CO/813/2006 
Neutral Citation Number: [2007] EWHC 289_2 (Admin)
IN THE HIGH COURT OF JUSTICE 
QUEEN'S BENCH DIVISION  
THE ADMINISTRATIVE COURT 
Royal Courts of Justice 
Strand
London WC2 

Date: Thursday, 8 February 2007
 
B E F O R E:

MR JUSTICE BLACK DBE 

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THE QUEEN ON THE APPLICATION OF MOISE SOLA
(CLAIMANT)

-v- 

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
(DEFENDANT) 
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MR M HARRIS (instructed by Fadiga & Co) appeared on behalf of the CLAIMANT
MS C WEIR (instructed by Treasury Solicitor) appeared on behalf of the DEFENDANT
 
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J U D G M E N T 

1.	MRS JUSTICE BLACK:  I have before me an application for judicial review by a claimant who arrived from the Congo in January 2005 and claimed asylum.  The claim was rejected and the appeal process concluded.  I do not need to go into the history of the matter in any detail to deal with the present application, which is the claimant's application to adjourn the judicial review proceedings in order to obtain further medical evidence.  Suffice it to say that, on 18 January 2006, removal directions were set for 25 January 2006, following the claimant's failure to succeed in earlier judicial review proceedings with regard to an earlier set of removal directions.  
2.	On 20 January 2006 the claimant was seen by a neurologist, Dr Rundle.  Dr Rundle's report covers a number of matters, but it included a diagnosis of temporal lobe epilepsy.  The view of Dr Rundle was that travelling entailed a serious risk of the claimant suffering a convulsion, which may be repeated, and that the claimant was quite unfit to travel.  The report from Dr Rundle is dated approximately 23 January, and it was amplified in a later letter in June 2006.  That letter says that stress increases the likelihood of epileptic symptoms occurring, and that the level of stress induced by deportation raises a real risk that the claimant would have convulsions which may lead to status epilepticus which is, according to Dr Rundle, a serious and dangerous condition.  
3.	A medical officer of the type of a general practitioner, Dr Manchip, was asked to see the claimant in the light of Dr Rundle's report, and did so on 24 January 2006.  He took the view that the claimant was not suffering any clinically relevant problems and was fit to travel.  The Secretary of State refused to change his decision to remove the claimant, and on 27 January 2006 this judicial review claim was lodged.  The claimant argues that the defendant's decision, and in particular his treatment of Dr Rundle's evidence about epilepsy and fits, is irrational, and that if removal proceeds, it will amount to a breach of Article 3.  He argues that the defendant was wrong to reject his representations as not being a fresh claim, thereby disentitling him to enter into the immigration appeals process.  
4.	Dr Rundle's report is challenged in its entirety by the Secretary of State.  He does not accept the diagnosis of epilepsy and he does not accept that there is a risk of anything happening on the claimant's removal from this country which would amount to harm that could represent an Article 3 breach.  Dr Rundle's report is undoubtedly not comprehensive and Dr Rundle himself is now unfortunately dead.  In his report, he recommended further neurological investigations that may have produced clear evidence about the diagnosis of epilepsy, and no doubt also, if it was confirmed, its characteristics.  I do not know why, but those neurological investigations have not been carried out, so that material is missing.  
5.	Dr Rundle's report does not deal either with the question of the degree to which medication could be used to control the possibility of fits arising on the claimant's removal.  Nor does he deal with precisely what could be expected to happen to the claimant -- or not in a way which is intelligible to lay people, as the Secretary of State is and of course as all of us are.  He does not deal with what would be needed to contain the situation if the claimant began to fit or what long-term harm the claimant might suffer if that were to happen.  The claimant wishes to address those matters in a new medical report.  That of course may lead to the collapse of his claim.  If the new medical examiner, who he proposes should be a joint instruction from both claimant and defendant, were to report, for example, that medication would control the matter satisfactorily, then it may well be that the inevitable conclusion would be that the claimant was fit to travel.  Alternatively, it may be, I do not know, that results would be obtained from an MRI scan that would be incompatible with a diagnosis of epilepsy.  Alternatively, the medical report may confirm the claim that the claimant has epilepsy in a way which it would be difficult for the Secretary of State to challenge, or may reveal that he would indeed be subjected to a serious and dangerous state of affairs if he was removed that would not be containable either by medical escorts or by medicines.  
