QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE QUEEN ON THE APPLICATION OF MUWANGUZI||(CLAIMANT)|
|THE 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)
MISS M DEMETRIOU (instructed by Treasury Solicitor) appeared on behalf of the DEFENDANT
Crown Copyright ©
MR JUSTICE GOLDRING:
The factual background
The basis of the application
"In terms of her prognosis, with continued anti-retroviral therapy, she should be able to retain good general health for several years to come. As I am sure you are aware, the future of anti-retroviral therapy and the future of individuals that have developed resistance, remains somewhat uncertain...
He also says:
... she has needed considerable support and [assistance] from the clinic staff and I do feel that the success of her on-going treatment is to some extent dependent upon maintaining that link [ with clinical staff]. That is why I have argued against her dispersal on previous occasions."
It is not necessary to refer in detail to Dr Macallan's reports of 15th January 2002 and 29th May 2002. In his report of 24th July 2002, he expresses profound concerns about dispersal. He speaks too of the claimant's anxiety and distress in the delay in having her case heard. He is there referring to her immigration case.
"... quite profound depressive illness. I am sure that her mental state is being adversely affected by continuing problems with her immigration status."
That is another example of the claimant being affected, at least in part, and not surprisingly, by the uncertainty of her immigration status.
"It seems that currently she is living in a three bedroom house with three other people. There are three from Uganda and one from Zimbabwe. All her housemates have AIDS. She has also become close to her fellow housemates, particularly a women from Zimbabwe whom she has known for over two years now. In addition to these close contacts [the claimant] described how on average she sees one or two people a month from her home town who come to this country either on holiday or business, conveying news, bringing presents and food, etc from family. These contacts are very important to her.
[The claimant] described on how learning of her diagnosis of AIDS she developed some depressive symptoms, particularly low mood, some biological features of depression including appetite and sleep disturbance and a belief that life wasn't worth living... On learning she was likely to be dispersed to Leeds, where she tells me she has no friends, relatives or contacts of any kind, she started to feel low and tearful and again described feeling as if life wasn't worth living.
"In terms of her mental state today, [23rd September 2002] she presented with excellent self-care. However, eye contact was limited. Rapport was good. She was tearful throughout the consultation. Her speech lacked spontaneity. She answered questions but found it difficult to elaborate for crying. She described her mood as depressed and appeared low and anxious."
In paragraph 12 Dr Connell states:
"In terms of her future, is she extremely distressed about the thought or being dispersed to Leeds where she knows nobody. She said at one point 'I would prefer to go homeless'."
A little further on:
"She has little confidence in herself and her self-esteem has also suffered. She says she feels hopeless and has been made to feel worthless by the way she has been treated by NASS and she says that she has also been made to feel a burden to this organisation. She denied feeling guilty about anything. There was no evidence of psychosis."
In paragraph 14:
"In my view the claimant is suffering with some depressive symptoms which would amount to a depressive episode. These symptoms seem undoubtedly to have been brought on initially by the unexpected diagnosis of AIDS and secondly by her imminent dispersal to Leeds where she has no contacts of any kind. [The claimant] has always been a resourceful person who has managed to support her children through a good education."
A little later on in the report, Dr Connell says:
"Despite the unexpected news about her diagnosis and her having to leave close family back in Uganda, she has made every effort to become involved in her local community, forming strong friendships with not only her housemates but also a number of people who attend HIV/AIDS related support groups. She is also an active member of her local church. Without these contacts and supports I think it is highly likely that [her] depressive symptoms would worsen."
There is reference to the very close relationship with the consultant. Dr Connell states:
"I would recommend that every effort is made to ensure that [the claimant] remains in London as I believe that dispersal to Leeds is likely to have a devastating effect on [her] mental state."
"I would be extremely concerned for her already vulnerable psychological health if she were to be dispersed outside of London."
There is reference too in Ms Barton's reports to the various organisations with which the claimant has become involved. In her final letter of 6th December 2002, Ms Barton speaks of the groups having become the claimant's family and her extreme concern for the claimant's physical and psychological wellbeing if she were dispersed, or threatened with dispersal.
The letter of decision
"[The claimant] applied for support and accommodation from the National Asylum Service Support (NASS) In February 2001. Accommodation was arranged for her at Leeds from September 2002, but she has so far failed to take up the offer. I have carefully considered the background evidence, especially the reports by Dr Macallan and Dr Connell, but have decided that we will not be agreeing to her request that we provide accommodation in London.
