OUATTARA, SEKOU LOUIS TELESPHORE OUATTARA AGAINST THE SECRETARY OF STATE FOR THE HOME DEPARTMENT [2019] ScotCS CSIH

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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> OUATTARA, SEKOU LOUIS TELESPHORE OUATTARA AGAINST THE SECRETARY OF STATE FOR THE HOME DEPARTMENT [2019] ScotCS CSIH_36 (09 July 2019) URL: http://www.bailii.org/scot/cases/ScotCS/2019/2019_CSIH_36.html Cite as: [2019] ScotCS CSIH_36, [2019] CSIH 36, 2019 GWD 24-389

[1] The petitioner, Mr Ouattara, was born on 18 June 1970. He is a French-speaking

citizen of the Ivory Coast, Africa. He left the Coast in 2004 at a time of civil war, believing

that he was being targeted by pro-President Laurent Gbagbo forces on the basis of his name,

religion, region, and political views (see page 2 of the First Tier Tribunal decision dated 23

May 2011). His wife and child remained in the Coast. He has no relatives in the UK.

[2] The petitioner initially travelled to France. He arrived in the UK on 9 March 2011,

seeking asylum. He made various asylum and human rights applications and appeals,

latterly focusing upon his mental health problems and his private and family life (Article 8

of the ECHR). He has been diagnosed as suffering from PTSD and a depressive disorder

with psychotic symptoms, for which he has received treatment in the UK. All of the

petitioner’s applications and appeals were refused, including his latest dated 3 February

2017, argued (but not accepted) to be a fresh claim for asylum and/or human rights in terms

of Immigration Rule 353. In the Secretary of State’s decision letter dated 20 April 2017, the

You claim that removal to the Ivory Coast would breach your rights under

Article 3 (Medical) of [the] ECHR, on the grounds of your mental health, as

well as the treatment available in the Ivory Coast. You also claim that

You claim that removal will interrupt your ongoing treatment and support in

the United Kingdom and that you would potentially be forced to live on the

streets as highlighted in paragraph 6 of the 22 page US Department of State

You claim that you are vulnerable and are in a position [where] you are

You also claim that removal would be a disproportionate breach of your

1 Everyone has the right to respect for his private and family life, his home and his

2 There shall be no interference by a public authority with the exercise of this right

except such as is in accordance with the law and is necessary in a democratic society

in the interests of national security, public safety or the economic well-being of the

country, for the prevention of disorder or crime, for the protection of health or

morals, or for the protection of the rights and freedoms of others.”

[4] Immigration rule 276ADE(1) of Appendix FM (as amended with effect from 28 July

Requirements to be met by an applicant for leave to remain on the grounds of

276ADE(1) The requirements to be met by an applicant for leave to remain on the

grounds of private life in the UK are that at the date of the application, the applicant:

…(ii) has made a valid application for leave to remain on the grounds of private life

…(vi) … is aged 18 years or above, has lived continuously in the UK for less than

20 years … but there would be very significant obstacles to the applicant’s

integration into the country to which he would have to go if required to leave the

“353 When a human rights or asylum claim has been refused … the decision-maker

will consider any further submissions and, if rejected, will then determine whether

they amount to a fresh claim. The submissions will amount to a fresh claim if they

are significantly different from the material that has previously been considered. The

(ii) taken together with the previously considered material, created a realistic

[6] In her decision letter dated 20 April 2017, the Secretary of State refused the

“Your further submissions have been fully considered and I have concluded that you

Your application has been considered on the basis of your family and/or private life

in the UK under Appendix FM to and/or paragraphs 276ADE(1) – DH of the

Immigration Rules, and outside the Rules on the basis of exceptional circumstances

Consideration has been given to the requirements for limited leave to remain on the

basis of private life in the UK under paragraph 276ADE(1) of Appendix FM of the

In order to meet the requirements of paragraph 276ADE(1)(vi) an applicant must

show that they are aged 18 or above and that there would be significant obstacles to

their integration into the country to which they would have to go if required to leave

It is not accepted that there would be very significant obstacles to your integration

into the Ivory Coast. It is noted that your wife and daughter reside in the Ivory

Coast, who can provide support and emotional assistance upon your return to the

Ivory Coast. It is also of note that you have brothers and sisters there too. It is

therefore considered that you have family support. It is also noted from a response

to a COI request dated the 24 November 2014 that there are psychiatrists and

facilities to treat people with PTSD and suicidal tendencies. You would also have the

assistance of the AVR [Assisted Voluntary Return] scheme to negate any hardships

that may occur along with medical escorts to ensure your safe travel to your home

country and ensure that you continue to receive the appropriate treatment

throughout your removal. The medical escorts will also take into account any

difficulties you may have with travel and put in place a plan appropriate to you.

