England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION

MR JUSTICE JOWITT:

The applicants in this case for judicial review are husband and wife. They challenge a decision by the Secretary of State to adhere to an earlier decision not to allow the first applicant to remain in this country and to deport him to India. Leave was given in this case by McCulloch J after an oral hearing.

The applicant arrived in this country from India on 10th October 1986 and was given leave to enter as a visitor, then subsequently as a student and then as a spouse. The spouse was Kalvinder Kaur, whom he married on 24th February 1990. On 24th February 1992 the applicant applied for indefinite leave to remain on the basis of his marriage, though in fact, as his own document shows, he separated from his wife in April 1991. On 3rd May 1992 the first applicant was refused leave to remain in this country and on 18th May 1993 the adjudicator dismissed his appeal against refusal of leave to remain. That was, as Miss Harrison for the applicants accepts, a thoroughly dishonest appeal. By now Mr Khaira had met his present wife. She says it was in November 1992 that they met. That is likely to be more reliable than the earlier date given by her husband, the first applicant. On 9th September 1993 the Secretary of State warned the first applicant to leave this country or to face deportation, and notice of the intention to deport him was given to him on 3rd February 1994. The first applicant's first marriage was annulled on 10th March 1994.

Two days later he married the second applicant, the present Mrs Khaira. It was said by the first applicant's former solicitors that he did not know when he married his present wife about the notice of intention to deport him. The lie to that is given by his own letter to the Immigration Nationality Department of 27th October 1996, in which he said his wife knew about his position and that it was she who suggested that they should marry.On 8th April 1994 Mr Khaira applied for leave to remain on the basis of his second marriage, and on 8th November 1994 the adjudicator dismissed his appeal against the notice of intention to deport him. The deportation order was signed on 15th March 1995. On 9th December 1995 a daughter was born to the applicants.

On 21st October 1996 the Secretary of State maintained his decision refusing leave to remain in this country on the basis of the second marriage and on 28th October directions for removal were deportation served. In letters of 27th and 28th January 1997 and on 27th February 1997 the Secretary of State maintained his decision to deport the first applicant.The grounds in Form 86A centre upon two challenges. First, the fact of the marriage to the present Mrs Khaira, the relationship between husband and wife and the effect on Mrs Khaira of having to leave England. That is a ground which rightly has not been pursued. The second ground to which Miss Harrison has, rightly in my view, confined herself relates to the mother of Mrs Khaira, Mrs Sandhu. It was the position in relation to the mother which led McCullough J to grant leave.

These are the facts concerning Mrs Sandhu. She is 60. She was widowed in 1976. She has two daughters: Mrs Khaira, who is now 30 years old and another daughter, unmarried, now 34, who leads her own life, and the indications from her present attitude are that, were Mrs Khaira to leave this country, her mother could look for but little support from this other daughter.In 1994 Mrs Sandhu underwent a double coronary artery bypass graft. She retired from her work on grounds of her ill health. She suffers ischaemic heart disease and as well suffers angina. Mrs Sandhu told a psychiatrist who examined her on the applicants' behalf that, although there are many things she cannot do because of her angina, she likes to keep as active as possible. The psychiatrist, Dr Gorst-Unsworth, reported that Mrs Sandhu continues to suffer symptoms of ischaemic heart disease which limit her activities to some extent.The evidence shows there is a strong family bond between Mrs Sandhu and the applicants and their child. She lives across the road from them. She has to go regularly to hospital for medical checkups and her daughter or daughter and son-in-law take her to hospital and one or other or both of them take her shopping as well. She receives help from them with her household chores and also (an important aspect of the case according to the applicants) they provide her with emotional support.If the first applicant is deported to India, his wife has said that she and their child will go with him. That will mean that Mrs Sandhu will be deprived of their emotional and physical support and the comfort and affection she enjoys on a day-to-day basis, and will experience a deal of loneliness, sadness and isolation.It was pointed out recently by the Court of Appeal in Gangadeen v Secretary of State for the Home Department (unreported, November 1997) that policy DP2/93 (on which the challenge no longer pursued was based) is:"...concerned with an extra-statutory concession whereby people are allowed to remain who would otherwise be subject to removal."

