England and Wales High Court (Administrative Court) Decisions

IN THE SUPREME COURT OF JUDICATURE
QUEENS BENCH DIVISION
CROWN OFFICE

		ROYAL COURTS OF JUSTICE STRAND, LONDON, WC2A 2LL
		Friday 26 May 2000

MR JUSTICE TURNER :

Introduction

1. This is an application for judicial review of the decision of an immigration officer dated 28 May 1999, by which he refused to grant the applicant exceptional leave to enter or remain in the United Kingdom and enforced his removal to Malta.

History

2. On arrival in the United Kingdom from Malta on 12 December 1997, the applicant had applied for asylum, he provided various disconnected reasons for his application. His asylum application was refused on 29 January 1998. On 12 February, the immigration officer refused leave for the applicant to enter the United Kingdom. He was detained. Sometime after his detention in HMP Rochester, the applicant was seen by a psychiatrist and diagnosed as suffering from acutely psychotic symptoms with marked paranoid delusions.
3. On the same day as he decided to refuse to grant leave to enter, the Secretary of State for the Home Department certified the asylum application under the provisions of paragraph 5(4)(b) of Schedule 2 to the Asylum and Immigration Appeals Act 1993. The applicant appealed against the decision refusing his asylum application. On 19 February 1998, the applicant was transferred to a psychiatric hospital under the provisions of sections 48 and 49 of the Mental Health Act 1983 (the Act of 1983). On investigation of the Maltese authorities, it transpired that the applicant had been admitted to a psychiatric hospital in Malta in 1994, "but had subsequently lapsed psychiatric follow up".
4. On 18 September 1998, the applicant's asylum appeal was dismissed. The special adjudicator found that the removal of the applicant to Malta, with the accompanying risk that his mental health would deteriorate in consequence, would amount to inhuman or degrading treatment within Article 3 of the European Convention on Human Rights (ECHR) and recommended that the Secretary of State for the Home Department review the applicant's case favourably. On 30 November the Secretary of State for the Home Department refused the applicant's later application for exceptional leave to enter. On 10 December a Mental Health Review Tribunal directed that the applicant continue to be detained under the provisions of the Act of 1983. Its conclusions were that

The opinion that (the applicant's) mental illness remains of a nature and degree to make it appropriate for his continued liability to detention in hospital for treatment … is correct and that had (the applicant) been detained under sections 37/41 of the (Act of 1983) we would not have directed any form of discharge. The patient does not present any threat to the safety of others, but he is vulnerable to relapse and would benefit from further treatment. His illness does not require treatment in conditions of medium security and his mental state would benefit from being kept in less confined circumstances.

Consideration was given to returning the applicant to Malta. The psychiatrist in charge of the applicant stated that before the applicant could be so returned, it would be necessary to show that his needs, as they were defined, could be adequately met in Malta.

The issues

5. Under section 86 of the Act of 1983, the Secretary of State has power to remove alien patients from the United Kingdom, subject to certain conditions being satisfied. It is the case for the applicant, that these powers are exhaustive. That is to say that in the case of a person who is a patient under the Act of 1983, the procedure provided by section 86 must be followed and the Secretary of State has no discretion to proceed by any other means, in order to require an alien to leave the United Kingdom. The Secretary of State maintains that he is not obliged to use those powers. He is not prevented by their existence from exercising the powers which are otherwise available to him under the provisions of Schedule 2 to the Immigration Act 1971 (the Act of 1971). Alternatively, the applicant submitted that the general powers of the Act of 1971 have to give way to the particular powers under the Act of 1983 as they affect patients who fall within its ambit. Moreover, it was submitted that the decision of the Secretary of State that the applicant's removal to Malta would be in his best interests was irrational and unreasonable. Finally, the applicant submitted that his removal would constitute a violation of his rights under Article 3 of the ECHR and that by proceeding as he did the Secretary of State was depriving the applicant of an effective remedy to challenge the decision.

Evidence in relation to the applicant's mental state.

6. This consists of a number of reports which have come into existence between 1998 and the present date. Thus, in August 1998, Doctor Pierzchniak wrote

It is my opinion that it would be in (the applicant's) best interests to be allowed to remain in the UK to receive treatment. I believe that physically removing him to Malta will cause him a great deal of stress and he is therefore highly likely to relapse into another psychotic episode which would place him at risk of harm to himself from the type of actions already described. From my reading of his history and progress, (the applicant is suffering from a form of schizophrenia which is difficult to treat and will need a prolonged period of observation in hospital before staff can be confident that his symptoms have resolved to a satisfactory extent. He will then need very careful follow-up in properly supervised accommodation to ensure that his mental illness does not relapse and this would best be done in England. I note that at Redford Lodge (the applicant) is undergoing a programme of psychological intervention and occupational therapy. Bearing in mind his mental illness and possible personality difficulties as a result of abusive experiences in early life, it is showing good compliance and it is my opinion that, on humanitarian grounds, he should be allowed to continue this and following a successful course of treatment, be allowed to make use of the facilities of aftercare in this country.

