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Cite as: [2005] UKIAT 00075, [2005] UKIAT 75, [2005] UKAIT 00075

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MK (Mental Illness – Articles 3 and 8) Pakistan [2005] UKIAT 00075

IMMIGRATION APPEAL TRIBUNAL

Date of hearing: 30 November 2004

Date Determination notified: 31 March 2005

Before

The Honourable Mr Justice Ouseley (President)

Mr H J E Latter (Vice President)

His Honour Judge N Huskinson (Vice President)

Between

Secretary of State for the Home Department	APPELLANT
and
MK	RESPONDENT

For the Appellant: Mr L Parker, Home Office Presenting Officer

For the Respondent: Ms F Webber, instructed by TRP

DETERMINATION AND REASONS

This is an appeal from the determination of an Adjudicator, Mr N Renton, promulgated on 14 November 2002. He allowed the Claimant's appeal against the Secretary of State's decision of February 2002 to refuse to revoke a deportation order and to set directions for his removal to Pakistan; he did so on the grounds that removal would breach the Claimant's human rights, and Article 3 in particular. The Tribunal allowed an appeal by the Secretary of State from that determination on 1 August 2003. An appeal against that decision was allowed by consent in September 2004, after permission to appeal had been granted by the Court of Appeal; the matter was remitted to the Tribunal.

The terms of the Statement of Reasons accompanying the Consent Order, to which the Tribunal is not a party, say that the appeal was allowed, not because it was concluded after consideration that the Tribunal had erred in law but because it was "arguable" that the Tribunal had failed to make a specific finding as to the availability of medical treatment which "arguably" was an error. Arguable errors do not suffice to allow an appeal. The error of law should be shown. It is to be hoped that those conceding that a decision should be overturned will identify the error of law, not just arguable errors of law.

The Claimant, born in 1962, arrived in the United Kingdom in 1996 with leave to enter for twelve months as a spouse. Some three months later, he killed his wife. He pleaded guilty to manslaughter and in July 1997 was ordered to be detained under section 37 of the Mental Health Act 1983, with a section 41 Restriction Order. He was recommended for deportation upon release and a Deportation Order was made on 1 March 2000.

On 12 February 2001, a Mental Health Review Tribunal ordered his conditional discharge, but because the conditions could not be met, he remained in detention. On 11 February 2001, he sought revocation of the Deportation Order and indefinite leave to remain on the grounds that his removal would breach Articles 2 and 3 ECHR. This was rejected by the Secretary of State in February 2002 when he set removal directions for Pakistan. This led to the current appeal. The Adjudicator rightly held that he only had a human rights appeal in front of him. There was no in-country appeal against the refusal to revoke the Deportation Order.

The Claimant's case was that he could not receive the full psychiatric treatment in Pakistan necessary to prevent him becoming a risk to himself and to others. Nor could he obtain there the treatment which he required for his insulin-dependent diabetes, without which he would die. He produced the evidence of Dr Kenney-Herbert, a consultant forensic psychiatrist and his Responsible Medical Officer at the hospital where he was detained. The Adjudicator summarised this evidence and commented as follows:

"6. He says that without the proper package of medical treatment, the Appellant will relapse and his health will deteriorate to the point where he becomes a risk both to himself and to other people. That risk is described later in the report as deterioration to the point where he himself would be harmed and/or he will cause serious harm to other people. I am not concerned with the risk of harm to other people, because I am not concerned with their human rights."

The conditions risked here was a return to his state on first admission.

The Adjudicator considered the circumstances here against Bensaid v UK and D v UK [1997] 24 EHRR 423 and said that this case was equivalent.

"7. Without proper medical treatment, the Appellant will suffer acute mental suffering to the point of taking his own life. This amounts to inhuman treatment contrary to Article 3."

Adequate treatment could not be obtained in Pakistan:

"8. It may be the case that although the Appellant comes from a remote part of Azad Kashmir, he would obtain the medication he needs as set out at paragraph 6 of Dr Kenny-Herbert's Statement, although its cost would be a problem. However, it is evident that the Appellant's necessary treatment amounts to far more than medication. He also requires psychiatric supervision and treatment, and social work supervision according to the conditions imposed by the Mental Health Review Tribunal. This requirement is ongoing and indefinite."

Mental healthcare in Pakistan was not good, although there were good psychiatrists in the major cities, but even if, implausibly, the Claimant could gain access to them, there would still be a "substantial deficit" in access to emergency support and support from social work staff.

