ON APPEAL FROM THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Senior Immigration Judge Jarvis
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE MOSES
LORD JUSTICE McFARLANE
| MM (Zimbabwe)
|- and -
|The Secretary of State for the Home Department
Mr Matthew Barnes (instructed by Treasury Solicitors) for the Respondent
Hearing date: 14th February, 2012
Crown Copyright ©
Lord Justice Moses:
AIT and Upper Tribunal
"While he has a caring and loving family, it cannot properly be said that the concern and affection that ordinarily go with blood ties are, by themselves or together, enough to constitute family life...
This appellant's private life does not arise because of work, friendships or loose social ties, but because of his family ties, his illness, his dependency on his clinicians and his medication and the obligation under s.117 Mental Health Act 1983 to provide him with community care after discharge…we are, therefore, satisfied that the appellant has an established private life in the United Kingdom where anyone on whom he has depended in terms of his health now lives."
"The evidence points to clear progress for the appellant since his release, progress that demonstrates that the appellant is not a risk to the public. Given this fact, and the humanitarian considerations of the very severe impact of his removal, we are satisfied that deportation would be disproportionate to any legitimate aim under Article 8(2)."
The Tribunal did not find it necessary to consider whether there existed exceptional circumstances under paragraph 364 of HC 395 (Statement of Changes in Immigration Rules).
"(x) Any risk of further offending behaviour is closely linked to his mental health, his treatment, and to his family and home circumstances" and
(xi) "they were satisfied that, despite the one 'blip' (at the beginning of 2008) he has a firm commitment to treatment and to the community support that he will receive on release which will lead both to independence and potentially a full recovery."
After lengthy citation of authority and submissions, the Senior Immigration judge took the view that deportation would not involve a breach of Article 3. There is no challenge to that conclusion.
"Weight must be given to the opinion that the appellant was sane when the crimes were committed and the evidence does not show that the appellant committed the crime solely because of his illness.
Since the crimes were committed he has had some problems during home leave, returning to the use of cannabis and going absent without leave. It may be that his conduct has been exemplary since the last reports were prepared, so much is not clear, and his progress since the hearing before the panel is unknown." [88 and 89]
"However I find that evidence in relation to the availability of suitable drugs and as to whether the appellant still needs them, to be lacking. Such evidence as has been presented does not, I find, suffice to show that it outweighs the public interest in deportation. It follows that the respondent's decision does not disclose any disproportionate breach of the right to respect for private life under Article 8 ECHR." 
Article 3 and Article 8
"Although the possibility cannot be excluded, it is not easy to think of a foreign health care case which would fail under Article 3 but succeed under Article 8. There clearly must be a strong case before the Article is even engaged and then a fair balance must be struck under Article 8(2). In striking that balance, only the most compelling humanitarian considerations are likely to prevail over legitimate aims of immigration control or public safety. The expelling state is required to assess the strength of the threat and strike that balance. It is not required to compare the adequacy of the health care available in the two countries. The question is whether removal to the foreign country will have a sufficiently adverse effect upon the applicant. Nor can the expelling state be required to assume a more favourable status in its own territory than the applicant is currently entitled to. The applicant remains to be treated as someone who is liable to expulsion, not as someone who is entitled to remain." 
None of the other members of the Committee expressly refer to this passage.
"appears to have been shown as minimised while the appellant takes his medication and receives support from the team. But that was according to a report in 2008 and it is not wholly clear what minimised means."
Lord Justice McFarlane:
The Master of the Rolls: