England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Priory Courts 33 Bull Street Birmingham West Midlands B4 6DS
		27th January 2014

1. HIS HONOUR JUDGE DAVIS: The claimant in this case, a Mr Mike Parmer, came to the United Kingdom in January 2008. He is a Malawian national. He entered with a valid visa, granted to him as the dependent of his wife, also a Malawian national, who is one of the interested parties to this case. She had a valid student visa. As well as Mr and Mrs Parmer there was a young child, K, similarly a Malawian national.
2. The visa on which they all entered was valid until 31st December 2011. Whilst they were in this country a second child was born, the last of the three of the interested parties. Not long before the expiry of this visa Mr Parmer on 1st December 2011 requested an appointment to attend the Asylum Screening Unit. He attended on 3rd January 2012. The result of that screening interview is in the original bundle at pages A45 and following.
3. During the screening interview the claimant disclosed that he had HIV (as he described it). It had been diagnosed in June of 2010. He identified the medication he was taking for it. He also suffered from high blood pressure or hypertension and was also taking medication for that condition.
4. When asked what his reason for coming to the United Kingdom was he gave two reasons. First, it was so that his wife could study. Second he explained "also we ran away from our relatives, her uncles". He went on to say that they ran for the safety of his child and the mother, namely his wife. He explained that she was from a Muslim background whereas he was from a Christian background. Her family had wanted an arranged marriage for her but she did not want it and had instead married the claimant. He said that prior to their marriage: "They would come and start throwing stones at my place". He alleged that when his wife was pregnant with their child her family had beaten her up on one occasion. He said that the two of them had decided that once K was born they would run away from the country. He was in fact born in 2005. He went on to say that he would not be able to see his family if he went back home. He said "they", presumably his wife's family "do not like me. They could kill me". He explained that the people he feared were his wife's two uncles. The problems had started in 2004. He had thought it would stop but it got worse and worse. He was asked what he told the immigration officer on arrival for his reasons for coming and he said this: "I did not tell the immigration officer anything." The process continued with at least one further interview, the detail of which I do not have but I am going to assume it is not material. He also provided a written statement which begins at A40 of the main bundle and sets out in slightly more detail that which he said in interview.
5. On 17th May 2012 the Secretary of State issued her decision. It was a detailed decision set out in a 12-page letter which begins at page A27 of the main bundle. The decision was to refuse both the asylum and human rights claim of the claimant. I do not at this point rehearse any part of the letter in detail. In relation to risk of persecution, no specific assessment was made. But the letter went on to consider the sufficiency in the country of origin of protection from persecution, as required in the case of Horvath v Secretary of State for the Home Department [2000] UKHL 37. The letter discussed the possibility of relocation within Malawi. It referred to the claimant's medical condition and cited what was by then the European Court of Human Rights decision in N v United Kingdom [2008] ECHR 453. In the context of his medical condition the letter discussed the evidence of available medical treatment in Malawi. In relation to all of those matters the letter set out a consideration of the Article 8 rights of the claimant and also discussed the interests of his children by reference to section 55 of the Borders, Citizenship and Immigration Act 2009 and subsequent discussion in case law of that section, in particular ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4.
6. Finally, beginning at paragraph 56, having rejected both the asylum claim and the human rights claim, the letter went on to say this:

"In addition, your asylum claim is one to which section 94(3) of the Nationality, Immigration and Asylum Act 2002 applies. This requires the Secretary of State to certify that your claim is clearly unfounded unless she is satisfied it is not clearly unfounded. After consideration of all the evidence available it has been decided that your claim is clearly unfounded and therefore it is hereby certified under section 94(2) of the Nationality, Immigration and Asylum Act 2002 that your claim is clearly unfounded."

At paragraph 57 precisely the same words were set out in relation to the human rights claim. Therefore at paragraph 58 the letter concluded:

"As your asylum and human rights claims have been certified as clearly unfounded you may not appeal while in the United Kingdom."

It is that decision, namely the certifying of the asylum claim and the human rights claim as clearly unfounded which is the subject of this application for judicial review. Permission was granted for the claimant to apply for judicial review by His Honour Judge McKenna on 10th October 2012. The learned judge observed that:

"It is at least arguable that the decision to refuse the claimant's asylum claim and to certify was unlawful on the facts of this case."

As now presented I do not identify that the claimant is arguing that the decision to refuse asylum in itself is a decision which is susceptible to judicial review on the facts of this case. The decision which it is said should be subject to judicial review and should be quashed is the decision to certify the claim for asylum and the claim under the Human Rights Act as clearly unfounded. The claimant's argument plainly will succeed whether he succeeds in relation to both or only one of those claims.