He concluded:

"To summarise, I find that if removed to Pakistan, the Appellant would not be able to obtain the full package of treatment and support he requires. Without such treatment and support, he will relapse into a condition where he will suffer acute mental anxiety, and harm himself to the point of taking his own life. His removal therefore amounts to inhuman treatment contrary to his rights under Article 3 of the ECHRFF, and is therefore unlawful. All this being the case, I will not consider if his removal would be contrary to his rights under Article 8."

The Secretary of State's grounds of appeal were that there could be no breach of Article 3 once the Adjudicator had found that treatment was available in Pakistan, and it was not the Secretary of State's responsibility to ensure that he received it. Bensaid had set a high threshold where the harm was not the direct responsibility of the state. The grounds promised a Home Office Presenting Officer for the appeal. None had been there to assist the Adjudicator.

It is useful to note the observations of Sedley LJ when granting permission to appeal, remembering that they are only observations at that stage.

"1. I do not think it can be contested that the adjudicator erred in asking whether the 'full package' of treatment would be available to A in Pakistan. The IAT was accordingly right to form its own view, and no Subesh issue arises.

2. What I think is cogently arguable is that the IAT went too far in the opposite direction by treating the availability of good-quality private medical services in the major cities, and the local availability of A's drugs, as answering the question whether a meaningful or effective level of treatment (if that is the test) would be available to A. The evidence of the family's circumstances and location makes it possible to contend that the IAT's decision was unrealistic."

The Adjudicator's determination is rather brief in its reference to the evidence which underlay the outcome and as the appeal before us is on fact and law, it is necessary to consider it in a little more detail so as to follow the submissions, and because the application of Article 3 is fact sensitive. The relevant evidence is concerned with the nature and severity of the Claimant's medical conditions and the reality of the availability to him of treatment for those conditions in Pakistan.

Ms Webber for the Claimant submitted that the material, which showed the Claimant's condition before the offence, was relevant to how he would be, were he to suffer a relapse following return. He had had some seemingly minor problems with anxiety in his village in Pakistan Kashmir according to his parents but he described worse symptoms of his "mind going bad" and his "head exploding", which traditional healers had been able to soothe. These had been the untreated symptoms of mental illness, it was later concluded. When he killed his wife he was depressed, feeling suicidal and was hearing voices. In hospital here, there had been incidents of head-banging, attempts at self-harm and he received anti-depressant and anti-psychotic medication. A 1997 case conference felt that at the time of the offence he had been suffering from a severe depressive episode with psychosis, although schizophrenia should also be investigated. This mental illness was a major contributory factor to the offence, but he had had little access to support and experienced difficulty verbalising his concerns. (He was illiterate, without education, speaking no English and had seen comparatively little of his wife, whom he had married in 1990 when she was sixteen, in order to come to the United Kingdom to advance himself economically, according to his family).

Dr Kenney-Herbert's opinion in 2000 was that the risk of re-offending was sufficiently minimised that he could be managed safely in the community with appropriate follow up. This would include supervised accommodation, with someone who could understand his language and cultural needs, with regular monitoring and active supervision by health professional. Regular anti-depressant and anti-psychotic drugs would be prescribed.

Mr Parker for the Secretary of State argued that the decision of the MHRT in February 2001 that the Claimant was not suffering from an illness which made it appropriate that he be liable to be detained, even though he had suffered a relapse, showed the lesser severity of the Claimant's mental illness. He had had unescorted leave, and his release was conditional on residence in an identified hostel which had agreed to take him.

In February 2001, Dr Kenney-Herbert wrote to the Secretary of State saying that the Claimant would become anxious and distressed, rather than violent, upon receipt of a deportation order. Impending removal would have a deleterious effect on his mental health and could precipitate a relapse. He would need ongoing psychiatric treatment in the form of support and medication. A main concern would be the possibility of self harm.

Dr Kenney-Herbert provided a further statement for the Adjudicator in September 2002. It described the anti-depressants and anti-psychotic drugs which the Claimant took and the drugs against their side effects. He was also an insulin controlled diabetic. He appeared then to be on insulin tablets; (he may now inject). He had not been discharged. The Claimant was said to be aware of the mental illness which had caused the offence and that he would need to be treated indefinitely for it. He was a basically honest and pleasant person who was not inherently anti-social. There was a risk of aggression when he was unwell as he had demonstrated in an incident with another patient although his escorted and unescorted leaves had been without incident. The fairly intensive care in the community which the Claimant would require included residence at the MIND hostel, with staff available by day and on call at night, with someone who spoke the Claimant's language. There would be regular nursing, social work and day centre support for him.

