C4/2005/0922
Neutral Citation Number: [2005] EWCA Civ 1721
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
(MR JUSTICE SULLIVAN)
Royal Courts of Justice
The Strand
London
WC2A 2LL

Monday, 12 December 2005
B e f o r e:

LORD  JUSTICE  CHADWICK

LORD  JUSTICE  WALL

LORD  JUSTICE  MOSES
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B E T W E E N:
THE  QUEEN on the application of

FAWAD  AHMADI  and  ZIA  AHMADI
Appellants
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
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(Computer Aided Transcription by
Smith Bernal, 190 Fleet Street, London EC4A 2HD
Telephone 020 7421 4040
Official Shorthand Writers to the Court)
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MISS STEPHANIE HARRISON and MISS KATHRYN CRONIN (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
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J U D G M E N T
Monday, 12 December 2005

LORD JUSTICE CHADWICK:  I will ask Lord Justice Moses to give the first judgment.

LORD JUSTICE MOSES:

1.	This is an appeal with the permission of the single judge from a judgment of Sullivan J ([2005] EWHC 687 Admin (14 April 2005)).  The first claimant, Fawad Ahmadi, is an illegal entrant.  On 27 August 2004, the Secretary of State certified his claim for asylum on third country grounds pursuant to section 11 of the Immigration and Asylum Act 1999 ("the 1999 Act") and Council Regulation EC No 343/2003 of 18 February 2003 (the Dublin II Regulation).  
 
2.	Fawad Ahmadi was discovered in a freight yard in Immingham on 7 August 2004.  There he claimed asylum.  However, investigations revealed that he had previously sought asylum in Germany in August 2003, in Norway a few days later, and again in Germany in February 2004.  
 
3.	Fawad has a brother, Zia, who is six years younger than he.  He was born in November 1984.  He is now 21.  He came to this country after his family home had been attacked in Afghanistan by Taleban militia.  His father and two of his brothers were killed.  The family members became separated.  Zia escaped to the United Kingdom, but Fawad, his wife and three children escaped to Peshawar in Pakistan, where they were joined by his mother and younger siblings.  

4.	Having arrived in the United Kingdom in February 2001, Zia was granted refugee status and indefinite leave to remain in January 2002.  He suffers from a very severe form of schizophrenia.  It is difficult to treat.  He has been admitted on a number of occasions to hospital under the Mental Health Act.  The gravamen of Fawad's claim is that the right to respect for both brothers' family life requires that he be permitted to live with Zia to protect him from the consequences of his florid schizophrenia.  
 
5.	On 13 September 2004, Fawad claimed that to remove him to Germany, and require him to make his asylum claim there, would infringe his rights under Article 8 to family life with his brother Zia.  In his interview on 11 August 2004 he had claimed that, because his brother was in the United Kingdom, he wanted to come to this country and to live with him.  The Secretary of State rejected that claim the following day, 14 September 2004, and certified that human rights claim as clearly unfounded, pursuant to section 94(2) of the 1999 Act.  The effect of that certification is that, whilst Fawad has a right of appeal, it may only be exercised outside the United Kingdom (see section 93(2)).  At that stage, in September 2004, Fawad was in detention.  Although he asserted that he sought to look after his brother, he had never done so.  
 
6.	Judicial review proceedings were launched on 15 September 2004.  Permission was not given until 14 February 2005.  Fawad was granted bail on 7 March 2005.  For about five weeks from that date, until 14 April 2005, when Sullivan J gave his decision, Fawad lived with, and looked after, his younger brother.  
 
7.	The issue in the judicial review proceedings and on this appeal was accurately described by Sullivan J at paragraph 7 of his judgment, namely whether the Secretary of State is entitled to maintain his view that Fawad's claim under article 8 of the Convention was bound to fail in front of an adjudicator.  
 
8.	Zia has also separately brought proceedings under article 8, for reasons which I shall later identify, asserting that his rights would also be infringed should his brother be removed to Germany.  He brought a claim pursuant to article 3.  That was rejected by Sullivan J, and permission has been refused to appeal on that point.  
 
9.	Sullivan J rejected both the applications for judicial review.  I shall turn later to give a more detailed account of his reasoning, but essentially his decision turned on the absence of anything but a short and precarious time when the two brothers were together, between the release of Fawad from detention and the hearing, coupled with the fact that, as appears from the reports, Zia will from time to time, when necessary, receive support from mental health services and from Social Services.  If his condition should deteriorate, he might again be admitted to hospital under the Mental Health Acts.  In such circumstances, so he concluded, the adjudicator would be bound to conclude that Fawad's claim was not truly exceptional.  Zia's claim failed because it could not be said to be such a disproportionate interference as to infringe his article 8 rights after so short and precarious a period of family life together.   

10.	It is necessary for the purpose of this appeal to identify Zia's medical condition as described in medical reports available to the Secretary of State and at the time Sullivan J gave his decision.  The medical evidence was accurately described by Sullivan J in his judgment at paragraphs 17 and 18.  The most up-to-date report was from Dr Heavey, a consultant psychiatrist, who has been responsible for Zia in the past.  She set out the psychiatric history.  It seems that there were no signs of schizophrenia whilst Zia had been in Afghanistan, but there had been two occasions when he was admitted to a psychiatric hospital in June and July 2002.  On the last occasion he was not discharged until late September 2002.  He had been admitted because his behaviour was increasingly agitated and bizarre, and he made irrational utterances.  The diagnosis was that Zia:  
 
		".... 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.  
 
