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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Kurtaj, R (on the application of) v Secretary of State for the Home Department [2007] EWHC 221 (Admin) (15 February 2007) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2007/221.html Cite as: [2007] EWHC 221 (Admin) |
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ADMINISTRATIVE
Strand, London, WC2A 2LL |
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B e f o r e :
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The Queen on the application of Agim Kurtaj |
Claimant |
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- and - |
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Secretary of State for the Home Department |
Defendant |
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Mr Tim Eicke (instructed by The Treasury Solicitor) for the Defendant
Hearing dates: 14 December 2006 and 16 January 2007
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Crown Copyright ©
Mrs Justice Black :
History of asylum and human rights claims
"14. …Not only has the appellant failed to establish that there is no available treatment in Albania, but it is clear that the necessary supervision is available from a combination of his mother and the doctor in his home area. There is no evidence to suggest that there would be a breach of Article 3 ECHR by returning the appellant to Albania. This is true both in respect of problems similar to those in the past arising out of his support for the Monarchist Party and his psychiatric health.
15. A consideration of Article 8 also leads to the conclusion that there would not be a disproportionate breach of that Article if the appellant were returned. It is true that he has a private life in the United Kingdom to the extent that he is receiving medical treatment and support here. Arguably there would be a breach of that if he were to return. The evidence does not point to any significant deterioration in the level of support and treatment available. Indeed the level of support may well improve because his mother is clearly concerned about him, takes an interest and could look after him. He has not established there are no mental hospitals to treat him should there be a crisis. There is no evidence that he would not be able to obtain suitable treatment."
"We wish to make a fresh application for asylum on behalf of our client. This application is made on the basis that removal from the UK would constitute a serious risk of a breach of Articles 3 and 8 of the ECHR. This would arise due to the risk of suicide by our client. The dismissal of his tribunal application led to a serious decline in our client's mental state."
"…accepts that the Claimant's detention between 13 March 2006 [sic] and 13 April 2006 [sic] may not have been in accordance with the Secretary of State's stated policy and is therefore prepared to concede the part of this claim which concerns the legality of that detention."
The claimant's mental health
"Mr Kurtaj is suffering from psychotic depression the symptoms of which have now been largely in abeyance due to the fact that the patient has been compliant with his medication for more than two years and that he has been regularly followed-up in the outpatient clinic and given support by his community nurse. However in spite of this apparent improvement in his mental state he continues to present with various residuals of his illness as well as with some classical symptoms of Post Traumatic Stress Disorder. Among the latter are nightmares relating to his previous traumatic experiences, hyper vigilance as well as poor concentration. Among the residuals of depressive symptoms are still anhedonia and anergia and the loss of interest. The patient still continues to suffer from a high level of anxiety which is largely related to his unresolved immigration status. One of his main concerns is that he may be deported to his country of origin where he will probably be subjected to further imprisonment, torture and where, in his opinion, even his life would be in jeopardy. Mr Kurtaj is a very vulnerable individual whose current fragile equilibrium has been maintained partly due to the fact that he has been regularly taking anti-depressant and antipsychotic medication which has been very regularly monitored in the psychiatric outpatient clinic and partly due to the dedication of his community nurses who have helped him with various extential [sic] problems and actively encouraged him to pursue his studies through the link course. I am also of the opinion that if the patient were to return to his country of origin it would have a disastrous effect on his mental health since he would be deprived of adequate psychiatric treatment and support in the community."
"On occasions he has had the thought of ending it all but on the other hand he tells me that he doesn't want to finish his life as he put it as he is still very young."
Dr Radovic said:
"I am of the opinion that Mr Kurtaj's current immigration status is not helping his recovery from depression and I am also of the opinion that the enforced removal would have a detrimental effect on Mr Kurtaj's mental state and even put his life in jeopardy since he has in the past expressed suicidal intent."
