B e f o r e :
MR JUSTICE RICHARDS
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THE QUEEN ON THE APPLICATION OF RAZGAR |
(CLAIMANT) |
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THE SECRETARY OF STATE FOR THE HOME DEPARTMENT |
(DEFENDANT) |
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MR N BLAKE QC AND MR T MUKHERTEE (FOR JUDGMENT MR S GRODZINSKI) (instructed by Clore & Co) appeared on behalf of the CLAIMANT
MR A UNDERWOOD QC AND MISS J ANDERSON (FOR JUDGMENT MISS C CALLAGHAN) (instructed by Treasury Solicitor) appeared on behalf of the DEFENDANT
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- MR JUSTICE RICHARDS: The claimant is an asylum seeker from Iraq whom the Secretary of State proposes to remove to Germany under the provisions of the Dublin Convention. The claimant alleges that his removal to Germany would be in breach of his rights under Articles 3 and 8 of the European Convention on Human Rights. The Secretary of State does not accept that his removal would be in breach of the Convention and has certified under section 72(2)(a) of the Immigration and Asylum Act 1999 that the allegation is manifestly unfounded, with the consequence that the claimant's right of appeal against the rejection of his human rights claim can only be exercised from abroad. For someone in the position of the claimant, this is plainly a very serious disadvantage as compared with an in-country appeal.
- The issue in the case is whether the Secretary of State acted lawfully in certifying that the claimant's allegation is manifestly unfounded. But the submissions have concerned the correct approach to be adopted towards the determination of that issue as well as the application of the relevant principles to the particular facts.
FACTUAL BACKGROUND
There is a lengthy factual background which I need to summarise in order to place the present issue in context. The claimant left Iraq and arrived in Germany in 1997. He claimed asylum on arrival in Germany on the grounds that he was a Kurd and a member of the Iraqi Communist Party, had been arrested, detained and tortured by the Iraqi regime for two-and-a-half years as a result of his ethnic origin and/or political activities and would face persecution if returned. His claim was refused.
- He travelled to the United Kingdom, arriving here and claiming asylum in February 1999. In April 1999 the German authorities accepted responsibility from him under the Dublin Convention. In May the Secretary of State decided to certify the claim on safe third country grounds. The relevant notice was not in fact served until a year later, May 2000, for reasons with which it is unnecessary to deal. Meanwhile, in November 1999, the claimant had started to receive treatment from a consultant psychiatrist, Dr Sathananthan. On 17th May 2000, following service of the third country notice, the claimant's solicitors made further representations on his behalf, submitting a report by Dr Sathananthan dated 16th May 2000 in which he expressed concerns as to the effect on the claimant's mental and physical well-being if he were removed to Germany. I will come back to the details. On the same day, 17th May, the Secretary of State rejected representations and declined to defer removal directions.
- That led to judicial review proceedings alleging that the claimant's removal would violate Articles 3 and 8 of the European Convention on Human Rights. In the context of the application for permission, the Secretary of State wrote to the claimant's solicitors on 4th July 2000 giving a considered response to the matters raised to date and adhering to his previous decision. One of the matters dealt with was the psychiatric evidence submitted on the claimant's behalf, in relation to which the Secretary of State expressed the view that adequate, appropriate and equivalent psychiatric facilities would be available to the claimant in Germany. Permission to apply for judicial review was refused soon afterwards. An application for permission to appeal was lodged but discontinued.
- Further representations were made to the Secretary of State on 2nd October 2000 on the coming into force of the provisions conferring a right of appeal under section 65 of the 1999 Act on human rights grounds. The representations enclosed, amongst other material, a report from a German refugee adviser, Stefan Kessler, which dealt with the claimant's legal status if returned to Germany and indicated that he would not have the right to or funding for psychiatric treatment in Germany. Again, I will come back to the details. In a response dated 7th February 2001 the Secretary of State maintained his decision to remove the claimant.
- On 8th February 2001 the claimant's solicitors purported to exercise a right of appeal on human rights grounds under section 65 of the 1999 Act but no formal notice of appeal was served. On 6th April the claimant was served with removal directions. This led to a further letter from his solicitors purporting to exercise his right of appeal on human rights grounds. The Secretary of State's response was the original decision under challenge in this case, namely a letter of the 9th April 2001 certifying that the allegation of a breach of the claimant's human rights was manifestly unfounded.
- The present judicial review proceedings were then commenced. Permission was refused at first instance in July 2001 but granted by the Court of Appeal on amended grounds in December 2001. Only now in November 2002 has the matter come on before the Administrative Court for substantive hearing. It appears that a hearing was fixed for earlier this term but was adjourned in order to enable the Secretary of State to consider additional evidence filed on behalf of the claimant.
- Since the date of the original decision there has been additional evidence all round, including two further reports from Dr Sathananthan and further letters from Mr Kessler. Evidence on behalf of the Secretary of State was filed for the first time on 8th November 2002 in the form of a witness statement from Mr Pulham, a senior caseworker of the third country unit which is responsible for the certification of asylum claims on third country grounds. That witness statement took issue with some of the points in Mr Kessler's evidence and that, in turn, prompted a response from Mr Kessler served by means of a witness statement from the claimant's solicitors on 14th November. It is also right to mention that since the date of the original decision there have been further letters from the Secretary of State maintaining that decision in the light of the further evidence. There is a short letter to that effect dated 13th August 2001 (which Mr Blake QC described in his submissions as the decision letter as at the date when the Court of Appeal granted permission on the claimant's amended grounds). There is a longer letter dated 7th November 2002 exhibited to Mr Pulham's recent witness statement in which a number of points are made about the claimant's further evidence, and it is said that nothing in the further evidence requires the Secretary of State to alter his decision to remove the claimant.
- Thus the Secretary of State's position has been throughout that he was entitled to certify the claimant's human rights claim as manifestly unfounded and that none of the evidence submitted subsequently on the claimant's behalf has caused him to alter his decision.
