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
		30 January 2003

1. MR JUSTICE JACKSON: My judgment in this claim for judicial review falls into four parts. Part 1: the facts. Part 2: the present proceedings. Part 3: the law. Part 4: conclusion.

Part 1: The Facts

2. The claimant is a 36 year-old citizen of Sri Lanka of Tamil origin. She arrived in the United Kingdom on 27 April 1998 and claimed asylum on arrival. On 4 January 2001, the Secretary of State gave directions for her removal following the refusal of her asylum claim. She appealed against the Secretary of State's decision on two grounds. First, that she was entitled to refugee status and, secondly, on human rights grounds. In support of her appeal the claimant relied upon a psychiatric report prepared by Dr Barakat, dated 26 June 2001. That report included the following passages:

"She was seen by a psychiatrist in her native country, Sri Lanka, and has been on monthly intramuscular injections of Depixol 20 milligrams. She does not seem to remember anything of the past. When she was ill she would not go out on her own.

"She described visual trouble which she found difficult to describe, clearly saying that she was 'concentrating on black spots'. This happens only occasionally. She has no insight into her illness and has relapsed due to non-compliance with the depot injection which she does not like to have. She sometimes did not want to come to the outpatient clinic  . . . 

"She came from Sri Lanka to the United Kingdom in 1998. She studied bio-science in Tamil and in English in Sri Lanka where she achieved a degree. In the United Kingdom, she went to Southall college to do a course in English and computing. She finished the second level. She has been working full-time in accounts for a cosmetics company which she is happy with. She is single. She has no current relationship and has no children. She lives with her brother.

"She does not smoke or use illicit drugs. She drinks alcohol occasionally. She has never had alcohol problems. She has no forensic history.

"Conclusion: Miss Ratnam presented with a longstanding history of a paranoid schizophrenic illness precipitated by the trauma she experienced in Sri Lanka. Currently she is stable and free from psychotic symptoms.

"In my opinion, this lady should remain in the United Kingdom where she is safe. If she is sent back to Sri Lanka there is no guarantee that she would survive in view of her suffering from a major mental disorder with no support network. I am concerned that her safety would be at risk if she was sent back home. She needs to continue with anti-psychotic medication, Depixol 20mg intramuscular, monthly, and also have regular outpatient follow up."

3. That report, together with other evidence, was placed before the Adjudicator for consideration at the hearing of the claimant's appeal on 4 July 2001. Mr Hamilton, the Adjudicator, heard evidence from the claimant. He considered the written material including the psychiatric report, and in the result, he rejected the appeal on asylum grounds and on human rights grounds. Subsequently, the claimant brought judicial review proceedings to challenge that decision but those proceedings were unsuccessful. In the meantime, there was a deterioration in the claimant's psychiatric condition. On the 8 February 2002, Dr Barakat wrote a further psychiatric report on the claimant. He began by noting that she was suffering from a serious and major illness, namely: paranoid schizophrenia. In the third paragraph, and following of the report, Dr Barakat wrote:

"She was last seen by myself in the outpatient clinic (as an emergency) on 5 February 2002 due to deterioration in her mental state and her brother was concerned about her. She has been feeling suicidal, her life is not worth living and she would be better off dead. She is constantly thinking about killing herself and ending her life. Fears of going back to Sri Lanka and facing harassment and torture. She feels that her life is at risk and it is unsafe to go back to Sri Lanka as she will be arrested and killed by the Tamil regime.

"She has been feeling sad and miserable since September 2001 due to the immigration situation and sending her back to Sri Lanka. She has not been eating or sleeping properly, experiencing nightmares and bad dreams about killing, blood, et cetera. She has been waking up in the middle of the night due to that and has not been able to go back to sleep again. She has been feeling anxious and irritable all the time. She has lost her motivation and interest in doing things and could not cope or concentrate in her job. Then she lost it. She became socially isolated and uncommunicative. She has no family or close relatives in Sri Lanka. She lost her parents years ago and all her siblings left the country (Sri Lanka) due to problems with the Tamil authorities.

"She came to the United Kingdom looking for peace and support from her brother who is a permanent resident in the UK. She has been living with this brother since she came to the UK and she is happy there. He is the main carer for her and supervises her with taking her prescribed medication and attending her outpatient appointments with me.

"I believe that Miss Ratnam is a high suicide risk due to her serious mental illness, bad experience and trauma in her native country, lack of support/social network in Sri Lanka and removal decision which is the main concern at the moment. She has made her plans to kill herself (overdose) if the Immigration Services attempted to remove her. I am very concerned about her current condition and mental state if she is removed.

