EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
Lord Clarke Lord Bonomy Lord Osborne	[2011] CSIH 44 P1727/09 OPINION OF THE COURT delivered by LORD CLARKE in the Reclaiming Motion by JO (AP) Petitioner and Reclaimer; against THE SECRETARY OF STATE FOR THE HOME DEPARTMENT Respondent: _______

Petitioner and Reclaimer: Forrest; Drummond Miller LLP

Respondent: Webster, Office of the Solicitor to The Advocate General

7 July 2011

[1] The reclaimer seeks to reclaim a decision of the Lord Ordinary (Lady Stacey) whereby she dismissed his petition for judicial review of a decision of the Secretary of State for the Home Department dated 17 December 2009. By that decision the respondent informed the petitioner that new material submitted to the respondent, on the petitioner's behalf, did not create a realistic prospect of success by the petitioner before an immigration judge that his claim for asylum in this country should be granted.

[2] The factual background to the decision, to which these proceedings relate, is set out in full at paras [4]-[7] to the Lord Ordinary's Opinion. Put briefly the reclaimer entered the United Kingdom from Nigeria in July 2002 and claimed asylum on the basis that his Christian beliefs and events involving his family would lead to his being persecuted in Nigeria if he was returned thereto. The respondent refused that claim. The reclaimer appealed to an immigration judge who refused his appeal. In December 2003 the reclaimer's solicitors wrote to the respondents submitting that on the basis of the circumstances at the time removal from the United Kingdom would violate his rights under article 8 of the ECHR. Those submissions were rejected and the reclaimer was detained in December 2003 with a view to removal. An attempt to deport him during the period between January and September 2004 was unsuccessful. The reclaimer remained in custody during this period. In September 2004 he was admitted to bail. He spent some months living with a family in Ayrshire and then moved to accommodation in Glasgow. Members of a Christian Fellowship, who had supported him while he was in custody, continued to offer him friendship. He himself became an active member of St Michael's Church in Parkhead, Glasgow, acting in various capacities and carrying out various duties at that church. He was said to have built up social ties with members of the church. The reclaimer completed an HNC course in business management at a college in Glasgow and carried out part-time study at Glasgow University. He obtained sponsorship to attend the International Christian College in Glasgow. He took up football and trained and played regularly in an amateur league. He had friends both at college and in the football team.

[3] Upon his release in 2004 from custody the reclaimer sought medical advice. He was referred to a clinical psychologist. He was seen by doctors running a specialist mental health service for asylum seekers and was also seen by a psychiatrist. He was diagnosed as suffering from depression and post traumatic stress disorder resulting from experiences both in Nigeria and since arriving in the United Kingdom. The reclaimer was treated by being prescribed an ant-depressant, Fluoxetine, from 2006, which treatment was continuing at the time at which the Lord Ordinary heard submissions in the petition for judicial review. The reclaimer also attended regular clinical psychology sessions. The clinical psychologist treating him was of the view that he was being well-supported by his local church which was a positive factor in relation to his mental health. She had expressed a concern that in the absence of psychology sessions, the prescribed medication and the support of his church the reclaimer would be at significant risk of self harm. The foregoing material relating to the reclaimer's position since the initial refusal to grant his application for asylum was placed before the respondent but, as has been noted, the respondent did not accept that this material, together with the material that had previously been before the respondent and the immigration judge, would create a realistic prospect of success before a new immigration judge.

[4] Before the Lord Ordinary the reclaimer sought to attack the decision of the respondent on three grounds. The first was a failure to take into account the effect of the delay that had occurred in dealing with the reclaimer's case. That ground was found to be without merit by the Lord Ordinary, and counsel for the reclaimer before this court advised us that he was not renewing it. The two remaining grounds advanced before the Lord Ordinary were, when presented to the respondent, focussed, it seems, on article 2, article 3 and article 8 of the ECHR. Articles 2 and 3 are respectively concerned with the danger to life and the prohibition against torture or inhumane or degrading treatment or punishment. Before us, and indeed, it seems, the Lord Ordinary these grounds were subsumed under the Art 8 Argument. The submission made under reference to articles 2 and 3 had focussed on the reclaimer's alleged mental health condition, the treatment he was currently receiving for that condition and the fears expressed about his future if that treatment was not available. The other new material relied upon both before the respondent and the Lord Ordinary were the close and deep personal ties which the reclaimer was said to have established now through his settled life in Scotland. Any removal from Scotland of him now would be in breach of article 8 of the ECHR. Article 8 is in the following terms:

"(1) Everyone has the right to respect for his family and private life, his home and his correspondence.

(2) There shall be no interference by a public authority with exercise of this right except as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or 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."

It was submitted on behalf of the reclaimer that to require him to remove now from Scotland would involve a disproportionate interference with his private life.

[5] In reaching his view regarding the new material relating to the reclaimer's mental health, the respondent referred to a country information report of June 2009 which he considered indicated at paragraph 28 that there was adequate medical treatment available in Nigeria, where mental health is included within the primary health care system, albeit that drugs were available only at cost. Before the Lord Ordinary, it was submitted on behalf of the reclaimer, that the respondent had reached a conclusion that the reclaimer's mental health could be satisfactorily treated in Nigeria despite there being no basis for such a conclusion in the information before him. This submission focussed, it seems, on the fact that the respondent had made no reference to paragraph 28.19 of the Country of Origin Information Report which was in the following terms:

"The World Health Organisation 2005 Mental Health Atlas released? stated:

'Mental health care is part of [the] primary health care system. Actual treatment of severe mental disorders is available at the primary level. However, relatively few centres have trained staff and equipment to implement primary health care. Regular training of primary care professionals is carried out in the field of mental health. Each state has a school of Health Technologists for [the] training of primary care professionals including health care workers.'"