"My main concern however having seen the patient with an interpreter was that Mr Kurtaj was expressing suicidal intent. He informed me that he would not go back to Albania alive in case an attempt was made to deport him there. The patient is very worried at the prospect of being returned to his country of origin and this related to Mr Kurtaj's political involvement in the past whilst he was still living in Albania. He was actively canvassing for the Monarchist part[y] and ran into difficulties both with the Socialist Party of Barisha as well as the Party of Fatos Mano. His life was threatened then and he believes in case he had to return to Albania his life would be in jeopardy again. He therefore believes that the only way out would be to end his life."
"Mr Kurtaj was quite categorical that in the case he was directly threatened with deportation, he will take a massive dose of the psychotropic medication he is currently taking. Indeed, I am of the opinion that the risk of Mr Kurtaj taking his own life is real and would be very high in the situation of being threatened with deportation. In this case, a close medical supervision of the patient would be required in order to prevent suicide."
He observed that the impasse with Home Office had led to a deterioration in the claimant's mental state and a recurrence of delusional ideas.
"The present risk of suicide in detention is linked with the prospect of return to Albania, and while Mr Kurtaj remains in the UK, is relatively low. There are however, two important qualifications to this, which could significantly increase the risk. These are the danger of further relapse, and the prospect that he develops or already has command hallucinations….
If he develops or already has such command hallucinations, whether he succeeds in killing himself will depend on the lethality of the method which he attempts.
Even with his current medication and medical supervision to ensure as far as possible that he takes it, there is a high risk of attempted suicide on removal to Albania due to a number of factors. These include his fragility, his potential for further relapse in times of stress, his concrete thought processes and his illogical reaction to his relationship with his mother.
I don't believe that it matters if in reality he is not subjected to further persecution, his mind can do quite a lot of that on its own if you read his records."
She concluded:
"This is a person who is very susceptible to stress even when taking appropriate medication under the supervision of mental health personnel. He is a challenging patient because of his fragility and his reluctance to take medication because of the side effects and the fact that he doesn't disclose his symptoms. Without suitable medication and medical personnel he is likely to remain psychotic and have a poor quality of life even if he doesn't succeed in killing himself but there is a high risk of this if he is returned."
The law
Fresh claims
"When a human rights or an asylum claim has been refused and any appeal relating to that claim is no longer pending, 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 to the material that has been previously considered. The submissions will only be significantly different if the content:
(i) had not already been considered;
(ii) taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection.
This paragraph does not apply to claims made overseas."
"The task of the Secretary of State
There was broad agreement as to the Secretary of State's task under rule 353. He has to consider the new material together with the old and make two judgements. First, whether the new material is significantly different from that already submitted, on the basis of which the asylum claim has failed, that to be judged under rule 353(i) according to whether the content of the material has already been considered [sic]. If the material is not "significantly different" the Secretary of State has to go no further. Second, if the material is significantly different, the Secretary of State has to consider whether it, taken together with the material previously considered, creates a realistic prospect of success in a further asylum claim. That second judgement will involve not only judging the reliability of the new material, but also judging the outcome of tribunal proceedings based on that material. To set aside one point that was said to be a matter of some concern, the Secretary of State, in assessing the reliability of new material, can of course have in mind both how the material relates to other material already found by an adjudicator to be reliable, and also have in mind, where that is relevantly probative, any finding as to the honesty or reliability of the applicant that was made by the previous adjudicator. However, he must also bear in mind that the latter may be of little relevance when, as is alleged in both of the particular cases before us, the new material does not emanate from the applicant himself, and thus cannot be said to be automatically suspect because it comes from a tainted source.
The rule only imposes a somewhat modest test that the application has to meet before it becomes a fresh claim. First, the question is whether there is a realistic prospect of success in an application before an adjudicator, but not more than that. Second, as Mr Nicol QC pertinently pointed out, the adjudicator himself does not have to achieve certainty, but only to think that there is a real risk of the applicant being persecuted on return. Third, and importantly, since asylum is in issue the consideration of all the decision-makers, the Secretary of State, the adjudicator and the court, must be informed by the anxious scrutiny of the material that is axiomatic in decisions that if made incorrectly may lead to the applicant's exposure to persecution. If authority is needed for that proposition, see per Lord Bridge of Harwich in Bugdaycay v SSHD [1987] AC 514 at p 531F."