7. In April 1999, Dr Saliba writing from Malta said

Of necessity, I must be extremely prudent in any comments I make about this patient that[sic] I have not seen for a very long time. However, it must be self evident that repatriating a patient to a country and psychiatric team that he reportedly does not wish for may have an adverse effect on his mental state, including the possible risk of suicide. I am obviously not in a position to hear (the applicant's ) wishes at first-hand, however, I would feel clinically and ethically very uneasy in being instrumental to force him back under my care when he is reportedly receiving high quality treatment in the UK which he reportedly prefers.

* * * *

Our rehabilitation services are still being developed and we do not as yet have the impressive and detailed care plans of some psychiatric services in the United Kingdom. On the other hand we do have two half-way houses one run directly by ourselves and the other by the Richmond Fellowship Foundation – Malta. I could virtually guarantee that he would be offered a place in one of these as and when his mental state permits. It would, however, entail referring him to one of my two colleagues in rehabilitation.

8. There were, then, reports from Doctor Exworthy at Redford Lodge who was initially responding to questions put to him on behalf of the Chief Immigration Officer. In August 1999, Doctor Exworthy wrote

Currently the risk of self-harm is low but, in my opinion, this would increase if the decision were taken to return (the applicant), against his will, to Malta. Furthermore the level of risk would rise from the time that (the applicant) became aware of that decision and, on the evidence available to me, would be significantly increased once he was in Malta.

* * * *

Thus were the decision to return him to Malta to be made, adjustments to his in-patient management would need to be put in place before he was informed of the decision. Likewise, arrangements could be made for him to have a nursing escort on the trip to Malta and it would be a sensible precaution to admit him for in-patient assessment once in Malta to further evaluate the risk of self-harm and how that might alter over time as (the applicant) adjusts, or not, to the reality of his position. The management of (the applicant) in Malta would obviously fall to Doctor Saliba and in-patient admission would be subject to his agreement.

The assessment and management of risk, in this case that of self-harm, is a prominent part of contemporary psychiatric practice. In (the applicant's) case the clinical issues can be addressed but concerns have been expressed, not least by Doctor Saliba, over the ethical issues involved.

Then, after saying that he agrees with Dr Pierzchniak's assessment, Doctor Exworthy continued

From my reading of Dr Saliba's letter [above] I am of the opinion that the facilities in Malta are adequate although I am less clear regarding the multi-disciplinary input available to Dr Saliba's clinical team. Doctor Saliba seems to be very much aware of the potential difficulties which would be imposed if (the applicant) were to be returned to Malta. I also believe Dr Harlow is right to point out … that 'resource limitations' are not unknown in this country. Were (the applicant) to remain in this country it has not been agreed where he would be resettled or who would be responsible for the funding.

8. Finally, Doctor Exworthy wrote again on 1 February 2000 and his conclusions are worthy of repetition:

1. (The applicant) continues in his opposition to his return to Malta. He says he cannot see that he has a future there and accordingly would consider harming himself or even committing suicide. Thus in my opinion, arrangements for his return to Malta would lead to an increased risk of self-harm.

2. The risk of self-harm could be properly managed during his removal from this country and in Malta where he would be under the clinical care of Dr Saliba. My response in the letter of the 15^th August, to a similar question, amplifies on this and these comment still stand. I would add that even properly managed the risk is still a real one and can never be full eliminated.

3. If (the applicant) is forcibly removed from this country and returned to Malta which is against his consistently expressed wishes then I believe a deterioration in his mental health would be almost inevitable.

4. It is very difficult to provide any comment about the likely nature, extent or duration of such deterioration. We do have indications that (the applicant) has made plans to attempt to harm himself during his current admission and therefore, the risk that he might try to put such plans into operation should he be returned to Malta must be considered to be high. It is possible that over time he might become reconciled to the fact that he has been returned to Malta and then such thoughts might decline. How quickly this might occur I am unable to answer. However, because much of his opposition to return him to Malta is based on longstanding concerns he has had about his upbringing and family life there, it is equally possible that the risk may remain elevated for some considerable time. This risk, in my view, would only partially be amenable to treatment because it is also related to his environment and circumstances.

Finally, should it be decided that (the applicant) is to be removed from the United Kingdom and returned to Malta then I can confirm an up to date report detailing his treatment and progress would be provided to Doctor Saliba to inform him as fully as possible about (the applicant).

The decision under challenge

9. This is contained in a letter dated 8 September 1999. The letter condescends to some particularity. It commences by referring to the letter from Dr Saliba and concludes that the arrangements which can be made in Malta for the applicant's reception, management and care "are sufficient". The letter proceeds to consider the up to date report from Dr Pierzchniak and concludes that arrangements which will be made by the medical authorities in Malta will respect the views of those who have the care of the applicant in the United Kingdom. Finally, the letter considers the position of the applicant's immigration status. The letter discounts the point arising under section 86 of the Act of 1983 and notes that

Quite apart from medical considerations, the essential issue in your client's case is that he does not qualify for leave to enter the United Kingdom. There is no basis under the provisions of the Immigration Rules for him to be admitted here. Consideration has been given as to whether or not there are any sufficiently compelling or exceptional circumstances which would justify granting your client leave to enter outside the provisions of the Immigration Rules, it has been concluded that this would not be justified.