7. The relevant tests are agreed as set out in the case of L v Secretary of State for the Home Department [2003] 1 WLR 1230, in particular paragraphs 56 and 57 of the judgment in that case. The case dealt with a previous section but the change of section does not alter the position so far as this case is concerned. The relevant parts of those two paragraphs of the judgment are as follows:

"Section 115(1) empowers – but does not require – the Home Secretary to certify any claim 'which is clearly unfounded'. The test is an objective one: it depends not on the Home Secretary's view but upon a criterion which a court can readily re-apply once it has the materials which the Home Secretary had. A claim is either clearly unfounded or it is not.

How, if at all, does the test in s.115(6) differ in practice from this? It requires the Home Secretary to certify all claims from the listed states [Malawi is undoubtedly a listed State] 'unless satisfied that the claim is not clearly unfounded'. It is useful to start with the ordinary process, such as s.115(1) calls for. Here the decision-maker will –

i) consider the factual substance and detail of the claim

ii) consider how it stands with the known background data

iii) consider whether in the round it is capable of belief

iv) if not, consider whether some part of it is capable of belief

v) consider whether, if eventually believed in whole or in part, it is capable of coming within the Convention.

If the answers are such that the claim cannot on any legitimate view succeed, then the claim is clearly unfounded; if not, not."

The judgment in that case was plainly concerned purely with an asylum claim but the principles equally apply to a human rights claim.

8. These proceedings having been commenced and leave having been given the Secretary of State issued a further Decision Letter. That was as a result of an order made by this court on 18th July 2013. The letter is dated 30th September 2013 and both parties agree that it is relevant to consider the lawfulness of the decision first made in May 2012 by reference to this letter. It reflected further material provided by the claimant. The claimant accepts that the concluding sentence of the penultimate paragraph which reads.

"For the avoidance of doubt the certificate issued to your client on the 20th May 2012 remains in place"

should be taken as a further consideration of the relevant test, in the light of the new material and a confirmation that even that new material leads to the same conclusion.

