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
		21 January 2005

1. MR JUSTICE BENNETT: In this application the claimant challenges the defendant's decision of 7th June 2004 to certify the claimant's claim under section 93(2)(b) of the Nationality, Immigration and Asylum Act 2002 as clearly unfounded in the light of the medical evidence concerning the potential effect on his wife of his removal from England to Germany.
2. The facts of the matter are these. On 20th September 2003 the claimant, who is a national of Iran, travelled from Iran to Turkey with his wife and two children, now aged nine and two. On 13th January 2004 the claimant's wife and children arrived in the United Kingdom and claimed asylum. On the same day the claimant travelled to Germany, it is said on a false passport, and was detained. On 25th March 2004 the claimant claimed asylum in Germany. On 9th March 2004 the wife's application for asylum in the United Kingdom was refused.
3. On 27th April 2004 the claimant arrived in the United Kingdom and claimed asylum. He untruthfully stated that he had remained in Turkey until the day he travelled to the United Kingdom and that he had not previously sought asylum in another country. A positive match of the claimant's fingerprints confirmed that indeed he had claimed asylum in Germany on 25th March.
4. On 11th May Germany agreed to take the claimant back under the Dublin Regulations (EC) No 343/2003 in order to complete consideration of his outstanding claim for asylum. On 19th May and the 7th June the claimant was informed that he was to be returned to Germany. His allegation that his human rights would be breached was certified as clearly unfounded, which, as I have said, is the subject of the challenge before this court.
5. On 21st June the claimant was detained with a view to his removal to Germany. As a result, it is said, this deeply upset the claimant's wife, who took an overdose. The next day, 23rd June, at about 10.45 in the evening, the claimant's wife attended the Accident and Emergency Department of St James's University Hospital in Leeds. There is in the bundle at page 79 a letter dated 29th June from Mr Graham Johnson, the Consultant in Accident and Emergency Medicine. He wrote as follows:

"In preparation of this report I have had access to medical records relating to [the claimant's wife's] attendance at the Accident & Emergency Department of St James's University Hospital, Leeds.

"This lady attended the Accident & Emergency Department at 22.45hrs on 23 June 2004. History was taken, a friend providing translation. It is noted that two days previously she had taken an overdose of tablets including paracetamol and ibuprofen. It is noted that the reason that she had attempted self-harm was because her husband was going to be deported having been arrested earlier in the week.

"Physical assessment included paracetamol and salicylate blood levels. She declined admission for observation as she wished to be with her children. The investigations show no evidence of potential serious harm from the overdose and she was discharged with an out-patient mental health referral.

"From the records it, therefore, appears that [the claimant's wife] took an overdose as a reaction to news of her husband's deportation. There is a risk that she will self-harm again in reaction to these circumstances."

6. A few days earlier, on 22nd June, Dr Haywood, a general practitioner practising in Leeds, wrote that the claimant's wife had been registered as a patient at the practice for the past four months and that Dr Haywood had seen her on a number of occasions, regarding her and the children's health. Having set out briefly the history, she wrote as follows:

"Indeed I am informed today that [the claimant's wife] has, just last night, taken a significant overdose of medications including Paracetamol, which can cause devastating liver disease in overdose, and I have advised her to attend hospital so that this can be appropriately investigated and hopefully treated to prevent any long term harm. However, such a significant attempt at taking her own life indicates the fragility of her mental state and needs to be taken seriously. I do not yet know the outcome of this recent event."