"In my opinion, Miss Ratnam is vulnerable and a high suicide risk. She needs a peaceful way of life, away from stress, and must continue with her prescribed medication, regular follow-up to monitor her mental state, and her brother's support and input."

4. On 9 February 2002, the claimant's solicitors wrote to the Immigration Service enclosing a copy of the new report by Dr Barakat and asking that this be treated as the basis of a fresh asylum claim and a fresh human rights claim. The Secretary of State considered the report in two letters; the first dated 19 February 2002, the second dated 19 March 2002. The Secretary of State concluded that the claimant was not advancing a new claim at all. On the contrary, she was reiterating her former claim which had been rejected in the appeal to the Adjudicator and which had been further unsuccessful in the attempted judicial review proceedings brought during 2001.
5. The claimant was aggrieved by the Secretary of State's decisions contained in his letter dated 19 February and 19 March 2002; accordingly, she commenced the present proceedings for judicial review.

Part Two: The Present Proceedings

6. By a claim form which is undated but appears to have been filed during March 2002, the claimant sought judicial review of the Secretary of State's decision dated 19 March 2002. The essential basis of the claim for judicial review as advanced in the claim form emerges from paragraphs 18 and 19 of the grounds annexed to that claim form. It is contended on the claimant's behalf that the Secretary of State's decision letters do not address the question of suicide risk and the deterioration of the claimant's health since the date of Dr Barakat's first report. It is further argued that the decision to remove the claimant in the face of that evidence is Wednesbury unreasonable.
7. The application for permission was considered at an oral hearing by Mr Nigel Pleming QC on 18 September 2002. Mr Pleming was sitting as a Deputy High Court Judge of the Queen's Bench Division dealing with Administrative Court business on that occasion. Mr Pleming granted permission to apply for judicial review, but limited that permission to two issues: one, whether the second medical report could be seen to be a fresh claim, two, whether the error in relation to the support system in Sri Lanka was so material as to invalidate the decision. By the time that Mr Pleming had reached his decision on permission, the claimant had abandoned her application in respect of the asylum issues and was limiting her claim to a case based on human rights grounds. In the light of developments since the commencement of the claim, namely: the narrowing of the claimant's claim and the grant of limited permission by Mr Pleming QC, sitting as a Deputy High Court Judge, the Secretary of State reconsidered matters afresh. On 19 November 2002, the Secretary of State sent a further decision letter to the claimant's solicitors. This decision letter considered the claimant's claim in some detail. It referred to numerous authorities including the case of Bensaid, and the Secretary of State considered the application of Articles 3 and 8 of the European Convention on Human Rights. Having considered all these matters, he came to the conclusion that the matters raised by the claimant did not constitute a fresh claim and he would adhere to his original decision, that the claimant must be removed, pursuant to the decision reached by the Adjudicator in July 2001. In response to this letter, the claimant's legal advisers filed and served amended grounds for claiming judicial review. They also lodged a new skeleton argument in support of the claim. Both these documents are to be found amongst the pile of papers supplied to me and both documents are undated. It would be helpful if, in the course of this judgment, I repeat what I said in argument to the claimant's counsel. It is extremely unhelpful for any judge who is preparing a list of cases to deal with in the Administrative Court to find skeleton arguments and grounds or amended grounds for judicial review lying amongst the papers without a date upon them. The judge trying these cases has to work out in chronological order what the history of the case is and what are the grounds advanced at different times, and it really does behove all solicitors and counsel who are lodging documents of this nature with the court to put a date on them. Then the judge when he is preparing for the hearing can work out what has happened and what has been argued at what date. It would considerably assist the judge's task in preparation, if dates were to be put on important documents. Be that as it may, counsel have kindly informed me today of the dates of the relevant documents and I am grateful for that information.
8. The amended grounds of challenge advanced on behalf of the claimant take a number of points, but the most important part of the amended grounds of challenge is the contention that the second psychiatric report by Dr Barakat constitutes a fresh claim. This is supported in the skeleton argument which has been lodged on behalf of the claimant yesterday on the following grounds: the second report notes a marked deterioration after the first report; secondly, the second report shows that the claimant has now lost her job and is actively thinking about suicide; thirdly, the imminent removal of the claimant to Sri Lanka has had a devastating effect upon her health. There is a clear contrast between the picture emerging from the second report and the overall fairly optimistic picture which emerges from the first report and which was considered by the Adjudicator at the hearing in July 2001.
9. The defendant, the Secretary of State, has very helpfully lodged with the court detailed grounds for resisting the claim for judicial review. Thus, the stage has been set for the hearing of proceedings today, taking into account all of the highly material events which have occurred since the date upon which these proceedings were commenced. At the substantive hearing of the claim today, Ms Shivani Jegarajah represents the claimant and Miss Kristina Stern represents the Secretary of State.
10. At the outset of the hearing today there was some debate as to what precisely was the issue or the scope of the issues which I should be deciding. Both counsel submitted that the central question was whether the claimant had advanced a fresh claim on the basis of Dr Barakat's report. Miss Stern put the matter in this way, in a helpful intervention at the start of Ms Jegarajah's opening speech. Miss Stern submitted that the question for me today was whether it was irrational for the Secretary of State not to treat Dr Barakat's report as constituting a fresh claim. Having reflected upon the helpful exchange between counsel at the start of the hearing today, I agree with the way in which Miss Stern formulated the issue which is, in truth, very close to the formulation which Miss Jegarajah was urging upon me at the start of her speech. I shall, therefore, now address that question having first considered the relevant authorities and the law.