9. It will be necessary to refer to some parts of the letter in detail but it dealt with, amongst other things, country of origin, information reports in relation to Malawi and the functions and viability of the police service there and the nature and extent of HIV treatment there. The letter also considered section 55 of the 2009 Act in slightly more detail than the previous letter and considered finally whether any of the matters that have been put forward were a fresh claim. The conclusion was that they were not. It is not being suggested in relation to this case that I shall be considering that issue in terms of deciding whether the Secretary of State acted unlawfully.
10. The claimant's case in essence is this: I, the claimant, have a medical condition. It is a very serious medical condition. I accept that if the only issue were to be: does my medical condition mean that proper application of Articles 3 and Article 8 mean that I should not be removed from the country, I would fail. A proper consideration of the decision of the House of Lords and the European Court of Human Rights in N (supra) would lead to the inevitable conclusion that I could be returned to Malawi. But he argues: my return to Malawi would, on the evidence, involve significant damage to my health and that would mean that I would not be able to care for my children. Therefore, any proper consideration of the best interests of my children ought to include proper consideration of my health. There was no such consideration and therefore there is at least an arguable case for me to place before a First-tier Tribunal. Or to put it another way and the way that is relevant to this particular case: my human rights claim is not clearly unfounded. He goes on to say as an adjunct to that: it is appropriate to consider the problems that would be faced in Malawi at the hands of my wife's family. That would affect my children also. The claimant accepts that the burden is on him to demonstrate that those problems would be real.
11. In the light of the way in which the claimant puts his case, what then is the evidence? I shall deal first with the risk of attack or retribution whether by reason of his relationship with his wife or his wife's religion or a mixture of the two.
12. I have already set out what the claimant told the immigration authorities back in January 2012 and in his subsequent statement. When considering that part of the claim the defendant considered it "at its highest"; in other words, assuming that what was being said was true. That was an extraordinarily charitable view to take, given the complete lack of any corroborative evidence and the way in which this account emerged from the claimant. As I have already indicated, it is not something that he mentioned to anybody at all until the time was about to come when he was otherwise going to have to leave the country.
13. What the defendant says is this. Never mind the truth of it, the evidence available as to what could be done to prevent difficulties in Malawi is such that the basis for this part of the claim is simply untenable and any claim based on this part of the case clearly unfounded. In the original Decision Letter of May 2012, at paragraphs 24 and 25, having reviewed, in some detail, the available information about the police in Malawi, the conclusion was that there was adequate sufficiency of protection and in so far as protection was not available an adequate complaints procedure. It also concluded that there was no reason at all why there should not be, by the claimant, relocation within Malawi. The letter of 30th September 2013, at paragraphs 13 and 14, rehearsed much the same material albeit that by now it had been updated. The conclusion reached was that, although the police force was nothing like as efficient as it would be in this country and was subject to corruption, the overall evidence meant that there was no reason to believe that the police would be unwilling or unable to assist the claimant and his family. That was a conclusion reached on the basis of evidence. I am perfectly satisfied that the defendant was quite justified in relation to that part of the case in certifying the claim as she did. But that is not really the nub of the claimant's case. The nub of the claimant's case relates to his medical condition. The Secretary of State, in making her decision initially and then subsequently has been provided with three documents by the claimant in relation to his health. The first, which appears at page A39 of the main bundle is a short letter dated 20th March 2012. It indicates that the claimant suffers from hypertension and HIV. The HIV is controlled by antiretroviral therapy. If that treatment continues it is likely that the infection will not very significantly shorten life expectancy. However, without treatment the claimant will become ill and die from the complications of the infection. It also notes that even short interruptions in treatment have detrimental issues on health. That was the first piece of medical evidence available.
14. The next is at page D1 of the main bundle, a letter dated 25th October, rehearsing some of the previous letter and identifying the precise mixture of antiretroviral therapy to which the claimant was subject said to have been chosen "in order to avoid renal toxicity associated with some of the other antiretroviral therapy". The medical view was that if the claimant were not to be taking any antiretroviral therapy he would develop immuno compromise in a short period of time: in other words he would be susceptible to any infection and possibly premature death. Indeed, the letter goes on to indicate a very, very significant reduction in life expectancy in that event. Further, the letter indicates any change of the current medication could mean potential toxicity including further renal compromise, anaemia, lipids, abnormalities or liver toxicity depending on the alternative antiretroviral therapy to which he would be changed. Finally, there is a letter of 16th August 2013 which is at page 33 of the supplementary bundle, which is in effect the answer to a series of questions posed to the clinician with overall responsibility for Mr Parmer's treatment. The questions were really along the lines of: if he did not have any antiretroviral treatment, what would happen? To which the answer was: very serious consequences. That is a wildly simplistic summary. But the long and the short of it would mean very probably within 1 or 2 years of stopping treatment very serious complications intervening which would within a short time disable and very probably kill.
15. That was the available medical evidence in relation to the claimant in particular. The country of origin information report most recently issued in October 2012, as quoted by the defendant in her Decision Letter in September 2013, sets out the position as it was then known in Malawi. I summarise: by 2009, not far short of 200,000 people infected with HIV were receiving antiretroviral therapy in Malawi; that did not represent everybody infected, the government estimate being that 300,000 people were eligible; in other words, a third of all those eligible were not receiving treatment.
16. Further it was noted that a new treatment regime, based on latest world health organisation guidance was due to be introduced, which whilst benefiting those who received it, would cost more money and thereby mean reduced coverage of treatment - access to treatment being particularly limited in rural areas. I should say that I have no direct evidence as to what kind of area the claimant would return to if he went to live in Malawi. Further quotation from that same report identified the antiretroviral therapies used in Malawi. They are not the same as those to which the claimant is currently subject. There is no evidence available to me, nor was there available to the Secretary of State for the Home Department, as to whether those therapies available in Malawi were of a kind might be thought appropriate for this claimant, in the view of his current medical advisors. We simply do not know. However, I do emphasise that the evidence available to the defendant was that, whilst significant, coverage of antiretroviral therapy to people in Malawi is by no means universal and there are significant numbers of people who are eligible who are not receiving it.
17. The conclusion reached by the defendant in her most recent decision was that there would be available to the claimant appropriate treatment in Malawi. In theory there would. But the decision does not reflect the potential risks that are identified in the material available to the Secretary of State.
18. The claimant's skeleton, as prepared for today's hearing puts matters far too high. At paragraph 7D(1) of the skeleton, this is asserted:

"The claimant and his wife are HIV positive. The treatment that they need is not available in Malawi. The couple's health will quickly deteriorate and they are at risk of death quite quickly thereafter."

I do not consider that the evidence I have and the Secretary of State had could possibly justify that unequivocal statement of the position. However, there is no doubt that the claimant would be put at some risk if he returned to Malawi. That is not something that of itself gives rise to a human rights claim, certainly not under Article 3. But, says the claimant, that risk is something that ought to have been considered by the defendant when she considered the interests of the children.

19. In her letter from May of 2012 she rehearsed conventionally the requirements of section 55 of the 2009 Act and the implications of ZH (Tanzania) (supra). She reviewed the social and educational position of the children. There can be no complaint of her assessment in so far as it goes. This is not one of those cases where the position of the children has either not been considered at all or has been considered in a perfunctory or peremptorily way. I also note these children are not British citizens and therefore the considerations set out in the judgment of the Supreme Court in Zoumbas v Secretary of State for the Home Department [2013] UKSC 74 are relevant.
20. In her consideration in May 2012 there did appear this short passage. This is in relation to the interrelationship between the children's needs and the claimant's claim. Paragraph 49:

"It is noted that your two children are dependant on your asylum claim. Their general welfare needs have been considered in your claim also."