The letter also addressed the submission which had been made, which was to the effect that the removal of the applicant in the circumstances which obtain would involve the United Kingdom in a breach of its obligations under Article 3 of the ECHR.

The case for the Secretary of State for the Home Department

10. This is foreshadowed in the witness statement of Roger Dyer, Chief Immigration Officer in the Casework Section of the Immigration Service Ports Directorate. From this statement, it is noteworthy that the Secretary of State has regard to the ECHR when exercising his statutory functions. The Secretary of State accepted that there was a risk of self-harm if the applicant were to be returned to Malta. But he considered that steps could be taken to minimise it by appropriate management. It is pointed out that although the applicant has "negative" feelings about his past treatment in Malta it is possible that such feelings might in time become extended to his carers in the UK if the applicant were to remain here. Any deterioration in the applicant's health, following removal, would not amount to inhuman or degrading treatment within Article 3 and that if such deterioration were to occur it would not be to such an extent that the grant of exceptional leave to remain would be appropriate. The policy governing the grant of exceptional leave to remain in cases such as the present is exhibited to the witness statement and is as follows:

Where …return to the country of origin would result in the applicant being subjected to torture or other cruel, or degrading treatment, or where the removal would result in an unjustifiable break up of family life. For example

Where there are substantial grounds for believing that someone will suffer a serious and wholly disproportionate punishment for a criminal offence …

Where there is credible medical evidence that return, due to the medical facilities in the country concerned, would reduce the applicant's life expectancy and subject him to acute physical and mental suffering, in circumstances where the UK can be regarded as having assumed responsibility for his care. In cases of doubt, a second opinion should be sought from a credible source.

In the passage, immediately following the second bullet point, can be detected reference to Article 3 considerations. The statement asserts that the medical evidence is insufficient to justify the proposition that removal would amount to inhuman or degrading treatment and that adequate treatment for the purpose of managing the applicant's state exist in Malta.

The applicant's submissions

11. At the forefront of the applicant's case was the submission, already noted, that the existence of the power under section 86 of the Act of 1983 meant that the Secretary of State had to proceed by that route. Any powers which the Secretary of State might have had under the Act of 1971 were ousted by the Act of 1983. The alternative submission was that the Secretary of State had unlawfully fettered his discretion from proceeding under the Act of 1983 by reason of an unlawful policy.
12. The submissions noted that the Act of 1983 was the later in time of the two Acts which were in play in these proceedings. Hence, it was said that, the later Act made a clear and express provision for limiting the powers contained in the Immigration Act such that it was impliedly amended by the powers contained in the Act of 1983. The submission was refined by reference to the fact that when the applicant was transferred from custody to hospital, that was from the powers to detain available to the Secretary of State in immigration matters to the power to detain in hospital in respect of mental health matters, so there was a transfer of the source of the power from the Immigration Act to the Act of 1983. Under the latter Act, so long as the applicant is suffering from mental illness, the powers which the Secretary of State is exercising are those under the Act of 1983 and not the Act of 1971; see section 48(1) and (2)(d) of the Act of 1983. That power to detain, it was submitted, continued either until discharge either under section 72 or section 73 or the applicant was removed from the UK under section 86; see section 91. This would lead to an absurdity if the applicant, who was subject to detention under section 48 and 49, would technically remain subject thereto after his removal, unless his transfer was effected under section 86.
13. It was then submitted that, if there was any ambiguity as between the 1971 Act powers and those in the Act of 1983, it should be resolved by reference to the ECHR in accordance with the decision in Garland v. British Rail Engineering [1982] 2 AC 751. Unless there was independent scrutiny of the removal of patients from the United Kingdom, it would be in breach of its obligations under Article 5.4 of the ECHR. It was following the case of X v. United Kingdom (1981) 4 EHRR 188, that the Government of the United Kingdom introduced the Mental Health (Amendment) Act 1982 with the provision which is now to be found in section 86 of the Act of 1983. In X v. UK it was held that

the scope of judicial review must be sufficient to enable enquiry to be made whether, in the case of detention of a mental patient, the reasons which initially justified the detention continue thereafter to exist. Habeas corpus proceedings … do not on their own secure the enjoyment to the full of the right guaranteed by Article 5.4.

The court went on to hold that a MHRT was not competent to review the lawfulness of a detention since its powers (as they were at the time) were purely advisory. Because of the stated need for independent review by a specialist tribunal, such as the MHRT, it would defeat the manifest purpose of section 86 if the Secretary of State was able to exercise his powers under the Act of 1971 to remove the applicant. It was submitted that the decision in R v. Immigration Appeal Tribunal and another ex p. Alghali [1986] ImmAR 376 (see below) did not assist the argument of the Secretary of State because section 86 of the Act of 1983 was yet to be in force at the date of the decision. In any event that case was wrongly decided.