You have also lived in the Ivory Coast for 40 years, and are therefore familiar with

the language and culture. It is also noted that the political situation in the Ivory

Coast is much more favourable for you compared with the situation at the time of

Consequently you fail to meet the requirements of paragraph 276ADE(1)(vi) of the

Your application on the basis of your private life in the UK is therefore refused under

paragraph 276CE with reference to 276ADE(1)(iii), (iv) and (vi) of the Immigration

It has also been considered whether your application raises any exceptional

circumstances which, consistent with the right to respect for private and family life

contained in Article 8 of the European Convention on Human Rights, might warrant

a grant of leave to remain in the United Kingdom outside the requirements of the

You claim that you have a clearly established private life in the UK and are currently

relying on medical treatment more favourable to the Ivory Coast. It is not considered

that these circumstances are exceptional. It is noted that you have a wife and child in

the Ivory Coast along with brothers and sisters, who could offer emotional support

upon your return. It is also noted from the following link below that there are

several sites in the Ivory Coast that can provide facilities for those with mental health

http://www.who.int/mental health/policy/legislation/3 Voices NGOs

It is therefore concluded that there is a support network in the Ivory Coast that can

assist you along with the AVR scheme and medical escorts to protect you and ensure

Removal to the Ivory Cost would not be a breach of Article 8. It is not considered

It has therefore been decided that there are no exceptional circumstances in your

case. Consequently your application does not fall for a grant of leave outside the

Therefore, it is concluded that your further submissions would have no realistic

Below is a consideration of your non-protection based submissions that have not

previously been considered, but that taken together with the previously considered

material, do not create a realistic prospect of success before an Immigration Judge:

[There is then a consideration of “Article 3 medical” and the psychiatric report from

Dr Khairubahri Idris dated 4 January 2017. The drugs currently being taken by the

petitioner are listed, together with the availability of those drugs or substitutes in the

… A MedCOI response, dated 25 September 2014, stated that there are psychiatrists

and facilities available in the Ivory Coast to treat people with PTSD, and who also

The objective information above highlights that there are services and treatment

available in the Ivory Coast which you could access. Whilst it is accepted that the

availability of treatment in the Ivory Coast might not be as easily accessible or to the

standard of that in the UK, it is not accepted that removal to the Ivory Coast would

cause the United Kingdom to breach its obligations under Article 3 (medical) of

… it appears that you have responded well to treatment, and that there appear to be

no significant obstacles which would prevent further recovery. It is noted that you

are currently treated at an outpatient clinic, and your condition is not so severe that

It is also acknowledged that medical cases can in principle fail under Article 3 yet

succeed on Article 8 considerations. [Razgar [2004] UKHL 27]. To engage the UK’s

obligations under Article 8(1) you would have to show that removal would interfere

with your right to respect for private life and that this interference would be

disproportionate under Article 8(2) of the ECHR. It is not accepted that, if returned

to the Ivory Coast, the difference in treatment and support available to you in the

United Kingdom when compared to that which is available in the Ivory Coast would

be substantial enough to cause serious harm to your physical and moral integrity,

amounting to a flagrant violation of your rights under Article 8 ECHR …

You have also claimed that removal will interrupt your ongoing treatment and

support in the United Kingdom and that you would potentially be forced to live on

the streets as highlighted in paragraph 6 of the 22 page US Department of State

Report you have submitted. However no evidence has been provided that this will

happen in your circumstances or that this will be the case with you. In your situation

your wife, daughter and other siblings remain in the Ivory Coast and you have not

provided any evidence that they would be unable to support you or that they would

force you to live on the streets. Your circumstances therefore cannot be considered to

come within the ‘very exceptional’ category referred to above. Removal cannot be

resisted merely on the grounds that medical treatment or facilities are better or more