The treatment [the claimant] is receiving and the state of her physical health is set out in Dr Macallan's report. The general position appears to be that her condition is controlled by medication and that she should be able to retain 'good general health for several years to come.' As I believe you know, our own medical advisor has reported that appropriate treatment in respect of HIV is available throughout the United Kingdom. In our view, therefore, there is nothing to prevent her continuing with the same treatment wherever she is accommodated in the United Kingdom."
I do not take Miss Fielden, within their limited terms, to disagree with those observations.
"I understand that your primary concern is the effect that relocation away from London might have on the claimant's mental health. I have considered Dr Connell's report carefully. The report records that she is suffering symptoms of depression brought about by the discovery that she is HIV positive and the prospect of relocation away from London, with the consequential loss of contact she has built up in the two years she has lived there. These contacts consist of her current housemates, who she no doubt sees daily, fellow members of her church (one of whom she speaks to daily), two friends who live locally and who she sees once a week and various visitors from Uganda who she sees, on average, about once or twice per month.
I accept that these contacts will to some extent be disrupted if the claimant moves from London, though there will, of course, be some disruption, particularly in regard to her contacts with her present housemates, even if she is allocated accommodation in London. That said, it is far from the case that contact will necessarily have to cease altogether. If, for example, she were once again allocated accommodation in Leeds, it would hardly be unreasonable to expect her friends to travel to see her quite regularly, particularly at weekends. Moreover, she described herself to Dr Connell as a 'normal outgoing woman who found it easy to make friends and was generally quite resourceful and motivated.' His conclusion, that relocation will have a devastating effect on her mental state appears to be in large part predicated on her losing all contacts with her present circle of friends and acquaintances and failing to establish new contacts In all the circumstances, I do not consider that this conclusion is justified by the facts of the case.
Having considered all the evidence I do not consider that it would be unreasonable to expect the claimant to take up accommodation outside London. Her circumstances present some compassionate factors. However, these considerations have to be balanced against the overall public interest of providing asylum seekers with accommodation where it is available, which in practice means outside London. I recognise that she would prefer to remain in London and that the prospect of relocation is causing her a certain amount of distress. Nonetheless, her present condition does not appear to be sufficiently serious as to require regular psychiatric treatment and she has expressly denied any intention of suicide or self harm.
It is regrettably the case that many asylum seekers who have uprooted themselves from their home countries, leaving families behind in the process, exhibit very similar feelings of depression to the claimant. It would be surprising if they didn't. No doubt those feelings are exacerbated if their asylum applications are refused and they face the real prospect of being removed from the United Kingdom; as, subject to her appeal, the claimant does. In all the circumstances, however, I do not consider that the compassionate factors in her favour, even taking into account Dr Connell's opinion, are sufficiently strong to justify offering her accommodation in London."
The legal framework
"The Secretary of State may provide, or arrange for the provision of, support for
Who appear to the Secretary of State to be destitute or to be likely to become destitute within such period as may be prescribed."
"(1) When exercising his power under section 95 to provide accommodation, the Secretary of State must have regard to-
(a) the fact that the accommodation is to be temporary pending determination of the asylum-seeker's claim;
(b) the desirability, in general, of providing accommodation in areas in which there is a ready supply of accommodation; and
(c) such other matters (if any) as may be prescribed.
(2) But he may not have regard to-
(a) any preference that the supported person or his dependants (if any) may have as to the locality in which the accommodation is to be provided..."
The claimant falls within these provisions by reason of her application under Article 3.
"Under the provisions of section 97 of the Immigration and Asylum Act 1999 caseworkers must have regard to the desirability, in general, of providing accommodation in areas in which there is a ready supply of accommodation.
2.2 This means that, as a general rule, caseworkers should allocate accommodation in areas outside London and the south east."
Paragraph 2.4 provides:
"Asylum seekers may ask to be allocated accommodation in London or the South East. Caseworkers should assess:
. whether it is reasonable to allocate accommodation in a dispersal area (i.e. outside London or the South East)
. whether an allocation of accommodation will meet the person's accommodation needs
. whether the decision to disperse is compatible with the Human Rights Act 1988
Based on the information available on the application form and any other information submitted with the application.
2.5 There may also be occasions when caseworkers will need to obtain further information, for example from the reception assistant or from the NASS doctor, to inform their decision.
2.6 Each application should be examined on its own merits. Careful consideration must be given to the individual circumstances of each case and when deciding whether it is reasonable to allocate dispersed accommodation particular attention should be given to the following:
. Medical treatment
. Special needs..."
I need not refer to any of the other matters there set out. It is in particular to special needs that Miss Fielden refers.
The Secretary of State's submissions