14. If, notwithstanding the first submission, the court were to hold that the Secretary of State did have power under the Act of 1971, then by his decision he had fettered his discretion whether to proceed in that manner or not. The submission here was that when Mr Dyer, on behalf of the Secretary of State stated that

it is the practice of the Secretary of State to use s.86 only in the cases of persons who have been granted leave to enter the UK, which this applicant has not (see paragraph 16 of the statement).

he had fettered the very discretion which section 86 conferred. Thereby he frustrated the policy of the Act.

15. The final argument of substance was concerned with the decision of the Secretary of State that in the applicant's case, the risk which was posed by the threat of his return to Malta was such that for him to disregard the terms of Article 3 of the Convention, meant that he must have misdirected himself. It was not in issue before the court that the Secretary of State was correct to have taken into account provisions of the Convention. What was in issue was whether he was correct in the way in which he had sought to apply them. It was submitted that when Mr Dyer had stated that

[16](The Secretary of State) uses (the section 86 power) at the request of an individual's responsible medical officer in cases where such officer has formed the view that an individual would be better cared for in all the circumstances if returned to his own country. … [17](The Secretary of State) acknowledges that it may not be in the applicant's best interests, at least in the short term, for him to be removed to Malta. However the applicant's interests are not the only matter to which the Secretary of State has regard. He has a statutory responsibility for immigration control. He … has an interest in protecting the limited resources of the National Health Service.

Where the Secretary of State had gone wrong was in his conclusion that the risk of self-harm and mental deterioration could properly be set against the consideration to which he had adverted in the passage above. The reason is that the obligation contained in Article 3 is "an absolute and unqualified right".

16. In Soering v. UK 11 EHRR 439, a case concerning the treatment of a person convicted of an offence of murder in the State of Virginia while awaiting the execution of the death penalty, the legitimate punishment for that offence, it was held that it was the existence of the 'death row phenomenon' which constituted the inhuman and degrading treatment and not the death penalty itself. It was submitted that expulsion from the UK would constitute

inhuman and degrading treatment if it has the effect of inducing feelings of fear and anguish that will humiliate and degrade him and break down his physical and mental resistance.

17. It was also contended that if the applicant were to be returned to Malta this would constitute an interference with respect for private life, contrary to Article 8 of the Convention. This has been held to include the physical and moral integrity of the person; see X and Y v. The Netherlands (1986) EHRR 235 where at p239 the Court said

(the obligation) does not merely compel the State to abstain from such interference: in addition to this primarily negative undertaking, there may be positive obligations inherent in an effective respect for private life and family life. These obligations may involve the adoption of measures designed to secure respect for family life even in the sphere of relations of individuals between themselves.

The damage which was alleged to have occurred consisted of "major mental disturbance" as the result of the interference. The underlying argument put on behalf of the applicant was that to the extent that the decision of the Secretary of State interferes with the private life of the applicant specifically his moral and physical integrity and that his removal from the UK was not proportionate to any interest of the State.

The response of the Secretary of State

18. There is nothing in the Act of 1983 which curtails the power vested in the Secretary of State under the provisions of paragraph 8 of the Second Schedule to the Act of 1971. Given the legislative history of section 86, there was nothing to indicate that the draftsman was unaware of the provisions of the Act of 1971. Quite to the contrary, since sections 48(2)(d) and 86 make express references to it. Schedule 6 also repeals part of section 30(2) of the earlier Act, which imposed a restriction on the powers of the Secretary of State to remove a person from the United Kingdom if he was a patient. In these circumstances it was submitted that there was no room for an argument that there had been an implied repeal of any other provisions of the Act of 1971. Moreover, section 86(2) gave to the Secretary of State a power which he "may" choose to exercise. It is not a duty. In this context, reference was made to Alghali (above). This was a case in which the applicant challenged the decision of an adjudicator to uphold removal directions made in respect of an over-stayer who was suffering from schizophrenia and epilepsy. The Mental Health Act 1959 was in force at the time of the decision, section 90 was the precursor to the present section 86. This empowered the Secretary of State to authorise the removal by warrant a person who was a patient, for the purposes of the Act. What that section did not provide was that the powers of the Secretary of State were only exercisable after a MHRT had approved the proposed course of action. In Alghali, Simon Brown J (as he then was) held that the power of the Secretary of State to issue removal directions was not 'suspended, superseded or otherwise necessarily replaced' by the provisions of the Mental Health Acts, as they then were. It was, thus, submitted that the position was in effect no different under the Act of 1983 than it had been under the Act of 1959. R v. Secretary of State for the Home Department ex p Talmansi [1987] IAR 32 was another case where a similar result was reached by the Court of Appeal.
19. Counsel for the Secretary of State also referred to textbook commentary in support of his submissions on this issue. In Hoggett, Mental Health Law 4^th Edition at p163 it is stated that

However, the Home Secretary may have other powers to deport a patient, for example under the Immigration Act 1971 or the Repatriation of Offenders Act 1984, where there is no safeguard for the patient's care. He may use these instead (R v. Home Secretary ex p. Alghali [1986] IAR 376), unless the patient is so severely ill that it would be inhumane to do so, when his decision might be susceptible to judicial review (. R v. Secretary of State for the Home Department ex p Talmansi [1987] IAR 32).