MANIFESTLY UNFOUNDED
The first matter I have to consider is the test to be applied by the Secretary of State in certifying a claim as manifestly unfounded, and the test to be applied by the court in determining whether a certification was lawfully made.
- Mr Blake put forward his submissions in terms of there being an arguable case or a serious issue to be tried on appeal before an adjudicator, and that the existence of such an arguable case or issue to be tried precluded the Secretary of State from certifying that the claim was manifestly unfounded. The language of arguability was used and applied by Scott Baker J in R (On the Application of Ahmadi) v Secretary of State for Home Department [2002] EWHC 1897 Admin, where he compared the test of manifestly unfounded with the threshold test of arguability for judicial review.
- Ahmadi was decided in September of this year, before the reasons for the decision of the House of Lords in Thangarasa were published. Those reasons now appear in the reported judgment under the title of the conjoined case of R (On the Application of Yogathas) v Secretary of State for the Home Department [2002] 3 WLR 1276. The judgment provides an authoritative statement of the relevant principles. At paragraph 14 Lord Bingham states:
"Before certifying as 'manifestly unfounded' an allegation that a person has acted in breach of the human rights of a proposed deportee the Home Secretary must carefully consider the allegation, the grounds on which it is made and any material relied on to support it. But his consideration does not involve a full-blown merits review. It is a screening process to decide whether the deportee should be sent to another country for a full review to be carried out there or whether there appear to be human rights arguments which merit full consideration in this country before any removal order is implemented. No matter what the volume of material submitted or the sophistication of the argument deployed to support the allegation, the Home Secretary is entitled to certify if, after reviewing this material, he is reasonably and conscientiously satisfied that the allegation must clearly fail."
At paragraphs 33 - 34 Lord Hope states:
"...Provision is made, in recognition of the obligations of the United Kingdom under the ECHR, for an appeal on human rights grounds. The purpose of the legislation would be frustrated if the asylum seeker could ensure that he remained in this country pending a full review on the merits of an allegation of a breach of his human rights which was clearly without substance.
It is for this reason that the process which is envisaged is best described as a screening process, as my noble and learned friend Lord Bingham of Cornhill has observed. Nevertheless the test which section 72(2)(a) of the 1999 Act has laid down recognises the level of scrutiny that is required. By adopting the language of the international instruments Parliament has made it clear that the issue as to whether the allegation is manifestly unfounded must be approached in a way that gives full weight to the United Kingdom's obligations under the ECHR. The question to which the Secretary of State has to address his mind under section 72(2)(a) is whether the allegation is so clearly without substance that the appeal would be bound to fail."
Lord Hope also dealt at paragraph 59 of his speech with the role of the court on judicial review, stating:
"The European Court has accepted that the process of judicial review, under which decisions of this kind are indeed given the most anxious scrutiny, is capable of providing an effective remedy: Vilvarajah v United Kingdom 14 ERHH 248, 292, para 126; TI v United Kingdom [2000] INLR 211, 233. In my opinion the scrutiny which the courts below gave to the decisions which are under challenge in these appeals fully measures up to this standard, and I agree with them as to the result..."
At paragraph 72 Lord Hutton stated:
"... I am in agreement with the opinion of the Court of Appeal set out in paras 57 - 60 of its judgment that an allegation is manifestly unfounded if it is plain that there is nothing of substance in the allegation. I further agree with the reasons given by the Court of Appeal for rejecting the submission that the Secretary of State is only entitled to give a certificate if on an initial and cursory examination of the case it is plain that there is no substance in it. Whilst the process in which the Secretary of State engages in coming to his decision will not involve as detailed a consideration of the facts and issues as would be involved in a hearing by an adjudicator under section 65 or by a court, the extent of the consideration which the Secretary of State will give to the issue will depend on the nature and detail of the arguments and the factual background presented to him by the applicant. It is relevant to observe, as did laws LJ, that the European Court on occasions considers a case in considerable detail before holding that the applicant's complaint is manifestly ill founded, and this was the practice it followed in the case of TI v United Kingdom itself."
Lord Hutton went on to point out in paragraph 73, without disapproval, that amongst the matters taken into account by the Secretary of State was the detailed knowledge possessed by his officials.
- As to the court's role in examining a decision reached by the Secretary of State, he stated in paragraph 74:
"Where an applicant challenges in the High Court the issue of a certificate by the Secretary of State under section 72(2)(a) the question arises as to the degree of scrutiny to which the High Court should subject the decision of the Secretary of State. It is apparent that there is a degree of tension between the need to make use of an accelerated procedure to enable the arrangements under the Dublin Convention to operate effectively and the duty to recognise the human rights of a person who, once he is in the United Kingdom, is entitled to the protection given by the European Convention. In a well known passage in his judgment in R v Secretary of State for the Home Department ex parte Budgaycay [1987] AC 514, 531 Lord Bridge of Harwich said that 'the court must, I think, be entitled to subject an administrative decision to the more rigorous examination, to ensure that it is in no way flawed, according to the gravity of the issue which the decision determines', and he then stated that where the administrative decision under challenge is one which may put the applicant's life at risk, the basis of the decision must call for 'the most anxious scrutiny.' I consider that in a case where there is a challenge to a certificate under section 72(2)(a) the court must subject the decision of the Secretary of State to a rigorous examination, but the examination must be on the basis and against the background that, as I have earlier stated, the extent of the consideration which the Secretary of State will have given to the issue will have depended on the nature and details of the argument and the factual background presented to him by the applicant."
- What those passages make clear is that the Secretary of State is entitled to certify the case as manifestly unfounded if, but only if, he is satisfied on reviewing the material before him that the human rights allegation must clearly fail. Where the lawfulness of the Secretary of State's decision is challenged on judicial review, the court's role, as it seems to me, is to determine whether the decision was reasonably open to the Secretary of State applying, in effect, the Wednesbury test but exercising the anxious scrutiny called for in all cases of this kind.
