Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2016] CSOH 118

 

P157/16

OPINION OF LADY STACEY

In the cause

MS

Petitioner;

for

Judicial Review of a decision of the

Secretary of State for the Home Department

Respondents:

Petitioner:  Irvine;  Drummond Miller LLP

Respondents:  McIver;  Office of the Advocate General

29 July 2016

[1]        This is an application for judicial review by the petitioner of refusal by the Secretary of State, the respondent, to recognise his claim made in February 2015 as a fresh human rights claim.  The letters in which the Secretary of State expressed the decision are dated 23 September 2015 and 13 November 2015.

[2]        The petitioner is a national of Pakistan who lives in Glasgow and whose date of birth is 21 October 1971.  He has lived in the UK for a total of 13 years over two periods, between 1996 and 2004 and 2010 to 2016.  During both periods he applied unsuccessfully for asylum, and his appeal rights became exhausted.

[3]        In February 2015 the petitioner submitted a claim which he maintains was a fresh human rights claim on grounds of his mental ill-health.  It was submitted by solicitors on his behalf bearing to be a claim under paragraph 353 of the Immigration Rules. 

[4]        The claim was based on the petitioner’s poor health.  The solicitors produced a letter from Jane Pennington, psychological therapist of the organisation “Freedom from Torture” dated 18 December 2014.  She reported that the petitioner was first referred in 2001 due to psychological problems relating to, according to him, experiences of torture in Pakistan.  He was referred once again in January 2012 and November 2013 by his GP because the GP had concerns about his psychological state and his vulnerability.  Miss Pennington saw the petitioner several times between February 2014 and June 2014, commenting that the assessment process was extended due to his physical health problems and high level of distress during assessment appointments.  Treatment by Miss Pennington took place thereafter, comprising a consultation first every month and latterly every two weeks.  She reported that the petitioner is a frail and physically vulnerable man.  He was often distressed at consultation and felt ashamed of his condition.  He was socially isolated spending most of his time alone.  He had been badly affected by the death of his mother in January 2014.  He felt responsible for her death, and his siblings in Pakistan blamed him for the death.  He had recurrent thoughts of death and being reunited with his mother.

[5]        Miss Pennington is not medically qualified and therefore does not diagnose or prescribe.  She did however state in her letter that the symptoms which the petitioner described to her are recognised by her as symptoms involving mental ill-health conditions, namely severe depression and post-traumatic stress disorder (PTSD).  She noted that the petitioner had cognitive issues in that he had memory difficulties, needing to be reminded about appointments, and that he often felt confused and disoriented.  In Miss Pennington’s opinion, return to Pakistan would have a very detrimental effect on the petitioner’s mood and level of distress. She expressed concern that it may lead to him harming himself or attempting suicide.

[6]        The letter from the solicitors asserted that mental health care provision in Pakistan was inadequate for the number of potential patients.  While there are psychologists in that country, most of the work is done on a private basis and in any event there is a shortage of practitioners, there only being 1 psychiatrist for every 80,000 adults.  The solicitors to a Home Office report on Pakistan dated 9 August 2013 for the following comment:

“In practice there is no law which protects mentally disordered patients in Pakistan ... the current situation is that a person suffering from some mental health disorder is almost completely at the mercy of his family [in order to introduce and oversee that they are cared for].”

 

The solicitors submitted that those who got access to mental health care did so by paying privately and with physical emotional and financial support of their families.  They pointed out that the petitioner has no family in Pakistan (as his parents are dead and his siblings do not wish to know him) and so he had no one to help him. 

[7]        The respondent requested further information about the petitioner’s medical condition and frail physical health and that he had severe depression.  His medication was listed.  

[8]        The claim was made under both articles 3 and 8 of ECHR.  It is asserted that the petitioner had built up a private life in the UK having been in this country for a number of years.  He had no family or other relationships and his only real contact was with his psychologist whom he saw every fortnight.  It was contended that that amounted to private life and that were he to be returned to Pakistan he could not continue that private life.  Nor could he strike up a new relationship with a psychologist in that country because he would have no family or friends to make sure that he got care and that he attended for appointments.