Comment to the like effect is also to be found in the Encyclopedia of Social Services and Child Care Law paragraph E1-220. Finally, on this point, attention was drawn to the provisions of section 53(1) of the Act of 1983. Specifically, this section is applied to section 48(2)(d) of the same Act. These submissions, if correct, do not, however, leave this applicant without any protection. In D v. United Kingdom 24 EHRR 423 the Strasbourg Court confirmed that judicial review was an effective remedy available to an applicant who wished to challenge a decision to deport which was held to be a violation of Article 3 of the ECHR.`

20. It was then submitted that on a proper understanding of Mr Dyer's statement, the Secretary of State had not fettered his discretion. What Mr Dyer had said was that

It is the practice of the Secretary of State to use section 86 only in cases of persons who have been granted leave to enter the United Kingdom, which this Applicant has not. He does not regard it as a mechanism for ensuring immigration control. He uses it at the request of an individual's responsible medical officer in cases where such officer has formed the view that an individual would be better cared for in all the circumstances if returned to his own country. The Secretary of State sees no good reason to depart from his practice in the present case. (emphasis added)

Counsel cited British Oxygen Company v. Board of Trade [1971 AC 610 at 625, per Lord Reid in support of the proposition that in expressing himself as he had done in the passage quoted above, the Secretary of State had not bound himself only to apply his policy.

21. It was submitted that, as is true, the Convention is not (yet) part of domestic law. In consequence, the court has no power to rule on the merits of the decision made by the Secretary of State, so long as he has not misdirected himself or made a decision which was outside the range of reasonable response. Such was the decision in Regina v. Secretary of State for the Home Department ex p. Brind [1991] AC 696 which rejected the idea that the exercise of a discretion vested in the Secretary of State had to be exercised in conformity with the ECHR, in every case. Such, too, was the decision of the House of Lords in Regina v. Secretary of State for the Home Department ex p. Launder [1997 ] 1 WLR 839. It was submitted that in a case in which the Secretary of State has said that he has taken into account the requirements of the Convention and that his decision is compliant with it, the English Court is entitled to determine whether or not he has misdirected himself, that is whether or not he has misconstrued the Convention or reached a decision which was outside the discretionary area of judgment.
22. The case of D v. United Kingdom (above) was no authority for the proposition that if the applicant were returned to Malta and that his condition deteriorated in anticipation, or in the aftermath, of his removal that would of itself constitute a violation of Article 3. In Akdag v. Secretary of State for the Home Department [1993] IAR 172 the Court of Appeal had considered Brind and Soering (above) and Parker LJ, in giving the leading judgment, went on to hold

(I)t is clear that the mere removal of an applicant from this country cannot of itself amount to inhuman treatment and, since the first ground of the application fails, the ground upon which Soering was decided is not available to (counsel for the applicant). It is submitted, however, that the deportation itself may amount to inhuman or degrading treatment if the result is that the applicant suffers from any (emphasis added) mental or physical disorder. If it were right, it would mean that every time anybody had a decision by a proper authority made against him about which he felt so strongly that he was exposed to some form of mental anguish and physical illness, the decision would have to be withdrawn or overturned. That is, in my judgment, an untenable position.

In the present case, it was submitted that the Secretary of State had properly directed himself as to the facts; see Dyer's statement, Doctor Exworthy's report of February 2000, Doctor Saliba's letter of February 2000 and the Secretary of State's letter of 23 June 1999.

23. The approach which the Secretary of State invited the court to approve was that exemplified in a passage of the judgment of Simon Brown LJ in R v. Secretary of State for the Home Department ex p. Turgut Case No FC3 1998/7436/C, transcript 28 January 2000. There, at p14 of his judgment, the Lord Justice said

Where, therefore, the (Strasbourg) Court in Soering, Vilvarajah and D speak of the domestic court in judicial review having the power to quash a decision "where it was established that there was a serious risk of inhuman or degrading treatment", that can only mean "where it was established that on any reasonable view of the facts there was a serious risk of inhuman or degrading treatment" i.e. where it was established that no rational Secretary of State could have reached a different conclusion upon the material in the case.

This analysis of the Strasbourg jurisprudence, moreover, seems to me to gain support from the applicant's own argument in Smith and Grady. The ECHR note in paragraph 132 of their judgment:

… the applicants pointed to the comments of the High Court and of the Court of Appeal as the best evidence that those courts lacked jurisdiction to deal with the substance of the applicant's Convention complaints. In this context, the Soering and Vivalrajah cases cited above could be distinguished because the test applied in judicial review proceedings concerning proposed extraditions and expulsions happened to coincide with the Convention test.