7. On 28th June 2004 the claimant's solicitor wrote to the defendant about the overdose. On 30th June 2004 the claimant's application for judicial review was filed. On 5th July 2004 Dr Philip Steadman, a consultant psychiatrist specialising in general and rehabilitative psychiatry, made a report upon the claimant's wife. That report was subjected to critical analysis by the adjudicator who heard the appeal of the claimant's wife against the defendant's refusal to grant her asylum and in her appeal under Article 8.
8. At this stage it is necessary just to refer to one or two matters in Dr Steadman's report. First, this report was based solely upon what the claimant's wife told him. She gave him the background. She told Dr Steadman that she had been under specialist psychiatric care whilst in Iran. She had first seen a specialist there about two and a half years ago (that is, before July 2004) and had seen the specialist once every three months or so on average, though sometimes her consultations were more frequent. She told Dr Steadman that she suffered from depression, and in 2002 was started on an antidepressant drug in Iran. She told Dr Steadman that if her husband was sent back to Iran he would be killed. She said that he would be likely to be imprisoned and, as she had converted to Christianity, she would be executed.
9. In relation to the suicide attempt, although the letter of 29th June from Mr Johnson, to which I have referred, referred to Ibuprofen, it appears from Dr Steadman's report (see page 86) that in fact she had just taken paracetamol. She told Dr Steadman:

"If her husband is deported or if she were to be ordered back to Iran she would kill herself in preference to coping with either of these outcomes."

10. At page 88 Dr Steadman said:

"I have no doubt that this lady currently suffers from a significant level of both anxiety and depression and you may wish to refer to appendix B of this report in this regard."

11. At page 93 Dr Steadman was of the opinion that the claimant's wife definitely required some psychological support. At page 93 of the bundle his report reads as follows:

"It is my view that there is an increased risk of her taking another overdose with the possibility of her killing herself through this were she to be ordered back to Iran or were her husband to be deported."

12. On the last page of his report he wrote as follows:

"In the event that her husband were to be deported or she were to be sent back to Iran then I feel that either of these would be likely to have negative effect upon her mental health and I have commented above on the risk of future self harm."

13. Later on, probably in September 2004, the defendant was provided with that report. On 4th October 2004, having considered the report, he wrote a letter to the claimant's solicitor to the effect that he maintained his decision made in June to which I have already referred.
14. A further report was forthcoming from Dr Steadman on 6th October in which, amongst other things, he said that paracetamol is much more lethal than most people realise. An overdose of 15 to 16 tablets without any treatment over a 96-hour period could in some cases be a lethal dose. He continued that, unfortunately, such an overdose tends not to produce substantial side effects until after a few days when the person goes on to develop liver failure which is untreatable after four days, and it is the liver failure which can then kill.
15. Meanwhile, hearings had been taking place before an adjudicator in Bradford of the claimant's wife's appeal against the refusal of asylum and under Article 8. The adjudicator's reasons are to be found at page 119 of the bundle. It is apparent that he had a very considerable volume of written material placed in front of him. The hearing occupied two days but they were not consecutive.
16. In the asylum appeal the claimant and her husband gave evidence. It was necessary for the adjudicator to undertake the difficult task of assessing the credibility of both the wife and her husband, the claimant in these judicial review proceedings. I do not propose to go into the detail, but I think it is sufficient to refer to paragraphs 60 to 63 inclusive of the adjudicator's decision. It is plain that he did not find either the claimant or his wife to be credible witnesses for the reasons he there set out. Reading the adjudicator's decision, these were serious findings against the claimant and the wife.
17. Having dismissed the asylum appeal, he turned to the Article 3 and Article 8 appeals. The evidence of Dr Steadman was of course in that respect of crucial importance. I think it is fair to say that the adjudicator came to an adverse view as to Dr Steadman's evidence. The adjudicator had in front of him the letters to which I have already referred and Dr Steadman's report. Dr Steadman was not called to give evidence. The adjudicator referred himself to the decision of the Immigration Tribunal in the case of Y (Turkey) [2004] 00048 and continued:

"The basis of the criticism was that Dr Steadman made a conclusion which was characterised as being perverse. It was noted that it was arrived at after only one consultation with the Appellant, without access to medical records, and without any communication with the Appellant's GP. In this case the report was produced after one consultation, seemingly without access to medical records but with Dr Steadman having read the letters referred to above. The Tribunal further said of Dr Steadman:

'Whilst that rate of output was impressive ... it gave rise to justifiable concerns as to the reliability of those assessments. When a medical practitioner was engaged for such a substantial proportion of his professional practice in producing medical reports in support of the claims of asylum seekers and Appellants, his ability to maintain the impartiality required of an expert witness must inevitably become increasingly difficult. Adjudicators before whom Dr Steadman's reports were placed in future would be well advised to approach their reliability with due caution.'"

