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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> X v Secretary of State for the Home Department [2000] EWCA Civ 3026 (7 December 2000) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2000/3026.html Cite as: [2000] EWCA Civ 3026 |
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HON. MR. JUSTICE TURNER
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE TUCKEY
and
SIR SWINTON THOMAS
____________________
"X" |
Appellant |
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- and - |
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SECRETARY OF STATE FOR THE HOME DEPARTMENT |
Respondent |
____________________
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
STEVEN KOVATS (instructed by Treasury Solicitor for the Respondent)
____________________
Crown Copyright ©
LORD JUSTICE SCHIEMANN:
The rival submissions : an overview
1. that the Home Secretary has, as a matter of proper construction of the Immigration Act, no power to direct his removal from hospital without first securing the approval of the MHRT.
2. that if this be wrong, the Home Secretary unlawfully fettered his discretion in such a way as to vitiate his decision to remove X.
3. that removal of X would be a breach of his rights under the Human Rights Act
.
The Evidential Position
"11. The European Convention on Human Rights is not enforceable by English Courts. Nevertheless, the Secretary of State has regard to that Convention when exercising his statutory functions. The Secretary of State has considered all the evidence put before him by the applicant as to the likely effect of his removal. The Secretary of State has also made his own enquiries. As Dr. Exworthy's letter of 16th August 1999 .... makes clear, if the applicant is to be returned to Malta then those responsible for his care can take steps to adjust the levels of nursing supervision, medication and freedom which the applicant receives to ensure that any risk of self-harm is managed whilst he is in the United Kingdom. During the applicant's return journey he would be accompanied by a nursing escort to ensure his safe arrival in Malta. Dr. Saliba has confirmed that on that, on the applicant's arrival, he would take over responsibility for the applicant's care. The applicant would be admitted to the Mount Carmel Hospital in Malta as a compulsorily detained patient (if his condition warranted) or could be offered an in-patient assessment at that hospital. On the available evidence, the Secretary of State accepts that there is a risk that the applicant might harm himself if removed against his will. However, he is also satisfied that steps can and will be taken to minimise such risk both before and after removal to Malta. The management of such risk is a standard part of psychiatric practice.
12. The Secretary of State accepts that the applicant's removal to Malta would be likely to cause distress and notes the possibility that such removal may adversely effect (sic) the applicant's mental condition.
13. The Secretary of State accepts that the applicant may be less receptive to treatment in Malta because of his negative feelings about that country and those previously responsible for his care there. However, he also notes that the medical officer previously responsible for the applicant's treatment has voiced the concern that the applicant's negative feelings regarding those responsible for his care in Malta, might in time be extended to persons responsible for his treatment in the U.K. with the result that the same difficulties which the applicant previously experienced regarding engagement with treatment in Malta might also arise in the U.K. Both the doctors responsible for the applicant's treatment in the U.K. have confirmed that the facilities available for the applicant's treatment in Malta are adequate, albeit it that they may not match the standards in the U.K.
14. The Secretary of State believes that neither the act of removing the applicant to Malta nor its consequences would amount to inhuman or degrading treatment within the meaning of Article 3 of the ECHR, and that any consequential deterioration in the applicant's mental health would not be of such an extent that the grant of exceptional leave would be appropriate in accordance with the Secretary of State (sic) policy on the grant of exceptional leave to asylum seekers .... The policy provides that applicants must be granted E.L.R. either if "return to the country of origin would result in the applicant being subjected to torture or other cruel, inhuman or degrading treatment ....." or where " there is credible material evidence that return, due to the medical facilities in the country concerned, would reduce the applicant's life expectancy and subject him to acute physical and mental suffering, in circumstances where the U.K. can be regarded as having assumed responsibility for his care." The most recent report of Dr. Pierzchniak .... and the most recent letter from Dr. Exworthy ... both confirm that the applicant's removal would lead to a "deterioration" in his mental health. However the evidence does not go so far as to establish that any such deterioration would be so severe in nature that the applicant's removal could properly be regarded as constituting torture, or other inhuman or degrading treatment of (sic) punishment within the meaning of Article 3 of the ECHR in circumstances where adequate treatment for the applicant's condition will be made available and where steps to manage the risk of any attempt at self-harm will be taken. The medical evidence does not establish that, due to the medical facilities in Malta, the applicant's return to Malta would reduce his life expectancy and subject him to acute mental suffering.