I therefore conclude that the domestic court's obligation in an Article 3 case is to subject the Secretary of State's decision to rigorous examination, and this it does by considering the underlying factual material for itself to see whether or not it compels a different conclusion to that arrived at by the Secretary of State. Only if it does will the challenge succeed.

24. One of the applicant's complaints, in submission, had been that the Secretary of State had not considered whether his decision would be 'degrading' for the purposes of Article 3. The decision of the Strasbourg Court in Raninen v. Finland [1998] 26 EHRR 563 showed that there must be an element of intention if a violation of the Article was to be established. In paragraph 55 of the judgment, the Court held that

(I)n considering whether a punishment or treatment was "degrading" within the meaning of Article 3, the Court will have regard to whether its object is to humiliate and debase the person concerned and whether, as far as the consequences are concerned, it adversely affected his … personality in a manner incompatible with Article 3.

Finally, it was submitted that if the challenge to Article 3 failed, then so too must the challenges to Article 2. For the reasons set out in paragraph 8 of Mr Dyer's statement, it was submitted that no breach of the provisions of Article 8 could be established.

The Reply

25. By way of reply, reference was made to the, now, repealed provisions of section 30(2) of the Act of 1971. These read:

Under section 90 of the Mental Health Act 1959 … the Secretary of State shall only authorise the removal of a patient if it appears to him to be in the best interests of the patient; and accordingly in section 90 after the words "and for his care or treatment there" shall be inserted the words "and it is in the interests of the patient to remove him".

The significance was obvious. The words were added because, it was said that, without them, the Secretary of State was able to remove any person as he thought fit. The restriction on the power of the Secretary of State to remove such a person is now only to be found in section 86 of the Act of 1983. Hence, the explanation for the repeal of section 30 of the Act of 1971, was that a fetter (the consent of the MHRT) was introduced by the Act of 1982 which was consolidated into the Act of the following year. It was inconsistent with the thinking reflected by the Act of 1982 that the Secretary of State should have an unrestricted power under the Act of 1971 as it now stood. It followed that Simon Brown J had been wrong when he had said, in Alghali, that

(I)f Parliament had intended that the Schedule 3 powers [of removal] should be ousted in regard to all patients falling within the ambit of section 90 [of the Act of 1959], one would have expected to find that expressly provided for in the 1971 Act, not least when one recognises that it in fact dealt with the relevant Mental Health Act power. So far from the 1971 Act making any such provision, however, it provides on the contrary, by section 30(2), as follows ... (see above) and the relevant amendment to section 90 is then provided for.

The limitation upon the Secretary of State's powers is thus expressly related, and in my judgment confined, to his powers "under section 90 of the Mental Health Act 1959". The sub-section so easily could, but so manifestly does not, provide for the limitation upon which the Secretary of State's power to give removal directions not merely under section 90, but generally under the Immigration Act.

It was said that section 91 of the Act of 1983 meant that there was a comprehensive scheme as to the manner in which the Secretary of State can deal with a person who is subject to the Act of 1983. In such circumstances there was no legal basis for the Secretary of State to purport to exercise any powers which he might have under the Act of 1971.

26. It was then submitted that judicial review was incapable of providing an effective remedy whereby the factual basis of the decision of the Secretary of State could be reviewed. By contrast the provisions in section 86(2) were specifically provided for that very purpose. The MHRT was an independent impartial tribunal which was capable of reviewing the underlying facts. That was the tribunal which should review the decision of the Secretary of State.

Conclusions

27. It is convenient to identify the separate areas upon which the court's decision is required. These are:

1. The inter-relationship of the Acts of 1971 and 1983; if the applicant succeeds on this argument, it is unnecessary to consider the further points. If he fails, then

2. The extent to which the Secretary of State fettered his discretion not to grant exceptional leave to remain;

3. Whether or not there will be a violation of Article 3 of the ECHR if the applicant is returned to Malta on the basis that he will be subjected to inhuman or degrading treatment if so returned;

4. Whether the decision of the Secretary of State is susceptible to challenge as being outside the range of reasonable response and is, therefore Wednesbury unreasonable;

5. Whether the power of the court in judicial review is capable of meeting the standards of independent review for the purposes of the applicant's Convention rights. (Article 5.4 or 13).

