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
		14th April 2005

1. MR JUSTICE SULLIVAN: When these proceedings were issued on 15th September 2004 they were a challenge to the lawfulness of the defendant's decision contained in a letter dated 14th September 2004 to certify the first claimant's human rights claim as clearly unfounded. The defendant had previously certified the first claimant's asylum application on third country grounds on 27th August 2004, and there has been no challenge to the latter decision. Since proceedings were issued further information has been provided on behalf of the first claimant, fresh decisions have been taken and the lawfulness of the those, in essence to maintain the position adopted in September 2004, is under challenge. In addition, further information about the circumstances of the second claimant has been provided and he has been joined as a claimant in his own right, it being contended that his rights under the Convention would be breached if the first claimant was removed to Germany.
2. Both claimants are nationals of Afghanistan. They are brothers, now aged 26 and 21 years old. The second claimant, Zia, fled Afghanistan in December 2000 and claimed asylum on arrival in the United Kingdom in February 2001. He was granted refugee status and indefinite leave to remain in the United Kingdom in January 2002. He suffers from a very severe form of schizophrenia which is difficult to treat and has required a number of admissions to hospital under the Mental Health Act.
3. The first claimant, Fawad, is an illegal entrant. He was discovered in a freight yard in Immingham on 7th August 2004 and claimed asylum. Investigations revealed that he had previously sought asylum in Germany on 15th August 2003 and Norway on 22nd August 2003 and then again in Germany on 17th February 2004. He had not disclosed those other attempts to claim asylum when interviewed. As a result of those investigations the German authorities were asked to accept responsibility for his asylum claim under the provisions of the Dublin Convention and, Germany having accepted responsibility for dealing with his asylum claim, it was certified on 27th August 2004 and arrangements were to be made for his removal to Germany.
4. On 13th September 2004 the first claimant's solicitors wrote to the defendant, contending that his removal would infringe his rights under Article 8 to a family life with the second claimant. It is fair to say that when the first claimant was interviewed he said that one of the reasons he came to the United Kingdom was to look after his brother, who was on medication.
5. In a decision letter dated 14th September 2004 the Secretary of State rejected those representations and certified the first claimant's Article 8 claim.
6. It is unnecessary to rehearse the detail of the way in which the proceedings then progressed. Permission was initially refused on the papers in October 2004. The application was renewed at an oral hearing. There were various adjournments in order to enable further information to be obtained, principally dealing with the second claimant's mental health. In due course permission was granted to apply for judicial review on 14th February 2005. On 7th March 2005 the first claimant was released from detention on bail, and since then he and the second claimant have been living together and the first claimant has been looking after the second claimant, and, at least in the first claimant's view, the second claimant's condition has significantly improved as a result of the first claimant being able to care for him. There is no reason to doubt the correctness of that view.
7. The parties are agreed on the relevant test in relation to the certification issue. In summary, the question is whether the defendant is entitled to maintain his view that the first claimant's claim under Article 8 of the Convention is bound to fail in front of an adjudicator?
8. On behalf of both claimants, Miss Cronin submits that removing the first claimant to Germany would, at least arguably, breach the first claimant's rights to family life under Article 8, bearing in mind the effect that there would also be on the second claimant. That effect would have to be taken into account by an adjudicator. She further submits that the second claimant's rights under both Article 8 and Article 3 would be breached.
9. Dealing with the Article 8 claims, the decision in Huang, Abu-Qulbain & Kashmiri v The Secretary of State for the Home Department [2005] EWCA Civ 105 establishes the relevant test that would have to be satisfied by the first claimant before an adjudicator. To succeed before an adjudicator on the basis that there would be a disproportionate interference with his family life, the first claimant, who cannot bring himself within the rules, would have to be able to demonstrate "that the case is so exceptional on its particular facts that the imperative of proportionality demands an outcome in the appellant's favour notwithstanding that he cannot succeed under the [Immigration] Rules" (see the judgment of Laws LJ paragraph 59). In paragraph 60 Laws LJ emphasised that such a case would have to be "truly exceptional".
10. Pausing there and applying that test, were it not for the fact that the second claimant is seriously ill, the first claimant's case would be wholly devoid of merit and there would be no conceivable basis on which he could argue that removing him would be disproportionate under Article 8, upon the assumption that he has been able to establish a family life in the United Kingdom. Even allowing for the fact that, on the basis of the claimants' account of events in Afghanistan, they were involuntarily separated in December 2000, the fact remains that thereafter they did not see each other until some time after 7th August 2004, when the first claimant arrived in the United Kingdom. When discovered in the United Kingdom, the first claimant was placed in immigration detention and he remained there until 7th March 2005, when he was released on bail. Whilst in detention he was visited about five times by the second claimant. So it is plain on the evidence that between December 2000 and some time after 7th August 2004 the two claimants did not see each other.
11. I accept, of course, that a close relationship between siblings is capable, in principle, of amounting to family life depending upon the particular circumstances, but there was nothing that is capable of being described as a family life between these claimants in the UK until, at the earliest, 7th March 2005. If the first claimant had not been released on bail on that day there would simply have been no family life established between the two claimants in the UK at all.
12. Even if it could be said that some kind of family life had been established between the two claimants in the five and a half weeks or so since 7th March, that brief family life has always been precarious. The first claimant was well aware of the fact that his position in the United Kingdom was precarious in the extreme. This is not a case where he was awaiting the outcome of an appeal to an adjudicator in the United Kingdom. He had simply been released on bail and he knew that the defendant's intention was to remove him to Germany, where his asylum claim would be considered, subject only to these proceedings for judicial review.
13. If the second claimant had not been ill there would be nothing remotely unusual, much less exceptional, about this case. A young man would have illegally entered the United Kingdom, would have been kept in detention for some months, would have been released on bail for a few weeks, during which time he had lived with a relative. There would be no possible basis on which any reasonable adjudicator could have concluded that removal in those circumstances would be a disproportionate interference with such family life as he might have been able to establish during those few weeks.
14. The question is whether an adjudicator might consider that the second claimant's mental health problems are such as to make the first claimant's case a truly exceptional one. I accept Miss Cronin's submission that, while the focus in the first claimant's Article 8 claim must be on the interference with his right to family life, it would be wholly artificial to ignore altogether the effect on the other members of the family of that interference. There is the further and separate question whether removal of the first claimant to Germany would infringe the second claimant's rights under Article 3 and/or Article 8.
15. Looking at the first of those issues, so far as the first claimant is concerned I have indicated that the impact on the second claimant is a relevant consideration to take into account, although the focus must always be on the first claimant. Certainly the first claimant's knowledge of the effect of his own removal on his brother, the second claimant, would also be a relevant factor. But taking all that into account, it has to be remembered that the first claimant was not able to care for the second claimant between December 2000 and August 2004 and during the period that he has been in detention in the United Kingdom. It is only since 7th March that he has been able to care for his brother, and he has always known that there is a very real prospect that his ability to do so would be only for a temporary period.
16. It is appropriate at this stage to consider the reports of Dr Heavey, who is the consultant psychiatrist who was responsible for the second claimant until relatively recently. Dr Heavey, in a report dated 3rd November 2004, says that she has known the second claimant since September 2003, when she took over his consultant care. Since then she has seen him on a number of occasions. She makes the point that the second claimant adheres rather erratically to treatment with medication and is erratic in his engagement with services, at times in the past disengaging completely. For example he has refused to accept accommodation of a supportive nature. Dr Heavey's view has been for some time that the second claimant is in need of a carer, preferably someone who would live with him who would be able to encourage him to take his medication and keep to his appointments and so forth.
17. Dr Heavey's most recent report, and it is a full report, is contained in a letter dated 13th December 2004. That sets out the second claimant's psychiatric history. It mentions the occasions on which he has been admitted to a psychiatric hospital. There have been two such occasions in this country in June and July 2002. On the latter occasion the second claimant was not discharged until 26th September 2002. He had been admitted because his behaviour had been becoming increasingly agitated and bizarre and his utterances were irrational.
18. Bringing the matter forward from 2002, her diagnosis is that the second claimant:

"... suffers from a severe form of schizophrenia with distressing auditory hallucinations and delusions as well as bizarre behaviour. When most floridly ill he has been threatening and violent to others and damaged property. At times he is also depressed and has felt suicidal. Even when his mental illness has improved he shows negative symptoms of schizophrenia which affects his ability to care for his every day needs and to co-operate with treatment. As a result he tends to stop medication and disengage from services."

Dr Heavey explains the benefits of the first claimant remaining in the United Kingdom as the second claimant's carer:

"If the relationship between the brothers worked well, [the first claimant] could undertake a supportive role, both practically and emotionally, as the only family member in this country. As well as encouraging him [the second claimant] to take his medication and engage with services he would be in a position to detect early signs of relapse so that early intervention could prevent deterioration and the need for hospitalisation, especially were he to pose a risk to himself or others. It is also likely that, with the help of his brother, he would be better able to look after his nutrition, self-care, laundry and hopefully resume interests and social contact. This could all help improve Ahmadi Zia's mental health and counter his tendency to become depressed and suicidal.

However, such a role would require the co-operation of Ahmadi Zia. It could also prove burdensome to his brother, a young man with his own needs and lack of other family support in this country."

Dr Heavey then dealt with the effects of separation of the two brothers, saying:

"I think that prolonged uncertainty and eventual return of his brother would prove very distressing for Ahmadi Zia, at least in the short term. It is likely to lead to deterioration in his mental state with a risk of relapse of psychotic symptoms and depression. He may also have further anxiety attacks. In these circumstances he may disengage from services and refuse to take medication. This scenario is likely to lead to deterioration according to his previous pattern when he may become a risk to others or himself and need admission to hospital under the Mental Health Act 1983."

Under "Costs of deterioration" she said:

"The costs are in terms of the effects of further breakdown. Research shows the more frequent a person has a psychotic breakdown, the more difficult it is to treat and more likely that the person may not return to their previous level of functioning. Moreover, with the renewed risks, serious harm may be caused to other persons or the patient. The other costs are the financial burden on the NHS by virtue of further admissions, especially if these are prolonged or have to occur in an intensive care unit."

In "Conclusion" she said:

"For these reasons we would be supportive of his brother's request for leave to remain in the UK in order to support and case for Ahmadi Zia. His brother would also require support from us because it would be important that he was not overburdened by the care responsibilities for Ahmadi Zia."