- In practice, however, I accept Mr Blake's submission that this comes down to much the same thing as determining whether, on the material before the Secretary of State, the claimant had an arguable case that removal would be in breach of his Convention rights. If the claimant does on proper analysis have an arguable case, then no reasonable Secretary of State could properly conclude that the case must clearly fail. For this purpose, the Secretary of State is entitled to look at all the material before him, including that produced by his own officials, as well as that submitted on behalf the claimant, but he is not engaged in a full determination on the merits; and where, for example, there has been a material factual dispute about the claimant's circumstances, or about the nature of the regime operating in the third country, the Secretary of State cannot simply rely on his own resolution of that dispute but must consider, for the purposes of certification, whether it is possible that the claimant might prevail on the point on an appeal before an Adjudicator. This accords with what Scott Baker J said in Ahmadi at paragraph 48:
"Where the Secretary of State is faced with conflicting evidence from reputable doctors and there is no obvious reason why the evidence of one should be preferred to the other, it seems to me that any decision that the human rights claim is manifestly unfounded can only proceed on the basis of the medical evidence most favourable to the claimant."
Of course, if there is an obvious reason why the claimant's material should be rejected, or if the evidence could not sustain the human rights claim, even if accepted, it will be open to the Secretary of State reasonably to conclude that the claim is clearly bound to fail. But if there is no obvious reason why the claimant's evidence should be rejected and, if on that evidence the claimant has an arguable case that removal would be in breach of his Convention rights, then the Secretary of State cannot reasonably certify the claim as manifestly unfounded.
- Before leaving this topic I should mention that Mr Blake also cited R (On the Application of Atabaky) v the Secretary of State for Home Department [2002] EWCA Civ 234, a decision of the Court of Appeal on the "manifestly unfounded" test in paragraph 54B of Schedule 2 to the 1993 Act as amended. The context is different, and I do not think that one can gain much help from the decision, though it is right to know that the court placed the same emphasis on the need for certainty that a claim could not possibly succeed before the Secretary of State could conclude that a claim was manifestly unfounded.
BENSAID V UNITED KINGDOM
The legal context in which the Secretary of State had to consider the claimant's human rights claim can be derived primarily from the judgment of the Strasbourg Court in Bensaid v United Kingdom [2001] INLR 325, a case involving the application of Articles 3 and 8 to mental illness.
- The applicant in Bensaid suffered from schizophrenia. His condition was severe when it first came to the attention of the mental health services in the United Kingdom but had responded sufficiently to treatment for him to have avoided compulsory hospitalisation. He resisted removal to Algeria on the basis of a high risk that he would suffer a relapse of his psychotic symptoms if he were returned there. There was evidence that medical treatment was available in Algeria though at a long distance from the applicant's home village. An expert opinion expressed the view that when individuals with psychotic illness relapse they commonly have great difficulty in being sufficiently organised to seek help or to travel, so it was necessary for the management of such illness to be local and readily accessible. It was, therefore, very unlikely that any relapse of the applicant in Algeria would be effectively treated. A later opinion stated that his mental illness was likely to be long-term. There had been a significant deterioration in the level of his social functioning which was likely to be significantly handicapping in the coming years. With continuing medication and support from mental health service, he would be likely to remain at the same level and not require very long periods of hospitalisation, but if he returned to Algeria the prognosis was more uncertain. If he were unable to obtain appropriate help, and if he began to relapse there would a great risk that his deterioration would be very great.
- Against that factual background the court first considered Article 3. It held in paragraph 34 that Article 3 was capable in principle of applying even where the source of the risk of proscribed treatment in the receiving country stemmed from factors which could not engage the responsibility of the public authorities or which, taken alone, did not in themselves infringe the standards of the article. In any such context, however, the court had to subject all the circumstances surrounding the case to rigorous scrutiny, especially the applicant's personal situation in the expelling state. The court went to examine the evidence in some detail. It held in paragraph 37 that the suffering associated with a relapse in the applicant's condition could, in principle, fall within Article 3. It observed, however, that he faced the risk of a relapse even if he stayed in the United Kingdom, and it found that the risk that he would suffer a deterioration in his condition if he were returned to Algeria and that, if he did, he would not receive adequate support or care, was to a large extent speculative.
- It concluded in paragraph 40:
"The Court accepts the seriousness of the applicant's medical condition. Having regard however to the high threshold set by Article 3 particularly where 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 D v United Kingdom (1997) 24 EHRR 423 where the applicant was in the final stages of a terminal illness, AIDS, and had no prospect of medical care or family support on expulsion to St Kitts."
The court went on to deal with Article 8. Stating in paragraphs 46 to 47 as follows:
"Not every act or measure which adversely affects moral or physical integrity will interfere with the right to respect to private life guaranteed by Article 8. However, the Court's case-law does not exclude that treatment which does not reach the severity of Article 3 treatment may none the less breach Article 8 in its private life aspect where there are sufficiently adverse effects on physical and moral integrity (see Costello-Roberts v United Kingdom (1995) 19 EHRR 112...
Mental health must also be regarded as a crucial part of private life associated with the aspect of moral integrity. Article 8 protects a right to identify and personal development, and the right to establish and develop relationships with other human beings and the outside world (see eg Burghartz v Switzerland Series A, No 280-B 24, at 47; Friedl v Austria (1996) 21 EHRR 83, at para 45). The preservation of mental stability is in that context an indispensable precondition to effective enjoyment of the right to respect for private life."
In paragraph 48 the court dealt with the circumstances of the individual case finding that the applicant's return to Algeria would not infringe Article 8. In particular it stated:
"Turning to the present case, the Court recalls that it has found above that the risk of damage to the applicant's health from return to his country of origin was based on largely hypothetical factors and that it was not substantiated that he would suffer inhuman and degrading treatment. Nor in the circumstances has it been established that his moral integrity would be substantially affected to a degree falling within the scope of Article 8 of the Convention."
- Bensaid has been at the forefront of Mr Blake's submissions. Reliance is also placed on Keenan v United Kingdom a judgment of the Strasbourg court dated 3rd April 2001 which shows that Article 3 may be violated by an inadequate level of supervision and care of a mentally ill person; though Keenan was factually a very different case relating to a person in custody who was a known suicide risk.