The Court said:

"It was therefore appropriate to confer a broad measure of discretion on the Home Secretary in relation to its application, and so long as he had regard to the policy, and made a reasonable decision, the court should not intervene."

That is a citation from the judgment of Hirst LJ.When one comes to the exercise of a discretion falling outside even DP2/93, the Secretary of State is entitled to set a high threshold by which to measure the sufficiency of those strong compassionate grounds which he accepts should not lead him to say that he will not deport a spouse who in fact has no right to remain here and who cannot bring himself within policy DP2/93. It is the Secretary of State who sets the threshold and, since he is dealing with his discretion outside the rules, he is entitled to set the threshold at the high level he thinks appropriate.If matters stopped at the point where I left my outline of Mrs Sandhu's position, it would have to be said her position is by no means unique in a modern society. There must be many elderly people living alone suffering some physical disability and a deal of loneliness and isolation when an adult child - relied on as a prop for infirmity - moves to another area or another country. Though it might be said that the Secretary of State could helpfully have given fuller reasons for his decision, it could not be said, were this the full extent of the impact on Mrs Sandhu of the departure of her daughter, grandchild and son-in-law, that the Secretary of State's decision was challengeable by way of judicial review. It could not be said that the Secretary of State was not entitled to conclude that strong compassionate grounds had not been demonstrated.But the applicants say this is not the full impact of what Mrs Sandhu will suffer if she is left alone. The second report from Dr Kaikini says:"Mr and Mrs Khaira have played an integral part in providing Mrs Sandhu with the help she requires as a result of her potentially life-threatening medical problems. It would, in my opinion be advisable, if Mr and Mrs Khaira could continue to help Mrs Sandhu particularly in view of the fact that her cardiac condition has unfortunately deteriorated."

Mr Jay, for the Secretary of State, points out that the reference to a "life-threatening medical problem" has to be read in the context of Dr Kaikini's earlier report, in which he says:"At present Mrs Sandhu's condition is being regularly monitored at the Hammersmith Hospital and her cardiac medications have been increased in an effort to try to control her angina on medication.At Mrs Sandhu's last hospital visit it was felt that should her angina not respond satisfactorily to medication a repeat coronary and graft angiography would be undertaken."

Mr Jay says that, seen in the context of that paragraph, the reference to "potentially life-threatening medical problems" should not be read as suggesting that Mrs Sandhu is in real danger of death, though, of course, were she to remain untreated, that might become the case. I see some force in that.As well, it can be properly pointed out that, in the second report, Dr Kaikini does not say that it is "necessary" or "essential" that Mrs Sandhu's daughter and son-in-law continue to help her, merely that this is "advisable".The first report ends with these paragraphs:"The thought of her immediate family unit being torn apart is causing her extreme anxiety and distress which in turn does not help her underlying cardiac problem and could indeed affect her adversely.Now that her cardiac ischaemia has returned even after the bypass surgery, Mrs Sandhu is in even greater need of the physical and emotional support of her daughter and son-in-law."

Those last cautionary words have to be read in context with the passage from the second report to which I have referred just now about the advisability of help being available.In her psychiatric report, Dr Gorst-Unsworth expressed these views:"In my opinion the accumulative stresses that would ensue if Mrs Sandhu's son-in-law were deported would result in a considerable deterioration in her mental state. As a consequence it is likely that her angina would worsen. It is well known that emotional states are an important factor in the prognosis of severe heart disease. I would regard Mrs Sandhu as fairly high risk in this regard. In the light of my experience of working with vulnerable people in conjunction with local statutory services I do not think that there is any substitute for the quality of support that can be offered by close family."

