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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> NCN, R (On the Application Of) v Secretary of State for the Home Department  EWHC 3378 (Admin) (17 October 2014)
Cite as:  EWHC 3378 (Admin)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
(Sitting as a Judge of the High Court)
| THE QUEEN
(on the application of NCN)
|- and -
|SECRETARY OF STATE FOR
THE HOME DEPARTMENT
Thomas Roe QC (instructed by The Treasury Solicitor) for the Defendant
Hearing dates: 24 July 2014
Crown Copyright ©
HHJ Heaton QC :
i) The SSHD's decision of 26th November 2012:
a) to refuse to accept that the Claimant's representations of 21st November 2012 amounted to a fresh asylum/human rights claim per para 353 of the Immigration Rules and/or
b) not to exercise her discretion under paragraph 353B to treat the Claimant's case on an exceptional basis
ii) The SSHD's decision of 22nd November 2012 to set removal directions in respect of the Claimant for 27th November 2012 and to maintain those prior (it is alleged) to any or any proper and lawful consideration of the 21st November 2012 representations. (The Claimant recognises that the order granting permission does not grant permission to challenge the decision to set removal directions in themselves. In addition the decision to set removal directions has long since passed and is now academic. If the claim fails then the SSHD will set new removal directions; if the claim succeeds the SSHD will not seek to remove pending the appeal.)
iii) The SSHD's decision of 5th December 2013
a) to refuse to accept the Claimant's representations dated 13th September 2013 and 19th September 2013 amounted to a fresh asylum/human rights claim, and
b) the failure of the SSHD to exercise her discretion under paragraph 353B to treat the Claimant's case on an exceptional basis.
(i) Whether the SSHD properly directed herself as to the correct test in law in concluding that notwithstanding the Claimant's representations and all the supporting evidence now available there was not a reasonable prospect of success before an independent First-Tier Tribunal ("FTT") given the earlier rejection of the Appellant's case
(ii) Whether the SSHD properly examined all the evidence as to the relevant factors going to whether there were, notwithstanding the rejection of the fresh claim, exceptional circumstances per paragraph 353B such that removal was no longer appropriate.
i) Why does the Claimant feel as she does?
ii) Is her suicidal ideation made out?
iii) Will the fact of removal render the Claimant reasonably likely to commit suicide?
The salient background
"I was satisfied that [the Claimant's] story was a bogus story; and rejected it utterly. I found in fact that [the Claimant]is Ugandan, had travelled under a false passport to the United Kingdom, gained entry here thereby and had claimed falsely for asylum. Everything else of materiality I rejected with regard to her given history"
i) (i) An assessment from Central and North West London Mental Health Assessment dated 29th January 2013
ii) A letter from the British Red Cross dated 7 March 2013
iii) A further letter from Dr Trevor Turner dated 19th March 2013
iv) A letter from Black Women's Rape Project dated 25th May 2013
i) A letter from Refugee Council dated 27th August 2013
ii) A letter from the Minster Centre dated 12th June 2013
iii) A witness statement from the Claimant dated 20th August 2013
iv) A letter from the British Red Cross dated 27th August 2013
v) A letter from Black Women's Rape Action Project dated 17th September 2013
i) A witness statement of the Claimant dated 30th December 2013
ii) A further psychiatric report from Dr Trevor Turner dated 3rd January 2014
i) A letter from Martin Naylor, Senior Community Practitioner, containing a care plan dated 2nd June 2014
ii) A third witness statement of the Claimant dated 8th July 2014
The Article 3 claim
i) Medical evidence in particular a series of reports from Dr Turner. It is argued that the professional opinion of Dr Turner as to the Claimant's fragile mental state is entirely consistent with a person who has undergone the life experiences described by the Claimant, and
ii) A series of letters from support organisations such as Rape Crisis and Women Against Rape which suggest that the Claimant's presentation is entirely consistent with a person who has undergone the life experiences described by the Claimant
15. In light of the evidence available in this case … the SSHD cannot properly conclude that the new material and in particular the expert psychiatric report does not raise a more than merely fanciful prospect of success when independently assessed that the Claimant is at real risk of suicide and removal would amount to breach of articles 3 and/or 8.