- In any event, what is said on the claimant's behalf is that having regard to the potential applicability of Articles 3 and 8 in a case of mental illness, the Secretary of State could not reasonably have been satisfied on the evidence before him that the claimant's claim in respect of those articles must clearly fail. That brings me to the evidence in this case.
THE EVIDENCE
In looking at the evidence I bear in mind that the actual decision certifying the claim as manifestly unfounded was the decision contained in the Secretary of State's letter of 9th April 2001. The later letters maintain that decision but are not strictly fresh certification decisions. In deciding whether the decision was lawful the court should focus on the material before the Secretary of State at the time when the decision was made. That is the normal principle in judicial review, which is not affected for present purposes by section 77 of the 1999 Act, to which Mr Blake drew my attention at a late stage, and which makes provision concerning the evidence that may or may not be taken into account by the appellate authority in one stop appeals. On the other hand, the court is entitled to look at evidence post-dating a decision for a number of purposes, as where it casts light on earlier evidence (see paragraph 57 of Ahmadi), or where it is relevant to the exercise of discretion to grant or withhold relief; and, in practice, in immigration cases the court frequently looks at up-to-date evidence from both sides, no doubt in part because of the duty of anxious scrutiny in such cases.
- I shall therefore not adopt any cut-off point but will consider all the evidence that has been filed. The weight to be given to different pieces of evidence is a different matter to which I shall come back.
- With that preface, I turn to consider the evidence at the time of the original decision that the human rights claim was manifestly unfounded. The Secretary of State had before him, in particular, reports from Dr Sathananthan and Mr Kessler. Dr Sathananthan's first report was dated 16th May 2000. He identified himself as a consultant psychiatrist for South London and Maudsley NHS Trust; a post he had held for over 25 years. His report set out the claimant's history, including the claimant's claim to have been the victim of torture in Iraq (and still to suffer nightmares about it). It described the claimant as suffering from severe depression when examined. It expressed the following opinion:
"Mr Ali appears to be a hard working self-reliant young man, who is keen to be self-supportive. He suffers from Post Traumatic Stress Disorder based on the criterion of the Diagnostic and Statistical Manual of Mental Disorders ed.iv American Psychiatric Association 1994 - (DSM IV). He needs Pharmacotherapy as well as Cognitive Behaviour Therapy; he needs a happy and safe environment in which to do this. As his English improves it will be possible to arrange Cognitive Therapy. His is a young man with a bright future, who is extremely keen to find employment and not be considered as a parasite on society.
I respectfully recommend to Court that Mr Ali be permitted to stay in this country, as otherwise it would be detrimental to his mental and physical wellbeing. Incarceration and custody is likely to cause a relapse on the progress he has made so far. Given Mr Ali's subjective fear of ill-treatment in Germany. I feel that he would not make any progress there in rehabilitating from Post Traumatic Stress Disorder, or indeed from his depression. I am happy to continue with his psychiatric treatment if the Courts agree with my request."
The report refers to the claimant under the name of Mr Ali but that is immaterial for present purposes.
- In a further letter of 23rd May 2000, during a period when the claimant was in detention in this country, Dr Sathananthan said that the detention had caused a setback to the claimant's progress and was detrimental to his mental state, there had been a worsening of the claimant's depressive mood, and he could not rule out the possibility that the claimant might carry out his threat to commit suicide.
- Mr Kessler in his first report dated 19th September 2000 stated that he had worked as a refugee adviser for 15 years and had other substantial credentials in the refugee field in Germany. In his view there was little chance of the claimant gaining refugee status in Germany. His legal status, if returned, was that he would receive a "Duldung", a form of tolerated status giving temporary protection from prosecution for remaining in Germany, though the stay would still be technically illegal. It was not the same as a residence permit. It did not carry with it the normal rights to live and work in Germany and it resulted in restrictions on residence and freedom of movement. The claimant's mental condition would be considered a "chronic condition" rather than acute and the claimant would therefore have no right to medical treatment by a psychiatrist, nor would he have any right to treatment by a psychotherapist. The relevant authorities would have a discretion to pay for treatment but would be very reluctant to pay for psychiatric or psychotherapeutic treatment save in case of very urgent need, that is to say immediate danger.
- Mr Kessler also stated that other aspects of the German system might cause stress for the claimant's mental health, namely that the place where he would be allowed to reside might be quite remote, as well as the fact that his freedom of movement could be restricted and there would be limitations on benefits and on the right to work.
- This was the principal relevant evidence before the Secretary of State when he made his decision of 9th April 2001 that the human rights claim was manifestly unfounded. His decision letter referred in paragraph 2 to the reasons given in an earlier letter of 4th July 2000, where he had expressed the view that there were adequate, appropriate and equivalent psychiatric facilities in Germany which would be available to the claimant. The decision letter was otherwise in very general terms, stating in paragraph 4:
"The Secretary of State has noted that Germany is a full signatory to the Geneva Convention of 1951 and to the ECHR. He routinely and closely monitors the practice and procedures of Member States, including Germany, in the implementation of the ECHRR in order to satisfy himself that its obligations are fulfilled. He is satisfied that your client's human rights would be fully respected in Germany and that your client would not be subjected to inhuman or degrading treatment or punishment if removed there. He is also satisfied that your client will be able to raise any continuing protection concerns that he may have under the provisions of the ECHR with the authorities in Germany. In the circumstances, the Secretary of State does not accept that your client's removal to Germany would be in breach of his human rights. Indeed, he regards your continued assertion in this respect, particularly following the consideration already given to the matter which has been supported by the Court, to be merely a device to prevent further your client's proper return to Germany under the terms of the Dublin Convention."