"The acid test must always be whether, comparing the new claim with that earlier rejected, and excluding material on which the claimant could reasonably have been expected to rely in the earlier claim, the new claim is sufficiently different from the earlier claim to admit of a realistic prospect that a favourable view could be taken of the new claim despite the unfavourable conclusion reached on the earlier claim."
"11. First, has the Secretary of State asked himself the correct question? The question is not whether the Secretary of State himself thinks that the new claim is a good one or should succeed, but whether there is a realistic prospect of an adjudicator, applying the rule of anxious scrutiny, thinking that the applicant will be exposed to a real risk of persecution on return: see §7 above. The Secretary of State of course can, and no doubt logically should, treat his own view of the merits as a starting-point for that enquiry; but it is only a starting-point in the consideration of a question that is distinctly different from the exercise of the Secretary of State making up his own mind. Second, in addressing that question, both in respect of the evaluation of the facts and in respect of the legal conclusions to be drawn from those facts, has the Secretary of State satisfied the requirement of anxious scrutiny? If the court cannot be satisfied that the answer to both of those questions is in the affirmative it will have to grant an application for review of the Secretary of State's decision."
"whether there are strong grounds for believing that the person, if returned, faces a real risk of torture, inhuman or degrading treatment or punishment".
and in amplification of the test, they listed six considerations:
"26. First, the test requires an assessment to be made of the severity of the treatment which it is said that the applicant would suffer if removed. This must attain a minimum level of severity. The court has said on a number of occasions that the assessment of its severity depends on all the circumstances of the case. But the ill-treatment must "necessarily be serious" such that it is "an affront to fundamental humanitarian principles to remove an individual to a country where he is at risk of serious ill-treatment": see Ullah paras [38-39].
27. Secondly, a causal link must be shown to exist between the act or threatened act of removal or expulsion and the inhuman treatment relied on as violating the applicant's article 3 rights. Thus in Soering at para [91], the court said:
"In so far as any liability under the Convention is or may be incurred, it is liability incurred by the extraditing Contracting State by reason of its having taken action which has as a direct consequence the exposure of an individual to proscribed ill-treatment."(emphasis added).
See also para [108] of Vilvarajah where the court said that the examination of the article 3 issue "must focus on the foreseeable consequences of the removal of the applicants to Sri Lanka…"
28. Thirdly, in the context of a foreign case, the article 3 threshold is particularly high simply because it is a foreign case. And it is even higher where the alleged inhuman treatment is not the direct or indirect responsibility of the public authorities of the receiving state, but results from some naturally occurring illness, whether physical or mental. This is made clear in para [49] of D and para [40] of Bensaid.
29. Fourthly, an article 3 claim can in principle succeed in a suicide case (para [37] of Bensaid).
30. Fifthly, in deciding whether there is a real risk of a breach of article 3 in a suicide case, a question of importance is whether the applicant's fear of ill-treatment in the receiving state upon which the risk of suicide is said to be based is objectively well-founded. If the fear is not well-founded, that will tend to weigh against there being a real risk that the removal will be in breach of article 3.
31. Sixthly, a further question of considerable relevance is whether the removing and/or the receiving state has effective mechanisms to reduce the risk of suicide. If there are effective mechanisms, that too will weigh heavily against an applicant's claim that removal will violate his or her article 3 rights."
