United Kingdom Asylum and Immigration Tribunal

jh

Heard at Field House

[2003] UKIAT 00082 S (Georgia)

On 1 September 2003

IMMIGRATION APPEAL TRIBUNAL

Date written

Determination notified: 19/09/2003

Given orally in court

Before:
Mr J Barnes (Chairman) Mr C P Mather

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT

APPELLANT

and

RESPONDENT

Representation

For the appellant: Mr A Lawther, Home Office Presenting Officer

For the respondent: Mr I Strongman of Counsel, instructed by Blakemores Solicitors

DETERMINATION AND REASONS
1. The respondent is a citizen of Georgia born on 1 January 1938. He arrived clandestinely in the United Kingdom on 28 September 2001 and claimed asylum on arrival with his wife as his dependant. There were various documents before the Secretary of State in support of his claims which included a claim that not only would his removal be contrary to the Refugee Convention but would also be in breach of a number of Articles of the European Convention including Articles 3 and 8. There was a psychiatric report dated 19 July 2002 prepared by Dr Ahmed E T Farah. This is the only medical evidence available in connection with this appeal at any point and it was, as we say, before the Secretary of State prior to his decision. The medical report says this about the respondent's mental state:

"His mental state examination revealed a 65 year old man who was casually dressed. He appeared extremely anxious and depressed. He had initial and late insomnia. His mood was worse in the mornings (diurnal variation of mood). As mentioned above, he has feelings of hopelessness and helplessness but denied active suicidal plans or intent. No delusions and/or hallucinations. His concentration and attention were impaired leading to short term memory difficulties. His appetite is reduced. He seems to have full insight into his condition. In my opinion this gentleman appears to have a combination of features of post traumatic stress disorder with possible prolonged grief reaction and symptoms suggestive of a clinical depressive illness."

2. The doctor went on to note that he was in receipt of anti-depressant medication from his General Practitioner and that in his view counselling or cognitive behaviour therapy by a clinical psychologist would be necessary. There is no evidence that any such counselling or course of treatment has been undertaken and there is no evidence as to whether or not the respondent is currently on any medication.
3. The Secretary of State refused the application for the reasons contained in a letter dated 15 August 2002. We note that at paragraph 10 of that letter the Secretary of State said that he had given careful consideration to the psychiatric report which had been submitted but was of the opinion that it did not substantially add to the claim. At paragraph 13 he noted the Articles of the European Convention on which the respondent sought to rely, said that no explanation how or in what way these Articles were relevant had been forthcoming but that he had nonetheless given careful consideration to whether the respondent should be allowed to remain in the United Kingdom as a result of the United Kingdom's obligations under the European Convention. He said he was not satisfied on the information available that the respondent would qualify under any of those Articles, including Article 10.
4. On 14 October 2002 the Secretary of State issued directions for removal of the respondent to Georgia as an illegal entrant after refusal of his asylum application. He appealed against that decision on both asylum and human rights grounds and his appeal was heard on 14 February 2003 by an Adjudicator, Mr Andrew Alan Wilson, who dismissed his appeal under the Refugee Convention and under Article 3 of the European Convention, but allowed it under Article 8. It is against that decision which the Secretary of State now appeals to the Tribunal with leave. There is no cross appeal and we are concerned only with the finding of the Adjudicator that removal would be in breach of the respondent's Article 8 rights.
5. As we have noted, the only evidence before the Adjudicator as to the mental condition of the respondent was that contained in the report to which we have referred. The Adjudicator however went on to make his own notes of what he assessed as the capacity of the respondent in the hearing before him, and he says at paragraph 20 of his determination:

"In view of the medical condition and of his position in front of myself when I found that the appellant was not effectively capable of giving evidence, I had regard to the written statements supplied by the appellant."

6. At paragraph 28 he returned to this issue in the following terms:

"The appellant's mental status as already stated as apparent was such that he was not a competent witness at the date of the hearing. I have therefore had to carry out the assessment by reference to the written statement supplied. It is also apparent, having regard to the quality of those, that there has been a substantial deterioration in the clear detail set out in his first statement on 10 October to a somewhat simplistic and bare style dated 23 December 2002. I note that the appellant is receiving current medication. It is of course possible that his condition was due entirely to the pressure of the hearing. I note, however, the earlier Consultant's view that it was a longstanding problem. The evidence of his wife in relation to the caring of the appellant was simple, clear, fitted the rest of the evidence and I accept it."

7. He then goes at paragraph 29 to say:

"I therefore formed the view that the appellant is currently suffering from acute mental health problems. It would appear that those are of some longstanding of at least since his arrival in the United Kingdom. It is therefore entirely possible that the whole history of the appellant that he has given is through the somewhat prismatic effect caused by mental illness."