Dr Kenney-Herbert said that, given the Claimant's needs, even if he were to have access to medication in one of the larger cities in Pakistan, "there is a serious possibility that his health would deteriorate to the point where he became a risk both to himself and to other people". Dr Kenney-Herbert had been informed by the Claimant's consultant physician that, without insulin for his diabetes mellitus, he would undoubtedly lapse into a coma and die within a very short period. He concluded, referring to the Claimant's mental state:

"As I have stated above, [ ]'s illness is long-term and he may in fact require treatment indefinitely. I cannot stress too much the potential dangers arising from a relapse. That is a danger for both [ ] himself and for third parties. It is quite possible that [ ] was suffering from some form of mental illness when he was in Pakistan but that this went undiagnosed. Although [ ] is now aware of his illness and the treatment that he requires, it is difficult if not impossible to see how that treatment would be given to him if he is forcibly returned to Pakistan. In addition, he will be thrown into a state of frustration and turmoil if this deportation proceeds. Therefore, even with the benefit of a medical escort to Pakistan, once he was in Pakistan and responsible for himself it appears highly lightly that his health will rapidly deteriorate to the point where he himself would be harmed and/or he will cause serious harm to other people. I believe therefore the decision to proceed with his deportation has very serious implications both for [ ]'s health and for his life expectancy."

The Adjudicator also had a village visit report from 1998 prepared by a legal executive. The Claimant's father and mother lived there with their four other sons, who were all adults in their twenties or early thirties. The parents were in their sixties, unwell from a variety of conditions including diabetes; medication was purchased at the expense of food. They were poor farmers with only two or three acres which did not provide them with what they needed. When the Claimant had needed an operation when he was young, they had had to sell their livestock and borrow money to fund it. They could not afford to pay anything for their son's mental health treatment. None of the brothers had a job, and a little money was made by illegal fishing. The daughter was married and lived in another village in the area, but had no money to spare.

There was evidence in the report that the villagers and the family clan had taken against the family because of the killing, that relatives in the United Kingdom no longer sent the family money because of it, and that there was specific ill-will towards the Claimant from a cousin's family which had wanted the deceased wife to marry into their family.

The town to which the villagers looked for their shopping and medical needs had a hospital, at least one doctor who charged for consultations and where the medication required by the Claimant was available at what by United Kingdom standards was a very low cost. It was a very long journey by road but there was public transport. The more usual mode was by boat but that appeared to involve a day, except for a special fare, because of the timetable. It would be a costly journey even at the ordinary fare for those who had very little money. There appeared to be no specific facilities available in Kashmir for those with mental disabilities.

The content of this report so far as it related to travel and medical facilities was largely accepted in a response from the High Commission and is reflected in the Adjudicator's determination. The drugs for his mental illness were available locally and could be ordered if necessary without prescription. There was no financial assistance available to those who could not afford the good quality psychiatric treatment available in the larger cities. In-patient treatment was available in the cities but to a much lower standard than in the United Kingdom. The Claimant would be unlikely to have access to adequate care even in the local town. The family circumstances were confirmed and it was unlikely that the family could finance any long term medical care. The village report and the High Commission response were considered by the Secretary of State in his decision of February 2002.

It is convenient to set out here the report from Dr Kenney-Herbert which was produced after the Adjudicator's determination; it is dated 7 April 2003. There is no later material. In short he maintained his previous view: without the treatment, ie medication and support, which he had already identified as necessary, the Claimant would "relapse quickly into a state demonstrating a mixture of psychotic and depressive symptoms". That would lead to a high risk of self-harm including attempted suicide. The Claimant could not care for himself in such a state. Severe self-neglect would follow, and as an insulin-dependant diabetic, his health would be severely compromised. Indeed, his life would be at a severe risk. Mr Parker stressed that the diabetes was diet and insulin controlled.

