IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT LIST
(ROBIN PURCHAS QC)
Strand London, WC2
B e f o r e :
LORD JUSTICE LEWISON
LORD JUSTICE VOS
| NO (AFGHANISTAN)
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
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Mr G Lewis (instructed by Government Legal Department) appeared on behalf of the Respondent
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Articles 15(a) and 15(b) of the Qualification Directive/Rule 339C/Articles 2 and 3 of the European Convention on Human Rights
- Unless excluded under paragraph 339D of the Immigration Rules, Humanitarian Protection must be granted where there are substantial grounds for believing that there is a real risk of serious harm in the following situations....
3.3 Return that would expose a person to torture or inhuman or degrading treatment (Article 15(b))
- The terms in this section reflect Article 3 ECHR which states that: 'no one shall be subjected to torture or to inhuman or degrading treatment or punishment.'
- Humanitarian Protection is to be granted where there is a reasonable likelihood of illtreatment contrary to Article 3 which cannot be linked to a Refugee Convention reason. Even if the more obvious reasons - race, religion, nationality, political opinion - may not apply, it could be that membership of a particular social group (PSG) is established, in which case the individual should qualify as a refugee... "
"Serious harm consists of:
(a) ) the death penalty or execution or
(b) torture or inhuman or degrading treatment or punishment of [an applicant] in the country of origin."
"Where a person claims that their return would be in breach in Article 3 of the ECHR because of their medical condition they are not in need of international protection and are not eligible for humanitarian protection. The breach arises because the healthcare available to the applicant from the United Kingdom is not available in the country of return and for this reason he may qualify for discretionary leave that the threshold of establishing an Article 3 breach in such cases is very high."
"3.6 Medical cases.
- Cases where it is claimed that removal would be a breach of Article 3 on medical grounds will not be considered eligible for Humanitarian Protection, given that (ECtHR, N. v. the United Kingdom) 'in such cases the alleged future harm would emanate not from the intentional acts or omissions of public authorities or non-State bodies, but instead from a naturally occurring illness and the lack of sufficient resources to deal with it in the receiving country.' Instead they should be considered under the Discretionary Leave policy."
Subject matter and scope
The purpose of this Directive is to lay down minimum standards for the qualification of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted.
For the purposes of this Directive:
(a)'international protection' means the refugee and subsidiary protection status as defined in (d) and (f);
(e) 'person eligible for subsidiary protection' means a third country national or a stateless person who does not qualify as a refugee but in respect of whom substantial grounds have been shown for believing that the person concerned, if returned to his or her country of origin, or in the case of a stateless person, to his or her country of former habitual residence, would face a real risk of suffering serious harm as defined in Article 15, and to whom Article 17(1) and (2) do not apply, and is unable, or, owing to such risk, unwilling to avail himself or herself of the protection of that country;
(f) 'subsidiary protection status' means the recognition by a Member State of a third country national or a stateless person as a person eligible for subsidiary protection."
"Grant of humanitarian protection
339C A person will be granted humanitarian protection in the United Kingdom if the Secretary of State is satisfied that:
(i) he is in the United Kingdom or has arrived at a port of entry in the United Kingdom;
(ii) he does not qualify as a refugee as defined in regulation 2 of The Refugee or Person in Need of International Protection (Qualification) Regulations 2006;
(iii) substantial grounds have been shown for believing that the person concerned, if he returned to the country of return, would face a real risk of suffering serious harm and is unable, or, owing to such risk, unwilling to avail himself of the protection of that country; and
(iv) he is not excluded from a grant of humanitarian protection."
"(iii) torture or inhuman or degrading treatment or punishment of a person in the country of return..."
Then I omit subparagraph (iv) then the heading "Residence Permits." 339Q:
"(i) The Secretary of State will issue to a person granted refugee status in the United Kingdom a United Kingdom Residence Permit (UKRP) as soon as possible after the grant of refugee status. The UKRP may be valid for five years and renewable, unless compelling reasons of national security or public order otherwise require or where there are reasonable grounds for considering that the applicant is a danger to the security of the UK or having been convicted by a final judgment of a particularly serious crime, the applicant constitutes a danger to the community of the UK or the person's character, conduct or associations otherwise require.
