QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
London WC2A 2LL
B e f o r e :
|THE QUEEN ON THE APPLICATION OF KHALED HAIDARY||Claimant|
|SECRETARY OF STATE FOR THE HOME DEPARTMENT||Defendant|
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Ms L Busch (instructed by Treasury Solicitor) appeared on behalf of the Defendant
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"353. When a human rights or asylum claim has been refused and any appeal relating to that claim is no longer pending, the decision-maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim. The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content: (i) had not already been considered; and (ii) taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection..."
"6. There was broad agreement as to the Secretary of State's task under rule 353. He has to consider the new material together with the old and make two judgments. First, whether the new material is significantly different from that already submitted, on the basis of which the asylum claim has failed, that to be judged under rule 353 (i) according to whether the content of the material has already been considered. If the material is not 'significantly different', the Secretary of State has to go no further. Second, if the material is significantly different, the Secretary of State has to consider whether it, taken together with the material previously considered, creates a realistic prospect of success in a further asylum claim. That second judgment will involve not only judging the reliability of the new material, but also judging the outcome of tribunal proceedings based on that material. To set aside one point that was said to be a matter of some concern, the Secretary of State, in assessing the reliability of new material, can of course have in mind both how the material relates to other material already found by an adjudicator to be reliable, and also have in mind, where that is relevantly probative, any finding as to the honesty or reliability of the applicant that was made by the previous adjudicator. However, he must also bear in mind that the latter may be of little relevance when, as is alleged in both of the particular cases before us, the new material does not emanate from the applicant himself, and thus cannot be said to be automatically suspect because it comes from a tainted source.
7. The rule only imposes a somewhat modest test that the application has to meet before it becomes a fresh claim. First, the question is whether there is a realistic prospect of success in an application before an adjudicator, but not more than that. Second, as Mr Nicol QC pertinently pointed out, the adjudicator himself does not have to achieve certainty, but only to think that there is a real risk of the applicant being persecuted on return. Third, and importantly, since asylum is in issue the consideration of all the decision-makers, the Secretary of State, the adjudicator and the court, must be informed by the anxious scrutiny of the material that is axiomatic in decisions that if made incorrectly may lead to the applicant's exposure to persecution. If authority is needed for that proposition, see per Lord Bridge of Harwich in Bugdaykay v SSHD  AC 514 at p 531F.
10. That, however, is by no means the end of the matter. Although the issue was not pursued in detail, the court in Cakabay recognised, at p191, that in any asylum case anxious scrutiny must enter the equation: see § 7 above. Whilst, therefore, the decision remains that of the Secretary of State, and the test is one of irrationality, a decision will be irrational if it is not taken on the basis of anxious scrutiny. Accordingly, a court when reviewing a decision of the Secretary of State as to whether a fresh claim exists must address the following matters.
11. First, has the Secretary of State asked himself the correct question? The question is not whether the Secretary of State himself thinks that the new claim is a good one or should succeed, but whether there is a realistic prospect of an adjudicator, applying the rule of anxious scrutiny, thinking that the applicant will be exposed to a real risk of persecution on return: see § 7 above. The Secretary of State of course can, and no doubt logically should, treat his own view of the merits as a starting-point for that enquiry; but it is only a starting-point in the consideration of a question that is distinctly different from the exercise of the Secretary of State making up his own mind. Second, in addressing that question, both in respect of the evaluation of the facts and in respect of the legal conclusions to be drawn from those facts, has the Secretary of State satisfied the requirement of anxious scrutiny? If the court cannot be satisfied that the answer to both of those questions is in the affirmative it will have to grant an application for review of the Secretary of State's decision."
That identifies the test that the Secretary of State was obliged to apply.
"... one would anticipate that this high level of stress combined with a loss of support and treatment would lead to a high risk of relapse of his depression and symptoms of post-traumatic stress disorder.
Should his depression deteriorate clearly the risk of self-harm and indeed suicide would escalate, with [the claimant being] at particular risk of suicide in view of his previous self-harm."
"52. As regards the types of 'treatment' which fall within the scope of Article 3 of the Convention the Court's case-law refers to 'ill-treatment' that attains a minimum level of severity and involves actual bodily injury or intense physical or mental suffering (see the above-cited Ireland v the United Kingdom judgment, p 66 §167; V v the United Kingdom [GC] no. 24888/94, ECHR 1999-IX, §71). Where treatment humiliates or debases an individual showing a lack of respect for, or diminishing, his or her human dignity or arouses feelings of fear, anguish or inferiority capable of breaking an individual's moral and physical resistance, it may be characterised as degrading and also fall within the prohibition of Article 3 (see amongst recent authorities, Price v the United Kingdom, no. 33394/96, (Sect. 3), ECHR 2001-VIII, §§ 24-30, and Valasinas v Lithuania, no. 44558/98, (Sect. 3), ECHR 2001-VIII, §117). The suffering which flows from naturally occurring illness, physical or mental, may be covered by Article 3, where it is, or risks being, exacerbated by treatment, whether flowing from conditions of detention, expulsion or other measures, for which the authorities can be held responsible (see the above mentioned D v the United Kingdom and Keenan v the United Kingdom judgments and also Bensaid v the United Kingdom, no. 44599/98, (Sect. 3) ECHR 2000-I)."