Mr Parker's submissions for the Secretary of State emphasised the high threshold which had to be satisfied before Article 3 ECHR would permit someone to stay in the United Kingdom who otherwise had no right to do so. Bensaid v UK [2001] 33 EHRR 10, p205 illustrated the point. The Applicant was a schizophrenic who would cease to receive the particular drugs which he had in the United Kingdom, and might have to become an in-patient to receive alternative medication at some distance from his home with the stresses of a terrorist affected environment. There was a risk of serious relapse but there was a risk of that were he to stay in the United Kingdom. It was accepted that removal would arguably increase the risk of a relapse but medical treatment was available to him. It was accepted that the return of a patient could in principle fall within Article 3. But the essential feature to our mind of the Court's conclusions was that the range of risks and their severity were essentially speculative and so the case had not been made out.

Mr Parker's submissions relied particularly on N v SSHD [2003] EWCA Civ 1369. There, the appellant's life expectancy upon return would be reduced to two years; itself a distressing prospect and the death would be painful and distressing. Laws LJ, paragraphs 40 - 41, emphasised the extreme and exceptional nature of the circumstances which had to exist for Article 3 to be breached in such a case. It was insufficient that the case pressed strongly upon one's sympathy. D v UK [1997] 24 EHRR 423 could not be extended into the case where simply the harsh effect of a want of resources in the home country was made harsher by the contrast with the treatment available in the United Kingdom.

"40. But I am no less clear that D should be very strictly confined. I do not say that its confinement is to deathbed cases; that would be a coarse rule and an unwise one: there may be other instances which press with equal force. That said, in light of the considerations I have described I would hold that the application of Article 3 where the complaint in essence is of want of resources in the applicant's home country (in contrast to what has been available to him in the country from which he is to be removed) is only justified where the humanitarian appeal of the case is so powerful that it could not in reason be resisted by the authorities of a civilised State. This does not, I acknowledge, amount to a sharp legal test; there are no sharp legal tests in this area. I intend only to emphasise that an Article 3 case of this kind must be based on facts which are not only exceptional, but extreme; extreme, that is, judged in the context of cases all or many of which (like this one) demand one' sympathy on pressing grounds. On its facts, D was such a case. I consider that any broader view distorts the balance between the demands of the general interest of the community, whose service is conspicuously the duty of elected government, and the requirements of the protection of the individual's fundamental rights. It is a balance inherent in the whole of the Convention: see, for example, Soering paragraph 89.

41. Carnwath LJ observed in the course of argument that there was no evidence before us as to the numbers of actual or would-be immigrants to the UK whose aspirations to enter and remain here might be favoured if this appeal succeeds. With great respect he was plainly right to do so. However if on facts such as those of this case we were to fix the Secretary of State with a legal obligation to permit the appellant to remain in the UK, we would in my judgment effect an unacceptable – constitutionally unacceptable – curtailment of the elected government's power to control the conditions of lawful immigration. I do not believe that our benign obligations arising under the Human Rights Act 1998 require us to do any such thing. Quite the contrary; our duty is to strike the very balance between public interest and private right to which I have referred."

On the facts, Mr Parker submitted that they showed that the Claimant would have family which could offer support and detect deterioration in his condition; there was evidence that the parents had illnesses, which they could treat in some way including diabetes, and so the Claimant's condition could be managed. They could seek to access treatment on an ad hoc basis or try to earn more money. D was a much more severe case involving a very short life span, and death without any support or comfort. If his family were turned against him he could relocate. He would have the support of those who spoke his language in a culture to which he was attuned unlike his position in the United Kingdom in the absence of particular steps being taken here. He was unaware of any specific measures which would be taken by the Secretary of State to assist his return but he did not think that the Claimant would just be returned without more.

Ms Webber submitted that Sedley LJ had identified the relevant issues in the permission decision: what was available and what were the consequences of the treatment which he would otherwise receive not being available? The whole package was relevant to effective and meaningful treatment according to the medical evidence. By this was meant, in the language of the Adjudicator, effective to prevent acute mental suffering to the point of suicide. By contrast, the evidence showed that in Pakistan he would face ostracism, a polarised community and the loss of the support of the extended family because of the disputed marriage in the first place. It was necessary to look at the practical availability of treatment to the Claimant and not just at the existence of treatment within Pakistan for some.