"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 the D case….where the applicant was in the final stage of a terminal illness, AIDS, and had no prospect of medical care or family support on expulsion to St Kitts." [my italics]
"50. But it cannot be said that the court is unaware of the advances of medical science in this field. All the recent cases since SCC v Sweden have demonstrated this feature. The fact that the court appears to have been unmoved by them is due, I think, to its adherence to the principle that aliens who are subject to expulsion cannot claim any entitlement to remain in the territory of a contracting state in order to continue to benefit from medical, social or other forms of assistance provided by the expelling state. The way this principle was referred to and then applied in Amegnigan v The Netherlands ("the court recalls that in D v United Kingdom it emphasised [the principle]") is, in my opinion, highly significant. What the court is in effect saying is that the fact that the treatment may be beyond the reach of the applicant in the receiving state is not to be treated as an exceptional circumstance. It might be different if it could be said that it was not available there at all and that the applicant was exposed to an inevitable risk due to its complete absence. But that is increasingly unlikely to be the case in view of the amount of medical aid that is now reaching countries in the third world, especially those in Sub-Saharan Africa. For the circumstances to be, as it was put in Amegnigan v The Netherlands, "very exceptional" it would need to be shown that the applicant's medical condition had reached such a critical stage that there were compelling humanitarian grounds for not removing him to a place which lacked the medical and social services which he would need to prevent acute suffering while he is dying. This is, in effect, the same test as that which my noble and learned friend Baroness Hale of Richmond has identified."
"36. In the present case, the applicant is suffering from a long-term mental illness, schizophrenia. He is currently receiving medication, olanzapine, which assists him in managing his symptoms. If he returns to Algeria, this drug will no longer be available to him free as an outpatient. He is not enrolled in any social insurance fund and cannot claim any reimbursement. It is however the case that the drug would be available to him if he was admitted as an inpatient and that it would be potentially available on payment as an outpatient. It is also the case that other medication, used in the management of mental illness, is likely to be available. The nearest hospital for providing treatment is at Blida, some 75-80 km from the village where his family live.
37. The difficulties in obtaining medication and the stresses inherent in returning to this part of Algeria, where there is violence and active terrorism, are alleged to endanger seriously his health. Deterioration in the applicant's already existing mental illness could involve relapse into hallucinations and psychotic delusions involving self-harm and harm to others, as well as restrictions in social functioning (e.g. withdrawal and lack of motivation). The Court considers that the suffering associated with such a relapse could, in principle, fall within the scope of Article 3.
38. The Court observes, however, that the applicant faces the risk of relapse even if he stays in the United Kingdom as his illness is long term and requires constant management. Removal will arguably increase the risk, as will the differences in available personal support and accessibility of treatment. The applicant has argued, in particular, that other drugs are less likely to be of benefit to his condition, and also that the option of becoming an inpatient should be a last resort. Nonetheless medial treatment is available to the applicant in Algeria. The fact that the applicant's circumstances in Algeria would be less favourable than those enjoyed by him in the United Kingdom is not decisive from the point of view of Article 3 of the Convention.
39. The Court finds that the risk that the applicant will suffer a deterioration in his condition if he is returned to Algeria and that, if he did, he would not receive adequate support or care is to a large extent speculative. The arguments concerning the attitude of his family as devout Muslims, the difficulties of travel to Blida and the effects on his health of these factors are also speculative. The information provided by the parties does not indicate that travel to the hospital is effectively prevented by the situation in the region. The applicant is not himself a likely target of terrorist activity. Even if his family does not have a car, this does not exclude the possibility of other arrangements being made.
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 the D case (cited above) where the applicant was in the final stage of a terminal illness, AIDS, and had no prospect of medical care or family support on expulsion to St. Kitts.
41. The Court finds, therefore, that the implementation of the decision to remove the applicant to Algeria would not violate Article 3 of the Convention."
"30. …. There is certainly authority for saying that the mere fact that medical attention or medication will have to be paid for in the destination State, whereas it would be free in the sending State, does not mean that there is a breach of either Article 3 or Article 8 in ordering return to the former. Bensaid itself made that clear, as do other decisions of the European Court of Human Rights. Indeed the contrary could scarcely be argued; it is only in a minority of countries that free medicine is available. But that does not mean that a Tribunal which is considering the sixth factor in J v SSHD does not have to consider the availability to the claimant of whatever mechanisms or facilities exist in the destination country. For my part I accept the Secretary of State's argument that it is not to be assumed that the appellant would remain destitute indefinitely on the streets of Monrovia. But initially at any rate he will have no money, no home and no support, and the medical infrastructure is exiguous at best. I am unable to see where lay the evidence to support the conclusion reached by the Tribunal that he would obtain the necessary medication in Liberia on return. The difficulty is compounded by the Tribunal's finding that the appellant could take a supply of medication with him. That was a finding which appears to be supported by no evidence at all. It was not, we understand, a possibility ventilated in the course of the hearing at all. It seems to be a consideration which occurred to the Tribunal in formulating its reasons, but the result of that is that no party had the opportunity to deal with it. The proposition stated may or may not be correct, but it begs the question whether the appellant could be prescribed here a supply of medication for use into the future, and if so for how long into the future, as well as the length of time for which he might need it, as to which there was also no evidence.