6.	The Secretary of State resists an adjournment of the judicial review proceedings for the obtaining of further medical evidence of that type.  He says that it is not the place of judicial review proceedings to provide a forum for the collection of that sort of factual evidence.  That, in his submission, is for the AIT if I were to grant the application for judicial review and the matter would therefore end up back in the immigration appeals process.  
7.	He submits, rightly, that the burden of proof in relation to any further representations that a claimant in this sort of position makes to the Secretary of State, and the burden of proof in judicial review proceedings, is on the claimant himself.  If he has failed to achieve his ends by the evidence that he has filed so far then, the submission of the Secretary of State goes, that is his own fault and his judicial review proceedings must be dismissed.  
8.	I cannot subscribe to the view that that is the correct approach on facts such as there are in this case.  If the Secretary of State in fact removes the claimant when he is actually suffering from epilepsy (and there is, I have to remember, an independent medical opinion in firm terms that he is though I will return to the question in a moment of whether that is all dependent on the dishonest information obtained from the claimant or not), and if the claimant suffers fits in the course of removal which are seriously harmful, then the Secretary of State's actions may amount to a breach of Article 3.  It will be no comfort at that point to say that in the judicial review proceedings the burden of proof was on the claimant and he did not discharge it, particularly when the Secretary of State has been alerted to the potential possibility of epilepsy by the medical evidence produced thus far.  
9.	I do not see, therefore, how the Secretary of State can carry on with a removal, whatever the outcome of these judicial review proceedings if I carried on with them today, without first having the claimant medically examined again.  In the light of the medical evidence obtained thus far from Dr Rundle, I do not see how that could be by anybody with expertise which was not in the relevant field, which is neurology, a specialist field.  If there is to be such a medical examination, the results may well found a further application by the claimant which the Secretary of State would then have to consider all over again and which, if the claimant was not satisfied with the outcome, may lead to another set of judicial review proceedings, assuming that these are concluded today.  
10.	It seems to me that rather than to hear this matter for three hours with arguments in limbo as to whether the claimant really has epilepsy and what might be the consequences of removal judged by a construction of the incomplete report of Dr Rundle, it would be much more expedient to obtain a further report now which may well resolve a number of those issues that would otherwise have to be argued in the judicial review proceedings, and much more expedient meanwhile to keep these judicial review proceedings on foot and then to proceed without further delay once that medical evidence has been obtained.  
11.	The alternative is either that the Secretary of State succeeds in having the judicial review proceedings dismissed today, then gets his own report and then generates potentially another set of judicial review proceedings in the way that I have just described; or alternatively, the claimant succeeds, the matter goes back to the AIT, evidence is gathered from a further doctor for the purposes of the resumed hearing in front of the Tribunal and then much later into the process one of the possibilities is that it turns out that there is actually nothing in the claimant's argument for one of a number of reasons, not least that any symptoms that he may suffer as a result of removal can be contained by virtue of medication.  
