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You are here: BAILII >> Databases >> United Kingdom Asylum and Immigration Tribunal >> Secretary of State for the Home Department v B (Sri Lanka) [2004] UKIAT 00033 (24 February 2004) URL: https://www.bailii.org/uk/cases/UKIAT/2004/00033.html Cite as: [2004] UKIAT 00033, [2004] UKIAT 33 |
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APPEAL No. [2004] UKIAT 00033 B (Sri Lanka
)
Date of hearing: 5 September 2003
Date Determination notified: 24 February 2004
Secretary of State for the Home Department | APPELLANT |
and | |
B | RESPONDENT |
"51. In summary there is reason to believe the present peace process at the present time to be distinctly uneasy. I infer from this that the authorities will be loath to admit Tamils into the country who have a history of LTTE involvement and of detention.
52. In the appellant's case I am satisfied that it is reasonably likely in view of her history and the present instability of the peace process that she is at risk of detention at the airport itself on return, that her detention will be lengthy and that she will be at grave risk of being tortured, on account of her political opinion."
"22. We suggest that in order to determine whether an Article 8 claim is capable of being engaged in the light of the territoriality principle the claim should be considered in the following way. First, the claimant's case in relation to his private life in the deporting state should be examined. In a case where the essence of the claim is that expulsion will interfere with his private life by harming his mental health this will include consideration of what he says about his mental health in the deporting country, the treatment he receives there and any relevant support that he says that he enjoys there. Secondly it will be necessary to look at what he says is likely to happen to his mental health in the receiving country, what treatment he can expect to receive there and what support he can expect to enjoy. The third step is to determine whether on the claimant's case serious harm to his mental health will be caused or materially contributed to by the difference between the treatment and support that he is enjoying in the deporting country and that which will be available to him in the receiving country. If so, then the territoriality principle is not infringed and the claim is capable of being engaged.
23. The degree of harm must be sufficiently serious to engage Article 8. There must be a sufficiently adverse affect on the physical and mental integrity and not merely on health. …
25. Even if a removal case engages Article 8(1) there is Article 8(2) to consider. …
41. When it comes to deciding how much weight to give to the policy of maintaining effective immigration policy the Adjudicator should pay very careful deference to the view of the Secretary of State as to the importance of maintaining such a policy. …"
"True it is that in Bensaid v UK [2001] 33EHRR 205 the ECtHR in paragraph 46 of its judgment referred to the possibility of there being an Article 8 breach "where there are sufficiently adverse effects on physical and moral integrity". Paragraph 47 however indicates what the Court there had in mind:
47. Private life is a broad term not susceptible to exhaustive definition. The Court has already held that elements such as gender identification, name and sexual orientation and sexual life are important elements in the personal sphere protected by Article 8. Mental health must also be regarded as a crucial part of private life associated with the aspect of moral integrity. Article 8 protects the right to identity and personal development and the right to establish and develop relationships with other human beings in the outside world. The preservation of mental stability is in that context an indispensable pre-condition to effect employment of the right to respect of the private life".
Interference with sexual orientation or sexual life may adversely affect physical integrity; not, however, in this context physical health." [emphasis added]
It seems to us that what the Court of Appeal are saying there is that it is with the context of a right to identity, personal development and the establishment of development of relationships that the Article is concerned rather than with issues that go to health, which are properly the subject of Article 3.
"38. I am bound to declare with great respect, that as a matter of principle I have much difficulty with the case of D. The contrast between the relative well-being accorded in a signatory state to a very sick person who for a while, even a long while, is accommodated there, and the scarcities of grave hardships which, without any violation of international law, he would face if he were returned home, is to my mind – even if the contrast is very great – an extremely fragile basis upon which to erect a legal duty upon the state to confirm or extend the right to remain in its territory, a duty unsupported by any decision or policy adopted by the democratic arm, executive or legislature of the state's government. The elaboration of the immigration policy, with all that implies for the constituency of persons for who within its territory a civilised state will undertake many social obligations is a paradigm of the responsibility of elected government. One readily understands that such a responsibility may be qualified by a supervening legal obligation arising under ECHR where a person in question claims to be protected from torture or other mistreatment in his home country in violation of the Article 3 standards, especially if it would be meted out to him at the hands of the state. But a claim to be protected from the harsh effects of a want of resources, albeit made harsher by its contrast with facilities available in the host country, is to my mind something else altogether. The idea of the "living instrument" which is a well-accepted characterisation of the ECHR (and some other international texts dealing with rights) no doubt gives the Convention a necessary elastic quality, so that its application is never too distant from the spirit of the times. I have difficulty in seeing that it should stretch so far as to impose on the signatory states forms of obligation only different in kind from anything contemplated in the scope of their agreement."
Laws LJ then went on to point out that since D had been decided the Court had avoided any extension of the exceptional category of case which it represented.
His Honour Judge N Ainley
Vice President