It is to be observed that in the course of that paragraph the court made reference to the cases of D and Bensaid v United Kingdom. Both of those cases concerned the question whether it would amount to a breach of Article 3 and Article 8 to remove individuals from the United Kingdom in circumstances where on the one hand the applicant, (D), suffered from AIDS, and on the other the applicant, (Bensaid), suffered from a serious psychiatric illness.
It seems to me that however one may try to categorise this claimant's case, it is clearly a medical case for the purposes of the application of Article 3 and Article 8 in removal cases.
Ms Busch, who appears for the Secretary of State, submits that, in the light of domestic and Strasbourg authority, the facts of the claimant's case are so far removed from those in which Article 3 or Article 8 could provide protection from removal that not only was the Secretary of State's decision correct in legal terms but it was also inevitable. A number of cases have been before the Strasbourg court which have considered the question of the circumstances in which an applicant must find himself before removal on grounds of Article 3 or 8 becomes about impossible consequent upon medical difficulties. The first case in which the court concluded that it would be unlawful to remove an individual on this basis was D v United Kingdom, 2 May 1977 (Reports of Judgments and Decisions 1977-III p794). At paragraph 51 the Strasbourg court said:
"The Court notes that the applicant is in the advanced states of a terminal and incurable illness. At the date of the hearing, it was observed that there had been a marked decline in his condition and he had to be transferred to a hospital. His condition was giving rise to concern. The limited quality of life he now enjoys results from the availability of sophisticated treatment and medication in the United Kingdom and the care and kindness administered by a charitable organisation. He has been counselled on how to approach death and has formed bonds with his carers."
Then at paragraphs 52 and 53 the court said this:
"The abrupt withdrawal of these facilities will entail the most dramatic consequences for him. It is not disputed that his removal will hasten his death. There is a serious danger that the conditions of adversity which await him in St Kitts will further reduce his already limited life expectancy and subject him to acute mental and physical suffering. Any medical treatment which he might hope to receive there could not contend with the infections which he may possibly contract on account of his lack of shelter and of a proper diet as well as exposure to the health and sanitation problems which beset the population of St Kitts. While he may have a cousin in St Kitts, no evidence has been adduced to show whether this person would be willing or in a position to attend to the needs of a terminally ill man. There is no evidence of any other form of moral or social support. Nor has it been shown whether the applicant would be guaranteed a bed in either of the hospitals on the island which, according to the Government, care for AIDS patients.
53. In view of these exceptional circumstances and bearing in mind the critical stage now reached in the applicant's fatal illness, the implementation of the decision to remove him to St Kitts would amount to inhuman treatment by the respondent State in violation of Article 3."
Many other cases came before the Strasbourg court following its decision in D, but in only one was the application successful and that was a case called BB v France (Reports of Judgments and Decisions 1998-VI p2596). It is to be observed that almost all cases advanced on medical grounds under Article 3 are also pursued under Article 8. All of the Strasbourg cases were subjected to very detailed analysis in N v Secretary of State for the Home Department (Terrence Higgins Trust intervening)  2 AC 296. All five of their Lordships provided reasoned speeches but it is sufficient for the purposes of this judgment for me to quote only from the speeches of Lord Hope of Craighead and Baroness Hale of Richmond. At paragraph 44 Lord Hope said this:
"The fact that the decision in D v United Kingdom is relevant to other serious illnesses was made clear in Bensaid v United Kingdom (2001) 33 EHRR 205. The applicant in that case was a schizophrenic who was suffering from a long-term psychotic illness. He was receiving treatment for his medical condition in this country which helped him to manage his symptoms. The drugs which he was receiving would not be available to him free if he were to be returned to Algeria, and there were other difficulties which gave rise to the risk that his existing mental illness would deteriorate resulting in self-harm and other kinds of suffering which the court said could in principle fall within the scope of article 3. It held nevertheless that his removal to Algeria would not violate that article: p218, para 41. The difficulties of access to medical treatment there were noted, but the court said that none the less medical treatment was 'available' to him there. The fact that his circumstances would be less favourable from that point of view from those enjoyed by him in the United Kingdom was not decisive. The risk that he would suffer a deterioration in his condition and that, if he did, he would not receive adequate support was said to be to a large degree speculative. The court summed the matter up in this way at paragraph 40:
'the court accepts the seriousness of the applicant's medical condition. Having regard however to the my threshold set by article 3, particularly where the case does not concern the direct responsibility of the contracting state for the infliction of harm, the court does not find that there is a sufficiently real risk that the applicant's removal in these circumstances would be contrary to the standards of article 3. It does not disclose the exceptional circumstances of the D case ... where the applicant was in the final stage of a terminal illness, AIDS, and had no prospect of medical care or family support on expulsion to St Kitts.'"