It is therefore not accepted that if removed to the Ivory Coast that the support,

treatment and medication available to you in the UK, when compared to that in your

home area, would be substantial enough to cause serious harm to your physical and

moral integrity, amounting to a flagrant violation of your rights under Article 8

ECHR. There is no breach of Article 8 on removal solely because health care facilities

are better or more accessible in the UK than in the Ivory Coast as not every act or

measure which adversely affects personal integrity will interfere with the right to

Therefore for all the reasons raised above there would be no realistic prospect of

… I have concluded that your submissions do not meet the requirement of paragraph

353 of the Immigration Rules and do not amount to a fresh claim. The new

submissions taken together with the previously considered material do not create a

realistic prospect of success. This means that it is not accepted that should this

material be considered by an Immigration Judge, that this could result in a decision

to grant you asylum, Humanitarian Protection, limited leave to enter/remain on the

basis of your family and/or private life or Discretionary Leave for the reasons set out

[7] The petitioner sought judicial review of the decision of 20 April 2017. In his petition,

“Statement XXII. In the light of the combination of the petitioner’s medical

conditions, the interruption to his ongoing treatment and support in the United

Kingdom inevitably caused by removal, the lack of facilities available in Cote

d’Ivoire for the management and treatment of his conditions, and the impact caused

by his removal predicted by the professionals who deal with him, there is [a realistic

prospect of an appeal by the petitioner being allowed by an immigration judge].

Each of those matters were adverted to in the submissions made to the Secretary of

State. The petitioner does not assert that his claim will succeed outside the

Immigration Rules as adverted to in the Answer lodged. Reference to the dicta of

cases such as GS (India) v SSHD [2015] EWCA Civ 40, [2015] 1 WLR 3312 are

therefore irrelevant. Rather he asserts the Secretary of State has in Immigration

Rules 276ADE(iv) [sic] inter alia provided a mechanism by which a person who

would fail in a Razgar type assessment of an Article 8 claim may succeed in obtaining

Leave to Remain. That Immigration Rule stands apart from such an Article 8

assessment and is confined to whether the petitioner faces very significant obstacles

to integration in the Cote d’Ivoire. In AH (Petitioner) 2011 CSOH 7 Lord Malcolm

said ‘If one concentrates only on factors adverse to the claim, a distorted view is

likely to emerge’. That is what occurred in the present case. There was evidence for

example that in Cote D’Ivoire those with conditions such as that of the petitioner are

widely viewed as witches and of the other difficulties the petitioner would face. The

Secretary of State has reached a distorted view [emphasis added; and as reference is

Answer 22. Admitted that each of the matters averred was adverted to in the

submissions made to the Secretary of State. Quoad ultra denied. Explained and

averred that an absence or inadequacy of medical treatment, even life-preserving

treatment, in the country of return cannot be relied on at all as a factor engaging

Article 8: GS (India) v SSHD [2015] EWCA Civ 40, [2015] 1 WLR 3312 para 111 per

Underhill LJ. If Article 8 is engaged by other factors, the fact that the petitioner is

receiving treatment in this country which is not available in the country of return

may be relevant to the proportionality exercise to be carried out under Article 8(2).

But this factor cannot be treated by itself as giving rise to a breach of Article 8. In the

present case, the respondent records (6/1) that the petitioner is 46 years of age, claims

to have lived in the UK since 9th March 2011. At 6/1/7 the respondent, in addressing

whether there would be ‘very significant obstacles’ to the petitioner’s integration into

the Ivory Coast, the respondent records that the petitioner’s wife and daughter reside

in the Ivory Coast, and that the petitioner’s brothers and sisters are there too.