[9]        The Secretary of State replied to that application by letter of 23 September 2015.  In that letter the petitioner’s immigration history is set out;  the respondent did not note the petitioner leaving the UK in 2004, although she did note that he arrived back in the UK in 2010.  The respondent did not grant the application.  She stated that the submissions regarding mental health had not previously been considered.  The respondent noted that claims were made under article 3 and article 8.  She went on to consider them, and decided that there was no reasonable prospect of success before a First-tier tribunal.  It can be seen from the letter, the decision maker on behalf of the respondent considered the application under the heading “Article 8 – family and private life based submissions.”  She did so under appendix FM of the Immigration Rules.  She noted that the petitioner made no claim to have a partner or a child and so any claim on the basis of family life was refused.

[10]      The decision maker then considered private life, noting that it was for the petitioner to prove that he had a private life in this country.  The relevant rule is 276 ADE (1).  The decision maker described the petitioner as 43 years of age and as he claimed to have arrived in the UK on 20 January 2010, he had 5 years residency.  She found that that did not meet the rules under 276 ADE (1), as the petitioner did not have 20 years continuous residence in the UK, nor was he between the ages of 18 and 25, being 43 at the date of application, and that he had not spent half his life in the United Kingdom.  The decision maker then considered the last part of 276ADE (1), that is whether the petitioner had demonstrated that there would be very significant obstacles to his integration into Pakistan were he required to leave the UK.  The decision maker stated the following:

“You have failed to demonstrate that there would be very significant obstacles to your reintegration to Pakistan. It is not accepted that there are any significant obstacles which would prevent you from continuing with and re-establishing your private life upon return to Pakistan, the country of your birth and a country in which you speak the language and therefore you would be able to re-integrate back into society. You are a 43-year-old adult and you claim to have spent 5 years in the UK. It is considered that you have spent the majority of your life in Pakistan, 38 years as opposed to just 5 in the UK. Upon your return to Pakistan you can maintain contact with any UK based friends and other associates through modern channels of communication. You are a 43-year-old adult who enjoyed an established private life before coming to the UK and that is no reason why you should not do so again upon your return to Pakistan you have failed to demonstrate that there would be very significant obstacles to your integration into the country of return and therefore fail to fulfil rule 276ADE (vi). “

 

Having found that the petitioner did not satisfy the rules the respondent went on to consider whether in his particular circumstances he should be granted leave to remain outside the immigration rules.  In her first letter she found that there was nothing to indicate that there was any realistic prospect of success before an immigration judge, noting as follows:  in particular “you have not demonstrated that you have a relationship that cannot continue outside the UK.”.

[11]      The respondent then considered whether the removal from the UK would breach the article 3 rights of the petitioner.  The decision-maker considered the case of Bensaid v UK (2001) 33 EHRR 10 and N v UK (2008) 47 EHRR 39.  She decided that the petitioner had depression and anxiety.  Even if the petitioner had suffered a severe medical condition, removal would only be a breach of article 3 if the illness had reached are very critical stage and the conditions to which the petitioner would be removed would be such that it would be inhuman or degrading treatment to remove the petitioner.  Such circumstances did not apply, according to the decision maker, where current object of information available to have indicated that a sufficient level of care does exist in Pakistan.  Finally, the decision maker considered compassionate circumstances as required by paragraph 353B of the Immigration Rules.  She found that the petitioner is not of bad character, noting that that would weigh in his favour.  She also found, although the letter is not very clear, that the applicant had abided by his reporting conditions.  She found no significant delay in concluding the case.  She then noted the relevant factors to include his medical conditions, being PTSD, depression and anxiety.  Weighing up all that was in his favour against the fact that he had remained in the UK without any right to be here, she found that there was no warrant of a grant of leave to remain.  There was no separate consideration of article 8 in that letter.

[12]      The solicitors for the petitioners wrote to the respondent on 30 October 2015 and the respondent replied by letter of 13 November 2015.  That letter is concerned with article 8 and family and private life based submissions.  It repeats the previous decision on rule 276 ADE and notes that the petitioner is a 44 year old adult who claims to have spent five years in the UK.  It is stated that he had spent the majority of his life in Pakistan, 38 years as opposed to 5 years in the UK.  Its states that the petitioner enjoyed an established private life before coming to the UK and that there is no reason why he could not do so again on his return to Pakistan.  The decision maker repeats that the petitioner’s medical conditions have been considered but it states that it is not accepted that the act of return would result in deterioration of his mental health to a level of severity such as to result in a breach of article 8 rights.  It is stated that it is not accepted that he would not receive adequate care but that even if that were to be the case the decision is that the interference in his article 8 rights would be in accordance with the law – the legitimate aim of protection of the economic well‑being of the country and the prevention of disorder and crime.  The decision maker states that it is not accepted that the submissions would have a realistic prospect of success before an Immigration Judge.  The application is refused.

