England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		21st November 2002

1. MR JUSTICE CRANE: Mr Underwood, it may be you, but somebody has kindly provided me with a summary of the decision in Razgar by Richards J.
2. MR UNDERWOOD: I would love to take credit for that, but it was not me. I am in the same position as your Lordship, and my learned friend has kindly given me a copy.
3. MR JUSTICE CRANE: I have had a chance to read the note very quickly and it really confirms -- unless anyone wants to say anything to the contrary -- my view that there is no reason for me to read his judgment in full before delivering my own judgment.
4. MR UNDERWOOD: I respectfully agree.
5. MR JUSTICE CRANE:

Introduction

6. The claimant is an Afghan asylum seeker who challenges by way of judicial review a decision of the Secretary of State to certify as manifestly unfounded his claim not to be removed from the United Kingdom on human rights grounds. In fact, he was removed to Austria on 22nd August 2002 in breach of an undertaking given by the defendant to the claimant's solicitors. The claimant also seeks permission to challenge his removal, and seeks an order that the defendant take more reasonable steps to secure his return to the United Kingdom. The substantive application and the permission application have been heard together.

The History

7. I turn to the history. The claimant arrived in the United Kingdom on 10th September 2001 and applied for asylum. He was dispersed to Exeter. On 3rd April of this year he and his solicitors learned that a formal request had been made to Austria for the transfer of responsibility to that country under the Dublin Convention. Austria accepted responsibility.
8. It has not been disputed in these proceedings that in Afghanistan several members of the claimant's family, including his parents and some siblings, were killed by the Taliban, that he was thereafter involved in fighting, and that he was detained by the Taliban for some weeks and beaten repeatedly. His release was engineered, and he left the country and came to Europe.
9. In May 2002 the Immigration Service asked the claimant to attend an interview in Dover. On 10th May the claimant saw Dr Nolan in his general practitioners practice, and one week later, in Dr Nolan's absence, he was examined by a locum in the practice of Dr Nolan, Dr Goodrick. Dr Goodrick recorded that he saw the claimant at the request of an asylum seekers project worker of the Devon County Council's Social Services. It had been reported by that worker that the claimant had appeared depressed and agitated, and made gestures indicating that he was prepared to commit suicide with a knife. Interviewing the claimant through an interpreter, Dr Goodrick ascertained that the claimant was:

"very depressed and suffering from serious flashbacks due to his traumatic experiences in Afghanistan."

Dr Goodrick went on to give the opinion that the events in Afghanistan and his present condition today led him to believe that the claimant was also suffering from post-traumatic stress. He took the view that the claimant was of a very fragile state of mind, suffering from profound depression and post-traumatic stress. He recommended his reference to a specialist in this sort of psychiatric illness. He recommended he be allowed to stay in Exeter while his mental state was being assessed and treated, and that any adjudication in his case should take place in Exeter, so as to avoid:

"the sort of confrontation that would precipitate him into unnecessary agitation, confrontation and possible physical self harm."

10. That letter from Dr Goodrick, and indeed the subsequent letters and reports, were promptly sent to the Immigration Service by the claimant's solicitors. It has been commented that the solicitors have been assiduous on the claimant's behalf, and that is undoubtedly true, as is my comment that their efforts on behalf of the claimant have been carried out in a thoroughly professional and focused way, concentrating on the issues that are indeed relevant.
11. The claimant did not attend the interview in Dover. A new date was set for it, and a report was then obtained from Dr Michael Braddick, a colleague of Dr Goodrick, to much the same effect as Dr Goodrick's report. It was then indicated to the claimant's solicitors that it would not be necessary for the claimant to attend an interview in Dover.
12. Then on 17th June 2002 the claimant was seen by Christine Ellison, a community psychiatric nurse. She noted and stated that the claimant had considered suicide in the past, and that he was stating that he sometimes carried a small knife around, which he had considered using on himself. Her impression was that the claimant was significantly depressed with symptoms of post-traumatic stress disorder. She discussed the matter with Dr Andrew Blewett, a consultant psychiatrist. The medication for the claimant was changed, and he was offered an outpatient appointment with Dr Blewett.
13. In fact, on 15th July he saw Dr McCallaghan, staff grade to Dr Blewett. The interview was carried out with the help of an interpreter. He presented with a depressed mood, which was supported by poor appetite and sleeping pattern. Dr McCallaghan recorded that he also threatened suicide if he was not allowed to stay in the United Kingdom. There was evidence of post-traumatic stress disorder, involving symptoms of nightmare, flashbacks and hypervigilance. Dr McCallaghan's impression was that the claimant was suffering from post-traumatic stress disorder and major depression. He also emphasised that treatment for these conditions consisted of multiple aspects, including social support, contact with people from his own cultural background, and psychotherapy appropriate to his cultural beliefs. There was also a biological component, in other words, medication. That might take some weeks to take effect, and needed to be renewed during appropriate intervals.
14. There was also sent to the Immigration Service a series of letters at pages 60 to 67 of the bundle, written by people in the Exeter area who had provided support in various forms to the applicant. However, it is to be noted that there is no evidence of any medical treatment, or indeed any medical examination, being carried out in the United Kingdom prior to the appointment with Dr Nolan on 10th May. And Dr Nolan, in a subsequent report, took the view that the claimant's mental state must have deteriorated between his seeing the claimant on 10th May and his seeing Dr Goodrick, the local GP, on 17th May.
15. On 10th August the claimant reported to Exeter police station. He was detained. He was served with notice that Austria had accepted responsibility for his asylum application under the Dublin Convention, and he was served with removal directions, at that stage set for 15th August. While he was in custody at the police station, he was seen by Dr Jhetam on 10th August. He was found -- translating the initials -- fit to be detained and interviewed, but not fit "cellular"; in other words, it is assumed by counsel and me, not fit to be detained in a cell. There was mention of post-traumatic stress and of the drug he was receiving.
16. The custody record recorded that a letter from a local doctor accompanied the claimant, stating that the claimant was a possible self harmer, and he was therefore placed in a "blue suit". He was then seen by the doctor. An Immigration Officer had by that evening, at least, attended the police station, and was at the police station, apparently, when the claimant was taken to a cell, despite the doctor's advice, and immediately started to bang his head against the wall partition, causing bumps to the head. That resulted, not in his removal from the cell, but in him being placed in "an escort cuff to the rear", and his legs were strapped with Velcro restraint.
17. Learning of the events in the police station, and indeed his detention there, the claimant's solicitors wrote to the Home Office on 12th August contending that the removal to Austria would infringe the human rights of the claimant under articles 3 and 8 of the European Convention on Human Rights. They followed that up with appeal forms, which they sent on or about 14th August, in which they argued their contentions in some detail, and added that additional medical evidence would be provided as soon as was practical. I note in passing that at that stage article 6 was relied on, but that reliance has not been maintained. Nothing was heard from the Home Office by 16th August, and therefore the claimant's solicitors wrote to the Home Office to say that unless by noon on 19th August they received confirmation that the claimant would not be removed, an application for judicial review would be made together with an application for interim relief.
18. On Saturday 17th August the defendant certified the claimant's human rights allegations as manifestly unfounded. The letter notes the various representations by the claimant's solicitors. The Secretary of State indicated that he routinely and closely monitored the practice and procedures of member states, including Austria, in the implementation of the ECHR in order to be satisfied that its obligations were fulfilled. He went on:

"He is fully satisfied that your client will be able to raise with the authorities in Austria any continuing protection concerns that he may have under the provisions of the ECHR and that he would not be subjected to inhuman or degrading treatment or punishment if removed there.

"The Secretary of State has fully considered the medical reports that you have submitted on behalf of your client and he accepts that both the prospect and the actual removal of your client to Austria may have a negative impact on him. In view of your client's health the Secretary of State has carefully considered whether there are substantial grounds for believing that your client's proposed and/or actual removal to Austria would be a sufficiently compelling, compassionate factor such as to cause him to depart from his normal policy and practice. Although your client may be exposed to psychological stress as a result of his removal to Austria, the Secretary of State does not accept, on all the evidence submitted to him, that the risk to your client reaches that level of severity of physical or mental suffering as to warrant departing from his usual practice in this case. He takes the view that there are adequate, appropriate and equivalent medical facilities in Austria which will be available to your client upon his return to that country. Your client is currently on a healthcare ward in Harmondsworth and he has been assessed as fit to travel to Austria.

"You state that your client has close contact with several people in Exeter who are providing him with support and assistance. Whilst the Secretary of State accepts that your client may have received support from members of the community in Exeter, he considers that your client is a single adult man who may reasonably be expected to live independently of the contacts he has made in the United Kingdom. The Secretary of State is satisfied that your client is properly returnable under the terms of the Dublin Convention to Austria, where it will be open to him to make a fresh application for asylum and where, as an asylum seeker, he would be eligible for social assistance. The Secretary of State is aware that there is an Afghan community in Austria and he considers that it will be open to your client to seek similar contacts and support upon his return there."

19. The Secretary of State went on to point out that if people in the claimant's situation were permitted to remain in the United Kingdom, that would run contrary to his duty to Parliament to maintain a firm, fair and effective immigration control to the United Kingdom, and to the spirit and purpose of the Dublin Convention. As I have indicated, the Secretary of State certified that the human rights allegations were manifestly unfounded.
20. There is a witness statement from Ms T D Carpenter, who wrote and signed that particular letter. Two things are to be noted. First of all, that the reference to the assessment of the claimant as fit to travel to Austria was apparently based on a very short response by Dr Kamil to an enquiry which simply indicated that the claimant was fit to travel. I am prepared to assume that since the claimant was at Harmondsworth, Dr Kamil would have realised that the travel would be by air to another country, but it does not appear that Dr Kamil was addressing his mind to anything other than the claimant's ability to go and sit in a aeroplane and remain there on a flight to another country.
21. The second matter that is to be noted about the decision letter on 17th August is that no evidence has been produced, either in Ms Carpenter's statement or in any other form, as to the basis of the information on which the Secretary of State relied about the precise entitlements and conditions in Austria.
22. On 19th August the claimant was examined at his solicitor's request by Dr Crampin. Dr Emma Crampin is a psychiatrist with the Medical Foundation for Care of Victims of Torture. Her opinion was, on examination, that the claimant had features of depression: namely, persistent low mood, loss of reactivity, poor sleep, poor appetite, weight loss, poor concentration, and loss of pleasure in life. She recorded that he had frequent suicidal ideation with strong intent to kill himself should he be deported. She recorded that he could not see a future life for himself, and in her opinion she took the view that he fulfilled the diagnostic criteria for post-traumatic stress disorder and depressive episode. She said:

"I would agree with Mr Changuizi's doctors that the treatment for his condition would involve social support, psychotherapy and medication and that he would need consistent treatment of this sort for his state to improve. His condition is of a nature and degree to warrant continued psychiatric treatment. He would clearly not be able to continue with his current treatment package if he were to be removed to Austria. I am of the opinion that a move to a new country away from the care package he has been receiving would be very likely to have a damaging effect on his mental state."