(ii) The Secretary of State will issue to a person granted humanitarian protection in the United Kingdom a UKRP as soon as possible after the grant of humanitarian protection. The UKRP may be valid for five years and renewable, unless compelling reasons of national security or public order otherwise require or where there are reasonable grounds for considering that the person granted humanitarian protection is a danger to the security of the UK or having been convicted by a final judgment of a serious crime, this person constitutes a danger to the community of the UK or the person's character, conduct or associations otherwise require."
"In these regulations a 'person eligible for a grant of humanitarian protection' means a person who is eligible for a grant of humanitarian protection under the Immigration Rules."
Which in turn is a reference to rule 339C(iii) which I have already set out.
"2.1 Medical cases.
- This category applies to both asylum and non asylum cases.
- The general principle is that a person cannot avoid return on the basis that they require medical, social or other form of assistance being provided in the UK. The improvement or stabilisation in an applicant's medical condition resulting from treatment in the UK and the prospect of serious or fatal relapse on expulsion will not in themselves render expulsion inhuman to Article 3.
- The threshold set by Article 3 is therefore a high one. It is 'whether the applicant's illness has reached such a critical stage (ie he is dying) that it would be inhuman treatment to deprive him of the care which he is currently receiving and send him home to an early death unless care available there to enable him to meet that fate with dignity' from the case of N(FC) v SSHD  UKHL 31. To meet the very high Article 3 threshold therefore, an applicant will need to show exceptional circumstances that prevent return, namely that there are compelling humanitarian considerations, such as the applicant in the final stages of a terminal illness without prospect of medical care or family support on return."
"64. I was referred to the up to date extract COIR 1odged by the respondent. The terms of the 2011 Report are reproduced in part in the reasons for refusal which records that many Afghans suffering from mental health problems are believed to be possessed, some are chained in rooms and others are simply abandoned by their families.
65. The extract report sets out details of the few facilities that exist for the treatment of mental health patients in Afghanistan, the extent of the unmet need, the shortages of treatment facilities and the societal attitudes that hamper access to treatment for mental health problems in a country where inhumane and degrading exorcism regimes are used by many to treat relatives with mental hea1th problems and face to face contact with mental health professionals is at best possible for only for a very few and for a very restricted time before patients have to be discharged. The extent of unmet health needs in Afghanistan is illustrated by the fact that there is no treatment for cancer patients in Afghanistan apart from surgery...
87. The appellant has shown that the proposed return to Afghanistan will significantly increase the already present suicide risk arising from the appellant's complex PTSD and depression. In light of the general concurrence in the various reports and testimonials showing that the appellant's condition worsened following the dismissal of the appeal, it not is considered that his subjective fear is based only on anticipation of an event because this is not supported by any medical evidence. The appellant's subjective fear passes the threshold set in Y and Z.
88. The correct test under the Article 8 case law is not exceptionality. On the whole facts as found, the removal of the appellant would be an act or measure so severe as to interfere unlawfully with either his moral or physical integrity.
89. The respondent's conclusions that the appellant had demonstrated no reason why he would not be able to return to safely reside in Kabul, where a sufficiency of protection is considered to exist for him does not take full account of the appellant's accepted mental health issues.
90. The respondent's conclusions that the appellant would not face economic impoverishment or hardship sufficient to engage his rights under Article 3 of the ECHR as a consequence of returning to Afghanistan are not based on an investigation of the individual circumstances the appellant would face on return to Kabul."
I pause there to indicate that in addition to paragraph 64 and 65, which I have already reproduced the really critical paragraphs are the following:
"114. Going through the six tests set out in J, for foreign cases, l find that it is no longer suggested that the appellant's subjective fear of the Taliban is objectively well founded. However, his subjective fear remains. The severity of treatment relied upon is the deterioration in the appellant's PTSD on return to Afghanistan and societal attitudes to mental illness and the mentally ill.
115. The fact that events in Afghanistan may not be wholly responsible for the appellant's PTSD does not undermine the impact upon him of return there. l find that the deterioration in his mental health that would result from return to Afghanistan is not hypothetical; it is evidenced in the concurrence of the evidence including the medical reports of Ms Hughes and Prof Katona.
116. I find that there is a causal link between removal and the deterioration in the appellant's PTSD and increased risk of suicide- l take full account of the fact that the threshold is high because the alleged inhumane treatment is not the direct or indirect responsibility of the public authorities in Afghanistan but results from the appellant's mental illness. However, an article 3 claim in principle succeed in a suicide case.
