QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| THE QUEEN
on the application of
AHMAD RASHIED HAREEF
|- and -
(IMMIGRATION AND ASYLUM CHAMBER)
|SECRETARY OF STATE FOR
THE HOME DEPARTMENT
John Jolliffe (instructed by the Government Legal Department) for the Interested Party
The Defendant did not appear and was not represented
Hearing date: 13 April 2016
Crown Copyright ©
Mrs Justice Lang :
a) he was a refugee and that returning him to Afghanistan would expose him to a real risk of persecution;
b) he was entitled to humanitarian protection;
c) removal from the United Kingdom would breach Articles 3 or 8 ECHR.
a) in her determination on Article 3, the FTT Judge erroneously believed she was bound by the decision of the UT in GS (India)  UKUT 35, without realising it had been remitted to the UT for reconsideration by the Court of Appeal in January 2012;
b) the FTT Judge erred in refusing asylum on the grounds that:
i) the authorities in Afghanistan would not be interested in him on account of his father, when the Judge had already found that he had been detained and ill-treated for that reason;
ii) the authorities would not be interested in him since he would be a very sick man with a limited life expectancy.
c) the FTT Judge erred in her determination on Article 8.
Has the claim become academic?
"12. The following paragraphs are a summary of your statements and evidence in support of your application for asylum.
13. You claim the following:
a) You were born on 8th January 1989 in Jalalabad, Afghanistan.
b) You lived with your father, Bismillah Hareef, your mother Baba Gul and your three sisters and two brothers.
c) One of your sisters is currently living in the United Kingdom, one of your brothers' is still living in Afghanistan with your mother. Your other siblings are dead.
d) You attended Chak-newai High School in Jalalabad for twelve years.
e) Your father was commander of Security of Nangarhar Province under Dr Najibullah's government.
f) After the fall of this government he joined Ahmed Shah Masood and was working for him as head of transport until the current government came into power.
g) You rarely saw your father as he was away on business most of the time.
h) Your father would send you money and you owned a second home in Jalalahad which you rented out.
i) When the Taliban came into power you had to sell the second house.
j) In 2001, when the Kharzai government came into power your father ceased working for Ahmed Shah Masood and started working for the ministry of interior affairs. He was working in Kabul.
k) In 2008, or two years before your asylum interview your family home was bombed. Three of your siblings were killed and you were injured.
l) You were taken to hospital where you remained for three to four weeks. Your father's injuries were not serious and he was discharged.
m) After completing the funeral rituals at your old house you went to live with your maternal uncle Sayed Haroon.
n) One year later, or in 2009 you were arrested. You were taken to Jalalabad and questioned about your father's whereabouts.
o) The authorities believed he had been leaking information to the Taliban.
p) You were detained for four months. You were tortured and beaten. Your uncle paid a bribe to secure your release.
q) Your uncle then took you to his home and the next day you left Afghanistan with an agent and fled to Pakistan.
r) When you arrived in the United Kingdom you collapsed on the road and taken to hospital where, on 10th May 2009 you were diagnosed with chronic renal failure.
15. You claim that you would have a well founded fear of persecution on return to Afghanistan due to your imputed political opinion. You claim your father was politically active in Afghanistan. You claim that he was working as commander of Security of Nangahar Province under Dr Najibullah's government and then worked for Ahmed Shah Masood as Head of Transport."
"1. the appellant is from Afghanistan.
2. the appellant's father worked away from home a lot. He was with Dr Nabijullah and Ahmed Shah Masoud, both of whom were opposed to the Taliban and then the Karzai government.
3. the appellant does not know precisely what his father did.
4. the appellant's home was bombed in or about 2005 or 2006. The appellant believes that this was done by enemies of his father.
5. the appellant has not seen his father since immediately prior to the bombing. The appellant's father survived the bombing.
6. in or about 2007 the appellant was detained by the authorities. He was ill-treated during detention. He was questioned about his father's whereabouts. He was told that his father was working for the Taliban.
7. the appellant does not know precisely why the authorities wanted to know his father's whereabouts, nor does he know whether his father was in fact working for the Taliban.
8. the appellant's maternal uncle arranged for the appellant's release from detention and arranged for him to leave Afghanistan.
9. the appellant has never been a member of the Taliban and was never politically active.
10. the appellant is suffering from renal failure."
"3. The second ground asserts that the asylum appeal should have been allowed given the findings of fact made in his favour. This is no more than a disagreement with the conclusion that he was not now at risk, and given the Appellant's release from detention and the passage of time, and the lack of interest in any other family members, was one the Judge was entitled to reach on the evidence.