If the Claimant could not access treatment in Pakistan he would become a risk to others, and subjecting someone to a risk of such a personality change would itself amount to a breach of Article 3. Applying R (Soumahoro) v SSHD EWCA Civ 840, [2003] INLR 543, once there was a real risk of suicide it was for the Secretary of State to show that there were adequate means to prevent such a serious exacerbation of the mental illness. It would not be enough to show that the Claimant might be arrested. The evidence was clear that medication was required. But there had been no clear finding on the cost of medication. The costs from the village report showed that it could be Rs 4000-5000, for a family on the very edge of sustainable life. The Adjudicator's conclusion was right even if the lack of availability of parts of the "whole package" could not itself show that Article 3 would be breached. N v SSHD should be distinguished because the risk of suicide was unlike the consequence of a naturally occurring illness; it involved suffering which was inherently the more acute. This case involved survival and not relative disadvantage. In the United Kingdom, relapse was unlikely and its consequences were the more readily controlled. In Pakistan he faced relapse, self-harm to the point of suicide, a lack of insulin and the risk of attack from his extended family.

This case showed the qualities of exceptional circumstances which would make it a breach of Article 3 to remove the Claimant because of the compelling humanitarian considerations. Article 8 was also engaged even though the Adjudicator did not deal with it in the light of his conclusions on Article 3.

Conclusions

We take the view that in any Article 3 or Article 8 case of this sort, it is essential that the facts, so far as they are ascertainable, should be clearly found. It is then that the judgment can be made about whether return would meet the high threshold required under Article 3 or what is now to be seen as the near equivalent threshold under Article 8, once the legitimate interests of immigration control are allowed for. This reflects the conclusion of the House of Lords in R (Razgar) v SSHD [2004] UKHL 27, [2004] 3 WLR 58 paragraph 20. But these cases are fact sensitive, and the question of whether they cross that threshold or not requires care in the finding of the facts, particularly where a case at first sight could cross the threshold.

We were surprised that there had been no apparent consideration in this case as to how the return was to be effected. We assume that there would be any necessary medical care available on the flight back. But it struck us as surprising that the Secretary of State was unable to help as to whether any special arrangements would be made to alert the Pakistan authorities that someone with the Claimant's mental illness was returning, so that they could consider whether any measures of care or protection would apply to him. It simply was assumed by both parties that after arrival at the international airport, the Claimant would find his own way to his own village.

We asked for submissions, during the course of writing the determination, about the effect of section 86 of the Mental Health Act 1983, which seemed relevant to this point. It provides for restrictions on the removal of aliens who are subject to a section 37 order as here. Those restrictions require prior arrangements with the recipient country for the care of the patient, and the approval of the MHRT. Ms Webber helpfully referred us to X v SSHD [2001] INLR 205 in which the Court of Appeal had held that this section ran in parallel with the Immigration Act regime and did not impose the sole route by which an alien patient could be removed. Nonetheless, the factors which were relevant to the exercise of the 1983 Act powers were also relevant to the exercise of any immigration powers.

The contrast between the available powers under the 1983 Act to seek provision for the care of a returned alien under those provisions and the stance adopted on the material laid before us could not be starker. Even were the Claimant to be treated as conditionally discharged, it is striking that no attempt appears to have been made to make arrangements for his return with the Pakistan authorities. Such arrangements might have removed even an arguable case about a breach of Article 3.

However, that is not the position before us nor was it the position before the Adjudicator and we have to reach a decision in the light of the material before us.

We note that Sedley LJ said that the Adjudicator had erred in asking whether the whole package of treatment would be available in Pakistan, which it would not be. It is plainly right that a difference between the treatment available in the United Kingdom and in Pakistan cannot of itself engage Article 3 or 8. So, if the Adjudicator had determined that a breach of Article 3 arose simply because the whole package was unavailable, he would have erred.

In reality, the Adjudicator did not actually make that error. He accepted the medical evidence as he was entitled to. That was to the effect that the whole package was necessary to prevent a relapse leading to acute anxiety and a greater risk of suicide. The whole package was relevant to the medical consequences. It was the risk of those medical consequences which was then said to be the breach of Article 3. That may or may not be a tenable conclusion as we discuss later. But it is not the arguable error seen by Sedley LJ.

This is, however, an appeal on fact and law; subject to Subesh v SSHD [2004] EWCA Civ 56, we are entitled to examine the facts. We can also take into account the later evidence from Dr Kenney-Herbert.

We agree with Sedley LJ's other and related comment. It is not in principle enough that the treatment, whether it replicates that which the claimant enjoyed in the United Kingdom or is something of lesser value, is available in the country to which the Claimant would be returned. That is of marginal relevance, if it would not actually benefit the Claimant because he could not pay for it or receive it through charitable sources or because he could not reach the place where it was available or live there for other reasons. The question of access in this context is one which requires the factual position to be ascertained. Even if the treatment in question is beyond the Claimant's access for whatever reason, it does not follow that his return would breach Articles 3 or 8. The question is not solely whether he can access the full treatment which he needs; that is part of the factual matrix but does not determine the outcome.