16. This evidence goes to show that the Claimant is continuing to manifest symptoms which are consistent with the account she gave to Dr Turner and consistent with that aspect of her history not rejected by the IJ. Moreover Dr Turner's evidence now suggests that her past account that was rejected may not have been unreliable but rather justifies re-assessment in light of her difficulties in concentration and focus arising from her past experiences.
17. The fresh evidence in totality demonstrates that the Claimant has ongoing mental health and support needs which are currently being addressed in the UK, which would not be in place for her on removal and that the consequences are that her life would be at risk and her mental health would be severely adversely affected by forcible removal in breach of article 8.
At this stage the Claimant need not establish that her Article 3 claim would be bound to succeed before an immigration judge. She need only demonstrate that it has more than a merely fanciful prospect of success. It is submitted that the evidence is sufficient to demonstrate that, per the principles set out in Y and Z (Sri Lanka), the Claimant would have more than a merely fanciful prospect of succeeding in an Article 3 claim before an immigration judge on the basis of her risk of suicide and self-harm on return to Uganda.
The Article 8 claim
The Claimant's evidence underlines the importance of her community ties in the UK, having regard to her mental illness and social isolation, and the harm she would suffer if returned to Uganda. However, the SSHD fails to properly address the relevance of this evidence which illustrates the extent of the Claimant's community ties and social activities in the UK and the importance of these for the Claimant's mental health, wellbeing and recovery from trauma.
The rule in paragraph 353B
353B. Where further submissions have been made and the decision maker has established whether or not they amount to a fresh claim under paragraph 353 of these Rules, or in cases with no outstanding further submissions whose appeal rights have been exhausted and which are subject to a review, the decision maker will also have regard to the migrant's:
(i) character, conduct and associations including any criminal record and the nature of any offence of which the migrant concerned has been convicted;
(ii) compliance with any conditions attached to any previous grant of leave to enter or remain and compliance with any conditions of temporary admission or immigration bail where applicable;
(iii) length of time spent in the United Kingdom spent for reasons beyond the migrant's control after the human rights or asylum claim has been submitted or refused;
in deciding whether there are exceptional circumstances which mean that removal from the United Kingdom is no longer appropriate.
This paragraph does not apply to submissions made overseas.
This paragraph does not apply where the person is liable to deportation."
Para. 353B is not very well drafted, but it seems to me clear, reading it as a whole, that its essential purpose is indeed to identify specific points which will weigh in the balance against the exercise of the discretion not to remove a migrant, or to qualify the effect of factors that might otherwise weigh in its favour. Thus the point of heads (i) and (ii) is to make clear that (in short) bad character/conduct and non-compliance with conditions must always count against the exercise of the discretion. As for head (iii), the point surely being made is that time spent in the UK after the adverse immigration decision ought (at least generally) only to count in the migrant's favour if his or her reasons for not leaving were beyond their control.
24. Secondly, on any basis the scope for the exercise by the Secretary of State of the discretion envisaged (to use, for the present, a neutral expression) by paragraph 353B is narrow… Paragraph 353B can be of relevance only to those who have no right to remain in this country and whose claims have been finally determined (because their appeal rights are exhausted and there are no unanswered submissions). The discretion is a safety valve, pursuant to which the Secretary of State may refrain from removing but only in such circumstances, which will necessarily be rare….
27. … The discretion not to remove a migrant with no rights to be here is not one that is subject to any Immigration Rule; it is a discretion exercised outside those Rules. I entirely agree with the Upper Tribunal on this point.