4. The third ground asserts that the humanitarian protection appeal should have been allowed since the situation in Afghanistan has deteriorated since GS and because the personal circumstances of this Appellant rendered his return unduly harsh. The Judge was however entitled to reach the conclusion that she did, and it cannot be said that she did not have the Appellant's personal circumstances and health well in mind."
a) He was a minor, born on 5 May 1998, so aged 14.
b) His father was a commander in the police force, working in Jalalabad.
c) About 3 or 4 years ago, while he was out, his family home was bombed and his parents and two siblings were killed. His two remaining siblings were injured and sent to Pakistan. Despite the efforts of the Red Cross, and the duty on the SSHD to trace family members of minors, they have never been found. He was therefore an orphan and without any family to provide care and support for him in Afghanistan.
d) He was taken in by a neighbour, Abdullah. He was subsequently shot at in the street by men in a passing car and suffered serious injuries, which left him with permanent disabilities. He was hospitalised for a lengthy period. The date of the shooting was not in the FTT determination, but I have been shown his witness statement which stated that it occurred about 10 to 15 days after the bombing.
e) After discharge from hospital, he was taken in by Ghebar, a friend of his father's. Ghebar informed him that the same men who had shot him had come looking for him on several occasions; that they threatened to beat him up; and it was no longer safe for him to remain in Afghanistan. Ghebar arranged for him to leave Afghanistan and he arrived in the UK in August 2011.
f) The FTT accepted that there was a reasonable likelihood that Ghebar believed that Taliban and/or anti-government elements were responsible for the bombing, the shooting and the threats. This was credible as UN and UNCHR reports evidenced targeted assassinations of high ranking government officials, members of the security forces and influential local leaders by armed anti-government groups. The UNCHR report stated that internal relocation might not be viable for individuals targeted by these groups.
g) The FTT concluded that returning Reshed to Afghanistan would place him at real risk of persecution from the Taliban or insurgent groups because of his imputed political opinions or membership of a particular social group, as a family member of an individual who was a senior police officer. There would not be sufficiency of protection for him.
h) As a minor without any family for support he would be a homeless, deprived "street child" and vulnerable to exploitation, trafficking and forced labour, as supported by the objective evidence of the risks to unaccompanied minors in Afghanistan.
"Whilst I accept that the appellant may have been interviewed about his father in 2006 or 2007, I do not consider that there are substantial grounds for believing that after the appellant was released from detention and left Afghanistan in about 2007, the authorities would have continued to send him summonses to attend before them … Further there is no evidence from the appellant's brother who is in the United Kingdom that the appellant was sought after he left Afghanistan. Ms Hulse was clearly aware of the appellant's brother's presence in the United Kingdom and opposed an application that his case be linked to the appellant's on the grounds that his evidence would have no bearing on the appellant's case."
"4. At the beginning of the hearing Ms Everett [the Home Office Presenting Officer] made an application that the hearing be adjourned so that the appellant's appeal could be heard with that of his brother which was listed for 30 March 2011. She submitted that the core of their claims were based on similar facts and that credibility issues had been raised in both cases. Ms Hulse opposed the application. She argued that the appellant had been waiting for almost three years to have his claim resolved, joining the case would be of no great assistance as the bomb blast attack which the appellant described had occurred almost five years ago when the appellant's brother was only eight, and different circumstances applied to the appellant's and his brother's life after that event. Having considered all the matters raised by the representatives I was satisfied that there was no reason why the appeal could not be justly determined in the absence of the appellant's case being linked with that of his brother and I therefore decided not to adjourn the hearing."
Article 3 ECHR
"No one shall be subjected to torture or to inhuman or degrading treatment or punishment."
"42. In summary, the Court observes that since D v United Kingdom it has consistently applied the following principles.
Aliens who are subject to expulsion cannot in principle 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 and services provided by the expelling State. The fact that the applicant's circumstances, including his life expectancy, would be significantly reduced if he were to be removed from the Contracting State is not sufficient in itself to give rise to breach of Article 3. The decision to remove an alien who is suffering from a serious mental or physical illness to a country where the facilities for the treatment of that illness are inferior to those available in the Contracting State may raise an issue under Article 3, but only in a very exceptional case, where the humanitarian grounds against the removal are compelling. In the D case the very exceptional circumstances were that the applicant was critically ill and appeared to be close to death, could not be guaranteed any nursing or medical care in his country of origin and had no family there willing or able to care for him or provide him with even a basic level of food, shelter or social support.