18. A little further on (see page 139) the adjudicator said:

"In this case Dr Steadman says 'this lady definitely requires some psychological support.' The report of Dr Steadman is dated 5th July 2004. The only evidence of the continuing support offered to the Appellant comes from document 2 referred to above, indicating that there are sessions on 2nd April and 19th April 2004. It seems therefore, despite the concerns expressed by the Harehills Corner Surgery in their letter dated 22nd June 2004 that the Appellant is receiving no ongoing support, and indeed declined admission for observation on 23rd June 2004."

19. At the bottom of page 139, the adjudicator said:

"Furthermore at page 23 the report of Dr Steadman indicates that the Appellant presents with 'symptomology which could be consistent with a current partial syndrome of post traumatic stress disorder.' I am not sure of the basis upon which that conclusion is reached, or if it is a definite conclusion of post traumatic stress disorder. It is noteworthy that Dr Steadman obviously believed everything that the Appellant told him, whereas of course I have in the earlier part of this determination rejected the Appellant's evidence concerning aspects relating to her husband and his incarceration and imprisonment. I have decided that the medical evidence adduced on the Appellant's behalf falls short of stating that there was a real risk of suicide if the Appellant were to be returned. Medical facilities in Iran are described at 5.62 of the CIPU report. It is said:

'In Tehran and other larger cities ... there are many well reputed hospitals. These are staffed by physicians and specialists, most of whom are very experienced and internationally trained.'"

20. When the adjudicator came to the matter of specifically considering Article 8, he reminded himself of the House of Lords' decision in Ullah v Do [2004] UKHL 26 where it was said that a high threshold test will have to be satisfied to invoke such Articles. The adjudicator continued:

"There would have to be established a real risk of a flagrant violation of the very essence of the right before other Articles could become engaged. It seems that the Appellant had a pre-existing condition for which she received treatment, and it further seems that she is not currently receiving any treatment in the United Kingdom."

21. He went on to say that to return the claimant's wife to Iran and to return the claimant to Germany would constitute an interference with their private and family life. However, such interference would be in accordance with the law. He assessed the issue of proportionality. He dismissed the appeal on human rights grounds.
22. The challenge in the instant case to the defendant's decision is on the basis that there is a real risk that the removal of the claimant to Germany would induce his wife to harm herself seriously and/or commit suicide, and thus the claimant's right to family life under Article 8 would be breached.
23. I will refer now to the speeches of the House of Lords in the case of Y [2002] UKHL 36. In that case the House of Lords gave clear guidance in the context of certification in various paragraphs. At paragraph 14 Lord Bingham of Cornhill said:

"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."

24. At paragraph 34 Lord Hope of Craighead put it this way:

"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."

25. Finally, Lord Hutton at paragraph 72 said:

"I am unable to accept this submission and I am in agreement with the opinion of the Court of Appeal set out in paragraphs 57-60 of its judgment that an allegation is manifestly unfounded if it is plain that there is nothing of substance in the allegation."

26. The next authority to which I was referred is the House of Lords' decision in Razgar [2004] UKHL 27. Mr Razgar was an asylum seeker from Iraq whom the Secretary of State proposed to remove to Germany under the provisions of the Dublin Convention. He resisted such a removal on the grounds that it would violate his rights under Article 8. The Secretary of State had certified under the relevant provisions of the 1999 Act that his claim was manifestly unfounded. The question of principle that the House of Lords had to consider is formulated as follows:

"Can the rights protected by article 8 be engaged by the foreseeable consequences for health or welfare of removal from the United Kingdom pursuant to an immigration decision, where such removal does not violate article 3?"