117. The appellant's fear of ill-treatment in Afghanistan as a person suffering from mental illness is objectively well-founded in that although there are some medical facilities and medication there is also a prevalence of societally acceptable highly inhumane and degrading treatment of those believed to be possessed as set out in the COlR.
118. Without family support or a support network, on the basis of the psychiatric and psychological reports I find on the basis of the concurrence of the evidence that there is a real risk that the appellant will develop symptoms in Afghanistan due to the activation of an intense fear reaction, panic and depression and that as a result there is a real risk that he will be shunned, will become homeless and destitute or fall victim to those who use inhumane methods in order to attempt exorcism.
119. Although he is currently, superficially functioning in the United Kingdom on return he is highly likely to be traumatised by his symptoms to such an extent that he will be unable to access such treatment as may be available in Afghanistan."
Then paragraph 127 the heading to which is "Conclusions - Article 3":
"In all the circumstances looked at in the round I find that this appeal falls to be determined in the appellant's favour and on the basis that his return would reach the high threshold of inhuman treatment unconditionally prohibited by Article 3 because the evidence does not show that appellant's risk of suicide, that is at present being managed by careful, skilled intervention and a supportive network can be managed in the United Kingdom if he is told that the decision to remove him is final and because in Afghanistan the chance of the appellant finding the palliative and therapeutic care that will keep him from taking his own life, with no known family support, no known home to travel to and no evidenced chance of finding a secure base from which to seek treatment in Afghanistan or known facility to provide him with the therapeutic care that will keep him from taking his own life and provide a cure, is remote. For completeness I have gone on to consider the Immigration Rules, Article 8 and proportionality in case I am found to be wrong in my conclusion that Article 3 is engaged by a decision to remove the appellant to Afghanistan on both the domestic and foreign fronts."
Then under the rubric "Article 8" the determination continues:
"132. The appellant's mental health is a crucial part of his private life and to return the appellant mid-treatment for complex PTSD, when his prognosis is good if his treatment is completed, to a country when his treatment cannot be continued or replicated engages Article 8 because of the suicide risk, the lack of facilities in Afghanistan and the inhumane methods of neglect and exorcism that are considered societally acceptable.
133. I find that because the medical evidence and supporting evidence of responsible professionals all as set out above, reaches the high threshold required to show that Article 8 is engaged by the consequences for the appellant of a removal decision, not only in the United Kingdom but also in Afghanistan that the appellant qualifies for discretionary leave on medical grounds...
140. For all the reasons set out above and below, l find that the interference with the appellant's private life consequent upon his removal does reach the threshold required to engage Article 8 because the appellant is undergoing medical treatment in the United Kingdom, has been in the United Kingdom for 4.5 years since October 2008, has a social network essential to successful treatment for his mental health problems, a long-term girlfriend and network of supportive professionals all of whom are essential to his continued safety and wellbeing, is in education, has learnt English, obtained qualifications, been elected to the Centrepoint Parliament and has conditional offers of a place at four universities. For the avoidance of any doubt I find the appellant did not have the acknowledged mental health problems, 'then in light of case law, the combination of the other factors would not be sufficient for proportionality to favour the appellant."
That last sentence of paragraph 140 does not make sense. I think that it should probably read:
"For the avoidance of any doubt I find that if the appellant did not have the acknowledged mental health problems, then in light of case law, the combination of the other factors would not be sufficient for proportionality to favour the appellant."
"In all the circumstances looked at in the round I find that this appeal falls to be determined in the appellant's favour and on the basis that his return would reach the high threshold of inhuman treatment unconditionally prohibited by Article 3..."
"4.However, the decision of the First Tier Tribunal concludes on Article 3 in paragraph 127, making absolutely clear that the high threshold of inhuman treatment engaged under Article 3 is wholly occasioned by his mental health condition, particularly the post traumatic stress disorder, and it is because of that, not only is he at risk of suicide if he does not have the proper care and support, but also is in danger of the ill treatment to which he refers if he is returned to Afghanistan.
5. In my judgment, there is no arguable case here that the Secretary of State was not in those circumstances entitled to treat this as a case where asylum was sought under Article 3 on the basis of the claimant's medical condition, and indeed to isolate the passages to which Mr Walsh refers in the decision from the decision as a whole, and in particular the caveat at paragraph 114, where the tribunal makes that absolutely clear that it is on the basis of his medical condition that the decision on Article 3 and 8 is reached would be taking an artificial and unreasonable approach to the findings of the tribunal."