43. The Court does not exclude that there may be other very exceptional cases where the humanitarian considerations are equally compelling. However, it considers that it should maintain the high threshold set in D v the United Kingdom and applied in its subsequent case-law, which it regards as correct in principle, given that in such cases the alleged future harm would emanate not from the intentional acts or omissions of public authorities or non-State bodies, but instead from a naturally occurring illness and the lack of sufficient resources to deal with it in the receiving country."
a) Dr Donoghue, Kings College Hospital, 12 October 2010 & 5 March 2012. The Claimant had been on dialysis and medication since mid-August 2009; he was responding well to dialysis, and he was active on the kidney transplant waiting list. Without dialysis, it was a 100% certainty that he would die within 1 -3 weeks. It was unclear whether his condition had been diagnosed in Afghanistan as his previous kidney stone surgery in 2005 did not equate to a diagnosis of renal impairment.
b) Dr Roseke, Transplant Co-Ordinator, Kings College Hospital. 15 October 2009. There was a 2½ year wait for a transplant. Renal transplants have a 90% success rate, and the average life expectancy of a transplanted kidney is 10 to 11 years, so he would need more than one transplant during his lifetime.
c) Dr Ansari, Kings College Hospital, 29 October 2009. Report on his dialysis treatment, stating that if he dialyses regularly without interruption he should do well. A transplant would change his quality of life and increase his life expectancy.
d) Dr Cohen, Manor Hospital, Oxford, 1 March 2012. The Claimant suffered serious injuries in a bomb blast at his home requiring medical treatment and leaving scars. When he was detained he was punched, kicked, slapped, beaten, submerged in water and burned. He bears some scars from that abuse. He has developed post-traumatic stress disorder and depression as a result of these experiences, and the loss of his home and his bereavement following the death of family members.
"26. I have considered N  UKHL 31, upheld by the European Court of Human Rights in N 26565/05  ECHR 453 and GS (Article 3 – health – exceptionality) India  UKUT 35 (IAC) which analyses the case law dealing with article 3 medical cases. The facts relating to the appellant in GS are similar to those of the appellant in this case. He too had chronic kidney disease, was dependant on dialysis to remain alive, and would expect to die after a period of one to two weeks if the treatment were discontinued. Ms Hulse sought to distinguish GS from the case before me. In GS it was accepted that medical facilities were available in India, the receiving state, although it was unlikely that the appellant would be able to access them. In this appeal there is evidence of the enquiries made by the appellant's solicitors about available treatment in Afghanistan for patients with end stage kidney failure. An email from the Kaisha Healthcare Hospital, which hospital was referred to by the respondent as providing such treatment, records that they do not in fact have treatment for end stage renal failure, nor are they aware of any other hospital in Afghanistan which provides such treatment. This means that there is no prospect of medical care in the appellant's country of origin if he is returned.
27. I have considered whether the analysis of the Strasbourg case law in N permits me to find that the case of the appellant before me is exceptional within D, because there would be no treatment whatsoever available to him in Afghanistan. I have noted that at paragraph 50 of N Lord Hope says
But it cannot be said that the court is unaware of the advances of medical science in this field. All the recent cases since SCC v Sweden have demonstrated this feature. The fact that the court appears to have been unmoved by them is due, I think, to its adherence to the principle that 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. The way this principle was referred to and then applied in Amegnigan v The Netherlands ("the court recalls that in D v United Kingdom it emphasised [the principle]") is, in my opinion, highly significant. What the court is in effect saying is that the fact that the treatment may be beyond the reach of the applicant in the receiving state is not to be treated as an exceptional circumstance. It might be different if it could be said that it was not available there at all and that the applicant was exposed to an inevitable risk due to its complete absence. But that is increasingly unlikely to be the case in view of the amount of medical aid that is now reaching countries in the third world, especially those in Sub-Saharan Africa. For the circumstances to be, as it was in Amegnigan v The Netherlands, "very exceptional" it would need to be shown that the applicant's medical condition had reached such a critical stage that there were compelling humanitarian grounds for not removing him to a place which lacked the medical and social services which he would need to prevent acute suffering while he is dying. This is, in effect, the same test as that which my noble and learned friend Baroness Hale of Richmond has identified. (emphasis added)
28. I have also considered what was said by Baroness Hale at paragraphs 68 and 69
In common with Dyson LJ, I have found helpful the concurring opinion of Judge Pettiti in D v United Kingdom, p 455:
"The inequality of medical treatment was not the criterion adopted by the Court as medical equipment in the Member States of the United Nations is, alas, not all of the same technological standard; the case of D, however, is concerned not with hospital treatment in general, but only with the deportation of a patient in the final stages of an incurable disease."