8. At paragraphs 36 to 45 of his determination, he returns to the question of the Human Rights Convention. At paragraph 37 he says that he was satisfied that if the mental health status of the respondent was sufficiently fragile that an appearance before him was sufficient to render him effectively incapable of functioning, that at the very least removal from the United Kingdom would create similar acute mental health distress and lack of functioning. He says therefore that he approaches the case on that basis rather than any indication that the actual treatment the respondent would receive within Georgia would be such that Article 8 rights would be infringed within his home country. He then formally finds at paragraph 39 that removal of the respondent would cause his physical and mental health rights as enshrined within Article 8 to be breached and at that stage apparently purports to follow the course advised by the Tribunal in the decision in Nhundu & Chiwera [01/TH/001633. We note at paragraph 41 that he said he draws a distinction between an assessment that would lead to a permanent right of stay within the United Kingdom and one which is simply concerned with the position as at the date of hearing, rendering it inappropriate for him to be removed. We mention that because it seems to us that at that point there is a clear error on the part of the Adjudicator. His function is simply to consider whether at the date of the hearing before him removal would result in a breach of the respondent's human rights. He has no further control over what thereafter would follow. It would be a matter entirely for the Secretary of State's decision.
9. The basis of the appeal before us is that the Adjudicator's findings in relation to Article 8 are unsustainable because of errors on his part. Mr Lawther referred us to the passage in the recent reported decision of the Tribunal, 2003 UKIAT 00017 P (Yugoslavia), and in particular paragraph 16 of the determination where the point is made that it is not the function of an Adjudicator to make clinical judgments. It is the function of medical experts to do so. That, we consider, to be worthy of reiteration in this appeal because we are of the clear view that the Adjudicator has no expert basis on which it is open to him to make clinical judgments as to the state of the mental health of the respondent at the date of the hearing.
10. It follows from this that in our view his approach is fundamentally flawed on that issue and he should have considered the position solely on the basis of such medical evidence as was before him. That consisted solely of the earlier report from Dr Farah. There was no evidence whatsoever as to current treatment, nor as to what treatment would be available for the respondent, should he need any, in his own country. That remains the case before us.
11. Despite Mr Strongman having said all that he could say on behalf of the respondent, we are left in no doubt that the Adjudicator's finding is unsustainable. He has not considered first whether there would be a breach of Article 8(1) at all in any structured manner. He has not considered that the respondent is a recent and illegal entrant to the United Kingdom in receipt of no apparent current treatment and with no right to stay here on any other basis by reason of any threat of persecution or of treatment contrary to his protected human rights under Article 3 of the European Convention. He appears to have overlooked the fact that even were it possible to say on such evidence as was before him that there would be a breach of his Article 8 rights by removal, he would nevertheless have to consider whether such removal would be proportionate to the important public interest in maintaining regular enforcement of immigration control.
12. He deals with this very briefly at paragraph 40 of his determination in the following terms:

"I nevertheless have to consider whether it would proportionate [sic] in a democratic society. I was not particularly addressed on any of the above points or arguments. In accepting and considering proportionality I have regard clearly of course to the fact of the appellant's age, that he is receiving current treatment from the NHS and would appear to be of no particular danger or aggravation to the community. I also accept that although the appellant entered the United Kingdom illegally, there would appear to be no actual deception in that and he claimed asylum immediately after leaving the lorry."

13. It is on that basis alone that he reaches his view that removal would not be proportionate. Again, to the extent that it is in issue, such an approach is in our judgment fundamentally flawed. He has taken no account of the clear guidance of the European Court in Bensaid v United Kingdom [2001] INLR 325, and more importantly, he has not approached the task on the basis which is now recommended by the Court of Appeal in the judgment of Lord Justice Simon Brown in Blessing Edore [2003] EWCA Civ 716. At paragraph 20 of his judgment Lord Justice Simon Brown says:

"In cases like the present where the essential facts are not in doubt or dispute, the Adjudicator's task on a human rights appeal under Section 65 is to determine whether the decision under appeal (ex-hypothesi a decision unfavourable to the appellant) was properly one within the decision-makers discretion; i.e. was it a decision which could reasonably be regarded as proportionate and as striking a fair balance between the competing interests in play. If it was, then the Adjudicator cannot characterise it is as a decision "not in accordance with the law" and so even if he personally would have preferred the balance to have been struck differently (i.e. in the appellant's favour) he cannot substitute his preference for the decision in fact taken."

14. That is, of course, clearly binding authority on us. We would have to be satisfied that the original decision of the Secretary of State taken in full knowledge of all medical evidence which has been produced at any point in the course of this appeal process was one which was plainly wrong. If that were not the case, then the decision would be within the area of discretion allowed to the Secretary of State in such matters. That is, in our judgment, clearly the case here. The Adjudicator's finding that removal would be in breach of the respondent's Article 8 rights is unsustainable for the reasons which we have given and the Secretary of State is entitled to succeed. On the evidence before us we do not find that the respondent has established a family or private life in the United Kingdom which would be interfered with by his removal, but if we were wrong in that, we are satisfied that it would, on the basis of the decision of the Secretary of State, be proportionate to the important public interest in the maintenance of immigration control.
15. The appeal of the Secretary of State is accordingly allowed.

J Barnes

Vice President