A breach of Article 3 requires a case to pass the high thresholds exemplified in the cases and which demand, through their exceptional and compelling humanitarian circumstances that a person should not be returned to his own country, even though what he would face there is not imposed ill-treatment but circumstances which reflect the conditions of life for the inhabitants and which do not themselves necessarily breach Article 3.

We first focus on the mental illness. The mental health evidence was that the Claimant needed medication and supervision. Without both of those components, in this country, there would be a serious risk that his mental health would deteriorate to such an extent that he would become a risk to himself. If he were in Pakistan without such treatment and support he would rapidly deteriorate "to the point where he himself would be harmed and/or he will cause harm to other people", adopting the words of Dr Kenny-Herbert. Later he said, but it was not before the Adjudicator, that there would be a high risk of self-harm including attempted suicide.

The suggestion that the family would be able to offer some of the support and supervision, which would otherwise have to be done professionally here, has some force. First, part of the reason why his mental health worsened in the United Kingdom seems to have been that he was wholly out of his depth and culture, which would not be so back in his own country. Second, family can offer advice, restraint and sympathy up to a point, and although it could not be described as treatment, it would be capable of easing the burdens of anxiety and stress for some. In this case, however, the family are less likely to be able to help in that way. He has killed his wife and that created a problem which he would face in his life back in his home village when trying to live a life with other villagers. Indeed, they could become a serious threat particularly if he is seen as behaving in a strange way. His family faces a degree of internal conflict because of the contentious circumstances of the marriage anyway. The Claimant is not one who enjoys the support of a large extended family; he is a serious problem for them because of his mental illness, the killing and the previous but related family dispute over the marriage in the first place. He cannot realistically expect to get employment in his village and it is entirely speculative as to whether he could hold down any form of employment were it available, or find any other means of obtaining the wherewithal to live. The description of the family does not suggest that they could help out for long or as a matter of routine. The cost of travel to the town to obtain medication would be high for those on the margin as his family appears to be. The cost of treatment is such that there is no real prospect that he would be able to access the medication available in the nearest town. If he were to move away, such support as they could provide would inevitably cease.

The Claimant would return to the village were he lived most of his life and where he has family who would provide some material and emotional support. He would be unlikely to obtain medication for his physical and mental illnesses, but there would be some support of the sort which family can give.

The upshot of those factors is that the return of the Claimant is likely to mean that he would face an increasing mental illness which creates a serious risk that he would commit suicide within what is likely to be a fairly short time scale. He would receive treatment for his mental illness in the United Kingdom, however, which he could never have received in Pakistan. There would be a very considerable reduction in life expectancy because in the United Kingdom he would be treated indefinitely. He would experience a rapid decline in his well-being.

We have to add to this that the effects of the mental and physical illnesses are cumulative and not separate. He would be coping with the effects of diabetes and that would affect his mental stability.

We consider that the Adjudicator overstated the position to a degree when he says that without proper medical treatment, the Claimant would suffer acute mental suffering to the point of taking his own life and, later in the determination, that he will take his own life. It is a real risk, indeed there would be a high risk of attempted suicide and a greater risk than were the Claimant to stay in the United Kingdom, but the Adjudicator expresses the point with a certainty and immediacy of suicide which the mental health evidence does not in our reading of it contain. That comment reflects a difference of degree in appraisal of the material.

This is not a case as demanding as the facts of D, but it is not the case that they have to be equivalent in order for a breach of Article 3 to be made out. It illustrates the level of severity necessary rather than defining it. But we regard the Adjudicator's equiparation of this case with D's to be an unsustainable overstatement. Key features of D are set out in N, but we would wish to emphasise what seem to us to be the aspects which really struck at the humanitarian basis for the case. It was not that by enabling D to stay in the United Kingdom that his life expectancy would be prolonged. The Strasbourg Court made no finding on the claim that Article 2 would be breached because of the shortened, halved, life expectancy which removal to St Kitts would cause. It was that his life expectancy was very short anyway wherever he was. By the time he reached the Strasbourg Court, it had dropped from eight-twelve months to four-six months so as to be giving rise to "concern", ie not that he was poorly but that death was imminent. The inhumanity of removal arose from the fact that a man dying imminently and inevitably would die without the palliatives and surroundings which provided solace and with which he had prepared for death. There as a sense in which the removal was pointless – no possible public good but only personal harm could come from it. It is not a case about conditions of life so much as about conditions of death, imminent either way. It is certainly not a case about prolonging life expectancy nor the receipt of life-saving medication.