23. A further quotation:

"It has been previously documented, and he described to me today, that his condition worsens (in that his nightmares and flashbacks worsen, he becomes severely agitated and more suicidal) when he is faced with stressors, and so his removal is likely to produce such a deterioration.

"His likely agitation and suicidal intent on being removed seriously adversely affect his fitness to travel."

24. On 20th August the initial application for permission to apply for judicial review was issued. The claimant's solicitors had obtained an assurance from the defendant that his removal would not proceed if the Home Office were notified of the Administrative Court number, and therefore of the issue of proceedings, by 5pm that day. It is common ground that such notification was faxed just after 4pm. Despite that, owing to an oversight in linking this notification with the file, the removal went ahead on the morning of 21st August.
25. I pause to say that the error has been fully acknowledged. There is an unreserved apology on behalf of the Secretary of State in his statement in the bundle, and that has been repeated by Mr Underwood QC on behalf of the defendant. An entirely responsible attitude has been taken to the error in acknowledging it in that way. Having said that, I point out, as I pointed out during argument, that it is extremely important for the working of the system that any assurance or undertaking of that kind is not breached. Solicitors are entitled to rely on such assurances, and commonly do in order to refrain from taking proceedings earlier than they might otherwise do, and on occasions the court would criticise solicitors for approaching the court for an injunction in circumstances where they already have the benefit of an undertaking from the Home Office. It is plainly an unqualified principle that what the Secretary of State undertakes should be maintained without any qualification.
26. The solicitors discovered what had happened on the afternoon of the 21st, and they sought the claimant's immediate return, which was refused. The second application based on the removal itself was issued on 29th August after contact with the claimant had been re-established, and the matter came before Hooper J initially on 30th August. Ultimately permission was granted by Nigel Pleming QC, sitting as a deputy judge in the High Court on 20th September 2002, in relation to the original application, and the permission application in relation to the second application was adjourned.
27. It is necessary to summarise the subsequent history. There is not complete clarity about what occurred in Austria. However, Mr Underwood has helpfully stated that he does not, for the purpose of these proceedings, dispute any of the evidence placed before the court by the claimant's solicitors. In those circumstances I summarise as best I can the effect of the information available. It is, of course, one consequence of the certification of a claim that in the absence of a hearing before the Adjudicator no proper fact-finding hearing takes place in this country.
28. During the flight it seems that the claimant was handcuffed, causing, he says, some cuts to his wrist. Although it has been asserted by the defendant, no doubt on information provided by the Austrian authorities, that a medical examination of the claimant took place on his arrival in Austria, it is unclear how thorough an examination that was. There is no evidence of any psychiatric examination, and it does not appear that any medical reports accompanied the claimant at that stage. The claimant himself has said that he saw no medical staff until later on, and there is certainly no evidence that at that stage he received any treatment.
29. By 27th August, when his solicitors managed to speak to him, he was saying that his medicines were used up. He had in fact been sent to what is described as a fairly remote part of Austria with poor transport links. It has been asserted by the Secretary of State, again, no doubt on information provided by the Austrian authorities, that the claimant had been given an insurance number and "therefore had access to all medical facilities if required". However, if he was indeed eligible for medical care, he did not initially receive any, and nor initially was he in touch with any groups providing support. He was accommodated in a hostel, described elsewhere as a boarding house, which he regarded as satisfactory, although he had no desire to eat the food provided. I pause to say that if one bears in mind that the claimant speaks no German and little English -- and it is not known how careful the use of an interpreter was at that initial stage -- it would be not be surprising if any entitlement to medical facilities was simply something that he was incapable of having access to in practical terms.
30. When he was interviewed by the Austrian authorities on 2nd September, he stated that he wished to return to the United Kingdom. At one stage he is recorded in that interview as saying that he wished, therefore, to withdraw his application for asylum, although clearly that withdrawal was in the context of wishing to return to the United Kingdom and pursue the matter here. But that withdrawal was treated by Austrian authorities as a serious decision, and on 10th September notification was received that consequently entitlement to state support was withdrawn. With the assistance of the claimant's solicitors and organisations in Austria, his application for asylum in Austria has been reinstated since, and hence he has in principle had access to medical facilities.
31. From 9th October to 16th October he was in hospital in Linz, before going to Vienna. It appears that his removal to hospital in Linz was the result of some fear of self harm on the part of authorities, and of some kind of deterioration, or perceived deterioration, in his condition. But exactly what the circumstances were in which he was taken to hospital are unclear.
32. There is a letter dated 15th November from an organisation in Austria called Volkshilfe, referring to the transfer to Linz:

"to receive special attention concerning medical and psychological treatment. Due to obvious profound psychic problems (threatening of committing [sic] suicide) he was under treatment in a hospital for psychic illness for a short time, and after being released he was transferred to Vienna."

33. That letter recorded that he was by then under the care of the Austrian Federal Ministry of Interiors, which included free access to medical and legal assistance, plus a small sum of pocket money for daily necessities. In addition he was getting regular psychotherapeutic assistance from an organisation named Hemayat, which specialises in traumatised refugees, the therapist being a Mr E Klasek.
34. The court has reports from Dr Siroos Mirzaei, a doctor in Austria, the medical co-ordinator and chairman of Hemayat. It appears he speaks the claimant's language. In his summary at the end of that report Dr Mirzaei says this:

"Because of the mentioned psychological symptoms my diagnosis is Post Traumatic Stress Disorder (PTSD) in accordance with the colleagues at the psychiatric department. Furthermore, it has to be mentioned that a deterioration of the psychological situation has occurred because of the deportation from Great Britain to Austria. Threats of suicide have made a hospitalisation in Linz, Austria necessary (Wagner-Jauregg Hospital). It has to be stated that a retraumatisation has occurred because of the deportation to Austria, which has led to sleep disturbances, more frequent nightmares and flashbacks.

