Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2012] CSOH 130
P392/12	OPINION OF LADY CLARK OF CALTON in the petition of MKM (AP) Petitioner; For Judicial Review of decision dated 6 December 2011 of the Secretary of State for the Home Department to refuse to recognise representation as a fresh claim for asylum. ­­­­­­­­­­­­­­­­­________________

Petitioner: Gibson; Drummond Miller

Respondent: Lindsay, QC; Office of the Advocate General

10 August 2012

History of proceedings

[1] The petitioner, a citizen of Zambia arrived in the United Kingdom on 14 November 2007 with her son, MM born 22 October 1993. The petitioner stayed with her sister in London before travelling to Glasgow. She sought asylum on 14 December 2007 and this was refused by the Secretary of State on 22 January 2008. The petitioner appealed. The appeal was refused by an immigration judge on 30 March 2008. The petitioner's appeal rights were exhausted by 9 October 2008.

[2] On 6 January 2010 further submissions supporting the petitioner's claim were submitted. On 15 February 2010 the Secretary of State decided that these further submissions did not constitute a fresh claim. On 17 March 2011 further submissions supporting the petitioner's claim were submitted. On 5 November 2011 the Secretary of State decided that these further submissions did not constitute a fresh claim. On the advice of counsel further submissions supporting the petitioner's claim were submitted on 21 November 2011 (6/3 of process). On 6 December 2011 the Secretary of State decided that these further submissions did not constitute a fresh claim for asylum and/or human rights. It is this decision (6/4 of process) which the petitioner seeks to challenge in this petition.

Submission of behalf of the petitioner

[3] The petitioner sought to rely on Rule 353 of the Immigration Rules. It was not in dispute that the correct approach to be followed by the respondent and by the court is set out in WM (DRC) v Secretary of State for the Home Department [2006] EWCA Civ 1495 as considered and approved in Kishor Dangol v Secretary of State for the Home Department 2011 S C 560.

[4] The challenge made in the petition is focused in paragraphs 17 - 21 of the petition. That was reflected in the four main submissions made on behalf of the petitioner. Counsel prefaced his submissions by reference to N v United Kingdom 2008 47 ECRR 885 in particular paragraphs 42 - 45. He also drew attention to the letter dated 21 November 2011 (6/3 of process) which is the basis of the submissions considered in the decision letter dated 6 December 2011 (6/4 of process).

[5] In developing his submission based on paragraph 18 of the petition, counsel submitted that the respondent had erred because she failed to take into account the concordance between the views of the three medical professionals in regard to diagnosis of the condition of the petitioner in particular her potential for an increased risk of suicide. He made reference to paragraphs 44 - 53 of 6/2 of process and challenged the conclusion of the immigration judge at paragraph 82.

[6] In relation to paragraph 19 of the petition, counsel submitted that the respondent had failed to take into account the medical evidence that removal of the petitioner to Zambia will result in an increased risk of her suicide. He submitted that the respondent should have asked herself how the petitioner's mental health problems can be managed so that the petitioner is in a state of mind such that she is not at increased risk of suicide. It was submitted that the respondent's analysis was unreasonable et separatim irrational because of a failure to take into account that removal impacts upon the petitioner's rights under article 3 or 8 bearing in mind her state of health and increased risk of suicide.

[7] Paragraph 20 of the petition referred to the medical condition of the petitioner. The petitioner is HIV positive and is currently receiving treatment for that and other medical conditions. Counsel submitted that the respondent, in her assessment of the impact of removal, had left out of account the need for the continuation of the medication programme, the need to avoid changes in the medical regime and the need to maintain compliance.

[8] The last point made on behalf of the petitioner related to paragraph 21 of the petition and the medical history of the petitioner's son. Counsel submitted that fresh representations had been made on 17 March 2011 but these were not considered until November 2011. The decision making of the respondent was criticised as unreasonable et separatim irrational on the basis that the respondent had declined to give any consideration to the best interests of the petitioner's son as a child because he was over the age of 18 by November 2011. It was submitted that as the application had been lodged before the petitioner's son was 18, the respondent should have considered the best interests of the son bearing in mind that the circumstances of the petitioner's son, who was also HIV positive, had not altered since March 2011. His circumstances and best interests as a child required to be considered.