28. As to 1: This submission must fail. Section 30(2) of the Act of 1953 constituted a restriction on the power of the Secretary of State freely to remove a person from the United Kingdom if they were a patient under the Mental Health Act, as it then stood. By the removal of the restriction, the power itself is undiminished and, therefore, remains. The argument that, given the historical and legal reasons for the amendment to the Act of 1959, the Act of 1983 impliedly amended the Act of 1971 is one which, in my judgment, cannot be sustained. As has been noted, the later Act refers in a number of sections and the 6^th Schedule to various provisions of the Immigration Act. It is inconceivable that when it came to passing the Act of 1983 Parliament was unaware of its statutory predecessors and the reasons why there had been an amendment to the earlier Act. Like Simon Brown J who remarked that he would have expected to find the intention to remove the power expressly provided for in the 1971 Act, I would expect that repeal of the now, unrestricted power to remove a patient under the Immigration Act to have been expressly provided for. I respectfully agree with, and would adopt, the reasoning in the case of Alghali as being equally applicable to the circumstances of the current statutory regime. It is consistent with this construction of the two Acts that the powers conferred on the Secretary of State by section 86(2) are discretionary and not mandatory. It is not clear that the Court of Appeal in Talmansi considered that case as one in which the applicant was at the time of its decision still suffering or may have been suffering from mental illness. It may be sufficient for present purposes that Sir John Donaldson MR recognised the point that although section 86(2) was already in force that did not impinge directly on the power of the Secretary of State to make a straightforward deportation order.
29. As to 2: This point is, in my judgment, untenable since it must fail on the facts as they were set out in the letter from the Secretary of State. The phrase " The Secretary of State sees no good reason to depart from his practice" is not only consistent with the recognition that a policy exists but also the ability to depart from it if circumstances so warrant.
30. As to 3: It is necessary to subject the decision to rigorous scrutiny, see Turgut (above), Launder (above) and D v. United Kingdom (above). In D, the Strasbourg Court said

49. (The Court) is not therefore prevented from scrutinising an applicant's claim under Article 3 where the source of the risk of proscribed treatment stems from factors which cannot engage directly or indirectly the responsibility of the public authorities of that country, or which, taken alone, do not themselves infringe the standards of the Article. To limit the application of Article 3 in this manner would be to undermine the absolute character of its protection. In any such contexts, however, the Court must subject all the circumstances surrounding the case to a rigorous scrutiny, especially the applicant's personal situation in the expelling state.

50. Against this background the Court will determine whether there is a real risk that the applicant's removal would be contrary to the standards of Article 3 in view of the present medical condition in the light of the material before it at the time of the consideration of the case, including the most recent information on his state of health.

51. The Court notes that the applicant is in the advanced states of a terminal and incurable illness. ... The limited quality of life he now enjoys results from the availability of sophisticated treatment and medication in the United Kingdom and the care and kindness administered … .

The judgment then dwelt on the consequences to the applicant if the facilities which he had been enjoying were to be withdrawn and the situation which would confront him on return to St Kitts. It continued

53. In view of these exceptional circumstances and bearing in mind the critical stage now reached in the applicant's fatal illness, the implementation of the decision to remove him .. would amount to inhuman treatment in violation of Article 3.

The Court also notes in this respect that the (UK) has assumed responsibility for treating the applicant's condition since August 1994. He has become reliant on the medical and palliative care which he is at present receiving and is no doubt psychologically prepared for death in an environment which is both familiar and compassionate. Although it cannot be said that the conditions which would confront him in the receiving country are themselves in breach of the standards of Article 3, his removal would expose him to a real risk of dying under most distressing circumstances and would thus amount to inhuman treatment. …

54. Against this background the Court emphasises that aliens who have served their prison sentences and are subject to expulsion cannot in principle claim any entitlement to remain in the territory of a Contracting State in order to continue to benefit from the medical social or other forms of assistance provided by the expelling State during their stay in prison.

31. With these considerations in mind, it is necessary to examine further the reasons advanced by the Secretary of State for his decision in the letter of 8 September 1999. It recognised that the liability of the applicant to cause harm to himself was likely to occur if he was involuntarily repatriated to Malta but that steps could be taken both in advance of and after that step was taken to lessen the risk. The Secretary of State has ascertained that the Maltese authorities are in a position to accept clinical responsibility and that facilities exist for providing support in social, occupational therapy and psychological areas. Just as there are resource implications in Malta, so too are they not unknown in the United Kingdom. The Secretary of State had also considered the consequences which might occur if the risk of deterioration materialises, and the ability of the medical authorities in Malta to meet the applicant's needs. Since the date of this letter, it will be recalled that there was a further report obtained from Doctor Exworthy which was addressed in the statement of Mr Dyer, paragraph 14. In the course of this paragraph, Mr Dyer recognises that removal would lead to a deterioration in the applicant's mental health but expresses the judgment that

(A)ny such deterioration would (not) be so severe in nature that the applicant's removal could properly be regarded as constituting … inhuman or degrading treatment … in circumstances where adequate treatment for (his) condition will be made available and where steps to manage the risk of any attempt at self harm will be taken. The medical evidence does not establish that, due to the medical facilities in Malta, the applicant's return to Malta would reduce his life expectancy and subject him to acute mental suffering.

It is this judgment which is in issue at this point in the case. It was submitted that the Secretary of State had in this respect failed to take account of his own medical evidence.