Reference has been made to the availability of facilities in the Ivory Coast for those

with mental health issues. The respondent has expressly considered (6/1/12) the

submission that removal will interrupt the petitioner’s ongoing treatment and

support in the UK and that he would potentially be forced to live on the streets, as

highlighted in the US Department report (6/3/3). The respondent explained that the

petitioner’s wife, daughter, brothers and sisters are believed to be in Cote d’Ivoire

and that no evidence had been provided to suggest that the petitioner’s family would

not be able to support the petitioner or that they would force the petitioner to live on

the streets. The decision letter must be read as a whole: Zoumbas v SSHD 2014 SC

Statement XXIII: … Reference is made to Mostapha (Article 8 in entry clearance)

[2015] UKUT 00112 (I AC), where the Upper Tribunal indicated that where an

individual meets the terms of the relevant Immigration Rule that is a powerful (but

not necessarily determinative) factor in the overall Article 8 assessment …

Statement XXVIII: The Secretary of State asserts that the petitioner’s case hinges on

whether the medical facilities in Cote d’Ivoire are so poor as to ‘provide inhuman

treatment’. The petitioner’s case in fact hinges on whether there would be very

significant obstacles to the petitioner’s integration into Cote d’Ivoire. In failing to so

recognize, the Secretary of State erred in law and left out of account relevant matters.

An Immigration Judge would not so proceed. The Secretary of State both in her

decision and Answers has left out of account that the petitioner is not relying upon

Article 3 or 8 directly, or how they interrelate. He bases his case on whether he faces

very significant obstacles to integration, which is simply a different test. For

example, the petitioner’s unlawful immigration status in the UK would impact on his

Article 8 claim. It is irrelevant in an Immigration Rules 276ADE assessment. By

seeking to conflate those matters, the respondent has provided an irrelevant answer.

Statement XXX: The Secretary of State refers to [there] being other facilities in Cote

d’Ivoire without noting there is no information as to whether those facilities provide

the type of care the petitioner needs. That some treatment is available for some

conditions does not mean the petitioner can access the treatment he requires to

facilitate his integration into Cote d’Ivoire. To be relevant to the Secretary of State’s

decision she must be satisfied treatment at such an establishment relevant to the

petitioner’s conditions would be available or at least an Immigration Judge might so

conclude in assessing whether the petitioner could integrate. Immigration Rule

276ADE does confer a right to reside in the UK (and for treatment to be continued)

where the withdrawal or alteration in treatment would take the cumulative obstacles

faced by the petitioner in integrating in Cote d’Ivoire into the ‘very significant’

Statement XXXVI: It is clear from the above the Secretary of State required to

consider what a new Judge would make of the petitioner’s case that there would be

very significant obstacles to his integration and has singularly failed to address the

Immigration Rules 276ADE decision as she should have. The Secretary of State has

concentrated only on the factors adverse to the petitioner’s case and an unbalanced

conclusion has been reached (see AH (Bangladesh) v SSHD [2011] CSOH 7 at

Statement XXXIX: The Secretary of State failed to identify and explain her reasons

The decision of the Secretary of State to not accept the petitioner has made a fresh

claim being inadequately reasoned, unlawful et separatim unreasonable, reduction

[8] The Lord Ordinary refused the petition for judicial review ([2018] CSOH 50). In his

“[3] … It was accepted by the petitioner that the respondent, in refusing the

petitioner’s claim, dealt appropriately with the claims in terms of articles 3 and 8 of

the European Convention on Human Rights (statement 12). The petitioner’s

challenge was directed at the respondent’s consideration of the petitioner’s case in

terms of immigration rule 276ADE. It was averred that rule 276ADE, which is

designed to reflect the UK’s article 8 private and family life obligations, is distinct

and stands apart from articles 3 and 8 convention jurisprudence (statements 13 and

14) and may be more generous to claimants than article 8 requires (statement 15) …

The petitioner accepts that his fresh claim will not succeed outside the rules

(statement 22). The petitioner asserts that he could succeed under the rules

(276ADE(vi)), and that the respondent in reaching her decision did not properly take

into account the factors in support of the petitioner’s claim and has failed to provide

adequate reasons in reaching the decision. As a result, the respondent reached her

decision on a distorted view (statement 22) leaving out of account relevant matters

which an immigration judge would not leave out of account (statements 25, 28 and

38). Further, in reaching her decision, the respondent has taken account of an

irrelevant matter, namely the petitioner’s unlawful immigration status in the UK

which albeit was relevant to an article 8 assessment, was irrelevant in an assessment

under the rules (rule 276ADE) (statement 28). The respondent conflated the

convention tests with the immigration rule 276ADE test and erred in law in doing so