The defendant was relating the interests of the children back to the claimant but she did not, in that passage, relate the position of the claimant, namely his health, to the interests of the children.

21. The pre-action protocol letter written on 2nd August 2012, which appears at page A22 and 23 of the main bundle said this on the second page of the letter:

"It is further submitted that section 55 of the Border Citizenship and Immigration Act 2009 and the case of ZH (Tanzania) v Secretary of State for the Home Department have not been considered adequately and in light of Mr Parmer and his wife's HIV. The fact that there is a potential risk to the children of discrimination and stigmatisation as a result of their parents' illness has not been considered. In addition, no reference has been made to the fact that the parents' life expectancy will be significantly reduced at best and extinguished at worst without the treatment available."

22. That passage somewhat inelegantly set out the position but it at least triggered the link (or ought to have triggered the link) between Mr Parmer's condition, the available evidence of it and the effect that that might have on his children in the event that all the whole family were to be returned to Malawi in the light of what the Secretary of State ought to have found were the risks involved in Mr Parmer being in Malawi rather than this country.
23. When the Secretary of State came to review the matter in her letter of 30th September 2013 and in particular section 55 of the 2009 Act, which she did at paragraph 61 to 67 of the letter, the interests of the children as before were considered fully and perfectly reasonably within the context of their particular welfare. For instance in relation to the eldest child, then 8, his schooling was considered. The position of the two younger children and the fact that they were indeed very young was considered and a conclusion was reached that with the support of their parents there is no indication that the children would not thrive, achieve and be able to make a contribution to society, all of which is unimpeachable in terms of a conclusion. But it does not seek to identify that which is raised by the claimant, namely, if I go back to Malawi, with my family as a family unit then there is a significant risk that I will either receive inappropriate treatment or possibly no treatment at all, in which event my children, particularly taking into account my wife's condition, will suffer very significantly and their rights will be impaired as a result of the Secretary of State's decision.
24. The defendant has in effect considered this case in compartments. If there is a risk of persecution, can it be met by the situation in terms of law enforcement in Malawi. The next compartment is the medical position of the claimant. Would removal to Malawi would breach his Article 3 rights or his Article 8 rights? The final compartment: is the position of each child vis-a-vis their social, educational and health needs such that it will be reasonable for that child to be returned to Malawi?
25. The Secretary of State, in my judgment, reached perfectly reasonable answers in relation to each of those compartments when dealing with them in that compartmentalised way. But the question is whether the Secretary of State in considering the Article 8 rights of this family unit and of the children in particular should have taken into account the health position of the claimant. Was the claim clearly unfounded based on that particular aspect? In my judgment, that part and that part alone of the Secretary of State's decision was unlawful. The human rights claim, based on the Article 8 rights of the claimant, with particular reference to the rights of his children were not clearly unfounded. Whether it will succeed in front of a Tribunal is an entirely different matter. But for it to be certified in the way that the defendant did, in my judgment, was unlawful. Therefore in respect of that decision and that very strictly confined decision only, I quash the decision and grant judicial review.
26. MR MAHMOOD: My Lord, I am grateful. Might there be an order of costs in favour of the claimant against the defendant and might there be detailed assessment of the claimant's publicly funded costs?
27. HIS HONOUR JUDGE DAVIS: Is there any objection to that?
28. MISS FERNANDES: No.
29. HIS HONOUR JUDGE DAVIS: I shall grant judicial review. I shall quash the decision of the Secretary of State. I make it plain that I quash simply the decision as set out in paragraph 57 of the Decision Letter of 17th May 2012.
30. MR MAHMOOD: Thereafter upheld in the further letter of 30th September.
31. HIS HONOUR JUDGE DAVIS: Yes. The 30th September simply says: no change. So that is as where it is set out in full.
32. MR MAHMOOD: Thank you. My Lord my learned friend and I will draft an order.
33. HIS HONOUR JUDGE DAVIS: Thank you very much.
34. MISS FERNANDES: My Lord, I do ask for permission to appeal?
35. HIS HONOUR JUDGE DAVIS: Right.
36. MISS FERNANDES: -- your decision. It relates to an interpretation of the section 55, in the context of a consideration of an Article 3 assessment and whether both and to what extent those two should be conflated. That is a question of law. On that basis I do ask for permission to appeal.
37. HIS HONOUR JUDGE DAVIS: I am asked to give permission to appeal; the defendant wishing to argue that my decision demonstrates an error in law as to the application of section 94 and its interplay with section 55 and Article 8 of the Human Rights Convention. My view is that my decision principally was based on the facts of this particular case. I therefore decline permission to appeal. Whether another court thinks otherwise is of course entirely a matter for them.
38. Thank you very much.