QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE QUEEN ON THE APPLICATION OF BARDIQI||(CLAIMANT)|
|SECRETARY OF STATE FOR THE HOME DEPARTMENT||(DEFENDANT)|
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MR D BEARD (instructed by Treasury Solicitors) appeared on behalf of the DEFENDANT
Crown Copyright ©
Monday, 14th July 2003
"You state your clients' removal from the UK would constitute a breach of their right to private life as the children are settled in school and have spent their formative years in the UK. Although your clients are being returned as a family unit and will be able to rely upon each other for support, the Secretary of State accepts that they may experience a degree of temporary interference to their private life within the evening of Article 8(1) of the ECHR. However, Article 8 is a qualified right which must be balanced against the Secretary of State's legitimate aim to maintain an effective immigration control to the United Kingdom."
There is then reference to Article 8(2) and the Secretary of State says that he does not consider that "such interference as will be caused to your clients' family life to be either disproportionate or unreasonable":
"Your clients have been aware since they arrived in the United Kingdom on 16 February 1998 that their rights of residence in the United Kingdom were at best precarious. They cannot have entertained any reasonable expectation that they would be allowed to remain in the UK once their asylum application had been refused in December 1998. Were the Secretary of State to permit persons in your clients' situation to remain in the United Kingdom this would run contrary to the maintenance of a credible and effective immigration control and to the spirit and purpose of the Dublin Convention which is designed to ensure that it is the responsible Member State which considers an application for asylum and processes the claim."
Another article in Protocol 1 to the Convention is referred to, but that has played no part in the proceedings before me today. The Secretary of State certified the human rights claim as manifestly unfounded in accordance with section 72(2)(a) of the 1999 Act.
"It is my opinion that if the family were forced to leave the UK, the disruption which would be involved would not be in Armend's best interests at all as it is likely to damage the recovery he has made."
Also enclosed was a letter from the children's headteacher.
"After full and careful consideration of the materials presently placed before him, including the report prepared by Ms Renee Cohen, a social worker, the Secretary of State has concluded that further allegation on behalf of your client would be manifestly unfounded for the following reasons."
A number of detailed reasons are set out and reference is made to the case of Thangarasa. In paragraphs 18 and 19 the letter says:
"18. The Secretary of State takes the view that there is nothing whatsoever in the report of Ms Renee Cohen to indicate that removal from the United Kingdom would amount to a breach of your client's human rights.
19. Your client travelled unlawfully to this country from Germany and she should not profit by her unlawful travel to, and presence in, this country to the disadvantage of those who obtain the means to enter and remain in the UK lawfully..."
"'All that can be said is that he had made friends (principally with other Kosovan Albanians) during a period prolonged by his legal proceedings and during which he was aware that the Secretary of State regarded him as removable to Germany. In my opinion, it is impossible to challenge the conclusion that these were insufficient grounds to require an exercise of discretion in his favour.'"
Paragraph 24 of the letter says:
"The Secretary of State takes the view that your client's situation as regards the prolongation of his stay in this country as a result of protracted litigation is, in all major respects, indistinguishable from that of the Claimant in Zeqiri."
Paragraph 26 concludes that the claim should be certified as manifestly unfounded.
"In these circumstances we contend that to remove this family would clearly raise the prospect of breaches of Article 3 and 8 ..."
"You have already made an allegation on behalf of the family that removal to Germany would breach their human rights under Articles 3 and 8 of the ECHR. This allegation was certified as manifestly unfounded by the Secretary of State dated 14 November 2002. Luqmani Thompson & Partners have also made a similar allegation on behalf of Mrs Bardiqi which was certified as manifestly unfounded by letter dated 26 February 2003. The Secretary of State maintains both of these decisions and is not prepared to defer the family's removal directions."