32. It is reasonable to infer that the Secretary of State has had regard to the observations of the Strasbourg Court in D (above). If the true ratio of that decision is to be found in paragraph 53 of the judgment, then it can be said with a degree of confidence that the present applicant would be met with conditions in Malta which did not themselves involve any violation of the standards of Article 3. The sole question is whether or not exposing the applicant to the risk that his condition would deteriorate to the point where he would probably attempt some form of self harm would, in the circumstances in which he could be detained in his own interests of health and safety by means of a renewable Treatment Order [see 3^rd bullet point on second page of Doctor Saliba's letter dated 24 April 1999], amount to inhuman treatment. Such is the approach contained in the decision letter under challenge in the present case. Given this feature, while it is certainly the case that the applicant will be subjected to stress as the result of an adverse decision in this case, that is not sufficient, in my judgment, arguably to show irrationality (as being beyond the range of reasonable response) on the part of the Secretary of State. This is so because, in my judgment, it was open to the Secretary of State to conclude that to constitute inhuman treatment when the consequences of return would represent the precise position in which the applicant would have found himself if he had remained in his home country and had not sought, unsuccessfully, to claim asylum in the United Kingdom.
33. Similarly, the Secretary of State did also consider the question of the application of his own policy in respect of exceptional leave to remain. He recognised, correctly, in my judgment, that the applicant did not meet the relevant criterion set out in the document made available by the Asylum Directorate, as recorded above. It is explicit that the policy of the Secretary of State on this issue was intended to take account of the obligations of the United Kingdom under Article 3. Having regard to all the medical evidence, his assessment of the question whether or not the applicant's case fulfilled that criterion is not one which can be successfully impugned as inadequate as to the facts which he has considered or unreasonable in its conclusions.
34. The applicant submitted that the need for the Secretary of State to maintain a fair and consistent policy in the operation of immigration had no place in the consideration of the issues which arise under Article 3. Similarly, it was argued that, cost to the national purse through the demands on the National Health Service was irrelevant and inadmissible to Article 3 considerations. I have no doubt but that both submissions are correct. The obligations imposed on states under the provisions of the Article are absolute and do not admit of any qualification such as is to be found, by way of example, in Articles 8.2, 9.2, 10.2 and 11.2. Such considerations are not irrelevant to the decision which the Secretary of State has to make when he decides whether to proceed to by the Immigration or Mental Health Act routes in a situation such as the present. No doubt he does consider them at that stage. It is not apparent from the facts in this case that he took either matter into account in arriving at his decision on the first issue. It is not vulnerable to challenge on the basis that he took any irrelevant matters into account.
35. The short answer to the question posed at paragraph 28. Serial 3 is that the decision is not in my judgment unreasonable in the sense of that word as used in the field of judicial review.
36. As to 4: As the exercise, which has been performed in the immediately preceding paragraphs of this judgment, is intended to demonstrate, judicial review has proved that it is capable of achieving that which the Strasbourg Court considered was necessary and accomplished in the case of D (above). The point which the applicant was seeking to make was that, without prejudice to the submissions on the first point above, the Secretary of State, in violation of Article 13, was effectively denying the applicant an effective remedy by invoking his powers under the Immigration Act and refusing to proceed by way of section 86(2) and the MHRT. It is relevant to note certain passages from the judgment in D. Thus:

70. In its VILVARAJAH AND OTHERS JUDGMENT and in its SOERING judgment the Court considered judicial review proceedings to be an effective remedy in relation to complaints raised under Article 3 in the contexts of deportation and extradition. It was satisfied that the English Courts could effectively control the legality of the executive discretion on substantive procedural grounds and quash decisions as appropriate. It was also accepted that a court in the exercise of its powers of judicial review would have power to quash a decision to expel or deport an individual to a country where it was established that there was a serious risk of inhuman or degrading treatment, on the ground that in all the circumstances of the case the decision was one that no reasonable Secretary of State could take.

* * * *

71. The applicant maintained that the effectiveness of the remedy invoked first before the High Court and subsequently before the Court of Appeal was undermined on account of their failure to conduct an independent scrutiny of the facts in order to determine whether they disclosed real risk that he would be exposed to inhuman and degrading treatment. He relied on the reasoning in the CHAHAL v. UNITED KINGDOM judgment. However the Court notes that in that case domestic courts were precluded from reviewing the factual basis underlying the national security considerations invoked by the Home Secretary to justify the expulsion of Mr Chahal. No such considerations arise in the case at issue.

The applicant thus had available to him an effective remedy in relation to his complaints under Articles 2, 3 and 8 of the Convention. Accordingly there has been no breach of Article 13.

The point of distinction between the present case and Chahal, which was relied upon by the applicant, is that an effective remedy was held to have been denied in that case because "neither the advisory panel nor the courts could review the Home Secretary's decision with reference solely to the question of risk [to the applicant], namely a review of the decision of the Secretary of State's decision "to depart with reference solely to the question of risk (to Chahal's safety), leaving aside national security considerations"; see Holding 7(f) at p420 of the report in Chahal. The advisory panel was restricted to offering advice and had no power to make any decision.

37. For the reasons given above the challenge based on the failure of the Secretary of State to proceed by way of section 86(2) fails substantively as well as procedurally.
38. As to 5: The answer is plainly 'Yes' and for the reasons already adumbrated.
39. No separate issues arise under either Article 2 (right of life) or Article 8 (respect for private and family life).

This application must therefore fail.