We would regard this as a case, in mental illness terms, approximately comparable in its demands on humanity as that of N. The Adjudicator did not have the benefit of the decision in N when he reached his determination. We cannot say that life expectancy would be as long as or longer than N's two years, because the reports are not couched in years but through vaguer descriptors. And it would be wrong to treat the circumstances there as imposing some specific timescale test to be satisfied in other cases. This is not a deathbed case and the law does not require it to be for Article 3 to be engaged but that sort of case exemplifies the extreme nature of the case which has to be shown. The Claimant has been in this country for eight years now but that is because he has been detained in hospital after killing his wife which he did shortly after his arrival. The mere time which he has spent in this country does not therefore engage any particular obligation in the way in which other cases might where someone has been a fairly long time in the United Kingdom.

What is striking about N is not so much the judgment of Carnwath LJ that on those facts, an Adjudicator could decide either way on Article 3, but that the majority held that the range of reasonable decisions was not so broad as to permit that case to be held to involve a breach of Article 3. The range of reasonable factual assessments falls within a very narrow compass. On factual appraisal, strong Subesh level disagreement can readily arise where the range of permissible factual assessments is small.

It follows to our mind that the circumstances in which facts can lawfully be held to involve a breach of Article 3, where removal would be to circumstances which do not themselves breach Article 3 (and it was not suggested that they did), must be not just exceptional but extreme so as to engage very strong, indeed compelling, humanitarian considerations. Those might be considered to arise where no civilised person of ordinary sensibilities would cause such avoidable suffering. This case does not come within that category, or even particularly close to it.

Although this case involves a mental illness and risk of suicide, that does not bring in any different test for the purposes of Article 3. The extremity of circumstances to engage Article 3 does not vary. The nature of suicide from mental illness, with the associated despair or anguish, may more readily excite humanitarian considerations than a physical illness, but the answers are unlikely to be much clearer in an individual case by attributing any preconceived differential weight to the different forms of illness which may face judges.

It is the case, however, that mental illness and an increased risk of suicide through the effect of removal are capable also of engaging Article 8. It seems to us that the effect of removal is capable of interfering with the rights in Article 8(1). But the interference then can be justified under Article 8(2), or otherwise, by the legitimate interests of immigration control which here can include the public interest served by giving effect to the deportation of the Claimant following a court recommendation. In R v Special Adjudicator ex parte Ullah [2004] UKHL 26, [2004] Imm AR 419, the House of Lords agreed (paragraph 24) with what the Tribunal had said in Devaseelan [2002] UKIAT 00702, a flagrant denial or gross violation had to be shown; only where the right would be completely denied or nullified that there would be a breach of ECHR by the removing state.

As Lord Steyn put it, (paragraph 30), only in exceptional circumstances as in D, could someone subject to expulsion claim any entitlement to remain in order to benefit from medical assistance in the expelling state. But, (paragraph 47), it was the real risk of a flagrant violation which engaged Article 8. This point does not appear to have concluded the Article 8 issue, because a breach would then depend on the application of Article 8(2). But the general theme of the speeches is that the flagrancy has to reach the level equivalent to that of a breach of Article 3; it is irrelevant then what justification Article 8(2) might proffer.

The Article 8 issue was considered in more detail in R v SSHD ex parte Razgar [2004] UKHL 27, [2004] Imm AR 381. It makes it clear that Article 8 can be engaged by the consequences of removal for mental health, ie Article 8(1) rights exist and would be interfered with, but that interference may be justified by legitimate immigration control and other public interests; see paragraph 3 and 10. In the latter, Lord Bingham, agreeing largely with the Tribunal in Kacaj [2002] Imm AR 213, [2001] UKIAT 01TH0634 , that legitimate immigration control would almost certainly meant that interference under Article 8(2) would be proportionate, said that the degree of overstatement in that comment was 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."

The theme, that the cases failing under Article 3 but succeeding under Article 8 would be small in number, was repeated by others. Although Baroness Hale dissented in the result, her comment in paragraph 59 that in striking the balance, only the most compelling humanitarian considerations were likely to prevail over the legitimate aims of immigration control or public safety were in harmony with the other speeches.