19. It is right to note that Dr Heavey's letter was written before the first claimant had been released on bail, and so there had not at that stage been any practical experience of the effects of the first claimant being able to look after the second claimant. However, it is clear from the letter that Dr Heavey did not envisage that the first claimant would be able to care for the second claimant on his own: he would require support from the psychiatric services. Moreover, it is plain that if the second claimant's mental state does indeed deteriorate because he is very distressed by his brother's removal, then, if there is a deterioration according to his previous pattern and he may become a risk either to himself or to others, he will need to be admitted to hospital under the Mental Health Act 1983. As I have mentioned, he has been admitted to hospital under the Act on two previous occasions, and there is no reason whatsoever to believe that those services would not continue to be available for him.
20. Whilst the first claimant would be most distressed that he would not be able to continue to care for his brother, he would at least know that there were other facilities available which would be able to care for him should he either become a risk to others or to himself. This is upon the assumption that the second claimant would continue to refuse to accept supported accommodation, which is of course available for him if he wishes to take it up.
21. For these reasons, I am satisfied that, even taking account of the implications for the second claimant of the first claimant's removal to Germany, the first claimant's Article 8 claim is not arguably truly exceptional. The Secretary of State was entitled to certify on the basis that before an adjudicator the first claimant was bound to fail, notwithstanding the fact that he had been able to care for his mentally ill brother for a matter of a few weeks.
22. It is necessary now to consider the separate claim of the second claimant. Would removal of the first claimant be in breach of the second claimant's human rights under either Article 8 or Article 3?
23. So far as Article 8 is concerned, for the reasons set out above the second claimant has not been able to enjoy any family life with the first claimant whilst the first claimant was either outside the United Kingdom or in detention within the United Kingdom. Thus, at its very highest, family life would have existed between the two brothers since 7th March.
24. I appreciate that, given the second claimant's mental condition, he might well not be able to appreciate fully the implications of the first claimant's position. However, it is plain from his statement that he does appreciate, and has realised, that there is a danger that the first claimant will not be able to continue to care for him. Thus both of the claimants have realised, perhaps to differing degrees, that their family life since 7th March 2005 has been extremely precarious.
25. I would further accept that, given the extent of the second claimant's dependency on the first claimant, the degree of family life over the short period of the few weeks since the first claimant has been released on bail may well have been intense, but, given its brevity, it could not be said to be disproportionate to interfere with that family life. The question is not whether family life in the abstract would be interfered with; it is whether there would be a disproportionate interference with the family life that has actually been enjoyed by the second claimant. Since that family life has been so brief, and since it has always been under the shadow of the first claimant's removal, it could not be said that the first claimant's removal would be a breach of the second claimant's rights under Article 8.
26. That leaves the other aspect of Article 8, the second claimant's right to private life, and respect for his moral integrity. However, the relevant considerations in relation to that aspect of Article 8 are not significantly different from the considerations in respect of Article 3. The answer to the question: would removal of the first claimant subject the second claimant to inhuman or degrading treatment, and/or would it so severely affect him that his right to moral integrity would be infringed, will be the same.
27. There is no doubt, in the light of the reports from Dr Heavey to which I have referred, that the second claimant is seriously ill and that he has been seriously ill for some years. During all that time his brother has been unable to help him. When it has been necessary to admit him to hospital in his own interests or in the interests of other people, he has received appropriate treatment. It would undoubtedly be preferable from his point of view if his brother could remain as his carer, but that is not the question. The question is, if his brother is removed from this country, would the claimant's suffering cross the Article 3 threshold?
28. On the basis of the information provided by Dr Heavey, the short answer to that is "no". Firstly, it is plain that the responsible mental health and social services authorities are prepared to provide supported accommodation. It is their view that it would be better if that was provided and the second claimant could live independently. Thus far the second claimant has, no doubt because of his condition, declined to avail himself of that accommodation. However, if he continues to decline to accept that accommodation and as a result his condition deteriorates, then he may need admission to hospital under the Mental Health Act 1983. As I have said, there is no reason to believe that if admission to hospital is required, it will not be arranged. In that way the State will ensure that the second claimant's Article 3 rights are not infringed. If he requires care, he will receive it, if necessary compulsorily.