17. The applicant also asserts that the Secretary of State's conclusion that his removal would be in his bests (sic) interests is irrational. In fact, the Secretary of State has not so concluded. He acknowledges that it may not be in the applicant's best interests, at least in the short term, for him to be removed to Malta. However, the applicant's interests are not the only matter to which the Secretary of State has regard. He has a statutory responsibility for immigration control. He ... has an interest in protecting the limited resources of the National Health Service. Medical standards in the United Kingdom are amongst the highest in the world. The United Kingdom cannot treat all those who are unable for whatever reason to receive an equal standard of treatment in their own countries. In all the circumstances of the case, including the fact that the applicant has been refused leave to enter, the Secretary of State does not consider that the applicant has a sufficient connection with the U.K., nor sufficient reason not to return to Malta, to make it appropriate for him to continue to be treated here rather than in Malta."
53 ..... Although it can not be said that the conditions which would confront him in the receiving country are themselves a breach of the standards of Article 3, his removal would expose him to a real risk of dying under the most distressing circumstances and would thus amount to inhuman treatment.
.......
54. Against this background the Court emphasises that aliens who have served their prison sentences and are subject to expulsion can not in principle claim any entitlement to remain on 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 during their stay in prison. However in the very exceptional circumstances of this case and given the compelling humanitarian considerations at stake, it must be concluded that the implementation of the decision to remove the applicant would be a violation of Article 3.
Statutory Construction
This section applies to any patient who is neither a British citizen nor a Commonwealth citizen having a right of abode in the United Kingdom by virtue of section 2(1)(b) of the Immigration Act 1971, being a patient who is receiving treatment for mental illness as an in-patient in a hospital ...... and is detained pursuant to
(a) an application for admission for treatment ......
(b) a hospital order under section 37 .....;or
(c) an order or direction under this Act ...... having the same effect as a hospital order.
"If it appears to the Secretary of State that proper arrangements have been made for the removal of a patient .... to a country or territory outside the United Kingdom .... and for his care or treatment there and that it is in the interest of the patient to remove him, the Secretary of State may, subject to subsection (3) below -
(a) by warrant authorise the removal of the patient from the place where is receiving treatment as mentioned in subsection (1) above, and,
(b) give such directions as the Secretary of State thinks fit for the conveyance of the patient to his destination in that country or territory and for his detention in any place or on board any ship or aircraft until his arrival at any specified port or place in any such country or territory.
(3) The Secretary of State shall not exercise his powers under subsection (2) above in the case of any patient except with the approval of a Mental Health Review Tribunal....."
"(1) Subject to subsection (2) below a transfer direction given in respect of [persons detained under the Immigration Act 1971] s48 (2) above shall cease to have effect on the expiration of the period during which he would, but for his removal to hospital, be liable to be detained in the place from which he was removed.
(2) Where a transfer direction...... [has] been given in respect of any such person as is mentioned in subsection (1) above, then, if the Secretary of State is notified..... at any time before the expiration of the period there mentioned -
(a) that the person no longer requires treatment in hospital for mental disorder; or
(b) that no effective treatment for his disorder can be given in the hospital to which he has been removed,
the Secretary of State may by warrant direct that he be remitted to any place where he might have been detained if he had not been removed to hospital, and on his arrival at the place to which he is so remitted the transfer direction ..... shall cease to have effect.
"Where a patient liable to be detained ... by virtue of an ..... direction under Part II or III of this Act ... is removed from England and Wales in pursuant of arrangements under this part of this Act, the .... direction shall cease to have effect when he is duly received into a hospital .... in pursuance of those arrangements."
Fettering discretion
The initiative for seeking the removal of a psychiatric patient lies with the hospital concerned under the direction of the case doctor. The Home Office should not take steps to repatriate a psychiatric patient unless first approached by the patient's medical adviser.
The power conferred on Secretary of State in section 86 is in addition to the Secretary of State's powers under the Immigration Acts and is used only infrequently....... It is the practice of the Secretary of State to use section 86 only in the cases of persons who have been granted leave to enter the United Kingdom which this applicant has not. He does not regard it as a mechanism for ensuring immigration control. He uses it at the request of an individual's responsible medical officer in cases where such officer has formed the view that an individual would be better cared for in all the circumstances if returned to his own country. The Secretary of State sees no good reason to depart from his practice in the present case. The Secretary of State believes that the possibility of using the section 86 power does not prevent him using his powers under the Immigration Act as an alternative....
Conclusion
ORDER: Appeal dismissed with costs paid by Legal Aid Board. Application to appeal to the House of Lords refused.