28. I also reject the submission that paragraph 353B of itself creates an obligation on the Secretary of State to carry out a review in the circumstances to which it refers…
29. In my judgment, the basis for the creation of a duty, if there is one, is to be found in the Enforcement Instructions and Guidance issued by the Secretary of State, which in section 53.1 states:
"Exceptional circumstances should be considered in cases where an asylum or human rights claim has been refused, appeal rights have been exhausted and no further submissions exist, as part of the process of asylum case owners keeping their cases under review. In these cases paragraph 353B is to be applied."…
32. Furthermore, if a decision is lawfully made to remove at the same time as a decision to refuse leave claimed on Article 8 grounds, there is likely to be no sensible reason for a review to be carried out separately from the consideration of the claim for leave. In such circumstances, paragraph 353B will not apply. In any event, the factors referred to in that paragraph are likely to have been considered in the rejection of the Article 8 claim. It would be unnecessary for the decision maker to refer to those factors again, other than the statement that there are no exceptional circumstances justifying a decision that removal is not appropriate.
The case of the SSHD
i) Has the SSHD asked herself the correct question, is there a realistic prospect of an Immigration Judge, applying the rule of anxious scrutiny, finding that the Claimant will be exposed to a real risk of persecution on return and secondly
ii) In addressing that question both in respect of the evaluation of the facts and in respect of the legal conclusions to be drawn from those facts has the SSHD satisfied the requirement of anxious scrutiny?
"The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content:
(i) Had not already been considered and
(ii) Taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection
"The conclusion that I would draw from this line of authority is that Strasbourg has adhered throughout to two basic principles. On the one hand, the fundamental nature of the article 3 guarantees applies irrespective of the reprehensible conduct of the applicant. It makes no difference however criminal his acts may have been or however great a risk he may present to the public if he were to remain in the expelling state's territory. On the other hand, aliens who are subject to expulsion cannot claim any entitlement to remain in the territory of a contracting state in order to continue to benefit from medical, social or other forms of assistance provided by the expelling state. For an exception to be made where expulsion is resisted on medical grounds the circumstances must be exceptional. In May 2000 Mr Lorezen, a judge of the Strasbourg court, observed at a colloquy in Strasbourg that it was difficult to determine what was meant by "very exceptional circumstances". But subsequent cases have shown that D v United Kingdom is taken as the paradigm case as to what is meant by this formula. The question on which the court has to concentrate is whether the present state of the applicant's health is such that, on humanitarian grounds, he ought not to be expelled unless it can shown that the medical and social facilities that he so obviously needs are actually available to him in the receiving state. The only cases where this test has been found to be satisfied are D v United Kingdom, where the fatal illness had reached a critical stage, and BB v France where the infection had already reached an advanced stage necessitating repeated stays in hospital and the care facilities in the receiving country were precarious. I respectfully agree with Laws LJ's observation in the Court of Appeal, para 39, that the Strasbourg court has been at pains in its decisions to avoid any further extension of the exceptional category of case which D v United Kingdom represents."
69. In my view, therefore, the test, in this sort of case, is whether the applicant's illness has reached such a critical stage (i.e. he is dying) that it would be inhuman treatment to deprive him of the care which he is currently receiving and send him home to an early death unless there is care available there to enable him to meet that fate with dignity. This is to the same effect as the text prepared by my noble and learned friend, Lord Hope of Craighead. It sums up the facts in D. It is not met on the facts of this case.
70. There may, of course, be other exceptional cases, with other extreme facts, where the humanitarian considerations are equally compelling. The law must be sufficiently flexible to accommodate them. The European Court of Human Rights took very seriously the claim of the schizophrenic patient in Bensaid v United Kingdom (2001) 33 EHRR 205 who risked relapse into hallucinations and psychotic delusions involving self harm and harm to others if deprived of appropriate medication. But it nevertheless concluded at para 40:
"Having regard however to the high threshold set by article 3, particularly when the case does not concern the direct responsibility of the Contracting State for the infliction of harm, the court does not find that there is a sufficiently real risk that the applicant's removal in these circumstances would be contrary to the standards of article 3. It does not disclose the exceptional circumstances of the D case . . . where the applicant was in the final stage of a terminal illness, AIDS, and had no prospect of medical care or family support on expulsion to St Kitts."
