHADWICK: I will ask Lord Justice Moses to give the first judgment.
LORD JUSTICE MOSES:
".... suffers from a severe form of schizophrenia with distressing auditory hallucinations and delusions as well as bizarre behaviour. When most floridly ill he has been threatening and violent to others and damaged property. At times he is also depressed and has felt suicidal. Even when his mental illness has improved he shows negative symptoms of schizophrenia which affects his ability to care for his everyday needs and to co-operate with treatment. As a result he tends to stop medication and disengage from services."
The doctor then considered the effect on that illness of Fawad's presence. She said (and it must be borne in mine that at that stage Fawad was still in detention):
"If the relationship between the brothers worked well, Fawad could undertake a supportive role, both practically and emotionally, as the only family member in this country. As well as encouraging Zia to take his medication and engage with services he would be in a position to detect early signs of relapse so that early intervention could prevent deterioration and the need for hospitalisation, especially were he to pose a risk to himself or others. It is also likely that, with the help of his brother, he would be better able to look after his nutrition, self- care, laundry and hopefully resume interests and social contact. This could all help improve Ahmadi Zia's mental health and counter his tendency to become depressed and suicidal."
She acknowledged, however, that the role would require co-operation from Zia and could prove burdensome to Fawad.
"For these reasons we would be supportive of his brother's request for leave to remain in the UK in order to support the case for Ahmadi Zia. His brother would also require support from us because it would be important that he was not overburdened by the care responsibilities for Ahmadi Zia."
"The answering of question (5), where that question is reached, must always involve the striking of a fair balance between the rights of the individual and the interests of the community which is inherent in the whole of the Convention. The severity and consequences of the interference will call for careful assessment at this stage. The Secretary of State must exercise his judgment in the first instance. On appeal the adjudicator must exercise his or her own judgment, taking account of any material which may not have been before the Secretary of State. A reviewing court must assess the judgment which would or might be made by an adjudicator on appeal. .... Decisions taken pursuant to the lawful operation of immigration control will be proportionate in all save a small minority of exceptional cases, identifiable only on a case by case basis."
"I would further accept that, given the extent of the second claimant's dependency on the first claimant, the degree of family life over the short period of the few weeks since the first claimant has been released on bail may well have been intense, but, given its brevity, it could not be said to be disproportionate to interfere with that family life. The question is not whether family life in the abstract would be interfered with, it is whether there would be a disproportionate interference with the family life that has actually been enjoyed by the second claimant. Since that family life has been so brief, and since it has always been under the shadow of the first claimant's removal, it could not be said that the first claimant's removal would be a breach of the second claimant's rights under Article 8."
The striking feature of that reasoning is the absence of any reference to the future intentions, as declared by both Fawad and Zia. At this stage, bearing in mind that this is an attempt to review the certification of the Secretary of State on appeal, the question is not whether those intentions are practical, still less whether they are credible. The question must be considered in the light of the potential of the brothers' family life together, not just that which has existed for a short time in the past. It must also be remembered that by the time of any appeal before an immigration judge, the relationship, if it was a genuinely supportive relationship, will have developed, and a greater opportunity will have emerged for those qualified medically to speak about the effect of that relationship.
ORDER: Appeal allowed; certification quashed; respondent to pay the costs of appeal and below; appellants' costs to be assessed in accordance with Community Legal Service (Costs) Regulations 2000.