"Further stabilisation of the psychological situation of Mr Changuizi will be very difficult to achieve under these conditions. It is planned to transfer him to Vienna, where he will get psychotherapeutic help by the 'Hemayat' Organisation. The best solution would be to bring him back to the psychotherapeutic centre in Great Britain as soon as possible. It is to be expected that his overall condition will deteriorate if he is not re-transferred to the centre in Great Britain. Psychosocial support, as he received successfully in Great Britain, is not currently available in Vienna, or anywhere in Austria."

35. The claimant's solicitors have made great efforts to clarify various aspects of Dr Mirzaei's views. But in summary, those views remain as set out in that report. It is to be noted that Dr Mirzaei misunderstood precisely what medical care the claimant had been receiving in the United Kingdom. His mention of "a psychotherapeutic centre" is plainly not accurate. But that does not necessarily wholly destroy his view that the move to Austria and the threats of suicide that led to hospitalisation in Linz were not correct.
36. There is also a report dated 15th November from Mr Klasek, the psychotherapist. He records similar symptoms to those noted by the doctors. He had begun psychotherapy, but it is clear that both Dr Mirzaei and Mr Klasek took the view that the effect of the move to Austria had been, to say the least, adverse to the claimant, and that he would be better returned to the United Kingdom.
37. I note that the Secretary of State in the summary grounds for contesting the case submitted:

"The Defendant would point out that he has obtained from the Austrian authorities details of the arrangments for asylum seekers there as set out in the State Care Act and State Care Decree. These stipulate that, in general, asylum seekers in Austria may be eligible for support, which will include accommodation, financial assistance and medical aid, provided they co-operate with the authorities in establishing their true identity. Anyone who does not qualify for such assistance directly from the State, for whatever reason, may obtain support from charitable organisations such as Caritas. These organisations are financially supported by the Government, and everyone who seeks support will receive it."

38. As I have indicated, the precise evidence on which those submissions are based does not seem to be provided, but there is no reason to doubt that those submissions accord with the information supplied by the Austrian authorities.

The Statutory Framework

39. I turn to the statutory framework. Although Mr Nicol QC, on behalf of the claimant, points out that the Secretary of State is not obliged to remove an asylum seeker to another member state under the Dublin Convention using his powers under the Immigration and Asylum Act 1999, sections 11.1 and 11.2, no claim has been made that the Secretary of State's policy of so removing an asylum seeker, where the Convention is available, is other than lawful.
40. Section 65(1) of the 1999 Act reads:

"A person who alleges that an authority has, in taking any decision under the Immigration Acts relating to that person's entitlement to enter or remain in the United Kingdom ... acted in breach of his human rights may appeal to an adjudicator against that decision ..."

Section 72(2) reads:

"A person who has been, or is to be, sent to a member State or to a country designated under section 12(1)(b) is not, while he is in the United Kingdom, entitled to appeal-

(a) under section 65 if the Secretary of State certifies that his allegation that a person acted in breach of his human rights ... is manifestly unfounded."

Under section 11(3), finally:

"Unless a certificate has been issued under section 72(2)(a) in relation to a person, he is not to be removed from the United Kingdom-

(a) if he has an appeal under section 65 against the decision to remove him in accordance with this section pending; or

(b) before the time for giving notice of such an appeal has expired."

The Authorities

41. It is therefore important to consider the test to be applied when the words "manifestly unfounded" are being considered. Those words have now been authoritatively considered by the House of Lords in two cases heard together. The one relevant for the present purposes is R(Thangarasa) v Secretary of State for the Home Department [2002] 3 WLR 1276. At paragraph 29 Lord Hope traced the history of the phrase "manifestly unfounded" for this purpose to the resolution of ministers of the European Union in 1992. He also noted at paragraph 32 that the test "manifestly ill-founded" is the test used by the European Court of Human Rights when deciding whether an application is to be declared inadmissible.
42. Lord Bingham at paragraph 14 said this:

"Before certifying as 'manifestly unfounded' an allegation that a person has acted in breach of the human rights of a proposed deportee the Home Secretary must carefully consider the allegation the grounds on which it is made and any material relied on to support it. But his consideration does not involve a full-blown merits review. It is a screening process to decide whether the deportee should be sent to another country for a full review to be carried out there or whether there appear to be human rights arguments which merit full consideration in this country before any removal order is implemented. No matter what the volume of material submitted or the sophistication of the argument deployed to support the allegation, the Home Secretary is entitled to certify if, after reviewing this material, he is reasonably and conscientiously satisfied that the allegation must clearly fail."

43. At paragraph 34 Lord Hope said:

"It is for this reason that the process which is envisaged is best described as a screening process, as my noble and learned friend Lord Bingham of Cornhill has observed. Nevertheless the test which section 72(2)(a) of the 1999 Act has laid down recognises the level of scrutiny that is required. By adopting the language of the international instruments Parliament has made it clear that the issue as to whether the allegation is manifestly unfounded must be approached in a way that gives full weight to the United Kingdom's obligations under the ECHR. The question to which the Secretary of State has to address his mind under section 72(2)(a) is whether the allegation is so clearly without substance that the appeal would be bound to fail."