Part 3: The Law

11. How should this court approach the question of whether a human rights claim advanced by the claimant in February 2002 is a fresh claim as opposed to being a repetition of a previous claim which has already been decided. Both counsel drew my attention to paragraph 346 of the Immigration Rules. Paragraph 346 provides:

"Where an asylum applicant has previously been refused asylum during his stay in the United Kingdom, the Secretary of State will determine whether any further representations should be treated as a fresh application for asylum. The Secretary of State will treat representations as a fresh application for asylum if the claim advanced in the representations is sufficiently different from the earlier claim that there is a realistic prospect that the conditions set out in paragraph 334 will be satisfied. In considering whether to treat the representations as a fresh claim, the Secretary of State will disregard any material which (1) is not significant or (2) is not credible or (3) was available to the applicant at the time when the previous application was refused or when any appeal was determined."

12. It should be noted that paragraph 334 of the Immigration Rules, which is referred to in the paragraph just quoted, sets out the grounds upon which the Secretary of State will allow a claim to asylum in the United Kingdom. Both counsel submit that although there is no authority on fresh claims in the human rights context, nevertheless paragraph 346 of the Immigration Rules sets out a test which should be applied by analogy to allegedly fresh claims based upon human rights. I accept that submission. It seems to me that although paragraph 346 of the Immigration Rules is focused upon asylum claims, it is equally applicable mutatis mutandis to claims based upon human rights grounds. With this in mind, I turn now to the authorities on fresh claims in relation to paragraph 346 to which counsel have referred me. In R v Secretary of State for the Home Department ex parte Manvinder Singh [1996] Imm AR 41, Stuart-Smith LJ said this:

"In my opinion, in deciding whether or not a fresh claim to asylum is made, it is necessary to analyse what are the essential ingredients of a claim to asylum and see whether any of those ingredients have changed. A useful analogy to consider is a cause of action. In order to establish a cause of action, a plaintiff must prove certain ingredients. How he proves them is a matter of evidence. If he changes the essential ingredients, he is asserting a different cause of action . . . 

"In my view, it is only if the applicant asserts that one or more of these essential ingredients is different from his earlier claim, that it can be said to be a fresh claim."

13. In Ademola Onibiyo v Secretary of State for the Home Department [1996] Imm AR 370, the Master of the Rolls referred to the dicta of Stuart-Smith LJ in Manvinder Singh, and gave further guidance. The Master of the Rolls said that there had to be a significant change from the claim as previously presented, and then he said this:

"The acid test must always be whether comparing the new claim with that earlier rejected and excluding material on which the claimant would reasonably have been expected to reply in the earlier claim, the new claim is sufficiently different from the earlier claim to admit of a realistic prospect that a favourable view could be taken of the new claim despite the unfavourable conclusion reached on the earlier claim."

14. In R v Secretary of State for the Home Department ex parte Ravichandran no. 2 [1996] Imm AR 418, Dyson J considered the guidance in the earlier authorities referred to and he concluded that the Secretary of State had erred in applying that guidance in the case before him. At page 431 Dyson J said this:

"He [that is the Secretary of State], wrongly regarded it to be a condition of a fresh claim that the source of the alleged persecution relied upon in connection with the later claim should be different from that relied upon in support of the earlier one. Contrary to his view, an intensification in the degree of persecution from the same source is capable of giving rise to a fresh claim."

I regard these passages as providing to me helpful guidance as to how I should approach the fresh claim issue in the present case. I also, as previously indicated, regard as helpful guidance the provisions of paragraph 346 of the Immigration Rules. In relation to paragraph 346 of the Immigration Rules it should be noted that none of the three sub-paragraphs at the end of that paragraph assist the Secretary of State. Dr Barakat's second report plainly is significant, it plainly is credible, and it plainly was not available to the applicant at the time when the Adjudicator reached his original decision in July 2001. On the contrary, that medical report is based upon events and developments since July 2001.