[13]      Counsel for the petitioner argued that the respondent had failed to take account of the facts that the petitioner suffers from depression and suicidal ideation, is extremely forgetful and is isolated from his surviving family, and he has no network of friends or family in Pakistan.  She argued that the respondent had erred in law in her consideration of Article 8 of ECHR.  She argued that the respondent had not considered the matter with an appropriate level of anxious scrutiny.

[14]      Both counsel for the petitioner and counsel for the respondent were agreed that paragraph 353 of the Immigration Rules required the respondent to consider 3 matters:  whether leave should be granted on human rights grounds, whether, if the application is not granted, the submitted material had been considered before, and if it had not, whether it was material that when taken along with all available material would create a realistic prospect of success in an appeal before the tribunal.  They agreed that the test is a modest test meaning only that the prospects of success would be more than fanciful.  Further, they agreed that the question for the court was whether the respondent had acted unreasonably in deciding that there were no realistic prospects of success, rather than the court deciding for itself whether such prospects existed.

[15]      There was, further, agreement between counsel that the respondent required to consider the matter with anxious scrutiny, which they agreed meant that it was necessary that the respondent examine the application in detail and that any matter that might tell in favour of the petitioner be properly considered, according to the gravity of the issue being determined.

[16]      Counsel for the petitioner argued that the respondent had erred in the law at the first stage, that is in deciding whether or not leave ought to be granted.  She submitted that the decision maker for the respondent appeared to have confused articles 3 and 8 of ECHR.  The decision maker referred to the necessity for the deterioration of the petitioner’s mental health to have reached “a particular level of severity” in order for a violation of article 3 to have been made out.  That was the language of article 3.  The correct test for the engagement of article 8 was simply whether the refusal of leave in circumstances where the petitioner’s private life could not reasonably be expected to be carried on elsewhere, taking into account all of the circumstances, was a sufficiently serious matter to amount potentially to a breach of the fundamental right protected by article 8.

[17]      Counsel argued that the respondent had failed to have regard to the petitioner’s absence of family or other support in Pakistan and had failed to take into account the fact that the petitioner had cognitive difficulties which led to him frequently forgetting to attend for appointments.

[18]      Counsel submitted that the respondent had not shown that the necessary level of anxious scrutiny because she had not taken these matters into account.  Further the respondent’s decision maker had repeatedly referred to the petitioner having lived in the United Kingdom for a period of 5 years.  In so doing, an error was made because he had in fact been in the United Kingdom for a total of over 13 years.

[19]      Counsel appreciated that she required to specify what private life the petitioner enjoyed an order that she might show that that private life would be prejudiced by his being returned to Pakistan.  She argued with reference to the case of Akhalu v Secretary of State [2014] EWHC 1505 (Admin) UKUT 400 that private life extends to physical and moral integrity and includes a person’s ability to function as a social being.  That case concerned the question of whether a person could make a claim under article 8 where she had failed on the same facts under article 3.  Counsel referred in particular to paragraph 31 in which the Upper Tribunal discussed the decision of Lord Bingham in the case of Razgar.  Counsel noted that the term “private life” is a broad term and that in principle, one might be able to resist an expulsion on the basis that the consequences for mental health of removal to the receiving country might to be sufficiently high to engage article 8.  That is because mental health is an indispensable precondition to effective enjoyment of private life.  Counsel illustrated this by noting the reference in paragraph 31 to the case of Costello-Roberts v UK 25 March 1993 series A 247 C.  That case concerned the infliction of corporal punishment and the effect that that might have on the physical and moral integrity of the person involved.

[20]      Counsel argued that the petitioner’s private life consisted in going to see his therapist.  Due to the situation in Pakistan where he had no family nor friends he would not be able to get access to therapy and would thereby not be able to continue his private life.  Counsel appreciated that article 8 should not be seen as applying to medical cases a less stringent test than would be applied under article 3.  She accepted that the medical condition of the petitioner did not lead to a breach of article 3 and that it could not, without more, lead to a breach of article 8.  She argued, however, that in the circumstances of this case, the petitioner’s private life was destroyed were he to be returned, and therefore article 8 was engaged.