29. The threshold for Article 3 is a high one. I am not unsympathetic to the second claimant, and there is no doubt that if the sole issue was, would it be beneficial to him to have his brother looking after him, the answer to that question would be "yes", but that is not the relevant question. The question is, would it so harmful to him if his brother was removed to Germany that he would suffer treatment contrary to Article 3? The answer to that question, bearing in mind the high threshold set by Article 3 and the availability of services under the Mental Health Act 1983, must be "no".
30. In conclusion, I am satisfied, firstly, that so far as the second claimant's independent claim is concerned, it would not be in breach of his rights, either under Article 3 or Article 8, for the first claimant to be removed to Germany. Secondly, so far as the first claimant is concerned, I am satisfied that the defendant was entitled to certify his Article 8 claim as bound to fail.
31. For these reasons, this application for judicial review is dismissed.
32. MISS CRONIN: My Lord, I wonder if I could trouble you at this stage to consider a request for leave to appeal. My Lord, I raise it now because of course this is a removal case and no doubt the Secretary of State will be wishing to consider this at the conclusion of your hearing.
33. My Lord, it seems to me that this case raises important issues, some of which have been flagged in your judgment. The first one, of course, is this whole question of whether or not there is in fact family life. Your Lordship will be aware that of course the European jurisprudence on family life indicates that there is family life when there are close ties, so that it is not necessarily associated with whether people are in fact living together. My Lord, there are important issues, in my submission, in this case concerning that because you do have here two siblings, you have one highly dependent sibling and you have a separation by reason of refugee situation. Although there is some dictum in the lower courts that separation by reason of refugee circumstances does not take one out of refugee status, it is in the form of dictum, and, my Lord, in my submission, this is an important and telling and appropriate case where that issue could be considered and determined.
34. My Lord, the other point that this case raises, of course, is the one that we have been grappling with this afternoon, and that is what is the status of these two parties when you have the one who is not going to be directly an appellant in an immigration appeal but whose associated claim impacts on whether or not there is an arguable claim for the immigration appellant. My Lord, that again, in my submission, is something on which guidance from a higher court would be both appropriate and a matter in issue in this case.
35. My Lord, the third matter concerns issues relating to whether or not the generalised provision of care for someone who, because of his illness, is not disposed to take the advantage of that care, whether that in itself satisfies the protective obligations that the Secretary of State has to the second claimant. My Lord, again, in my submission, that is a point of some significance and moment. It would certainly be our case on appeal that in these circumstances it cannot be said that the Secretary of State can discharge his obligations to the second claimant simply by saying "a hospital is there" or "a community care assessment and associated services is there", when the medical evidence shows that, because of a medical condition from which this claimant suffers, he does not and is not able to take advantage of those services.
36. MR JUSTICE SULLIVAN: Thank you very much.
37. I do not need to trouble you, Mr Patel, thank you very much.
38. I am not satisfied that permission should be granted to appeal. In the light of the judgment I express my views very shortly.
39. The judgment proceeded on the basis that some degree of family life, albeit very brief, had been established. It seems to me that that is the very highest that the matter could be put, in particular given the first claimant's absence from this country for a number of years until August 2004.
40. So far as the second issue is concerned, I have dealt with that matter in the judgment.
41. With regard to the third issue, in my judgment the short answer is if indeed the second claimant is at risk to an extent that the Article 3 threshold might be passed, then undoubtedly the provisions of the Mental Health Act 1983 would come into play and he would be able to be hospitalised because of the risk to himself, if not the risk to third parties. So given the existence of those facilities, it seems to me that there is no reason to believe that his Article 3 rights will be infringed any more than the Article 3 rights of anybody else who does not chose to voluntarily take advantage of mental health services and who has to rely on the safety net of the compulsory provisions of the 1983 Act.
42. I do not think there are real prospects of success on appeal. It is very much a fact dependent case.
43. MISS CRONIN: It just requires me to say that both claimants are legally aided, so if we might have a detailed assessment of costs.
44. MR JUSTICE SULLIVAN: You may indeed. Thank you very much for your very helpful submissions both of you.