[5] … The fresh claim also submitted that his removal would be a disproportionate

breach of his private life in terms of article 8 of the convention. That part of the

[9] … The petitioner argues that a tribunal judge could conclude on the material that

there are very significant obstacles to integration into the Ivory Coast. The test under

rule 353 of the Immigration Rules was a modest one … The petitioner bases his claim

[11] … The petitioner does not challenge the decision on human rights grounds and

the ability to satisfy the immigration rules is not being used to determine

proportionality. Applying Mostafa [2015 UKUT112 (IAC)], a tribunal judge would

have no power to entertain a ground of appeal alleging that the decision was not in

accordance with the Immigration Rules and there would clearly be no prospects of

success for such an appeal before an immigration judge … [it would be irrelevant to

consider] the merits of a decision where no appeal against that decision was

In paragraph [12], the Lord Ordinary further indicated that, had he been required to

consider whether the Secretary of State had erred in concluding that the petitioner did not

have a realistic prospect of success if his appeal was considered by a tribunal judge, he

[9] The petitioner appealed (reclaimed) against the Lord Ordinary’s decision.

[10] Mr Caskie candidly accepted that statement 22 of the petition, taken with his own

oral submissions, may have inadvertently misled the Lord Ordinary. He apologised for any

misunderstanding, and explained that he had tried (by adjusting into statement 22 the

words “as adverted to in the Answer lodged”) to flag up the petitioner’s reliance upon “an

Article 8 private life and significant obstacles case” rather than “an Article 8 medical case”.

The petitioner had not abandoned any claim under Article 8 of the ECHR before the

Lord Ordinary. The petitioner’s case was based on Article 8 private life and significant

obstacles to integration, as (i) the petitioner had serious mental health problems; (ii) the

Ivory Coast did not have the facilities to treat those problems; and (iii) if the petitioner was

forced to return to the Coast, he would, for those reasons, face significant obstacles to his

integration there. Accordingly the Lord Ordinary erred at paragraphs [3] and [11] of his

judgment when he stated that the petitioner did not challenge the decision on human rights

grounds. While it was not submitted that a decision to return him to the Coast would

automatically be a breach of Article 8, the petitioner’s position (as set out in points (i) to (iii)

above) constituted a clear signpost indicating that a decision to return him might be judged

disproportionate in the circumstances. The immigration rules provided guidance about

[11] The petitioner’s case was presented under Immigration Rule 353 (a fresh claim).

Thus the hurdle which he had to surmount was a modest one, namely whether there was a

“realistic prospect of success” that an immigration judge could conclude that the removal

was disproportionate. The concept of “integration” called for a broad evaluative judgment

(SSHD v Kamara [2016] EWCA Civ 813, paragraph [14]). Resources for mental health

problems were limited in the Ivory Coast (page 136 of the Appendix: Fondazione Saint

Camille De Lellis). There was therefore a realistic prospect in the present case that an

immigration judge might conclude that there were significant obstacles to the petitioner’s

integration in the Coast and thus that it would be disproportionate for the purposes of

Article 8 to return him there: cf the approach adopted in HAA v SSHD [2017] CSOH 11,

paragraph 24 et seq. While the petitioner had family in the Coast, what he needed was

[12] Guidance as to proportionality when assessing an Article 8 claim could be found in

Lord Reed’s dicta in KBO v Secretary of State for the Home Department [2009] CSIH 30, 2009

GWD 19-315, and in the immigration rules (R (Agyarko) v Secretary of State for the Home the

Department [2017] 1 WLR 823). A decision taken in accordance with the rules would

normally be proportionate, other than in exceptional cases (Agyarko paragraphs 6 to 13).

[13] Counsel accepted that the petitioner had to persuade the court that the Secretary of

State was wrong in law in her conclusion that there was no realistic prospect of success. She

had erred by erroneously compartmentalising the factual information and not having regard

to all the evidence. For example, over 76 per cent of those affected by mental disorders in

the Coast did not receive care (Appendix page 136: Fondazione Saint Camille de Lellis).