Submissions on behalf of the respondent

[9] I am grateful to counsel for the respondent for submitting written submissions which are 12 of process. His oral submissions developed the written submissions.

[10] Counsel accepted that there was no dispute between the parties about the applicable law under reference to Kishor Dangol. He dealt with the submissions in the same order as petitioner's counsel.

[11] In relation to the health issues of the petitioner, counsel accepted the principles relied on by the petitioner in N v United Kingdom. I was invited to refer in particular to paragraphs 42 - 45 thereof. Counsel submitted that there was a very high threshold to be met by the petitioner and that the circumstance of the petitioner and her son fell well short of that threshold even looked at cumulatively.

[12] In dealing with the submissions in relation to paragraph 18 of the petition, counsel referred to paragraphs 29 - 32 of 6/4 of process. He submitted that the respondent had considered the terms of each of the medical reports individually and cumulatively. The respondent had also considered the objective evidence relating to healthcare in Zambia and applied the correct legal test. The respondent accepted most of the evidence, including the medical reports relating to HIV and that the petitioner was suffering from moderate to severe depressive episodes. The respondent did not accept the petitioner's claims to be suicidal because she is fearful of returning to Zambia. That was premised on an alleged fear that she will be raped again. Counsel submitted that the immigration judge had found that the petitioner's claims of rape in Zambia were wholly incredible. In such circumstances the respondent's conclusion at paragraphs 72 - 82 of 6/2 of process was rational and the criticisms made on behalf of the petitioner were ill founded.

[13] In relation to paragraph 19, counsel submitted that paragraph 82 of 6/2 of process was a conclusion which was open to the respondent and that there was no "real risk of completed suicide attempt on return".

[14] In relation to paragraph 20, counsel submitted that the principles to be applied as set out in N v United Kingdom were not in dispute. He submitted that there was a high threshold to be met. The respondent was fully entitled to conclude that the threshold was not met in this case.

[15] In relation to paragraph 21, counsel submitted that the petitioner's son was not a child as defined in the law. The respondent had taken into account his individual circumstances including his dependency upon the petitioner. He referred to paragraphs 42 - 49 of 6/4 of process.

Discussion

[16] Health and psychiatric issues are central to the decision making in this case I have considered carefully the submissions including references to the principles in N v United Kingdom and the productions.

[17] In N v United Kingdom, the European Court of Human Rights (sitting as the Grand Chamber) considered a case in which there was expert evidence to the effect that the applicant who had Aids had also developed Kaposi's sarcoma. There was evidence to the effect that N required regular and expensive treatment and monitoring without which life expectancy would be less than one year due to Kaposi's sarcoma and the risk of infections. There was also evidence to the effect that the medication needed would be available in Uganda but only at considerable expense and in limited supply. There was no provision in Uganda for publicly funded blood monitoring, basic nursing care, social security, food or housing. The applicant's article 3 claim was rejected by the Secretary of State who noted that the treatment of patients with Aids in Uganda was comparable to any other African country and that major antiviral drugs were available there at highly subsided prices.

[18] There is a detailed analysis of the case law in N v United Kingdom in paragraphs 29 - 45. The circumstances of the applicant in N v United Kingdom were distinguished from D v United Kingdom in paragraph 51 where the high test of exceptional circumstances was set out and found to be established in the latter case. The factual circumstances of the applicant in N v United Kingdom were found by the European Court of Human Rights not to disclose "very exceptional circumstances" such as had been identified in D v United Kingdom. The principles are set out in paragraphs 42 - 45. It is stated in paragraph 42:

"Aliens who are subject to expulsion cannot in principle 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 and services provided by the expelling State. The fact that the applicant's circumstances, including his life expectancy, would be significantly reduced if he were to be removed from the Contracting State is not sufficient in itself to give rise to breach of article 3. The decision to remove an alien who is suffering from a serious mental or physical illness to a country where the facilities for the treatment of that illness are inferior to those available in the Contracting State may raise an issue under article 3, but only in a very exceptional case, where the humanitarian grounds against the removal are compelling. In the D. case the very exceptional circumstances were that the applicant was critically ill and appeared to be close to death, could not be guaranteed any nursing or medical care in his country of origin and had no family there willing or able to care for him or provide him with even a basic level of food, shelter or social support."