The next paragraph of the letter says:
"The Secretary of State notes the representations submitted on behalf of the family and your view that it would appear the public interest would support a decision not to enforce removal. However, the Secretary of State must give consideration to the wider public interest. Were the Secretary of State to permit persons in your client's situation to remain in the United Kingdom this would run contrary not only to his duty to Parliament to maintain a credible and effective immigration control but also to the proper operation of the Dublin Convention. Removal directions remain in place for 10 March 2003."
Those removal directions were again deferred after the institution of these proceedings, which initially sought permission to challenge the decision of the 6th March 2003 maintaining both of the earlier certifications.
"While the wishes of members of the local community and the length of time there cannot of themselves justify a favourable exercise of Article 8.2, I am just persuaded that Armend's position in particular and the real fear in 1998 that Germany might wrongly return may distinguish this case from Zeqiri. It turns on its own facts."
"The Secretary of State remains satisfied, however, that the report adds nothing to your client's case. Indeed, it demonstrates that Armend has made a noticeable recovery in the last five years. The level of his anger and violence has greatly reduced and he has been able to develop friendships and mutual trusting relationships with others. Ms Saddik states that Armend suffered from PTSD following witnessing the abuse of his mother in Kosovo at the age of 3 but that his difficulties no longer meet all the criteria for PTSD in the DSM-IV. The Secretary of State notes that Ms Saddik states that removal from the UK is likely to jeopardise Armend's mental state and diminish his recovery. The Secretary of State considers this finding speculative, as no evidence is presented to substantiate this assertion. While the Secretary of State accepts that removal may be upsetting for Armend, he does not consider that this is so severe as to even arguably engage Article 8(1).
3. Armend is not undergoing any kind of treatment for his condition. However, should he require medication or counselling, he would have recourse to this in Germany. While it is the case that German law dictates that medical treatment is only available to asylum seekers suffering from acute conditions, in practice, no one is denied medical treatment. This is similar to the situation in the United Kingdom.
4. In any event, the Secretary of State believes that any risk of interference with Article 8(1) is plainly justified under Article 8(2) and that any allegation to the contrary would be bound to fail. Whilst in this country, Armend's stay has been at best precarious. It is considered that removal to Germany, where his parents' asylum application would receive conscientious and thorough consideration, would give him the stability he needs. Furthermore, he would be removed to Germany with his parents whom he will be able to rely on for emotional support. The Secretary of State is confident that any risk of interference with Article 8 is plainly both proportionate and justified when balanced against his public interest concerns and duty to Parliament.
5. The Secretary of State hereby maintains his certificate issued under section 72(2)(a) of the Immigration and Asylum Act 1999."
"He does however currently meet all the Scheeringa et al 1995 criteria specifically adapted for children."
She makes reference to the fact that the quality of Armend's life has improved markedly and that:
"... the level of his anger and violence is greatly reduced and no longer evident in his school and social life. He has been able to develop friendships, and mutual trusting relationships with others, eg his headteacher. This is directly related to him having had years of a stable environment both in his home and school life ..."
She goes on to say:
"Removal from the UK is likely to jeopardise his mental state and diminish his recovery. In addition, non-voluntary removal from the clearly very supportive environment he currently experiences would lead to Armend losing control and mastery in all areas of his life. He is very aware that leaving the UK would mean enduring further losses, of his good achievements, of his friends, of those who understand him and his difficulties eg the headteacher and that he will not be able to read and write in Kosovo and a possible break up of the family. This would result in deterioration, the loss of the gains he has made so far and further psychological damage as a result of further losses and potential threats. Although Armend has rebuilt his life and recovered to an extent from his traumatic past it would be much more difficult for him to rebuild his life elsewhere yet again. He would have seen the relationships that he has worked to build torn apart by his removal from the UK. It is unlikely that he would have the emotional resilience to develop trusting and secure relationships for a long time and without these the prognosis for his psychological health is poor.