44. At paragraph 72 Lord Hutton said that he was in agreement with the opinion of the Court of Appeal that an allegation is manifestly unfounded "if it is plain that there is nothing of substance in the allegation".
45. I do not think it is necessary further to cite passages from Thangarasa. In my view there is no material difference between the tests enunciated by their Lordships. The House of Lords confirmed previous authority to the effect that the court should subject the Secretary of State's decision to the most anxious scrutiny. At paragraphs 58 and 59 Lord Hope referred to the special responsibility of the court, and to the words of Lord Bridge of Harwich in R v Secretary of State for the Home Department, ex parte Bugdaycay [1987] AC 514, 531. The effect is that the court must subject decisions of this kind to the most anxious scrutiny.
46. There is, in my view, an additional reason for the most anxious scrutiny. If the certificate is not granted, the asylum seeker has a right of appeal in this country. If the certificate is granted, he has a right of appeal, but not in this country, and therefore one which will be in practice much more difficult to exercise. If he does appeal, the Secretary of State will be a party before the Adjudicator. By definition a certificate will only be issued in cases in which the Secretary of State is, in fact, taking an adverse view of the claimant's merits. Thus, it is vitally important that the Secretary of State should for this purpose not consider merely the merits of the claimant's claim, but whether the claim is bound to fail before the Adjudicator. Or, to put it the other way round, whether his, the Secretary of State's, view is so clearly correct that that is bound to succeed before the Adjudicator. It is a situation different from a situation in which the European Court of Human Rights is deciding whether cases are admissible. It is there a decision of the court.
47. The situation is also different from that in which a certificate is issued under schedule 4, paragraph 9.1 of the 1999 Act. Such a certificate limits the right of further appeal from the Adjudicator, but is itself subject to scrutiny by the Adjudicator at the stage of the first appeal.
48. Although clearly the court is considering whether the Secretary of State was entitled to conclude that the claim was manifestly unfounded, the need for the most anxious scrutiny means that in most cases there will be relatively little room for the court to differ from the Secretary of State's view, but nevertheless decide that the Secretary of State was entitled to reach his view.
49. Finally, in relation to the case of Thangarasa, I bear very much in mind the words of Lord Bingham at paragraph 9, where he emphasised two important considerations. Firstly, that the Home Secretary and the courts should not readily infer that a friendly sovereign state which is a party to the Geneva Convention will not perform the obligations it has solemnly undertaken. Secondly, that the Convention was directed to a very important but very simple and very practical end, preventing the return of applicants to places where they will or may suffer persecution. He went on:

"It can never, save in extreme circumstances, be appropriate to compare an applicant's living conditions in different countries if, in each of them, he will be safe from persecution or the risk of it."

Lord Bingham was, of course, referring to the consideration of the asylum tests, but the approach is one that should be borne in mind.

Articles 3 and 8

50. I turn to the question of articles 3 and 8. The case of Thangarasa did not concern a human rights claim based on the effect of removal on the claimant.
51. Article 3 reads:

"No one shall be subjected to torture or to inhuman or degrading treatment or punishment."

Article 8 reads:

"1. Everyone has the right to respect for his private ... life ...

"2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of ..."

52. I have been referred to two cases: Vilvarahah v United Kingdom 14 EHRR 248 and also Bensaid v United Kingdom 33 EHRR 205. It is not necessary, in my view, to set out passages from Vilvarahah here, and I turn straight away to Bensaid, which was decided in 2001. In that case the question was whether a return of the applicant to Algeria would breach his human rights under these two articles. Shortly, he was a schizophrenic suffering from a psychotic illness of some severity. There was medical evidence before the court and included -- I read from an extract from the medical report at paragraph 21. It was:

"highly likely that stressful life events such as deportation together with the more stressful environment he would be likely to encounter in Algeria would trigger exacerbation of his symptoms as occurred on his last visit to Algeria ... his fearfulness when unwell and also the motivational difficulties and flatness of affect makes it very difficult for him to seek appropriate help when he does become unwell ... If he were unable to obtain appropriate help, if he began to relapse I think that there would be a great risk that his deterioration would be very great and he would be at risk of acting in obedience to the hallucinations telling himself to harm himself or others ... Thus I do think that there is a substantial likelihood that forcible repatriation would result in significant and lasting adverse effect."

53. As paragraph 34 onwards the court, considering article 3, expressed the view that in this context the court must subject all the circumstances surrounding the case to rigorous scrutiny, especially the applicant's personal situation in the expelling state. In other words, the court must bear in mind the risks to his health if he remains, as compared with the risks to his health if he is removed to the particular country. At paragraph 38 the court observed that the applicant faced the risk of relapse, even if he stayed in the United Kingdom. They said that the fact that the applicant's circumstances in Algeria would be less favourable than those enjoyed by him in the United Kingdom was not decisive from the point of view of article 3 of the Convention. In paragraph 40 the court said:

"The Court accepts the seriousness of the applicant's medical condition. Having regard however to the high threshold set by Article 3, particularly where the case does not concern the direct responsibility of the Contracting State for the infliction of harm, the Court does not find that there is a sufficiently real risk that the applicant's removal in these circumstances would be contrary to the standards of Article 3. It does not disclose the exceptional circumstances of the D case (cited above) where the applicant was in the final stage of a terminal illness, AIDS, and had no prospect of medical care or family support on expulsion to St Kitts."