- The further material subsequently submitted to the Secretary of State included Dr Sathananthan's second report, dated 18th July 2001. The first paragraph of the opinion expressed in that report was very similar to the first paragraph of the first report. The opinion went on:
"Incarceration and custody is causing a relapse on the progress Mr Ali had made during treatment. He would be deprived of his support network from family [cousin and friends], when he is removed to Germany. He would not have access to medication or Cognitive Behaviour Therapy as he would only be given temporary immigration status by the authorities. His accommodation in a refugee camp will cause flashbacks of his incarceration in prison in Iraq and worsen his depressive mood and sense of despair. I feel that sending him back to Germany or even to Iraq would be very detrimental to his mental and physical well-being. I think he would make a serious attempt to kill himself."
- Mr Kessler, in a further letter dated 2nd August 2001, reaffirmed his view that the claimant's return to Germany would be dangerous for him as there was a real risk that he would not receive suitable treatment there. This was the state of play when the Secretary of State reaffirmed his decision in a short letter of 13th August 2001 stating that he was satisfied that there would be appropriate, adequate and, at the least, equivalent medical facilities available for the claimant to use on his return to Germany.
- I can move to the additional evidence arising in the last couple of months. In his third report, dated 24th September 2002, Dr Sathananthan adhered to the general tenor of his earlier reports. He stated that the claimant still suffered from depressive illness, pain disorder and post traumatic stress disorder. He found support from his friends who lived with him. He, at times, had suicidal ideations. Dr Sathananthan went on:
"Even though he has medication and had supportive psychotherapy at the Day Hospital, there was not enough time or access to Cognitive Behaviour Therapy, which is very necessary for his treatment. In my experience they have been able to arrange such treatment for refugees who have been given status to stay in this country, so that they didn't worry about their future and were able to respond to the therapy ...
If Mr Razgar were returned to Germany where he was imprisoned as before, his mental state would drastically deteriorate back to the depth it was when I first assessed him in the Detention Centre at Gatwick Airport. [A reference to examination on 7th June 2001]."
- On the other side is the witness statement of Mr Pulham, for the Secretary of State, which covers a number of matters. It describes Duldung as a tolerated status granted to asylum applicants whose claims have been rejected but who cannot, for various reasons, be removed from Germany. It confirms his understanding that those in receipt of Duldung are entitled to medical care, and states that he is not aware of any cases in which funding providers have refused treatment for those returned to Germany under the terms of the Dublin Convention.
- It states that in discussion with an official of the Federal Office for the Recognition of Foreign Refugees he had been informed that immediately after the claimant's arrival, the claimant would be invited to attend a medical assessment in order to ascertain what treatment would be required, and it had been confirmed that any necessary treatment would be given to the claimant at a level to enable him to lead a normal life.
- It takes issue with the suggestion in Dr Sathananthan's third report that the claimant would be detained on return to Germany. His understanding was that the claimant would be provided with accommodation from which he would be free to come and go and would have a chance to get to know his local area and, during the duration of his Duldung status, to settle and to receive medical treatment there.
- Mr Pulham also exhibits a further letter from the Secretary of State dated 7th November 2002 stating that the Secretary of State has considered Dr Sathananthan's third report most carefully and noting that the claimant is considered to continue to suffer from the same mental difficulties as raised previously, albeit that his mental state appears to have improved from his first assessment in detention in. The letter goes on:
"The Secretary of State refers to the prior detailed correspondence concerning your client's stated problems and does not propose to repeat the issues addressed therein. However, the Secretary of State notes for the avoidance of doubt that, although he accepts the report as a professional assessment based on the information provided to the psychiatrist, he does not accept as accurate certain information upon which the opinion appears to be based. In particular, it is not accepted that:
. if your client were returned to Germany he would be 'imprisoned as before' (Report of 24 September 2002, p6)
. your client would be denied medical treatment if it were needed in Germany (Report 7 June 2001, p6;
. your client 'was refused asylum 3 times in Germany and eventually they [the German Government] decided to send him back to Iraq' (report of 29 February 2000, penultimate paragraph p4, report 7 June 2001, penultimate paragraph p3)
The Secretary of State takes the view there is nothing in this latest report which requires him to alter his decision to remove your client in accordance with the applicable law. He remains satisfied that adequate and appropriate medical facilities exist in Germany which will be available to your client after his removal to that country should the need arise. The Secretary of State affirms that precautionary steps will be taken to obviate any attempt at self-harm during the removal process as necessary."
- This has led to a further letter from Mr Kessler, dated 12th November 2002, in which he states that on the basis of his first-hand knowledge of German Aliens Law (gained in his professional career) as a holder of Duldung but without a formal residence permit, the claimant could be ordered to live in an accommodation centre, such centres usually being located in remote areas which makes access to counselling and medical treatment quite difficult; freedom of movement would be severely restricted and gainful employment could be forbidden or restricted; the situation was extremely burdensome for the person affected. Dr Kessler also reaffirms his view that because the claimant's condition would be regarded as chronic illness he would only receive medical treatment in case of actual danger to himself or others and would not be given psychiatric counselling or cognitive therapy, which the relevant authorities would not be willing to pay for.
SUBMISSIONS
Mr Blake submits that in the light of the evidence as it was before the Secretary of State at the time of his original decision, there was a clearly arguable case to be determined on its facts by the Adjudicator, and that the subsequent evidence does not alter the position. There would appear to be no issue over the claimant's psychiatric condition but only as to whether appropriate medical assistance would be available to the claimant in Germany. As to that, the claimant's evidence is that assistance would be available only if his psychiatric condition, which would currently be regarded as a chronic condition, deteriorated into an acute condition. But there is a serious argument that to create a situation in which the claimant's condition would have to deteriorate in that way, indeed to the point where there was a real risk of suicide, before he could receive medical assistance would involve a breach of Article 3 and Article 8.
- Mr Blake has made clear that the focus of his submissions in this court is Article 8 and he realistically accepts that if he cannot challenge the Secretary of State's certificate successfully by reference to Article 8, he will not succeed by reference to Article 3; but he emphasises that Article 3 nonetheless forms a very real part of the claimant's human rights case. He does not have to show that the claimant will win or will probably win before the Adjudicator, but only that there is a serious issue to be tried on an appeal.