31. Since it seems from a reading of the Tribunal's decision that these last two findings may have contributed to the conclusion that the appellant would not have been at real risk of committing suicide or undergoing severe psychological deterioration or severe mental illness, it may be that they also contributed to the conclusion that the Article 3 threshold of exceptional circumstance comparable to D v UK and/or the Article 8 test of truly exceptional circumstance had not been passed. The assessment of those latter questions is particularly for the AIT and not for this court. It follows that it seems to me that the Tribunal's reasoning in relation to the availability of medicine was not properly based upon evidence and was thus flawed in law, and that that means that the order made must be set aside. The proper order is that the case be remitted to the AIT to continue its reconsideration in accordance with the judgment of this court. Whether the Tribunal considers that it should hear further evidence must be for it to decide. And whether on all the evidence which it has the proper conclusion is that either the Article 3 threshold is passed or the Article 8 test is met are matters on which this court should express no opinion."
"24. ……. If, however, his phobia of returning to Germany were found to be genuine (whether well-founded or not), and if his account of his previous experience (including his account of the severe brutality he claims to have suffered) were found to be true, I do not think one can rule out in limine the possibility of a finding, properly made, that return to Germany would violate Mr Razgar's rights under article 8. It follows that in my opinion, agreeing with both the judge and all three members of the Court of Appeal, the Secretary of State could not properly certify this claim to be manifestly unfounded."
Lord Carswell said:
"77. On the facts which were before your Lordships - which I would emphasise are far from up to date - I am compelled to conclude that an adjudicator might arguably hold that a sufficiently fundamental breach of the respondent's article 8 right to the preservation of his mental stability had been established to engage that article. The adjudicator would then have to consider the effect of article 8(2), which will require the striking of a fair balance, in the manner referred to by Lord Bingham of Cornhill in paragraph 20 of his opinion. This has not received consideration by the Secretary of State or the judge. The factors which would have to be assessed on the application of article 8(2) are potent indicators in favour of upholding the operation of immigration control and affirming decisions to refuse entry to persons such as the respondent. I could not be fully satisfied, however, that the case is so clear in favour of upholding the decision to remove the respondent that no reasonable adjudicator could hold otherwise.
78. I accordingly conclude, not without very considerable hesitation, that for the reasons which I have given the decision of the Secretary of State must be set aside. In so holding, however, I have to emphasise that the decision of the House goes no further than to determine the question of law submitted to it whether the Secretary of State was justified in ruling out an appeal in limine on the ground that the respondent's allegation was manifestly unfounded. We cannot attempt to say how the case will appear before an adjudicator who has full information of the current state of the respondent's mental health and the facilities which will be available to him in Germany and is in a position to test the evidence of the respondent and the reliability of any medical opinions adduced. Still less can we give any indication how we think the adjudicator is likely to decide the substantive issue if an appeal is brought from the decision to remove the respondent."
"64. ….If there were substantial grounds to believe that the authorities responsible for him in Germany would not take such steps, then I would accept that his Convention rights were engaged and that the Secretary of State could not properly certify that his claim was manifestly unfounded, at least without making further enquiries or seeking further assurances from the German authorities. But this is not the case. Mr Kessler's report specifically states that 'your client will only receive medical treatment in case of actual danger to himself or to others'. The Secretary of State is entitled to assume that the German authorities will observe their Convention obligations to the claimant unless there is better evidence than this that they will not."
"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."