In dealing with article 8, the court accepted that:

"Private life is a broad term not susceptible to exhaustive definition. The Court has already held that elements such as gender identification, name and sexual orientation and sexual life are important elements of the personal sphere protected by Article 8. Mental health must also be regarded as a crucial part of private life associated with the aspect of moral integrity."

The court went on in paragraph 48:

"Turning to the present case, the Court recalls that it has found above that the risk of damage to the applicant's health from return to his country of origin was based on largely hypothetical factors and that it was not substantiated that he would suffer inhuman or degrading treatment. Nor in the circumstances has it been established that his moral integrity would be substantially affected to a degree falling within the scope of Article 8 of the Convention."

54. Mr Underwood points out, in supplying to the court a schedule of cases before the European Court, that no claim based on mental health has actually succeeded before the European Court of Human Rights. However, that does not rule out success in member states on the basis of the principles enunciated, and, as Mr Nicol points out, in Bensaid the court was deciding the merits, not operating a screening process. Indeed, as Mr Nicol points out, if his case had been "manifestly ill-founded" the court would presumably not have heard his case.
55. The question of mental health has in fact come before the courts in recent times on at least two occasions. In R(Ahmadi) v Secretary of State for the Home Department [2002] EWHC 1897 Admin, Scott Baker J, as he then was, considered just such a case. Ultimately in that case only article 8, and indeed only article 8.1, was argued before Scott Baker J. In that particular case Scott Baker J took the view that the medical condition was such as to engage article 8, but limited assistance is to be derived from the facts of other cases. However, in paragraph 48 he said this:

"Where the Secretary of State is faced with conflicting evidence from reputable doctors and there is no obvious reason why the evidence of one should be preferred to the other, it seems to me that any decision that the human rights claim is manifestly unfounded can only proceed on the basis of the medical evidence most favourable to the claimant."

56. In the present case there was no significant contradiction in the medical reports submitted to the Secretary of State.
57. There has also recently been a decision by Richards J on 20th November in a case called Razgar, in which he held that a certificate should be quashed where article 8 was engaged. He found it unnecessary to reach a conclusion in relation to article 3. I have been provided with a brief note of the case. Although Richards J plainly gave consideration to the test to be applied in relation to the phrase "manifestly unfounded", it does not appear, particularly since there is a recent decision of the House of Lords, that it is necessary for me to await a full copy of the transcript of Richard J's decision before reaching a decision in the present case.