- He relies, as I have indicated, on Bensaid and on Keenan. He also relies on the reasoning and outcome of the decision of this court in Ahmadi. I have already referred to Ahmadi for the legal approach adopted. That case too concerned mental illness and a contention that the claimant's condition would get worse if the claimant were removed to Germany; there was an additional feature concerning the mental health of the children of the family. Mr Blake submits that it was "pretty similar" to the present case, but I do not propose to go into a detailed factual comparison. It is sufficient to note that Scott Baker J found in Ahmadi that there was an arguable case that the detrimental effect of removal on mental health would be such as to give rise to a breach of Article 8 and that the Secretary of State had, therefore, not been entitled to certify the human rights claim as manifestly unfounded.
- As to the Secretary of State's recent evidence, Mr Blake submits that it is expressed in terms of generalities and does not grapple with the specifics contained in the evidence of Mr Kessler as to the absence of a right to treatment for a chronic illness or the reluctance of the authorities to fund treatment of such an illness as a matter of discretion. It is also wrong in asserting that the claimant would not be held in a detention or accommodation centre if returned to Germany: contrast the evidence of Mr Kessler and the evidence in Ahmadi that a similar assertion by the Secretary of State had been shown to be wrong, since the claimants in that case on their return to Germany were being held in a residence centre (see paragraphs 16 and 19 of that judgment).
- For the Secretary of State, Mr Underwood QC places particular emphasis on the facts of Bensaid and what was said by the court in that case about Articles 3 and 8. In relation to Article 3 he points to the particularly high threshold set in Bensaid, in a case where the problem is not said to be the direct responsibility of the authorities; and he submits that the facts of the present case get nowhere near that threshold. As to Article 8 he points to the fact that the court stated in Bensaid that its case law "does not exclude" the application of Article 8, but again the court seemed to impose a high test. The facts of Bensaid, it is submitted, were far more extreme than those of the present case, yet no breach of Article 8 was found. A search of the relevant database has revealed no reported Strasbourg cases where a breach of Article 8 has been found in this context. The Secretary of State was therefore entitled to take the position that the claimant's case under Articles 3 and 8 would clearly fail before any adjudicator properly directing himself.
- Mr Underwood's submission, if I have understood it correctly, is that the Secretary of State was entitled to take that position even if the claimant's evidence is accepted at face value. But Mr Underwood also makes detailed comments on the evidence itself. In relation to Dr Sathananthan's first report, he submits that its reference to incarceration and custody is unrealistic and diminishes the value of the opinion expressed; but, in any event, the gist of the opinion is that there would be a relapse on the progress made so far, and that no progress would be made, which is nowhere near sufficient to establish a case under Article 3 or Article 8. Similar points are made in relation to Dr Sathananthan's more recent reports.
- As to Mr Kessler's evidence that treatment would only be available if there were an acute need, Mr Underwood submits that it would only be in a case of acute need that any question of a breach of Article 8 could arise; and if treatment would be available in that event, there could be no breach. In any event, the court now has before it the witness statement of Mr Pulham recording the evidence of the responsible German authority that treatment would be available at a level to enable the claimant to lead a normal life. It is submitted that the Secretary of State was entitled to accept that evidence. Any difference of view about the nature of the accommodation in which the claimant would be placed if returned to Germany is not capable of affecting the analysis; and the claimant's own witness statement makes no complaint about the conditions in which he was held in Germany.
- Ahmadi is said to be distinguishable on its facts, as well as being based on a test of arguability, which Mr Underwood submits to have been erroneous in law (a submission I have already effectively rejected).
- More generally, Mr Underwood submits that the Secretary of State is entitled to hold his consistently expressed view that appropriate facilities would be available to the claimant in Germany and, in any event, that the Secretary of State was and is reasonably entitled to express the view recorded in the decision letter that the claimant's human rights would be fully respected in Germany.
CONCLUSIONS
I can state my conclusions as follows.
- First, for the purposes of certifying, the Secretary of State had to proceed on the basis that Dr Sathananthan's psychiatric assessment of the claimant might be accepted in full by an adjudicator. There was no proper basis for concluding otherwise. The Secretary of State had no other psychiatric reports. Before me, the Secretary of State has indicated an acceptance of the opinion of Dr Sathananthan so far as it goes, but criticisms have been made of certain of the language in the reports and of various assumptions and points of fact in the reports. Two in particular are material, namely what is said about the claimant being denied access to relevant medical facilities if returned to Germany and what is said about his being incarcerated or in custody or accommodated in a refugee camp if returned there. I shall come back to those specific matters. Putting them to one side for a moment however, I accept that Dr Sathananthan's language is not always felicitous and that he does not appear fully to understand the role of the court, but I do not consider that the points of criticism are such as significantly to devalue the substance of his assessment.
- As to the substance of that assessment, it is strictly necessary, for reasons I have discussed earlier, to focus on the material available to the Secretary of State at the time of his original decision. At that time he had Dr Sathananthan's first report. Although somewhat thin, the report identified a case of severe depression and post traumatic stress disorder and the need for therapy, and also expressed a clear view that removal to Germany would be detrimental to the claimant's mental and physical well-being and that it was likely to cause a relapse as compared with his present conditions. It did not limit itself simply to saying that the claimant would make no progress in Germany. The Secretary of State also had Dr Sathananthan's subsequent letter of 23rd May 2000 in which he described a worsening of the claimant's depressive mood while in detention and said he could not rule out the possibility of suicide.
- The second report post-dated the original decision but cast light on the opinion previously expressed and was, of course, available to the Secretary of State when he affirmed his decision in August 2001 before the Court of Appeal gave permission in the present case. Based on the absence of a support network from the claimant's family in Germany, and the lack of access to medication or to cognitive behaviour therapy, coupled with the nature of his accommodation in a refugee camp, it expressed the view that sending the claimant back to Germany would be very detrimental to his mental and physical well-being and that the claimant would make a serious attempt to kill himself.