As Lord Hope's analysis shows, the later cases have made it clear that it is the patient's present medical condition which is the crucial factor. The difficulty is in understanding where conditions in the receiving country fit into the analysis. Even in those cases where the illness is not in an advanced or terminal stage, the Court does refer to the medical care and family support available there. But it does so in terms of there being "no prospect" of such care or support, rather than in terms of its being likely to be available. It is difficult to see, therefore, whether this consideration adds anything in those cases. Where the illness is in an advanced or terminal stage, then conditions in the receiving country should be crucial. It is not yet clear whether the applicant has to show that appropriate care and support during those final stages was unlikely to be available or whether again the "no prospect" test applies. That was undoubtedly the situation in D v United Kingdom and the Court has made it clear that the "compelling humanitarian considerations" are those which arise in a case where the facts come close to those in D. But if it is indeed the case that this class of case is limited to those where the applicant is in the advanced stages of a life-threatening illness, it would appear inhuman to send him home to die unless the conditions there will be such that he can do so with dignity. As the European Court said in Pretty v United Kingdom (2002) 35 EHRR 1, paragraph 65, "The very essence of the Convention is respect for human dignity and human freedom."  (emphasis added)
In my view, therefore, the test, in this sort of case, is whether the applicant's illness has reached such a critical stage (i.e. 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 text prepared 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. 
29. It is with regret that I have come to the view that the essential principle is that article 3 does not require contracting states to undertake the obligation of providing aliens indefinitely with medical treatment lacking in their home countries. In the case of D and in later cases the Strasbourg court has constantly reiterated that in principle aliens 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 and other forms of assistance provided by the expelling state. Article 3 imposes no such 'medical care' obligation on contracting states. This is so even where, in the absence of medical treatment, the life of the would-be immigrant will be significantly shortened (see Lord Nicholls in N ). The logic behind this is that "it would be strange if the humane treatment of a would-be immigrant while his immigration application is being considered were to place him in a better position for the purposes of article 3 than a person who never reached this country at all … it is difficult to see why this should subject this country to a greater obligation than it would to someone who is turned away at the port of entry and never receives any treatment" (see Lord Nicholls in N ).
30. Although that principle was expressed in relation to article 3, it is a principle which must apply to article 8. In N v UK, the ECHR took the view that no separate issue under article 8 arose .
31. I therefore find that the appellant has not discharged the burden of proof under article 3 or article 8 and I find that to return the appellant to Afghanistan would not be a breach of the United Kingdom's obligations under the Human Rights Convention."
"The first and fourth grounds assert that the Judge's approach to the human rights appeal was wrong in law, but the approach taken was consistent with the guidance to be found in GS (Article 3 – health – exceptionality) India  UKUT 35, and JA (Ivory Coast) & ES (Tanzania)  EWCA Civ 1353, and KH (Afghanistan)  EWCA Civ 1354."
"The grounds argue that the First-tier Tribunal failed to appreciate that the appellant is an "exceptional case" and that his circumstances allow his case to be distinguished from GS (India). It is argued that the judge did not take the appellant's PTSD into account. It is maintained that the appellant has renal failure and is on the active waiting list for a kidney transplant. On that basis his circumstances are exceptional.
The judge considered GS and found that the facts were similar. She took account of the appellant's ill health but found that the jurisprudence did not require contracting states to provide aliens with medical treatment lacking in their home countries. Given that this life threatening condition did not assist the appellant to succeed in his appeal it is difficult to see how PTSD could. No challenge is made to the asylum/Article 3 claim and those findings therefore stand. The judge was entitled to find as she did. The grounds identify no arguable error of law in the determination."
"7.vi His mother, his only close remaining relative in Afghanistan, is in Jalalabad. It is accepted that the family home remains destroyed since 2006. There is no information as to his mother's physical and economic circumstances or evidence that she could provide the Appellant with care and accommodation. Nor is there evidence that the Appellant would on arrival in Kabul be fit enough to travel on to Jalalabad."
The SSHD's decision letter referred to the financial means of the Claimant and his family: his father was employed as a senior government official who owned property and was able to provide for the family financially; they were able to afford medical treatment for the Claimant; to pay a bribe; and to fund his travel to the UK. The Claimant did not adduce evidence to show that his family now had no funds with which to assist him.