[21]      Counsel then argued that the mistake made by the decision maker in both letters, to the effect that the petitioner had spent only 5 years rather than 13 years in the United Kingdom was an error of law;  she argued that the error showed that insufficient attention had been paid to the facts of the case and therefore it could not be argued that it had been considered with the appropriate degree of anxious scrutiny.

[22]      For the respondent, counsel argued that while it was to correct to argue that health may be a factor bearing upon article 8, the scope for that was limited.  In the case of MM (Zimbabwe) [2012] EWCA Civ 279 it was held that the absence of adequate medical treatment in the receiving country could be relevant to article 8 claims when it was an additional factor to be weighed in the balance with other factors which by themselves engaged article 8.  That proposition had been approved by the Court of Appeal in GS India [2015] 1 WLR 3312 where at paragraph 86 the following was stated:

“86… Article 8 cannot prosper without some separate or additional factual element which brings the case within the article 8 paradigm – the capacity to form and enjoy relationships – or a state of affairs having some affinity with the paradigm. That approach was, as it seems to me, applied by Moses L J in MM (Zimbabwe).”

 

Counsel argued that the cases showed that a lack of health treatment in itself could not be enough to engage article 8.  He argued that the medical consequences of returning to a nation which did not have adequate medical care is more appropriately considered under article 3.  He noted however under reference to the case of N v UK (2008) 47 EHRR 39 that the threshold for article 3 is high and he argued that, as was recognised by counsel for the petitioner, the current petitioner did not come up to that threshold.

[23]      Counsel for the respondent argued that the decision maker had had in mind all the relevant factors in the petitioner’s case.  While he accepted that the phraseology of the letter could have been better, he argued that the decision maker plainly knew from the chronology set out at the beginning of the first letter that the petitioner had been in the UK for longer than 5 years.  When the decision maker came to consider the matter under the rules, she had regard to the rules under 276ADE under which one of the requirements which might satisfy the rule was a continuous period of living in the UK for at least 20 years.  The decision maker was correct to note that the petitioner did not have that, his last period of residence being 5 years.  While counsel accepted that the decision maker was wrong to say that the petitioner had lived for 38 years in Pakistan, he argued that the error was not material.  The context in which the decision maker was considering the position was that of continuous residence.  While he could have said at a later paragraph of the letter that he recognised that the petitioner had had a longer period in the UK, interspersed with a period in Pakistan, it would have made no difference to the decision.  Counsel therefore argued that the error of thinking that the petitioner had lived for 38 years in Pakistan was not a material error and therefore one which should not lead to judicial review of the decision.

[24]      Counsel argued that it was clear that the decision maker had considered the application under the rules and having found that the rules were not met, then considered the application out with the rules.  He argued that the phrasing of the letter, where it is stated:

“… It is considered that the interference to your article 8 rights would be in accordance with the law – the legitimate aim of protection of the economic well-being of the country and the prevention of disorder and crime”

 

was at worst an error of phrasing.  Counsel argued that it was obvious from the sentence that the decision maker had proportionality in mind.  Given that the decision maker did not accept that there would be anything other than a minimal deterioration in the mental health of the petitioner, there was no error of law in the decision.

[25]      I find that there is no error of law in the letters refusing leave to remain.  The petitioner’s mental health (and to some extent his physical health) is not good.  I do not accept however that the difficulties with his health are such to show that return to Pakistan would be a breach of his article 8 rights.  There is nothing, in my opinion, to show that his difficulties with health are in addition to any other difficulties.  Counsel for the petitioner recognised that she required “an anchor to which she must fix” the medical difficulties.  She said that that was his private life, in this country, which consisted of his relationship with his therapist.  She argued that that was not just a medical difficulty but was in fact his whole being.

[26]      Counsel for the petitioner said all that could be said in respect of the petitioner’s case.  I am not however satisfied that there is any engagement of article 8.

[27]      Counsel for the respondent raised a question about the sufficiency of the pleadings.  If I had been persuaded by counsel for the petitioner that the respondent had erred in law, then I would in light of the terms of the petition have been prepared to grant reduction of the decisions.

[28]      I therefore sustain the pleas in law for the respondent and refuse the petition.