Lord Carswell in paragraph 72 put it this way:

"For the reasons given by your Lordships in the appeals of R (Ullah) v Special Adjudicator and Do v Secretary of State for the Home Department [2004] UKHL 26, it must now be accepted that in principle article 8 could exceptionally be engaged by the foreseeable consequences for health of removal from the United Kingdom pursuant to an immigration decision, even though they do not amount to a violation of article 3. In order to bring himself within such an exceptional engagement of article 3 the applicant has to establish a very grave state of affairs, amounting to a flagrant or fundamental breach of the article, which in effect constitutes a complete denial of his rights. It is necessary accordingly to consider the present case in order to determine whether an adjudicator could arguable find that the removal decision is a breach of article 8."

The specific consideration of suicide in R (Soumahoro) v SSHD [2003] EWCA Civ 840, a case heard with Razgar in the Court of Appeal, has been to a considerable extent overtaken. It identifies that a real risk or a significantly increased risk of suicide on removal can engage Article 3 so that the case could not be treated as manifestly unfounded. It was a certificated case and not a case on the final decision. It was arguable that those circumstances engaged Article 3, and were not a definitive test for its breach. It preceded N, and although not specifically overturned, the analysis in N of the extremity of circumstances involving a breach of Article 3 must apply to mental illness, and Soumahoro must be read with that in mind. The Razgar questions shows how Article 8 should be approached and paragraph 20 indicates that the application of Articles 3 and 8 to the same factors are likely to produce overall similar results.

We do not consider this case is one in which Article 3 and 8 should lead to different results.

We have considered the material thus far on the basis that the concern was the impact of a lack of treatment for his mental illness, which might compound problems created by his diabetes. It was an adjunct to that claim. That is how the case was argued before us (see the skeleton) and it is essentially how the Adjudicator considered it. There were references to diabetes but as an adjunct rather than as a separate issue. It does not affect our conclusions. If he delays his insulin or omits it occasionally because of his mental health, it would not be fatal and the difficulties it created would be fairly readily observable by others or noticeable to him.

Paragraph 3 of the Adjudicator's determination refers in one sentence to an argument that Article 2 would be breached because "inadequate treatment" for his diabetes could not be obtained, which would lead to the loss of his life. But the evidence before the Adjudicator on the cost and availability of drugs, whether from the High Commission or the village report, is clearly dealing with mental illness. The cost and availability of insulin is simply not referred to. There is no specific evidence about it. Article 2 is not discussed in the determination. The Adjudicator's conclusions about the availability of treatment cannot be read as considering insulin; this is because he is dealing with the evidence of the availability of treatmetn, which only related to treatment in the context of mental health and Article 3. Indeed, it might be thought that the very consideration of Article 3 involved an assumption that insulin for diabetes would not be a significant problem. If it were, then Article 3 and mental health would have been irrelevant because of the potential speed of death for an insulin-controlled diabetic who has no insulin.

The Tribunal's first decision referred only generally to the general availability of medical services in Pakistan and the appeal to the Court of Appeal made no reference to Article 2 and diabetes, or insulin.

We consider that the Secretary of State has made good his appeal against the Adjudicator's determination. There was no cross-appeal seeking to support it on a different Article 2 basis. There is no evidence from the Claimant to show the lack of availability of insulin in Pakistan. The evidence and submissions do not deal with it. There is from the CIPU Reports some general material which precludes any definitive negative answer on its availability or cost, but does not dictate a positive answer either. It is for the Claimant to make out his claim; he has not done so.

In these circumstances, we do not propose to remit the matter for findings of fact to be made on that issue. It may not even be at issue in fact, in the light of the way the case was put. We would have expected it to feature somewhat larger were it in reality the key issue. Diabetes is not an uncommon illness in Pakistan. If insulin were now said to not be available in Pakistan to the Claimant, he could contemplate a fresh claim.

If insulin were not to be available to the Claimant in Pakistan, the rapidity of death compared to a much longer life in the United Kingdom, ignoring any mental illness, could give rise to a difficult issue about the relationship between diminished life expectancy and perpetual medical treatment, and staying in this country to receive it.

However, for the reasons which we have given, this appeal is allowed. It is reported for what we say about the approach to the availability of treatment and the assessment of Article 3 and 8 cases.

MR JUSTICE OUSELEY

PRESIDENT