Not all the necessary drugs were available (Statements 30 and 36 of the petition).

[14] Counsel further submitted that, when answering the question whether there was a

realistic prospect that an immigration judge would reach a different conclusion on the basis

of the new material, the immigration judge should look at all the material, including (i) the

fact that 76% of those with mental disorders did not receive care; (ii) the difficulties faced by

persons with disabilities (US Department of State “2015 Country Reports on Human Rights

Practices: Cote d’Ivoire, 12 April 2016”, Appendix page 67, referring to persons with mental

disabilities living on the street, and persons with disabilities begging on urban streets);

(iii) the state of disrepair of one psychiatric hospital serving the Coast (Appendix page 146 –

150). Reference was made to GS (India) v Secretary of State for the Home Department

[15] When answering the question whether there was a realistic prospect that an

immigration judge might reach a different conclusion, the Secretary of State had not

engaged with significant parts of the materials before her. In particular, the petitioner had

limited family support, as he had been absent from the Coast for ten years; he had difficult

medical needs; he would lose access to the drugs he required. The cumulative effect

resulted in “significant obstacles”. Counsel submitted that an immigration judge could, on

the materials, conclude that removal from the UK would be disproportionate. The

reclaiming motion should be allowed; the petitioner’s plea-in-law sustained; the decision of

20 April 2017 reduced; and the case remitted to the Secretary of State to be reconsidered.

[16] Counsel for the respondent submitted that, on the basis of the petitioner’s pleadings

and the respondent’s submissions, the Lord Ordinary’s approach was entirely understandable.

Ultimately the issue whether the Lord Ordinary had erred at paragraphs [3] and [11] of his

judgment was a matter for the court. Counsel further submitted that neither Article 3 nor

Article 8 imposed an obligation upon states to provide medical treatment. The inadequacy of

medical treatment in the country of return could not be relied upon as a factor engaging

Article 8. If Article 8 was engaged by other factors, the inadequacy of any medical treatment

might be a factor in the proportionality exercise, but could not of itself give rise to a breach of

[17] When carrying out the proportionality exercise, it was important to note that the

petitioner had never been granted leave to remain in the UK (section 117A and B of the

Nationality, Immigration and Asylum Act 2002). Also inadequate medical treatment on its

own was not enough: there required to be other factors which, taken cumulatively with

inadequate medical treatment, affected the proportionality of removal: cf GS (India) v

Secretary of State for the Home Department [2015] 1 WLR 3312; MM (Zimbabwe) v Secretary of

State for the Home Department [2012] EWCA Civ 279; SL (St Lucia) v Secretary of State for the

Home Department [2018] EWCA Civ 1894, paragraph 27. Only “wholly exceptional” cases

would succeed. In striking the proportionality balance, only the most compelling

humanitarian considerations were likely to prevail over the legitimate aim of immigration

control. The petitioner averred only a generic risk, referred to in the State Department

document, of those with mental health problems being forced to live on the streets. But on

the petitioner’s own averments, the generic risk was not one which seemed relevant to his

case, as (a) the petitioner’s wife, child, brothers and sisters lived in the Coast; (b) the

petitioner did not aver that these family members would not support him; and (c) there

were no relevant averments to support the proposition that the generic risk would be a real

[18] The Secretary of State had considered all the materials supplied by the petitioner.

The decision letter addressed all the issues raised by him. No breach of Article 8 had been

identified. There was no realistic prospect of success before an immigration judge, and the

Secretary of State was entitled to reach that conclusion. The reclaiming motion should be

[19] We accept counsel’s explanation that the petitioner did not intend to abandon an

argument before the Lord Ordinary based on Article 8 of the ECHR and significant obstacles

to integration in the Coast. It must be said, however, that this position was far from clear in

the petitioner’s pleadings and oral submissions before the Lord Ordinary. On the basis of

the material put before him, the Lord Ordinary’s notes and reasoning, quoted in

paragraph [8] above, were rational, logical, and fully reasoned. Thus we wish to make it

clear that we do not accept that the Lord Ordinary erred as the case was presented to him,

[20] As we heard the submissions in full, we have decided to express our views about the

[21] In the context of Article 8, we note the guidance given by the House of Lords in