A major trigger to him deteriorating is conversations about Kosovo or the threat of return. In addition another major trigger of his symptoms is any further witnessing of domestic violence or conflict. Wherever he is placed, in Kosovo or Germany, I understand, from my work generally with asylum-seekers and refugees in the UK and Germany that he is likely to be accommodated amongst war traumatised communities where re-enactment and conflict will prevail. This is very likely to result in him regressing into an emotional state marked by fear, withdrawal, anger and violence. There is a high risk of relapse and Post Traumatic Stress Disorder.
To answer the original question given in the letter of instruction; Armend's mental health is highly likely to be affected by removal firstly because of the loss of the very supportive environment he has experienced in the UK over the last 5 years and secondly he is clearly more vulnerable to disruptions than other children his age because of the trauma he has endured including experiencing years of Post Traumatic Stress Disorder."
"In case A, the person is in good health in the UK, but he says that, if he is deported to a 'safe' third country, there is a real risk that he will suffer a serious decline in his mental health, because he has a fear (admittedly irrational) that he will be returned to face persecution in his country of origin. In case B, the person is already suffering from mental ill-health for which he is receiving treatment in the deporting country. His case is that, if he is deported, his medical condition will become significantly worse because in the receiving state he will not be given the treatment that he has previously enjoyed.
19. It is clear that case A is not capable of engaging Article 8: the territoriality principle is decisive. But what about case B? The allegation is that the expulsion will cause a significant deterioration in the claimant's mental health. But will it be as a result of the cessation of treatment in the deporting country, or will it be because the treatment previously enjoyed will not be replicated by the receiving country? On an application of the 'but for' test, both will be effective causes ..."
The Court of Appeal set out its own test in paragraph 22 of the judgment:
"We suggest that, in order to determine whether the article 8 claim is capable of being engaged in the light of the territoriality principle, the claim should be considered in the following way. First, the claimant's case in relation to his private life in the deporting state should be examined. In a case where the essence of the claim is that expulsion will interfere with his private life by harming his medical health, this will include a consideration of what he says about his mental health in the deporting country, the treatment he receives and any relevant support that he says that he enjoys there. Secondly, it will be necessary to look at what he says is likely to happen to his mental health in the receiving country, what treatment he can expect to receive there, and what support he can expect to enjoy. The third step is to determine whether, on the claimant's case, serious harm to his mental health will be caused or materially contributed to by the difference between the treatment and support that he is enjoying in the deporting country and that which will be available to him in the receiving country. If so, then the territoriality principle is not infringed, and the claim is capable of being engaged. It seems to us that this approach is consistent with the fact that the ECtHR considered the merits of the article 8 claim in Bensaid. It is also consistent with what was said in paragraphs 46 and 64 of Ullah."
"The Secretary of State notes that Ms Saddik states that removal from the UK is likely to jeopardise Armend's mental state and diminish his recovery. The Secretary of State considers this finding appears speculative, as no evidence is presented to substantiate this assertion. While the Secretary of State accepts that removal may be upsetting for Armend, he does not consider that this is so severe as to even arguably engage Article 8(1)."(my emphasis)
I do not accept Mr Beard's submission that the Secretary of State is there saying that Ms Saddik has been speculating about the treatment that will be available to Armend in Germany. It is plainly an assertion that her evidence as to the effect of removal upon his mental state is speculative. It also contends, despite the fact that she is an acknowledged expert in her field, that no evidence is presented to substantiate her assertion. It is not clear what evidence the Secretary of State would have had in mind. It is clear that the Secretary of State must have rejected Ms Saddik's evidence, because he has concluded that removal "may be upsetting". There is a significant distinction between the possibility that an event "may be upsetting", and a "high risk" that it will result in relapse and PTSD. The Secretary of State has reached this conclusion without the benefit of any psychological or psychiatric evidence of his own. Paragraph 3 of the letter deals, as a separate topic, with a matter which was not raised by Ms Saddik, namely, what treatment would or would not be available under German law. Mr Henderson would have wished to raise a point about that, as to whether in fact medical treatment would be available in Germany for someone who did suffer from an acute condition, but it is unnecessary for me to consider that aspect of the matter.