- Were the two main assumptions that are criticised obviously wrong? In my view, the Secretary of State could not reasonably so conclude.
- First, the Secretary of State had no material (or none that the court has seen) upon which to take a different view as to the availability to the claimant of psychiatric treatment in Germany, or to justify his own conclusion that adequate, appropriate and equivalent psychiatric facilities would be available to the claimant if he were returned. Mr Kessler's evidence on this was clear and specific. It explained in terms that the claimant would have no right to psychiatric or psychotherapeutic treatment in Germany because his condition would be considered chronic rather than acute, and that the authorities would be very reluctant to pay for such treatment as a matter of discretion. There was nothing to counter that evidence. Thus the only basis upon which the Secretary of State could properly proceed was that there was a real risk that the claimant would not receive appropriate treatment in Germany, or at least that there was a real possibility of an adjudicator so finding on an appeal. This is an important point, because the availability of appropriate treatment was one of the few specific matters, as opposed to generalised assertion, relied upon by the Secretary of State in support of his certification.
- Secondly, the only evidence that the Secretary of State had before him at the material time (or at least the only evidence the court has seen) as to where the claimant would be accommodated on his return was again that of Mr Kessler, who stated that if, as was very likely, the claimant received a Duldung, he would be placed at an accommodation centre with substantial restrictions upon his liberty. The Secretary of State did not specifically take issue with that at the time; there is nothing to show that he considered Mr Kessler's evidence to be obviously wrong, or to show the basis upon which he reached any such conclusion.
- Those are the reasons why, in my judgment, the Secretary of State had to proceed on the basis that the psychiatric assessment in respect of the claimant might be accepted in full by an adjudicator.
- The recent evidence does not cause me to take a different view, even leaving out of account the fact that it was not available at the time of the decision. I accept Mr Blake's submission that the Secretary of State's evidence must be examined with particular caution given its extreme lateness and the fact that it even post-dated the claimant's original skeleton argument. In those circumstances, as it seems to me, a high degree of specificity is called for if it is to be relied on as rebutting the claimant's evidence. As it is, what Mr Pulham says in his witness statement on the basis of a conversation with a German official about the treatment that would be given to the claimant does not, in my view, engage sufficiently with the specifics in Mr Kessler's evidence about the lack of any right to such treatment unless and until the condition is acute, and about the risk that discretionary funding would not be available for the provision of treatment. So too what is said by Mr Pulham about the nature of the claimant's accommodation if returned does not accord with the picture painted by Mr Kessler on the basis of his experience and independent material, and again there is no real attempt to address the specifics in Mr Kessler's evidence head on. The fact that a similar position was adopted by the Secretary of State on the question of accommodation in Ahmadi, and was shown to be wrong on the facts, simply underlines one's concern. In any event, I am satisfied that on each of these matters there was and is a real factual issue that might be decided against the Secretary of State on appeal. So far as concerns Dr Sathananthan's recent report, that serves to underline the psychiatric concerns if the claimant were returned to Germany.
- Going back to the certification, could it then be said that the claimant's human rights case was clearly bound to fail even if Dr Sathananthan's psychiatric assessment was accepted? In my view, the answer is no. The meat of the case was that the claimant's mental health would suffer a serious decline in Germany by reason, in particular, of the lack of appropriate treatment; it would have to deteriorate to the point where his condition was acute, that is to say where he became a suicide risk, before treatment could be assured. By contrast, if he stayed in the United Kingdom he could expect to receive appropriate treatment and to make progress.
- In my judgment that situation was capable of engaging at least Article 8 of the Convention; or to express the matter in the correct way, the Secretary of State could not reasonably conclude that the claimant's case under Article 8 was clearly bound to fail. Bensaid is important for its statements of principle about the potential applicability of Article 8 in the context of mental health: the stress that the court placed on mental health as a crucial part of private life, associated with the aspect of moral integrity and on the preservation of mental stability as an indispensable precondition to effective enjoyment of the right to respect for private life.
- I accept of course that the applicant in Bensaid did not win, though he did get through the admissibility stage to a determination on the merits. Whether this means that the court was in practice establishing a high hurdle under Article 8 is a matter for argument. Although, at first blush, the facts of Bensaid, on which the applicant failed, were far more extreme then those of the present case, the evidence founding the contention that his mental health would deteriorate substantially if he were returned was found to be largely speculative or hypothetical. For reasons already given, the Secretary of State was not entitled to treat the corresponding evidence in the present case as speculative or hypothetical.
- I note the fruits of Mr Underwood's research that there have been no successful cases under Article 8 in relation to mental health in Strasbourg. But Bensaid itself is a relatively recent case and this is an area that will no doubt receive detailed exploration until the appropriate limits are determined more clearly. Ahmadi is an illustration of that. I do not rely on the decision in the case any further than to observe that there was held to be an arguable case under Article 8. As things stand, the starting point in any such case must be the statements of principles in Bensaid; and, in my view, there was and is material here upon which the claimant could properly argue before the Adjudicator that his case falls within those statements of principle.
- I should also mention that the claimant's case under Article 8 was not, in my view, adequately met by the very general proposition upon which the Secretary of State relied that Germany respects human rights. Although true as a general proposition, it is not a sufficient basis for rejecting a reasoned case supported by evidence of the kind submitted here. The United Kingdom respects human rights, but situations can nonetheless arise in which Convention rights are breached. The same must be capable of happening in Germany.
- The claimant's case under Article 3 is far more difficult. If that article stood alone, I doubt whether the Secretary of State could be criticised for certifying the case as he did. But I do not need to reach a final conclusion on that since the article does not stand alone. The stronger case that exists that Article 8 provides a sufficient ground for concluding that the Secretary of State could not reasonably conclude that the claimant's human rights case was clearly bound to fail and, therefore, could not reasonably certify that the case was manifestly unfounded. I stress that in referring to the strength of the case, I am concerned only with arguability and whether there were issues fit for determination by an adjudicator on appeal. I do not intend for one moment to express any view on the likely or appropriate outcome on an appeal, which is not the issue before me.