“Although the possibility cannot be excluded, it is not easy to think of a foreign

health care case which would fail under article 3 but succeed under article 8. There

clearly must be a strong case before the article is even engaged, and then a fair

balance must be struck under article 8(2). In striking that balance, only the most

compelling humanitarian considerations are likely to prevail over the legitimate aims

of immigration control or public safety. The expelling state is required to assess the

strength of the threat and strike that balance. It is not required to compare the

[22] Also of assistance are the observations of Underhill LJ in GS (India) v Secretary of State

“ … where article 8 is engaged by [factors other than the adequacy of medical

treatment in the country of return], the fact that the claimant is receiving medical

treatment in this country which may not be available in the country of return may be

a factor in the proportionality exercise; but that factor cannot be treated as by itself

giving rise to a breach, since that would contravene the ‘no obligation to treat’

[23] As for the concept of “integration”, as Sales LJ explained in paragraph [14] of Kamara

“… The idea of ‘integration’ calls for a broad evaluative judgment to be made as to

whether the individual will be enough of an insider in terms of understanding how

life in the society in that other country is carried on and a capacity to participate in it,

so as to have a reasonable opportunity to be accepted there, to be able to operate on a

day-to-day basis in that society and to build up within a reasonable time a variety of

human relationships to give substance to the individual’s private or family life.’”

[24] We also note and agree with the observations of McCloskey J in Treebhawon (NIAA

Part 5A – compelling circumstances test) [2017] UKUT 00013 (IAC) at paragraph 37 when he

“ … ‘very significant obstacles’ erects a self-evidently elevated threshold, such that

mere hardship, mere difficulty, mere hurdles, mere upheaval or inconvenience, even

where multiplied, will generally be insufficient in this context.”

[25] In this particular case, the Secretary of State considered all the materials provided,

including the psychiatric report and the 22 page US State Department report. She took those

into account, together with inter alia the following matters. The petitioner had lived in the

Ivory Coast for 40 years. He was familiar with the language and the culture. The political

situation had changed since his departure, and was more favourable for him. His wife and

daughter lived in the Coast, and could provide support and emotional assistance. He also

had brothers and sisters living there, who could provide family support. He had responded

well to treatment in the UK, and his condition was not so severe as to require inpatient

treatment. The Coast had psychiatrists and facilities available to treat people with PTSD and

suicidal tendencies, albeit not of the same standard or accessibility as those offered in the

UK. Of the various drugs currently prescribed for the petitioner, many, or their equivalent,

were available in the Coast. There could not be said to be a breach of Article 8 solely

because health care facilities were better or more accessible in the UK than in the Coast.

Medical escorts could ensure appropriate treatment during travel.

[26] Against that background, the Secretary of State carried out the proportionality

balancing exercise required by Article 8(2). The fair balance which has to be struck under

Article 8(2) means that only “the most compelling humanitarian considerations” would

prevail over the legitimate aims of immigration control (Razgar cit sup). The Secretary of

State balanced the more negative features (such as the general risk for those with mental

problems in the Coast) against the more positive features of the petitioner’s case, referred to

above. She concluded that the petitioner’s case could not be said to be so exceptional that a

return to the Coast would be likely to be held to be a violation of Article 8, and that there

was no realistic prospect of success before an immigration judge.

[27] In our opinion, in so doing, the Secretary of State did not err in law. She did not

leave any relevant factors out of account, or take irrelevant factors into account. The

conclusion reached was one which was open to her, and was not an unbalanced or

unreasonable one. Weighing up the material before her, she was entitled to conclude that

there was no realistic prospect of an immigration judge coming to a different conclusion,

and therefore that there was no realistic prospect of success before an immigration judge.

The Secretary of State gave clear and full reasons. We do not accept the petitioner’s

[28] Ultimately therefore the Lord Ordinary did not err in his esto reasoning in

paragraph [12] of his opinion when he indicated that, had he been required to consider

whether the Secretary of State had erred in concluding that the petitioner did not have a

realistic prospect of success if his appeal was considered by a tribunal judge, the Secretary of

[29] For the reasons given above, we refuse the reclaiming motion. We continue any

question of expenses.

Scottish Court of Session Decisions