12.	I am not going into the merits any further than that because I am simply granting an adjournment, but I should just address the issue of the source of the diagnosis of epilepsy because I have been addressed about that in the course of the adjournment application.  The view of the Secretary of State is that the whole diagnosis of epilepsy depends upon the account given by the claimant himself.  He says that the claimant has been disbelieved in his account of what happened to him in the Congo, and extrapolating from that he could not be trusted with regard to his description of symptoms.  It is not, I think, quite as simple as that.  The symptoms catalogued in the report of Dr Rundle are actually quite subtle symptoms which may not perhaps have come out before, unless by expert questioning by a neurologist.  They were then maintained when the claimant was seen by another doctor, who comments upon the unlikelihood of an untruthful patient remembering the symptoms as he had previously described them and accurately describing them again at that particular point in time.  So it does seem to me that there is some difficulty in the argument that the present information about the possibility of epilepsy can simply be dismissed as a fabrication by the claimant.  But that is not a matter for now.  
13.	It may well be that those sorts of issues are ultimately addressed by the new medical report.  I do not think there is any debate really about the ambit of that medical report, but I do want to make sure it is comprehensive because one of my objectives in adjourning this now is to try to sort out in one go all of the issues that there might be, and to try and obviate the need for a sequence of judicial review or other proceedings.
14.	MR HARRIS:  My Lady, I think both parties perhaps have had to put forward earlier today what they hoped the expert would be able to advise upon, and certainly I would seek a direction that any reporting covers that ambit.
15.	MRS JUSTICE BLACK:  Of course it is open to the Secretary of State, if he preferred, to concede that it is a fresh claim and let it go through the appeals process and have the matter dealt with in the context of the Tribunal.
16.	MR HARRIS:  Clearly, my Lady, yes.  When it comes to the period for any adjournment, we of course have not heard from Dr Pierce, who we believe to be the neurologist who has taken on the referral of Mr Sola.
17.	MRS JUSTICE BLACK:  I think the Secretary of State also observed that they had not really had any input into any of that.
18.	MR HARRIS:  Indeed, but for guidance to both my learned friend and to the court, taking instructions from my instructing solicitor, it would appear that, in light of this adjournment, it is likely that public funding will be obtained to secure a report, which will speed up the process rather than having to wait for NHS procedures and time limits.  So realistically that means that, I would hope quite quickly, a report can be obtained which could perhaps be a diagnosis on the neurological symptoms.  It may not be quick to obtain independent tests, which I doubt any public funding would be obtainable for.
19.	MRS JUSTICE BLACK:  I do not know why not, if the doctor says it is an intrinsic part of making the diagnosis and Dr Rundle has already said that they should be carried out.
20.	MR HARRIS:  I am grateful for that observation, but some of these tests I understand to be quite expensive indeed, and that in the end may be the sticking point.  That does not mean that we will not ask and enquire if they can be obtained.
21.	MRS JUSTICE BLACK:  It will partly depend on what the doctor says about what they would be expected to show and to what degree they would be probative.
22.	MR HARRIS:  Indeed, and of course it may be that, on the initial diagnosis from neurological symptoms, the doctor decides that there is no need for whatever reason to proceed with any further tests.
23.	MRS JUSTICE BLACK:  On one view of it, if we start at the other end and if one were to assume that Dr Rundle had been right but the new doctor said: "But this can all be contained by the administration of X", then that would be as far as you needed to go because you would fail then.
24.	MR HARRIS:  Yes.  So really that, I suggest, is relevant to any assessment of how long it is going to take.  I am afraid it is going to be months rather than weeks in light of all this.
25.	MRS JUSTICE BLACK:  Let me just hear from the defendant with regard to this.  You want some input into who the examiner is? 
26.	MS WEIR:  Yes, I was proposing at the very least, depending on the form of order, that we might have liberty to apply for further directions as to the identity of the expert, if necessary, within 14 days if we have not been able to reach a satisfactory conclusion.  I rather suspect that Dr Pierce may well be entirely acceptable, but we may have to do some investigations.