Mr Jay submitted it was not within a psychiatrist's expertise to express an opinion about the effect of stress on heart disease.I disagree. Dr Gorst-Unsworth was clearly speaking of matters within her own experience in the psychiatric field.Mr Jay accepts that the Secretary of State's decision is one which affects family life and which therefore calls for a high standard of reasoning.Miss Harrison complains that the reasons given in the affirmation of Mr Cockerell for the Secretary of State after a consideration de novo of this case failed to match this requirement. She accepts that, though she cast her net wider in the grounds and in her skeleton, this is in reality a reasons challenge.In paragraph 6 of his affirmation, Mr Cockerell said this:"The Secretary of State has given full consideration to all the matters prayed in aid by the applicant, in particular to the evidence relating to the applicant's mother-in-law, Mrs Sandhu. This includes all the documentary materials appearing at exhibit DCB2 to David Burgess's second affidavit. The Secretary of State has taken into account, amongst other things, the following matters: (1) The medical report of Dr Caroline Gorst-Unsworth dated 12th February 1997. There is no history of psychiatric disorder and no psychotic [features] relevant to Mrs Sandhu's case. However, it is noted that she has a history of ischaemic heart disease and that the departure of the applicant and Navdeep Kanur Sandhu would cause stress. No further medical treatment is suggested, and the Secretary of State does not believe that any increase in stress would be long-lasting."

It would have been better had the Secretary of State referred to Dr Kaikini's second report to say why he did not regard Mrs Sandhu's illness as potentially life threatening or how he saw that in the whole context, but the principal focus on inadequacy of reasons is obviously the final sentence of paragraph 6(1) of Mr Cockerell's affirmation.The point is reinforced by two concluding paragraphs of Dr Gorst-Unsworth's further report in which she comments on this sentence:"Thirdly, no further medical treatment is suggested simply because in order to alleviate the stresses and therefore the dangers to Mrs Sandhu's mental and physical health, this would require her daughter and son-in-law to stay with her, ie it is not amenable to medical treatment.Fourthly, 'The Secretary of State does not believe that any increase in stress would be long lasting'. I would merely reiterate what I said in my concluding paragraph that in my opinion, if Mrs Sandhu's son-in-law were deported, this would result in considerable stress and worsening of her angina. In my experience, this kind of stress is ongoing and accumulative and there is no emotional substitute for close family support, ie the gap cannot adequately be filled by social services." In other words, what the psychiatrist is saying there is that she does not think the passing of time will bring the stress to an end.These further comments from the psychiatrist have gone unanswered. I return, then, to paragraph 6 of Mr Cockerell's affirmation. It is to be noted that Mr Cockerell says:"No further medical treatment is suggested."It is true that none is suggested in the psychiatrist's report, but the possibility of further surgical treatment is quite plainly referred to in Dr Kaikini's affidavit to which I have referred already.My immediate reaction when I first read to myself the second part of that last sentence in paragraph 6(1), "and the Secretary of State does not believe that any increase in stress would be long-lasting", was to ask myself: on what basis does Mr Cockerell say this?This, it seems to me, is a medical issue. There may be two views about it, but I do not see on what basis the lay person is able to express this view without the benefit of some medical advice. There is nothing to indicate that any medical advice at all has been given and whether the stress will continue or not is a factor which plainly needs to be considered on a proper basis by the Secretary of State. He has dismissed the point, in my judgment, without adequate reasoning. It is not appropriate for a civil servant without medical expertise to reach a conclusion contrary to that reached by a psychiatrist simply by drawing on his own native wit. If Mr Cockerell had more to draw on than this - for example some medical experience germane to the point or some medical advice - he should have said so.It may be that, had the Secretary of State taken medical advice, he would have been justified in expressing the view set out in that sentence. Had it been clear that that view had been expressed on medical advice, I very much doubt whether it would have been open to challenge at all.Suppose the Secretary of State, on being medically advised, had accepted Dr Gorst-Unsworth's opinion, it does not necessary follow that his decision overall would have been different - that would have been for him to say. He might or might not have said the threshold for strong compassionate grounds had been crossed. But all the appearances are that the Secretary of State never did consider what the position would be were the psychiatrist's views to be correct.It is apparent from the insufficient basis for his views given in the final sentence at paragraph 6(1) that, had the Secretary of State properly informed himself, there is a real possibility that the effect on Mrs Sandhu of the departure of the applicants and their daughter, prognosticated by the psychiatrist, might have had to be weighed in the balance against removal in reaching the decision the Secretary of State was called on to make.Whether he should have considered that, we do not know, because we do not know that he was properly informed. Whether, had he considered that, it would have made a difference in his overall decision, again we do not know. But in these circumstances it seems to me that on this point - and it is a point which could have assumed significance in the overall decision - the Secretary of State's reason is flawed by not being properly informed, or, if he was, by not saying so, and therefore this challenge succeeds.