- For the reasons I have given, I will quash the Secretary of State's certification of the case as manifestly unfounded.
- MR GRODZINSKI: My Lord, I would seek an order that the Secretary of State pay on account the claimant's costs of this application and an order for public funding assessment?
- MISS CALLAGHAN: My Lord, the Secretary of State would not oppose the application for costs in this matter. However, the Secretary of State would wish to make an application for permission to appeal, although it would wish to do so in the following manner, by actually submitting a written application to your Lordship.
- My Lord, there are three reasons why the Secretary of State wishes to take that particular approach in this case. The first reason is that this case raises legal issues that are of exceptional importance to the Secretary of State. The issues in this case would potentially impact not only within the confines of this case but on a large number of asylum cases, particularly in the third country context.
- MR JUSTICE RICHARDS: That goes to the substance of why you say permission should be granted rather than to the procedure you are proposing. I take it you are proposing the written procedure for the very obvious reason that Mr Underwood is not here and has not heard the judgment, and you were not present during the argument and it is rather difficult for you to identify from the judgment what is or may be a point fit for appeal?
- MISS CALLAGHAN: Indeed, my Lord. Your Lordship has identified the other reason.
- MR JUSTICE RICHARDS: I see that we do have in court somebody who could deal with those matters now; but, I think that Miss Anderson is not strictly instructed on the judgment, and has probably come in simply as a matter of interest today?
- MISS ANDERSON: My Lord has anticipated the correct position. I am here merely as an observer.
- MR JUSTICE RICHARDS: Yes. What you are asking is that you should have the right to put in submissions when the transcript is available and those who are primarily involved in the case have had a chance to study it?
- MISS CALLAGHAN: Indeed, my Lord. The Secretary of State considers that it is very important, they would like to take time to consider your Lordship's decision and to take instructions, and for the legal team involved in this case to be involved in that process.
- MR JUSTICE RICHARDS: Well, let me just see what is said on behalf of the claimant in relation to that.
- MR GRODZINSKI: My Lord, I am afraid I would oppose the application to put in written submissions. Your Lordship is, with respect, well able to identify any point that your Lordship might think requires elucidation or clarification by a higher court.
- As to the substance, in my submission, with respect, what your Lordship has done is apply well established principles in recent authority as to the facts of this case. It does not raise any substantively new matters of law which the Court of Appeal does need to deal with. If those representing the Secretary of State consider it is a matter to go to the Court of Appeal, they can put in written grounds to the Court of Appeal dealing with all the particular matters that Mr Underwood wishes to raise. There is no reason to depart from the usual course of your Lordship deciding the matter here and now.
- MR JUSTICE RICHARDS: I see. Well I am going to allow the procedure of written submissions. I think it is only right that the Secretary of State should have the opportunity to consider the judgment and put forward fuller and, if I may say so without any disrespect, more detailed and more focused submissions than could possibly be expected of somebody who just hears an oral judgment without having been present for any of the argument. What I will do is direct a transcript with expedition, and that written submissions on the question of permission to appeal, if any, be submitted within 7 days of receipt of the transcript, to be served on the court as well as on the claimant's lawyers, and that the claimant should have three days in which to respond.
- MR GRODZINSKI: Could I ask for the indulgence of 7 days to respond, not knowing what Mr Blake's timetable is it might be difficult?
- MR JUSTICE RICHARDS: Yes, I will allow the 7 days for that reason. I do urge upon everybody the importance of speed. If there is a matter here of real importance which merits the attention of the Appeal Court, it is right that that decision should be taken quickly.
- MISS CALLAGHAN: My Lord, I am extremely grateful. Could I also suggest that your Lordship extend the time to appeal so that times begins to run from the date on which your Lordship's decision to deal with the question of permission to appeal is available?
- MR JUSTICE RICHARDS: Yes, that must be right, that time for appealing is extended so as to run from the date of my decision on the written submissions, if any, in respect of permission to appeal. And there needs to be a fallback: a defined period from the date by which any written submissions are to be lodged (and, therefore, it will run all right because we will know when the transcript is available and there will be the 7 days and 7 days and after that time will run). Just to make sure there is not a black hole that I have created by that order; I think that will be all right.
- MR GRODZINSKI: My Lord, I am just concerned, if, for whatever reason, the Secretary of State decides not to put in written submissions, clearly we will not be doing so----
- MR JUSTICE RICHARDS: That is why I tried to do it by reference to the date by which any written submissions must be filed.
- MR GRODZINSKI: If it is by reference to that date, and then your Lordship takes then, say, another 7 days to give his judgment, then the time will have to run from that; there are two alternative dates on which time could begin to run.
- MR JUSTICE RICHARDS: You are right. Yes, how do you suggest that the matter be dealt with so as to avoid time running indefinitely?
- MR GRODZINSKI: My Lord, may I suggest we are at 20th November today, 7 days would be 27th----
- MR JUSTICE RICHARDS: We have to get a transcript first, and we cannot expect a transcript overnight.
- MR GRODZINSKI: Your Lordship is right. Perhaps it should be 14 days from the date on which written submissions be submitted by the claimant, or the date of your's judgment, whichever is the later?
- MR JUSTICE RICHARDS: The date of my decision?
- MR GRODZINSKI: Yes.
- MR JUSTICE RICHARDS: Well that would cover it, maybe though it is much better to put a final date for this and then everybody knows what the ultimate fallback position is. If I set a date four weeks hence as being the final possible date, that will cover it, and somebody with a calendar can work out what the date is four weeks hence.
- MR GRODZINSKI: The only possible reason why that four week outer deadline might cause difficulty is with the transcript, so one could insert liberty to apply.
- MR JUSTICE RICHARDS: With liberty to apply, certainly. But I very much hope and expect that the question of permission to appeal is resolved long before then.
- MR GRODZINSKI: I am conscious of that.
- MR JUSTICE RICHARDS: Thank you both very much, and can you report back my gratitude to those who were involved in the presentation of the case yesterday.