The Lord Ordinary's response to the criticism made of the respondent's approach is to be found at para. [28] of her Opinion where she said:

"I am of the view that the country information report did indicate in the most up to date report referred to that treatment is available. I do not accept that the respondent had failed to read the report properly or that he had come to an unwarranted decision on it."

Before this court it was argued, on behalf of the reclaimer, that the Lord Ordinary had not properly addressed the concerns advanced on behalf of the reclaimer, having regard to the content of para. 28.1 of the country of origin information report. She gave no reason as to why she concluded that she did not accept that the respondent had failed to read the relevant part of the country of origin information report relied upon by the reclaimer. The remarks (i) that there existed adequate facilities and (ii) there were relatively few centres which have trained staff and equipment to implement them are not consistent with each other, it was submitted. This inconsistency had not been resolved, or explained away, by the Lord Ordinary.

[6] We consider that there is no merit in this attack on the Lord Ordinary's approach to the issue raised regarding the information contained in the Country of Origin Information Report. Read as a whole that Report, in our view, clearly provides information to the effect that treatment of the condition or conditions, such as the reclaimer may be suffering from, is available in Nigeria and that is all that the Lord Ordinary was saying and needed to say; while the availability of care at the primary level may be somewhat limited, the Report otherwise makes it perfectly clear that conditions such as the reclaimer may be suffering from can be treated in Nigerian psychiatric hospitals at a level that apparently causes no concern. Not only is there no substance in the reclaimer's attack on the way in which the Lord Ordinary expressed herself in this aspect of the case, it has to be recalled that the case law establishes that those subject to removal from the United Kingdom have no entitlement to remain in the United Kingdom in order to benefit from continuing medical treatment unless exceptional circumstances exist. Moreover in Regina (Razgar) v Secretary of State for the Home Department [2004] 2 AC 368, it was held that removal could not be resisted merely because medical treatment or facilities in the removing country were better or more accessible than in the receiving country. See e.g. para 4 of Razgar.

[7] When it came to consider the remaining basis upon which the respondent's decision was attacked, the Lord Ordinary in para. [29] of her Opinion said:

"While I accept that the petitioner may not find it easy to make friends due to his depression and post traumatic stress disorder, I find that he has built up most of his private life in the UK through the church and his work for it. While it is obvious that he will not be involved with the same people if he has to leave, I accept counsel's argument that he should be able to build up contacts and friendships within the church elsewhere. I accept that while he is not in good health, he has shown that he is fit enough to assist in church and interact with other people. I accept that he will be able to do so elsewhere and that some written contact with those he has met in the UK can be maintained."

At para. [31] she concluded:

"Further I accept that the petitioner should be able to develop a private life in Nigeria and to continue to maintain ties to friends in this country from overseas. Therefore while I accept there will be an effect on the petitioner's private life, the need to maintain effective immigration control outweighs that effect and so the decision to refuse such permission does seem to me to be a proportionate decision."

[8] Strictly speaking the Lord Ordinary, having reached the views which she did arrive at on this matter, should have concluded that there was no error in law revealed in the respondent's decision that this new material, when taken together with the previously considered material, did not create a realistic prospect of success in front of a new immigration judge when applying the rule of anxious scrutiny. Be that as it may, we are satisfied that the reclaimer's submissions before us have not impugned the Lord Ordinary's decision in the result. She referred in full to the reclaimer's personal circumstances as they have developed in his new life in Scotland over the preceding few years. She took these matters fully into account. She then had regard to the relevant law on the matter, to be found in e.g. Razgar cited supra and Huang v Secretary of State for the Home Department [2007] 2 AC 167. She recognised that the task was one of striking a fair balance between the rights of the individual under article 8 and the interests of the community which is inherent in the whole of the Convention and which includes the upholding of an orderly immigration policy. She carried out the balancing exercise and reached the conclusion, in our view, not only on a reasoned basis, but on a correct basis, that the reclaimer had produced no material that would justify finding that his removal to Nigeria would be disproportionate having regard to his article 8 rights. While of course every removal involves a disruption of established private life, the elements of private life upon which the reclaimer founds are such that, in our view, they should be capable of relatively ready replication in Nigeria. As was observed in Huang (cited supra) at para. 20 per Lord Bingham of Cornhill,

"In an article 8 case where this question is reached, the ultimate question for the appellate immigration authority is whether the refusal of leave to enter or remain, in circumstances where the life of the family cannot reasonably be expected to be enjoyed elsewhere, taking full account of all considerations weighing in favour of the refusal, prejudices the family life of the applicant in a manner sufficiently serious to amount to a breach of the fundamental right protected by article 8. If the answer to this question is the affirmative, the refusal is unlawful and the authority must so decide".

His Lordship went on, however, to note that the expectation must be that the number of claimants entitled to succeed under article 8 would be a very small minority. Those dicta were addressed to the question of interference with family life. The reclaimer is not advancing a family life case in the present proceedings, but relies on the right to a private life which, in our judgment, taken together with the actual circumstances he does seek to rely on, makes the balance tip very heavily against him.

[9] For all the foregoing reasons we consider that the reclaiming motion falls to be refused.