Conclusions

58. I therefore turn back to the refusal letter. Mr Nicol submits that article 3 is not specifically addressed. It seems to me that by implication it is. He also points out that it is not clear whether it is being said that article 8 is not engaged, or whether article 8.2 is relied on. And that lack of clarity seems to me to be established.
59. Reading the refusal letter as a whole, I take the view that there is ground for concern about whether the Secretary of State was sufficiently distinguishing his views on the merits from the question of whether the allegations were manifestly unfounded. I fully accept that he did address the test in the phrase "manifestly unfounded", nevertheless some of the language in the paragraphs I have already quoted seem to be directed squarely to the Secretary of State's own views.
60. Mr Nicol, on behalf of the claimant, helpfully summarises at paragraph 24 of his skeleton argument the reasons given by the Secretary of State in the decision letter. The principal reason was that in the Secretary of State's view the claimant did not reach the level of severity of physical or mental suffering as to warrant departing from the defendant's usual practice. That, of course, is the fundamental consideration required, and is relevant to both article 3 and article 8.
61. Secondly, he took the view that there were adequate and appropriate medical facilities in Austria. As I have indicated, the evidence is not wholly clear about what actually happened to the claimant, and it may well be that there is a distinction to be drawn between the facilities that are in principle provided by the Austrian state and the access that could in practice in the short term be obtained to those facilities by someone who arrives in Austria not speaking the German language.
62. Thirdly, it was said that the claimant had been assessed as fit to travel. As I have indicated, that assessment seems to have been made on a limited basis.
63. Fourthly, it was said that the claimant was a single adult man who might reasonably be expected to live independently of his contacts established in the United Kingdom. As far as that goes, that is a valid consideration.
64. Fifthly, that there was an Afghan community in Austria and it would be open to Mr Changuizi to seek similar contacts of support on his return. Again, as far as it goes, that was a legitimate consideration, but it would not necessarily be possible for him in the short term to make such contacts.
65. Sixthly, Mr Nicol submitted that the Secretary of State said that if the claimant were allowed to remain in the United Kingdom, it would be contrary to the Secretary of State's duty to maintain a firm, fair and effective immigration policy to the United Kingdom, and to the spirit and purpose of the Dublin Convention. In expressing that view, it seems to me reasonably clear that the Secretary of State was very much referring to policy considerations, rather than giving his mind to the phrase "manifestly unfounded".
66. The effect of the medical reports before the Secretary of State was really all one way, that there was post-traumatic stress disorder and major depression, with a danger of suicide. Mr Underwood submits that there was no expert evidence about the amount of deterioration to be expected, that there was no expert evidence about the degree of risk, and no prognosis about what would happen if the claimant was not removed. There is force in those arguments; nevertheless, they were the kind of matters that would be more appropriate to be explored at a proper hearing than matters to be decided in the screening process of the kind that I have described.
67. Mr Nicol, on behalf of the claimant, criticises the failure to await the further medical report. I do not consider that that in itself rendered the decision flawed. If one stands back, bearing in mind the criticisms that have been mounted against of the refusal letter, it seems to me that the Secretary of State was plainly not entitled to find that either of the human rights claims were manifestly unfounded.
68. There are, of course, cases in which a medical opinion provided to the Secretary of State is of a limited nature, or provided by those without relevant qualifications, or is otherwise unsatisfactory or incomplete. However, it has never been suggested that the present case is other than one of serious illness, and it does not seem to me in the least odd that such a case should pass the screening process and receive a proper hearing in the United Kingdom before an Adjudicator. Mr Underwood submits that particularly in relation to article 8.2, where the issue of proportionality has to be considered, the court should be slow to interfere, because of the expertise of the Secretary of State in considering that matter. I do not find it odd that such an issue should properly go to a hearing before an Adjudicator, who also has expertise on the question of proportionality, and is in a good position to weigh matters in a way that the Secretary of State may not be.
69. I have looked at the subsequent events. It is conceded on both sides that the because the Secretary of State was under a duty to keep the grounds for the certificate under review, the subsequent events might have either established that the claims were manifestly unfounded, or, if they had not initially been manifestly unfounded, that they became so.
70. In summary, what happened was that initially there was an absence of proper medical attention in Austria, which the claimant needed. He was removed to hospital, on the available evidence, apparently because of a fear that he would commit suicide. Viewing the subsequent events, and bearing in mind Dr Mirzaei's misunderstanding of precisely what treatment the claimant was receiving in the United Kingdom, I do not consider that subsequent events have now rendered the claimant's case manifestly unfounded. For those reasons, in my view, the certificate was wrongly issued in law and wrongly maintained. In the light of that, I give permission in relation to the second application. There was clearly a breach of the assurance or undertaking, and hence of the legitimate expectation of the claimant that he would not be removed if judicial review proceedings were commenced.
71. The question then is whether there should be a mandatory order to the Secretary of State to use his best endeavours to return the claimant to the United Kingdom. I should say straight away that if a case for a mandatory order is made out, Mr Underwood has indicated that the Secretary of State will give to the court an equivalent undertaking. I have no hesitation in accepting such an undertaking if the case for a mandatory order is made out.
72. The first consideration is that the underlying decision was -- as I have held -- wrong in law. The next consideration is that the removal was in fact in breach of the undertaking. I do not for this purpose give weight to the failure to await a further medical report, but I simply point out that when it came, it was broadly in line with the reports already received.
73. The next consideration is that if the claimant were returned to this country, and did not succeed in his appeal before the Adjudicator, he would then again have to be removed, with possible effects on his health. I bear that very much in mind. Dr Mirzaei's advice is that the claimant's health would be better served by his return to the United Kingdom, although that must be qualified by Dr Mirzaei's misunderstanding of the medical attention that he was receiving. I bear in mind, of course, that the claimant is at present, and for the foreseeable future, receiving medical attention in Austria.
74. The next consideration is that the claimant himself wishes to return to the United Kingdom. Since he has been removed in breach of an undertaking and following an unlawful decision, that consideration of his wishes must be given considerable weight. I bear in mind, of course, that he is no doubt hoping for the best, and, as it may prove, being too optimistic. But the most important factor, to be weighed with the rest of the factors, is that if there is no return to this country, the claimant will be denied the appeal here, which is the right which he had in the absence of the certificate which I have found to be unlawful. Although an appeal can be mounted from Austria, and although the claimant undoubtedly has the assistance of extremely professional, careful and assiduous solicitors, there is no doubt that the ability to mount an appeal, particularly to give evidence himself, is prejudiced if he is not returned.
75. I therefore reach the conclusion that it is a case where the claimant should be returned. In the case of Ahmadi ultimately I understand a decision was taken that the family in that case should not be returned, but in that case the whole family was involved, and I understand that exceptional provision was made for a video link. The question of a video link has not been raised in the present case, but even if it was, it seems to me that it would not satisfactorily deal with this particular case. For those reasons, a suitable undertaking should be accepted from the defendant to use his best endeavours to return the claimant to the United Kingdom forthwith.