25. In our judgment, there is no doubt that in foreign cases the relevant test is, as Lord Bingham said in Ullah, whether there are strong grounds for believing that the person, if returned, faces a real risk of torture, inhuman or degrading treatment or punishment. Mr Middleton submits that a different test is required in cases where the article 3 breach relied on is a risk of suicide or other self-harm. But this submission is at odds with the Strasbourg jurisprudence: see, for example, para  in Bensaid and the suicide cases to which we refer at para 30 below. Mr Middleton makes two complaints about the real risk test. First, he says that it leaves out of account the need for a causal link between the act of removal and the ill-treatment relied on. Secondly, the test is too vague to be of any practical utility. But as we explain at para 27 below, a causal link is inherent in the real risk test. As regards the second complaint, it is possible to see what it entails from the way in which the test has been applied by the ECtHR in different circumstances. It should be stated at the outset that the phrase "real risk" imposes a more stringent test than merely that the risk must be more than "not fanciful". The cases show that it is possible to amplify the test at least to the following extent.
26. First, the test requires an assessment to be made of the severity of the treatment which it is said that the applicant would suffer if removed. This must attain a minimum level of severity. The court has said on a number of occasions that the assessment of its severity depends on all the circumstances of the case. But the ill-treatment must "necessarily be serious" such that it is "an affront to fundamental humanitarian principles to remove an individual to a country where he is at risk of serious ill-treatment": see Ullah paras [38-39].
27. Secondly, a causal link must be shown to exist between the act or threatened act of removal or expulsion and the inhuman treatment relied on as violating the applicant's article 3 rights. Thus in Soering at para , the court said:
"In so far as any liability under the Convention is or may be incurred, it is liability incurred by the extraditing Contracting State by reason of its having taken action which has as a direct consequence the exposure of an individual to proscribed ill-treatment."(emphasis added).
See also para  of Vilvarajah where the court said that the examination of the article 3 issue "must focus on the foreseeable consequences of the removal of the applicants to Sri Lanka…"
28. Thirdly, in the context of a foreign case, the article 3 threshold is particularly high simply because it is a foreign case. And it is even higher where the alleged inhuman treatment is not the direct or indirect responsibility of the public authorities of the receiving state, but results from some naturally occurring illness, whether physical or mental. This is made clear in para  of D and para  of Bensaid.
29. Fourthly, an article 3 claim can in principle succeed in a suicide case (para  of Bensaid).
30. Fifthly, in deciding whether there is a real risk of a breach of article 3 in a suicide case, a question of importance is whether the applicant's fear of ill-treatment in the receiving state upon which the risk of suicide is said to be based is objectively well-founded. If the fear is not well-founded, that will tend to weigh against there being a real risk that the removal will be in breach of article 3.
31. Sixthly, a further question of considerable relevance is whether the removing and/or the receiving state has effective mechanisms to reduce the risk of suicide. If there are effective mechanisms, that too will weigh heavily against an applicant's claim that removal will violate his or her article 3 rights.
15. There is no necessary tension between the two things. The corollary of the final sentence of §30 of J is that in the absence of an objective foundation for the fear some independent basis for it must be established if weight is to be given to it. Such an independent basis may lie in trauma inflicted in the past on the appellant in (or, as here, by) the receiving state: someone who has been tortured and raped by his or her captors may be terrified of returning to the place where it happened, especially if the same authorities are in charge, notwithstanding that the objective risk of recurrence has gone.
16. One can accordingly add to the fifth principle in J that what may nevertheless be of equal importance is whether any genuine fear which the appellant may establish, albeit without an objective foundation, is such as to create a risk of suicide if there is an enforced return.
Discussion and conclusions
The November 2012 representations
"at least moderate Depressive Disorder, probably more severe, and this in the context of residual symptoms of PTSD, related to her social withdrawal, her relative emotional numbness and her constantly ruminating over aspects of her life"
"The prognosis for [the Claimant] will very much depend on the treatment she receives for her depressive condition (see above) and what social support can be obtained whether in the UK or Uganda. As advised above I think that she is at high risk of self harm\or suicide, given the limited social support that is likely to be available and the threats that might pertain particularly in Uganda"
The 13th September representations
i) That the information provided is out of date and would be insufficient to make a finding in respect of the Claimant's mental health needs
ii) That such information as there was did not indicate that the Claimant's condition reached the high thresholds set by Article 3 or Article 8