27.	MRS JUSTICE BLACK:  And as to the ambit of the investigations, if there is a debate as to whether -- presumably your client is prepared to submit to whatever tests are needed? 
28.	MR HARRIS:  Yes, that is our current understanding.  He was going -- 
29.	MRS JUSTICE BLACK:  He is going to be in some difficulty if he does not.
30.	MR HARRIS:  Clearly, yes, and that of course might very well -- this is a publicly funded case and that might very well affect the legal representative's view on the merits, and of course we shall draw the court's attention to that as soon as possible.  I make that clear to the court.
31.	MS WEIR:  My Lady, I am not quite sure how concrete we can be today.  I wonder if it might be possible to leave us to work out -- I am just thinking about the situation in relation to disability discrimination.  It is quite common that the parties work out what directions might be given to the expert, the identity of the expert and a time frame, or at least an outline time frame, and then liberty to apply within 14, 21 days if it is not possible to agree.  
32.	MRS JUSTICE BLACK:  So you do not want me to list it? 
33.	MS WEIR:  We would like it to be listed in, say, three months time so that we can all come back before you or whoever else is hearing it for a kind of check-up as to where we are.
34.	MRS JUSTICE BLACK:  Do you want it listed for the sort of listing that would enable it to be heard during that time or for directions?
35.	MS WEIR:  I think if it is three months, we would be better to list it for directions because I think it is unlikely that, even if it is Dr Pierce -- 
36.	MRS JUSTICE BLACK:  It is difficult also to list it knowing how long it is going to last until we know what this medical -- I mean, it might actually wipe it out.
37.	MS WEIR:  Indeed, there may be nothing to list, and it would be much less of a waste of the court's time just moving a directions hearing rather than a full hearing.  So I would suggest a directions hearing in about three months time.
38.	MRS JUSTICE BLACK:  How long should it go in for?  Is it an hour?  Somebody needs to read the skeleton arguments and the medical evidence.
39.	MS WEIR:  With the reading, I would have thought at least an hour.
40.	MRS JUSTICE BLACK:  To include judicial reading? 
41.	MS WEIR:  Yes, that would be appropriate.
42.	MR HARRIS:  I would hope -- there may be some substantial reading -- but I would hope the issues would have been clarified sufficiently that there is not much need for open discussion in court.
43.	MRS JUSTICE BLACK:  It is quite different in any event reading for a directions hearing, if we plainly state that it is a directions hearing, rather than reading to determine something and give a judgment even if it is only a leave application.  So I would have thought that an hour would be sufficient.  So re-listing in three month time for directions.  A listing for an hour to include judicial reading time.  
44.	Do you want any other directions?  It might be helpful if you just draft it for the associate -- something which adjourns it, quite clearly stating it is on the basis that a joint medical report will be obtained on matters concerning the claimant's health, including whether he suffers from epilepsy and what the consequences for him of removal from this country can be expected to be, and the degree to which they could be controlled by medication, just to make clear the issues which we have today.
45.	MS WEIR:  And might we have liberty to apply?  I am not sure what you would consider appropriate.  I would suggest 21 days.
46.	MRS JUSTICE BLACK:  I am not sure you need it because if you have difficulties and need it to come back, you could, could you not?  But, yes, of course.
47.	MS WEIR:  My Lady, we would ask for a specific order as to the costs of today.  We would ask you specifically to make no order as to the costs of today in the circumstances.
48.	MRS JUSTICE BLACK:  Well, that would prevent you from having to pay any costs in due course, except your own.
49.	MS WEIR:  Indeed.  It would mean that nobody got the costs of today.  In the circumstances, in my submission, that is a fair result.  I suppose, on one view, either of us could have prevented this scenario from happening by producing this evidence at an earlier stage.
50.	MRS JUSTICE BLACK:  Quite.
51.	MR HARRIS:  No objection.
52.	MRS JUSTICE BLACK:  It seems entirely fair.
53.	MR HARRIS:  Might I also just ask for legal aid taxation? 
54.	MRS JUSTICE BLACK:  Yes.
55.	MR HARRIS:  I am grateful.
56.	MRS JUSTICE BLACK:  And would you mind drafting that, and giving it to the associate.  That would be very helpful for her.  Is there anything else?
57.	MR HARRIS:  No, my Lady.
58.	MS WEIR:  No, my Lady.