76. MR UNDERWOOD: I have no doubt that there will be an application for costs. As far as the undertaking is concerned, I will ask for permission to appeal. If either your Lordship should grant it, or if necessary the Court of Appeal should grant it, we ask that the undertaking, as it were, be stayed until the hearing of the appeal. Of course, we undertake that the appeal will be dealt with expeditiously. But apart from that obligation, the undertaking is, of course, offered.
77. MR JUSTICE CRANE: Let us deal with the question of permission to appeal first.
78. MR UNDERWOOD: The starting point, of course, is, as your Lordship knows, that Scott Baker J himself granted permission to appeal in Ahmadi, and that matter will in due course come before the Court of Appeal on the matter of the general importance of this. My Lord, we say the general importance of this issue is this: Adjudicators in this type of appeal will, of course, address themselves to the facts. What we derive, though, from Bensaid is that there is a threshold level of facts, which must be established before Adjudicators are entitled to find breaches of article 3 and article 8. The purpose of the exercise for Secretary of State in contesting these cases is to attempt to determine at a high level what that threshold is -- I do not mean a high level of threshold, I mean at a high judicial level. It follows, in my submission, that it is important to have cases in front of the Court of Appeal with a range of actual scenarios so that the court can itself set out the guidelines for that threshold. What we say is that it would be deeply unsatisfactory for a clutch of Adjudicators to arrive at different decisions about where the threshold might be, which would then themselves be the subject of appeals and take a long time to get up to the Court of Appeal in a ragged way. That, fundamentally, is the reason why the Secretary of State is regarding this case as important, and why we urge that your Lordship should allow this one to go forward to the Court of Appeal.
79. MR JUSTICE CRANE: Am I right in thinking that Scott Baker J indicated that the Adjudicator's hearing should nevertheless take place? He did not seek to put any stay on that?
80. MR UNDERWOOD: He did not. There, if I might respectfully say so, the pressing situation was rather different. The evidence -- I am going beyond what is in the reports, as I have read the papers in Ahmadi. There what was going on was that the family had been together in a reception centre in Germany beforehand. The essential question was what the conditions in that reception centre did to Mrs Ahmadi, and what therefore were the knock-on effects on the rest of the family. It was an error about that which was at the heart of the striking down, as it were. So the situation facing Scott Baker J was that there had been a wrong decision, an unlawful decision, in respect of the situation facing them. It was the very situation which the medical evidence said was going to exacerbate her condition. We, of course, do not have anything like that here, because there is no evidence of what happened to Mr Changuizi in Austria before, and, of course, we do have the current evidence that he is in very capable hands.
81. I entirely accept, of course, that we undertake to bring him back if the appeal goes wrong, and that in the end it is very much a matter of fine judgment as to where he is better off. Nonetheless, one is not under the same sort of constraints that Scott Baker J was in terms of urgency, I would respectfully suggest. As I say, we would undertake, if so desired, that we get on with it expeditiously. So, my Lord, that, essentially, is why we say this matter ought to go forward.
82. MR JUSTICE CRANE: Thank you. I will deal with the question of appeal. I am afraid I am against you on the question of permission to appeal.
83. MR UNDERWOOD: My Lord, I offer the undertaking, but I qualified that we will not undertake to bring him back until we apply to the Court of Appeal for permission to appeal, and, of course, your Lordship is in a position of being able to order us to do that.
84. MR JUSTICE CRANE: How long do you need to do that?
85. MR UNDERWOOD: May I just take instructions? We will apply tomorrow.
86. MR JUSTICE CRANE: Thank you very much. Mr Underwood QC, on behalf of the defendant, applies for permission to appeal, and also submits that the undertaking to use best endeavours to return the claimant to the United Kingdom should be subject to either the outcome of the appeal to the Court of Appeal, or at least to an opportunity to apply to that court for permission to appeal if this court does not give it.
87. First of all, as I understand it, Scott Baker J gave permission to appeal on the basis that it was an important matter that the court should consider, rather than any doubt about the particular decision. In my view, since that case is going to the Court of Appeal, it is a matter for the Court of Appeal whether they wish other not dissimilar cases to be before them for consideration also, or not. I do not propose to give permission to appeal on either of the limbs that are available.
88. So far as return to this country is concerned, I am quite prepared that the undertaking should be on the basis that the defendant will use his best endeavours to return the claimant to this country, subject to the outcome of an application to the Court of Appeal for permission to appeal, which I will say by 4pm on Monday. I am told that the application will be made this week, but sometimes the court may have difficulty in dealing with it. It seems to me not unreasonable to give the defendant until the close of hours on Monday.
89. My reasoning is very much this: this whole matter relates, not to a consideration of the merits, but to a consideration of where the claimant should be while his appeal takes place. He can appeal to the Adjudicator anyway. In this particular case he was removed to Austria in breach of an assurance, and this situation would not have arisen but for the fact that that assurance was breached. In those circumstances it seems to me that there is no reason to hold up the hearing on the merits, and also, as indeed Scott Baker J, as he then was, felt in Ahmadi, nor is there any reason why, in the light of my decision, the defendant should not use his best endeavours to return him in order that that fact finding hearing can take place here on a proper basis.
90. The defendants are, of course, perfectly entitled to apply to the Court of Appeal for permission, or indeed for any other purpose. It is a matter for the Court of Appeal to consider, in my view, whether in the particular circumstances of this case the claimant's right -- which I have held that he has -- to conduct his appeal in this country should be held up for some months, creating the dilemma that either his appeal will be held up, or that he would have to conduct it from Austria. I do point out that this whole argument is not in relation to what the merits of the case are, but to precisely how the fact finding appeal should take place. It seems to me that there are very strong reasons for that fact finding appeal to be held without delay, both in the interests of the claimant and in the interests of the defendant. In view of the history of this particular case, I take the view that there are very strong reasons why that should take place in this country, particularly, as I have said, since (inadvertently, I accept) the defendant has created this particular situation in which the claimant finds himself.
91. Now, Mr Underwood, perhaps counsel could submit a suitable order for me to initial?
92. MR UNDERWOOD: Certainly. Might I ask your Lordship to order an expedited transcript of the judgment?
93. MR JUSTICE CRANE: Yes. I think both of the judgment and of what I have just said in relation to the appeal. I think the second is in a way more urgent, but I can see why you might want both. So I will order both, but I will ask that the remarks that I have just made in relation to permission and what, in effect, amounts to a stay -- it was not quite in that form -- be done first, so that is available as soon as possible.
94. MR UNDERWOOD: It would be very helpful if we could put those remarks in with the application.
95. MR JUSTICE CRANE: Miss Rahman, do you want your costs? I have already anticipated you on that. I think it is certainly yes.
96. MISS RAHMAN: Just in terms of the solicitors' effects in terms of the conduct of the case. It is not in dispute as to the assiduous efforts throughout, but I do not suppose that is a major concern.
97. MR JUSTICE CRANE: You may have a detailed assessment for public funding purposes. I do know whether my remarks will make any difference to that. They were not directed to that, but you can quote them if necessary. I simply said during the course of argument, and repeated during my judgment, that I was particularly impressed by the efforts made by the solicitors. One sees cases which are not quite so well-handled, and people should be praised when it happens the other way round. Thank you both very much.