27. At paragraph 9 of his speech Lord Bingham made it clear in relation to Article 8 that the threshold of successful reliance upon that particular Article has to be "high, but if the facts are strong enough article 8 may in principle be invoked". Thus he answered (see paragraph 10) the question of principle by holding that rights protected by Article 8 can be engaged by the foreseeable consequences for health of removal from the United Kingdom pursuant to an immigration decision, even where such removal does not violate Article 3, if the facts relied on by the applicant are sufficiently strong.
28. There are other passages in Lord Bingham's speech, particularly at paragraph 16, 17 and 20, which I have read and taken into account. Lord Steyn agreed with Lord Bingham. Lord Walker of Gestingthorpe also agreed, but differed on the application of the principle to the facts of the particular case. Baroness Hale, with respect, put the matter very much in context when at paragraph 65 she said that the Secretary of State was entitled to reach the conclusion that he did. She continued:

"I appreciate that this may seem a harsh conclusion to draw. But this is a field in which harsh decisions sometimes have to be made. People have to be returned to situations which we would find appalling. The United Kingdom is not required to keep people here who have no right to be here unless to expel them would be a breach of its international obligations. It does the cause of human rights no favours to stretch those obligations further than they can properly go. In my view, those obligations are not such as to require the United Kingdom to refrain from returning Mr Razgar to Germany in accordance with the Dublin Convention."

29. Finally, Lord Carswell at paragraph 69 agreed with Lord Bingham. He said it was:

"... one calling for the degree of careful scrutiny appropriate to the seriousness of the subject matter. As he also stated, the reviewing court must consider how an appeal would be likely to fare before an adjudicator."

30. Finally Lord Carswell at paragraph 72 said this, which I consider to be important:

"For the reasons given by your Lordships in the appeals of R(Ullah) v Special Adjudicator and Do v Secretary of State for the Home Department [2004] UKHL 26, it must now be accepted that in principle article 8 could exceptionally be engaged by the foreseeable consequences for health of removal from the United Kingdom pursuant to an immigration decision, even though they do not amount to a violation of article 3. In order to bring himself within such an exceptional engagement of article 8 the applicant has to establish a very grave state of affairs, amounting to a flagrant or fundamental breach of the article, which in effect constitutes a complete denial of his rights. It is necessary accordingly to consider the present case in order to determine whether an adjudicator could arguably find that the removal decision is a breach of article 8."

31. To the issue identified in the last sentence of the speech of Lord Carswell at paragraph 72 in Razgar, I now turn. Ms Khan, counsel for the claimant, to whom I am indebted for her concise submissions, has submitted to me that this is one of those exceptional cases. She took me through the medical evidence in detail, to which I have already referred. She sought to extract from that that the claimant's wife's fragility is of such an order that if he were to be removed to Germany, then his wife would seriously self-harm or even go so far as to commit suicide. She referred me to the claimant's wife's statement which on the face of it, I accept from her, paints a harrowing picture. In that statement, it is true to say, the claimant's wife has said that if the claimant is returned to Germany she would commit suicide.
32. During the course of her submissions, I was concerned about what approach I should make to the findings of the adjudicator in the claimant's wife's appeal, to which I have already referred. Ms Khan was concerned that the defendant's position would appear to be that the starting point for any adjudicator in considering the claimant's case would be the determination of the wife's claim. Ms Khan disputed that the starting point for an adjudicator in the claimant's case would be the wife's determination. She relied on the decision of SK [2004] UKIAT 00282, where the Immigration Appeal Tribunal held as follows:

"Devaseelan does not purport to deal with decisions relating to the family member although increasingly it is misunderstood by Adjudicators as doing so. It deals only with the situation where a human rights claim is made by someone whose asylum appeal has already failed and a credibility and factual matrix been found by the first Adjudicator."