The reference to Bensaid is important because that case bears striking similarities, although it is not identical, to the claimant's case with which I am concerned. It is to be noted that in Bensaid the court rejected the claim under Article 8 even though it accepted that mental illness or mental condition might well give rise to issues under Article 8.
"... aliens who are subject to expulsion cannot claim any entitlement to remain in the territory of a contracting state in order to continue to benefit from medical, social or other forms of assistance provided by the expelling state. For an exception to be made where expulsion is resisted on medical grounds the circumstances must be exceptional. In May 2000 Mr Lorezen, a judge of the Strasbourg court, observed at a colloquy in Strasbourg that it was difficult to determine what was meant by 'very exceptional circumstances'. But subsequent cases have shown that D v United Kingdom is taken as the paradigm case as to what is meant by this formula. The question on which the court has to concentrate is whether the present state of the applicant's health is such that, on humanitarian grounds, he ought not to be expelled unless it can [be] shown that the medical and social facilities that he so obviously needs are actually available to him in the receiving state. The only cases where this test has been found to be satisfied are D v United Kingdom, where the fatal illness had reached a critical stage, and BB v France where the infection had already reached an advanced stage necessitating repeated stays in hospital and the care facilities in the receiving country were precarious. I respectfully agree with Laws LJ's observation in the Court of Appeal, para 39, that the Strasbourg court has been at pains in its decisions to avoid any further extension of the exceptional category of case which D v United Kingdom represents."
In the same case Baroness Hale of Richmond said this at paragraph 69:
"In my view, therefore, the test, in this sort of case, is whether the applicant's illness has reached such a critical stage (ie he is dying) that it would be inhuman treatment to deprive him of the care which he is currently receiving and send him home to an early death unless there is care available there to enable him to meet that fate with dignity. This is to the same effect as the test preposed by my noble and learned friend, Lord Hope of Craighead. It sums up the facts in D. It is not met on the facts of this case."
"20. The answering of question (5), where that question is reached, must always involve the striking of a fair balance between the rights of the individual and the interests of the community which is inherent in the whole of the Convention. The severity and consequences of the interference will call for careful assessment at this stage. The Secretary of State must exercise his judgment in the first instance. On appeal the adjudicator must exercise his or her own judgment, taking account of any material which may not have been before the Secretary of State. A reviewing court must assess the judgment which would or might be made by an adjudicator on appeal. In Secretary of State for the Home Department v Kacaj  Imm AR 213, 228, para 25, the Immigration Appeal Tribunal (Collins J, Mr CMG Ockelton and Mr J Freeman) observed that: 'although the [Convention] rights may be engaged, legitimate immigration control will almost certainly mean that derogation from the rights will be proper and will not be disproportionate.' In the present case, the Court of Appeal had no doubt  Imm AR 529, 539, para 26, that this overstated the position. I respectfully consider the element of overstatement to be small. Decisions taken pursuant to the lawful operation of immigration control will be proportionate in all save a small minority of exceptional cases, identifiable only on a case by case basis."
"59. Although the possibility cannot be excluded, it is not easy to think of a foreign health care case which would fail under article 3 but succeed under article 8. There clearly must be a strong case before the article is even engaged and then a fair balance must be struck under article 8(2). In striking that balance, only the most compelling humanitarian considerations are likely to prevail over the legitimate aims of immigration control or public safety. The expelling state is required to assess the strength of the threat and strike that balance. It is not required to compare the adequacy of the health care available in the two countries. The question is whether removal to the foreign country will have a sufficiently adverse effect upon the applicant. Nor can the expelling state be required to assume a more favourable status in its own territory than the applicant is currently entitled to. The applicant remains to be treated as someone who is liable to expulsion, not as someone who is entitled to remain."
"... the Court recalls that it has found above that the risk of damage to the applicant's health from return to his country of origin was based on largely hypothetical factors and that it was not substantiated that he would suffer inhuman and degrading treatment. Nor in the circumstances has it been established that his moral integrity would be substantially affected to a degree falling within the scope of Article 8 of the Convention. Even assuming that the dislocation caused to the applicant by removal from the United Kingdom where he has lived for the last eleven years was to be considered by itself as affecting his private life, in the context of the relationships and support framework which he enjoyed there, the Court considers that such interference may be regarded as complying with the requirements of the second paragraph of Article 8, namely as a measure 'in accordance with the law', pursuing the aims of the protection of the economic well-being of the country and the prevention of disorder and crime, as well as being 'necessary in a democratic society for those aims."