15. Finally, whilst I am summarising the relevant law, I should refer to the decision of the European Court of Human Rights in Bensaid v the United Kingdom [2001], 33 EHRR 10. In that case, the applicant was an Algerian national suffering from a psychotic illness, namely schizophrenia. He contended that his removal from the United Kingdom to Algeria would give rise to breaches of Articles 3 and 8 of the European Convention on Human Rights because his schizophrenia would deteriorate upon return to Algeria. The court rejected the applicant's claim based upon the evidence in that case. The court noted that a claim under Article 3 could succeed, but there was a high threshold to cross and that threshold was not crossed in the instant case. I bear in mind the guidance given by the European Court of Human Rights in Bensaid when I come to address the issues in the present case.

Part 4: Conclusion

16. It seems to me that the second report of Dr Barakat differs very substantially from the first report of Dr Barakat. In the first report, Dr Barakat is considering a situation in which the claimant's condition has stabilised. She is happy, she is in work, she is being supported by her brother and her psychiatric problems are under control. In the second report, Dr Barakat notes a dramatic deterioration in the claimant's condition. She is no longer working. The risk of deterioration in the event of return to Sri Lanka, which Dr Barakat had previously averted to, is now very much greater. He regards the claimant as being a high suicide risk.
17. In the second report, Dr Barakat relies upon a number of factors. First, he relies upon the risk of harassment and persecution in Sri Lanka. That, as Miss Stern, for the Secretary of State, rightly points out, is not something which this court should take into account because that runs contrary to the decision of the Adjudicator. However, Dr Barakat's second report is not primarily focused upon that matter. Dr Barakat gives considerable weight to the circumstances in which the claimant would find herself in in Sri Lanka and, in particular, the absence of any close family and the absence of her brother who is the person who causes her to take her medication. If Dr Barakat's second report is correct, it follows that the proposed removal of the claimant to Sri Lanka creates a high risk that she would commit suicide.
18. I turn now to the final decision letter of the Secretary of State which is dated 19 November 2002. In this letter, the Secretary of State rightly refers to the decision of the European Court of Human Rights in Bensaid and he rightly refers to the availability of medical facilities and psychiatric treatment in Sri Lanka. However, it seems to me that the Secretary of State does not properly address the claimant's unlikelihood of having resort to any medical treatment in Sri Lanka in the event of return. She is someone who only resorts to medical treatment, at the moment, on the evidence, because of the constant attention given to her by her brother. The Secretary of State refers to the support which the claimant would receive in Sri Lanka from an aunt, but it appears, in fact, that there is no such aunt in Sri Lanka. There is a person who gave the claimant some limited help in Sri Lanka whom she referred to on one occasion as an aunt, but that was merely a term used in Sri Lanka to describe an older person rendering assistance, and does not indicate any family relationship.
19. It does not seem to me that in the decision letter, the Secretary of State properly addresses the very substantial change between the medical position as described by Dr Barakat in his first report and the medical situation as described by Dr Barakat in his second report. As I have said, Dr Barakat's second report satisfies the test set out in the last part of paragraph 346 of the Immigration Rules. Furthermore, it seems to me that if one applies the acid test described by the Master of the Rolls in Onibiyo in the passage which I quoted in part 3 of this judgment, then that psychiatric report satisfies that acid test.
20. I have come to the conclusion, therefore, that the claimant has, in February 2002, advanced a fresh human rights claim which was required to be treated as a fresh claim. If I may address the issue which Miss Stern put to me at the start of this case, I have come to the conclusion, in the light of the contents of Dr Barakat's report, that it was irrational for the Secretary of State to treat the claim advanced in February 2002 as not being a fresh claim. Of course it may be that Dr Barakat's report will be open to challenge. The claimant has indicated her willingness to submit to psychiatric examination by any psychiatrist whom the Secretary of State may appoint. I am not, in this judgment, indicating what the outcome of any consideration of these matters will be. I am, however, satisfied that it is not proper to regard the claim advanced by the claimant in February 2002 as not being a fresh claim. I therefore consider that the claimant is successful on these proceedings on the first ground upon which Mr Pleming granted permission to apply. So far as the second ground is concerned, it seems to me that the Secretary of State has made an error in relation to the support which would be available to the claimant in Sri Lanka, but that forms only a part of my reasoning in coming to the conclusion that the claimant has, indeed, advanced a fresh claim.
21. For all these reasons, the Secretary of State's decision in November 2002, which I treat as superseding the original decisions challenged in these proceedings, is quashed and the Secretary of State must consider the claim advanced by the claimant on 9 February 2002 as a fresh claim.
22. MS JEGARAJAH: My Lord, I am much obliged. Might I have legal services assessment in this case?
23. THE COURT: Yes.