33. Ms Khan further submitted that an adjudicator hearing the claimant's Article 8 case either would or should not start with the determination of the claimant's wife's case. If she was wrong about that, and the adjudicator in the claimant's case would have regard to the adjudicator's finding in his wife's case, then he would be bound to consider the adjudicator's finding in his wife's case "to return the appellant to Iran and to return the husband to Germany would constitute an interference with that family life". So she submitted that if I have to look at it through the eyes of a fresh adjudicator in the claimant's case, then his Article 8 rights are made out and thus the certification is invalid.
34. Mr Payne, on behalf of the defendant, drew my attention to the fact that Dr Steadman makes no distinction between the effect of the removal of the wife to Iran and the claimant's removal to Germany. That submission would appear to be correct (see page 94). The adjudicator in the wife's case concluded that there was no real risk of suicide. That was after, of course, having heard the wife and having read Dr Steadman's report. Furthermore, Mr Payne submitted, Dr Steadman's report was substantially undermined by his uncritical acceptance of what he had been told by the wife, his patient. The adjudicator found, in several very material respects, that the wife's credibility was seriously damaged. Thus, Dr Steadman's report, relying uncritically as it did on what he was told by the wife, was also seriously undermined.
35. Next Mr Payne drew my attention to a passage in the judgment of Beatson J in Mehmeti v Secretary of State for the Home Department [2004] EWHC 2999 (Admin) at paragraph 37, where Beatson J reminded himself of the dicta in the case of Y of the Immigration Appeal Tribunal about the need for caution in respect of opinions based only on statements made by the person subject to removal. Mr Payne, drawing the strands together, submitted that it is at the heart of the claimant's case that his wife is the vulnerable person. Since an adjudicator had already rejected the wife's case on the facts in relation to risk of suicide, it was very difficult, he said, to see how another adjudicator, considering the claimant's case under Article 8, could reach any different conclusion. Of course, that is the central submission of Mr Payne and it is one that Ms Khan challenges root and branch.
36. Furthermore, Mr Payne submitted that if the wife were to have to leave to go to Iran, and if Germany rejects the claim of the claimant, if and when he is returned there, then he too would be returned to Iran and the interference with family life would be likely to be temporary. If, however, Germany were to allow the asylum appeal or the Article 8 appeal of the claimant in Germany, then the wife could apply to join him in Germany. Again, it is submitted, the interference with the family life of the claimant and his wife would be temporary.
37. Alternatively, Mr Payne submitted that if the adjudicator's decision in the wife's claim is not largely determinative, then Dr Steadman's evidence taken at its highest is that to which I have already referred and is not sufficient to trigger Article 8; or if it does trigger Article 8, Article 8(2) would apply and be determinative. He took me to various passages in the case of Mehmeti at paragraph 13, and in the case of Bensaid v the United Kingdom [2001] 33 EHRR 205 as a guide as to how the courts decide these particular matters. He submitted that to engage the threshold there has to be a very high engagement, and in this case it is not met by the medical evidence. Finally, so far as proportionality is concerned, he said that this case did not come into that small minority of cases that would make the certification disproportionate.
38. One has to say that one has much sympathy for people such as the claimant and his wife who find themselves in the situation that they do. But that is one of the reasons why I referred to the dicta of Baroness Hale of Richmond, which I have set out. In my judgment, the submissions of Mr Payne are to be preferred to those of Ms Khan, and for the reasons advanced by Mr Payne, the claim will be dismissed.
39. MS KHAN: My Lord, could I request the usual assessment of costs for legal aid?
40. MR JUSTICE BENNETT: Of course you can. Ms Khan I am told that the court do not have a legal aid certificate.
41. MS KHAN: I do apologise. I will speak to the instructing solicitors.
42. MR JUSTICE BENNETT: Would you be able, within your general authority, to give a general undertaking that your solicitors will file the legal aid certificate within seven days of today?
43. MS KHAN: Yes, my Lord, I can do.
44. MR JUSTICE BENNETT: Thank you.