England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION
(HHJ THORNTON QC)

		Royal Courts of Justice Strand London, WC2A 2LL
		8 May 2014

1. LORD JUSTICE MAURICE KAY: We have before us an appeal brought by the Secretary of State against an order made in the Administrative Court in judicial review proceedings. The respondent is a young man from Afghanistan who had the misfortune of witnessing the murder of his father and one of his brothers in 2005.
2. The respondent later came to this country and made an asylum claim whilst still a minor. That was not successful. The Secretary of State granted him limited leave to remain up to the age of 17 and a half, in accordance with her policy, she granted him further leave to remain.
3. The unfortunate reality is that the respondent has succumbed to extreme mental and psychological problems which are extensively described in the medical reports before us. There was a dispute about the implications of the medical evidence for the issue underlying this appeal but the diagnosis and prognosis were undisputed and uncontradicted. The respondent is receiving excellent care from the National Health Service of a kind which he would not receive in Afghanistan.
4. He sought indefinite leave to remain on the basis of his circumstances by reference to Article 3 and Article 8 of the ECHR. The outcome of his application was a grant of limited leave to remain with the prospect of making a further application which might ultimately result in a grant of indefinite leave to remain. It is that decision of the Secretary of State to grant him only limited but not indefinite leave to remain at the stage in question that is under challenge in these proceedings.
5. The application for judicial review was heard by His Honour Judge Anthony Thornton QC sitting as a Deputy Judge. He gave judgment on 14 June 2013. He found for the respondent as he now is under both Article 3 and Article 8, prompting the Secretary of State's appeal to this court.
6. The appeal was to be pursued with the permission of Beatson LJ, who thought that the appeal in relation to Article 3 was "clearly arguable." He was less convinced about the Article 8 appeal but gave leave on the basis that this court should consider all of the issues in the round.
7. We received skeleton arguments which we have carefully digested. We discussed the case in advance, as is our practice. However, this morning before coming into court we were informed of a recent development. The Secretary of State two days ago made a decision on a subsequent application of the respondent to grant him indefinite leave to remain. The date of the decision appears to have been 6 May 2014. That the most recent application by the respondent has had that successful outcome should not come as a surprise. In these proceedings the position of the Secretary of State has always been that it was likely that indefinite leave to remain would be granted at this stage now that the respondent has been in the country for a sufficient length of time to qualify for indefinite leave to remain pursuant to the Secretary of State's policy and the Immigration Rules.
8. The question therefore arises as to whether we should continue to hear this appeal. On behalf of the Secretary of State Miss Busch urges us to do so but on behalf of the respondent Mr Mackenzie submits that the appeal has become academic and we ought not to hear it.
9. In one sense it has become academic in that the respondent now has all that he sought, albeit not as a result of the Secretary of State changing her mind about the previous application, but simply as a result of her coming to a different and anticipated different decision given the passage of time and the nature of the evidence.
10. In submitting that we should hear the appeal it is plain that Miss Busch's emphasis is on the precedent value of the decision of the Deputy Judge. She submits that it is not simply an academic matter. The judgment will be deployed in other cases and the door will be opened to a significant number of the mentally or psychologically impaired to claim indefinite leave to remain by reference to Article 3 and Article 8. The Secretary of State maintains that the judge fell into legal error and complains that the judge misinterpreted the medical evidence and then proceeded to give an unduly expansive meaning to in particular Article 3. For these reasons the Secretary of State is anxious to rid herself of what she regards as a dangerous precedent.
11. We have given careful consideration to these submissions. We have come to the conclusion that it will not be appropriate for us to continue to hear this appeal because the respondent now has indefinite leave to remain as a result of the Secretary of State's very recent decision.
12. In considering the precedent value of the Deputy Judge's decision it is important to keep in mind that he plainly saw this as a case with exceptional facts. In paragraph 41 of his judgment he said:

"In these exceptional and unusual circumstances the refusal to grant LR in February 2009 coupled with the grant of only a 3-year LR following his successful appeal and the subsequent refusal to grant him ILR are: (1) a cause of his mental disability; (2) a factor in its development into its current chronic state and (3) a significant if not the sole reason why his essential trauma-focused treatment cannot start. The professional advice of both Dr Ehntholt and Dr Carswell suggests that there is no realistic prospect of trauma focused therapy starting and, if started, of being successfully completed until Y acquires the necessary feelings of security and that has no realistic prospects of occurring unless and until Y is granted ILR."

13. Leaving aside the question of whether those factual findings may be assailable, they plainly constituted the matrix upon which the Deputy Judge founded his decision. Accordingly, that in itself seems to me to limit the practical precedent value of his judgment. We do not consider that it opens the door to a significant number of the mentally and psychologically impaired immigrant community. We are not told of other similar cases and, ten months on, Mr Mackenzie tells us that the judgment does not appear in some informed databases and his highly experienced solicitors know of no similar cases in the pipeline.
14. Moreover, it is important to consider the precedent potential of the decision in any event. Cases of this sort where there is a challenge to the effect that a person should have been granted indefinite leave to remain when in fact he was granted limited leave to remain are processed through judicial review rather than by statutory appeal to the tribunals. Thus the scenario of the judgment being used to bamboozle countless tribunals hinted at by Miss Busch ought not to arise.
15. In any event, however, in the Administrative Court the judgment of the Deputy Judge is not binding authority and we make it clear that we agree with Beatson LJ that the Article 3 grounds of appeal were "clearly arguable" and may have succeeded. We have formed and express no final view on that. The issues of particular interest were to do with the ambit of the concept of treatment in Article 3 and the level of severity. These were what Beatson LJ had in mind when describing the Article 3 grounds as "clearly unarguable."
16. If the Secretary of State wishes to contend in a subsequent case that the Deputy Judge was wrong she will have every opportunity to do so, and preferably in cases where the facts as found are less exceptional.
17. We did wonder whether lurking behind the original application for judicial review there was an underlying claim for damages which would need a judgment of finality if it were to succeed. However, the claim form disclosed no such claim and Mr Mackenzie tells us that he knows of no such intention to pursue such a claim. In some Human Rights Act cases it is necessary to continue even though the original decision has been supplanted in order to provide a basis for consideration of an underlying damages claim. However, that is absent in this case.
18. For all of these reasons, but particularly because we do not accept the primary submission emphasising the precedent value of the Deputy Judge's judgment, we decline to proceed to hear an appeal now that the respondent has, through a different application, precisely that which he sought in these proceedings from the outset. Accordingly we shall not hear the appeal.