"This learning shows that there may be departures from the Article 3 paradigm other than of the kind vouchsafed in D v UK. These departures are variously justified. But such an approach is indicated in D itself, at paragraph 49, and in N at paragraph 43 …. In my judgment it is clear that the departures from the Article 3 paradigm given in MSS and the other cases to which I have referred do not extend the reach of the departure allowed in D and discussed at paragraphs 42-45 of N v UK. The plight of an individual whose life expectancy may be severely shortened by his removal or deportation to his home State is a distinct state of affairs whose treatment under the Convention is not qualified by the court's approach, for example, to the reception conditions for asylum-seekers. The circumstances in which a departure from the Article 3 paradigm is justified are variable; the common factor is that there exist very pressing reasons to hold the impugned State responsible for the claimant's plight. But the fact that there are other exceptions unlike D or N does not touch cases – such as these – where the claimant's appeal is to the very considerations which D and N address."
Article 8 ECHR
"1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
"10. It is submitted that the Appellant has lived in the UK for a little less than three years and has developed a private life in the UK. If he were now removed that private life would be destroyed. It is not disputed that such interference would be lawful and for a legitimate aim. It is submitted however that such removal would constitute a disproportionate interference with the right to private life …. "
"11. The Appellant's surviving siblings are now in the UK and there is no suggestion that the Appellant has committed any crimes."
"Whilst the grounds appear to suggest that the Appellant could succeed on Article 8 grounds, even if he failed on Article 3 grounds, on the same basis – the authorities state that it "would be a very rare case which could succeed if it failed the Article 3 threshold". The grounds do not engage with that guidance, and the suggestion that the Judge's approach to the Article 8 appeal was flawed is inconsistent with the approach taken in GS JA and KH."
"85. It is common ground that in cases where the claimant resists removal to another State on health grounds, failure under Article 3 does not necessarily entail failure under Article 8 . In her skeleton argument at paragraph 55 Ms Giovanetti for the Secretary of State cites JA (Ivory Coast) & ES (Tanzania) v SSHD  EWCA Civ 1353, in which the appellants had been given a "de facto commitment" that they would be allowed to remain in the UK for treatment. Sedley LJ, with whom Longmore and Aikens LJJ agreed said this at paragraph 17:
"There is no fixed relationship between Art. 3 and Art. 8. Typically a finding of a violation of the former may make a decision on the latter unnecessary; but the latter is not simply a more easily accessed version of the former. Each has to be approached and applied on its own terms, and Ms Giovannetti is accordingly right not to suggest that a claim of the present kind must come within Art. 3 or fail. In this respect, as in others, these claims are in Mr Knafler's submission distinct from cases such as D and N, in both of which the appellant's presence and treatment in the UK were owed entirely to their unlawful entry …"
86. If the Article 3 claim fails (as I would hold it does here), Article 8 cannot prosper without some separate or additional factual element which brings the case within the Article 8 paradigm – the capacity to form and enjoy relationships – or a state of affairs having some affinity with the paradigm. That approach was, as it seems to me, applied by Moses LJ (with whom McFarlane LJ and the Master of the Rolls agreed) in MM (Zimbabwe)  EWCA Civ 279 at paragraph 23:
"The only cases I can foresee where the absence of adequate medical treatment in the country to which a person is to be deported will be relevant to Article 8, is where it is an additional factor to be weighed in the balance, with other factors which by themselves engage Article 8. Suppose, in this case, the appellant had established firm family ties in this country, then the availability of continuing medical treatment here, coupled with his dependence on the family here for support, together establish 'private life' under Article 8. That conclusion would not involve a comparison between medical facilities here and those in Zimbabwe. Such a finding would not offend the principle expressed above that the United Kingdom is under no Convention obligation to provide medical treatment here when it is not available in the country to which the appellant is to be deported."
87. With great respect this seems to me to be entirely right. It means that a specific case has to be made under Article 8. It is to be noted that MM (Zimbabwe) also shows that the rigour of the D exception for the purpose of Article 3 in such cases as these applies with no less force when the claim is put under Article 8:
"17. The essential principle is that the ECHR does not impose any obligation on the contracting states to provide those liable to deportation with medical treatment lacking in their 'home countries'. This principle applies even where the consequence will be that the deportee's life will be significantly shortened (see Lord Nicholls in N v Home Secretary  2 AC 296, 304  and N v UK  47 EHRR 885 (paragraph 44)).
18. Although that principle was expressed in those cases in relation to Article 3, it is a principle which must apply to Article 8. It makes no sense to refuse to recognise a 'medical care' obligation in relation to Article 3, but to acknowledge it in relation to Article 8.""