The court declined to depart from the high threshold test set out in D v The United Kingdom as it considered that article 3 does not place an obligation on the Contracting State to alleviate disparities in health and social care through the provision of free and unlimited healthcare to all aliens who have no right to stay within its jurisdiction. The court considered that a finding to the contrary would place too great a burden on the contracting states.

[19] Let me now turn to the various reports. The petitioner did not seek to reply on all the reports but that information was before the respondent and is part of the background to the case. There is a report (6/5 of process) from consultant physician, Dr MacConnachie, who deals with the petitioner's physical condition as a result of HIV and psychological problems which he states are due to difficulties in the petitioner dealing with her own diagnosis and the recent diagnosis of her son. The report by Dr Doherty (6/6 of process) deals with the physical condition of the petitioner, albeit he comments on the stress caused to the petitioner and her son as a result of their current immigration status. This doctor is a consultant in paediatric infectious diseases and immunology and his report is not focused on the psychological conditions of the petitioner and her son. There is a report (6/7 of process) from Dr Culshaw, consultant psychiatrist, which focuses on the petitioner's psychiatric condition. He diagnoses moderate to severe depressive episodes since at least 2008. He also refers to some of the petitioner's physical problems. He states that she has suicidal ideation which has been ongoing for a long time and suffers from anxiety symptoms. He does not express any view as to the cause of this. He states that "I do not feel that this lady's mental state could currently cope with the forced return to Zambia as there would be a high risk of her ending her life". A report from Dr Cullen, locum consultant psychiatrist (6/8 of process) states that the petitioner has said "that she would end her life if she were to be deported back to Africa because of her fears of being raped again". He considers that it is perfectly possible that she would chose to end her life rather than return to Zambia. He makes some brief comments about her physical condition. There is a report (6/9 of process) from a senior occupational therapist who is assisting with some of the petitioner's psychological symptoms. She records that the petitioner has explained to her that she would rather die with "dignity" than be returned to her country of origin because she fears that she will be murdered by individuals affiliated to the group who sexually abused her niece and she believes murdered her friend. There is a report (6/10 of process) relating to the petitioner's son.

[20] The medical and psychological evidence was accepted by the immigration judge in 6/2 of process except the conclusions in relation to suicide risk. There are different reasons given by the petitioner to different health professionals in relation to her suicidal ideation. I do not consider that there is any concurrence in the evidence about that. To the extent that the petitioner has explained to health professionals her concerns, the factual basis for these concerns has been rejected by the respondent. That rejection and the non‑acceptance of the petitioner's credibility in respect of these matters is not challenged in the present petition.

[21] The respondent in 6/4 of process gives detailed consideration to the further representations in paragraphs 29 - 36. I consider that the respondent's reasoning is adequate and the criticisms made by counsel for the petitioner in respect of paragraphs 18 and 19 are ill founded for the reasons advanced on behalf of the respondent.

[22] In relation to paragraph 20, I consider that the physical state of health of the petitioner alone could never satisfy the high threshold test set out in D v The United Kingdom.

[23] I consider the attempt to approach the matter in a compartmentalised way set out in the petition in paragraphs 18, 19 and 20 is not helpful. Looking at the matter broadly, I think the respondent has addressed the medical evidence, addressed the issues which arise from the medical evidence in a rational and reasonable way and is entitled to reach the decision which she did

[24] In relation to the submissions based on paragraph 21, I consider these to be unstatable for the reasons advanced by counsel for the respondent.

[25] I do not consider the analysis advanced on behalf of counsel for the petitioner as particularly helpful. None of the grounds standing alone are in my opinion a sound foundation for judicial review in this case. I consider that the best case for the petitioner is to look at the matter cumulatively in the round to consider whether or not there are grounds for judicial review. But if one considers the case in that way it is still plain, in my opinion, that this case falls very short of the high threshold in D v United Kingdom. To experience sympathy for the situation of the petitioner and her son is not enough. It is also not enough to demonstrate that the medical and psychiatric facilities available to the petitioner and her son in the UK are superior to those in her county of origin.

[26] I therefore uphold the second plea in law for the respondent and refuse the petition, reserving all questions of expenses.