11.	The doctor then dealt with the effects of separation.  She spoke of the likelihood of deterioration to Zia's mental state, with the risk of relapse of psychotic symptoms and depression.  There would be a possibility of him refusing to take medication and disengage from services.  She then described the consequences or "costs", namely the effects of further breakdown with the risks of serious harm to others and to himself.  Thus the doctor concluded:   
		"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."  
 
12.	As Sullivan J pointed out, at the time of the doctor's report Fawad had not lived with Zia within the United Kingdom whilst Zia was suffering from this severe form of schizophrenia.  There had been about five visits between Zia and Fawad while Fawad was in prison.  But by the time of Sullivan J's judgment, they had been together for about five weeks.  In a written statement Fawad described the beneficial effect on Zia of them living together.  His statement describes this as being the "very happiest moment" for both of them.  He also described how he intends "to devote my entire life serving him and I believe that anyone in my situation would do the same thing for his family.  For me looking after my ill brother is not a burden, it is part of family responsibilities and love for each other."  Fawad goes on to describe how Zia does not wish to live in mental health homes because there are no Afghanis there.  
 
13.	There is also a statement from Zia himself.  He describes his life in the absence of his brother, where his house-mates (other young Afghanis) show no understanding of his mental health and call him "mad".   

14.	The judge correctly based himself on the law as explained by this court in Huang and others v Secretary of State for the Home Department [2005] EWCA Civ 105, [2005] 3 WLR 488.  The question for the judge, and the question that would arise for an adjudicator if an in country appeal were permitted, was whether "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 immigration rules" (see paragraph 59 in the judgment of Laws LJ).  As the judge rightly pointed out, the court was at pains to emphasise how exceptional the case must be.
 
15.	The decision of this court in Huang followed the approach of the House of Lords in R(Razgar) v Secretary of State for the Home Department [2004] 2 AC 368.  In that case the question was whether immigration rules could be trumped by the obligation of the United Kingdom to respect private life pursuant to article 8 of the Convention.  In Huang the rules which would, in all but truly exceptional cases, require indefinite leave to be refused was rule 317.  In the instant case it is the Dublin Convention, but it makes no difference.  The proper approach in either case was that which was explained by Lord Bingham of Cornhill at paragraph 20 in Razgar:   

		"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."  
 
16.	It must be recalled, however, that in the instant appeal, as before Sullivan J, the question does not turn on the judgment of an adjudicator.  There has been no judgment.  The question is whether any appeal to the adjudicator would be bound to fail.  In other words, would the adjudicator be entitled to conclude that this was a truly exceptional case and that respect for family life demands that the Dublin Convention be overridden?  It is only if no adjudicator, properly directing himself, would be entitled so to conclude that the court could uphold the certification of the Secretary of State.  
 
17.	The judge's reasoning can be identified at paragraph 25 of the judgment.  He said:  
 
		"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.   

18.	The pre-existing blood ties, coupled with the declared intention of the one brother to care for and support his other brother, are, in my judgment, of greater significance than Sullivan J was prepared to accept.  There is ample authority for the proposition that the obligations under Article 8 require a state not only to refrain from interference with existing life, but also from inhibiting the development of a real family life in the future.  That is not to say that, where there has been no pre-existing family life and there exists only a future intention, that will be sufficient to engage Article 8.  There is the world of difference between interfering with a long-established family life and merely preventing or inhibiting an opportunity in the future to develop such a family relationship.  Nevertheless, it seems to me that the judge, in considering the propriety of the certification, failed to pay sufficient heed to the declared intentions of the brothers, coupled as they were with at least some experience of the support that the brother was able to give to his seriously ill younger sibling.  
 
19.	In those circumstances it seems to me that it is not possible to say that an immigration judge, properly directing himself, would be bound to conclude that the support of the elder brother for his very sick younger brother was not such as to amount to an exceptional circumstance compelling the conclusion that family life be respected over and above the normal regulation of immigration control.  It is not possible to say what an immigration judge might conclude.  By the time an immigration judge considers this matter he or she will have the benefit and advantage of far more up-to-date material.  The extent to which Fawad will be able to assist Zia and prevent any deterioration of his florid symptoms will have to be examined and analysed in the light of up-to-date information.  The ability of Fawad to assist, even though he might want to, might also be better assessed.  However, it does not seem to me that the conclusion is inevitable as the Secretary of State and Sullivan J thought.  
 
20.	In those circumstances I, for my part, would say that Sullivan J erred in his forecast that the claim was bound to fail.  I would add only this.  Miss Harrison, on behalf of the first claimant Fawad, expressed concern that the immigration judge would be bound only to have regard to Fawad's case and would not regard it as being appropriate to consider the effect on Zia.  She fears the consequences of a number of decision of the Immigration Appeal Tribunal which have emphasised a requirement to look only at the appellant seeking either refugee status or to vindicate rights claimed under the European Convention, and not at the effect on a third party.  This, in my view, is not the occasion for considering the correctness of those decisions; but as a matter of fact it seems to me that an immigration judge would be bound to consider the medical practical effects of life with his elder brother on Zia and the consequences it has had for the control of his schizophrenia.  Without considering that, it seems to me that any factual consideration in this case would be hopelessly blinkered.  No doubt the immigration judge will, therefore consider the effect of separation on both brothers in the particular circumstances of this case.  
 
21.	For the reasons I have given I would allow this appeal.  
 
22.	LORD JUSTICE WALL:  I agree.  
 
23.	LORD JUSTICE CHADWICK:  I also agree.  
 
	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.