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QUEEN v. AN IMMIGRATION OFFICER Ex parte JOHN XUEREB [2000] EWHC Admin 352 (26th May, 2000)
CASE NO: CO/2355/1999
IN THE SUPREME COURT OF JUDICATURE
QUEENS BENCH DIVISION
CROWM OFFICE
ROYAL COURTS OF JUSTICE
STRAND, LONDON, WC2A 2LL
Friday 26 May 2000
BEFORE:
HIS HON MR JUSTICE TURNER
-------------------
THE QUEEN
-v-
AN IMMIGRATION OFFICER
Ex parte JOHN XUEREB
____________________
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040, Fax No: 0171 831 8838
Official Shorthand Writers to the Court)
____________________
MR STEVEN KOVATS (instructed by Treasury Solicitors for the 1st
Respondent)
MISS STEPHANIE HARRISON (instructed by Gill & Co for the
Applicant)
____________________
Judgment
As Approved by the Court
Crown Copyright ©
MR JUSTICE TURNER :
Introduction
1. This is an application for judicial review of the decision of an
immigration officer dated 28 May 1999, by which he refused to grant the
applicant exceptional leave to enter or remain in the United Kingdom and
enforced his removal to Malta.
History
2. On arrival in the United Kingdom from Malta on 12 December 1997,
the applicant had applied for asylum, he provided various disconnected reasons
for his application. His asylum application was refused on 29 January 1998.
On 12 February, the immigration officer refused leave for the applicant to
enter the United Kingdom. He was detained. Sometime after his detention in
HMP Rochester, the applicant was seen by a psychiatrist and diagnosed as
suffering from acutely psychotic symptoms with marked paranoid delusions.
3. On the same day as he decided to refuse to grant leave to enter, the
Secretary of State for the Home Department certified the asylum application
under the provisions of paragraph 5(4)(b) of Schedule 2 to the Asylum and
Immigration Appeals Act 1993. The applicant appealed against the decision
refusing his asylum application. On 19 February 1998, the applicant was
transferred to a psychiatric hospital under the provisions of sections 48 and
49 of the Mental Health Act 1983 (the Act of 1983). On investigation of the
Maltese authorities, it transpired that the applicant had been admitted to a
psychiatric hospital in Malta in 1994, "but had subsequently lapsed psychiatric
follow up".
4. On 18 September 1998, the applicant's asylum appeal was dismissed.
The special adjudicator found that the removal of the applicant to Malta, with
the accompanying risk that his mental health would deteriorate in consequence,
would amount to inhuman or degrading treatment within Article 3 of the European
Convention on Human Rights (ECHR) and recommended that the Secretary of State
for the Home Department review the applicant's case favourably. On 30 November
the Secretary of State for the Home Department refused the applicant's later
application for exceptional leave to enter. On 10 December a Mental Health
Review Tribunal directed that the applicant continue to be detained under the
provisions of the Act of 1983. Its conclusions were that
The opinion that (the applicant's) mental illness remains of a nature and
degree to make it appropriate for his continued liability to detention in
hospital for treatment ... is correct and that had (the applicant) been
detained under sections 37/41 of the (Act of 1983) we would not have directed
any form of discharge. The patient does not present any threat to the safety
of others, but he is vulnerable to relapse and would benefit from further
treatment. His illness does not require treatment in conditions of medium
security and his mental state would benefit from being kept in less confined
circumstances.
Consideration was given to returning the applicant to Malta. The psychiatrist
in charge of the applicant stated that before the applicant could be so
returned, it would be necessary to show that his needs, as they were defined,
could be adequately met in Malta.
The issues
5. Under section 86 of the Act of 1983, the Secretary of State has power
to remove alien patients from the United Kingdom, subject to certain conditions
being satisfied. It is the case for the applicant, that these powers are
exhaustive. That is to say that in the case of a person who is a patient under
the Act of 1983, the procedure provided by section 86 must be followed
and the Secretary of State has no discretion to proceed by any other means, in
order to require an alien to leave the United Kingdom. The Secretary of State
maintains that he is not obliged to use those powers. He is not prevented by
their existence from exercising the powers which are otherwise available to him
under the provisions of Schedule 2 to the Immigration Act 1971 (the Act of
1971). Alternatively, the applicant submitted that the general powers of the
Act of 1971 have to give way to the particular powers under the Act of 1983 as
they affect patients who fall within its ambit. Moreover, it was submitted
that the decision of the Secretary of State that the applicant's removal to
Malta would be in his best interests was irrational and unreasonable. Finally,
the applicant submitted that his removal would constitute a violation of his
rights under Article 3 of the ECHR and that by proceeding as he did the
Secretary of State was depriving the applicant of an effective remedy to
challenge the decision.
Evidence in relation to the applicant's mental state.
6. This consists of a number of reports which have come into existence
between 1998 and the present date. Thus, in August 1998, Doctor Pierzchniak
wrote
It is my opinion that it would be in (the applicant's) best interests to be
allowed to remain in the UK to receive treatment. I believe that physically
removing him to Malta will cause him a great deal of stress and he is
therefore highly likely to relapse into another psychotic episode which would
place him at risk of harm to himself from the type of actions already
described. From my reading of his history and progress, (the applicant is
suffering from a form of schizophrenia which is difficult to treat and will
need a prolonged period of observation in hospital before staff can be
confident that his symptoms have resolved to a satisfactory extent. He will
then need very careful follow-up in properly supervised accommodation to ensure
that his mental illness does not relapse and this would best be done in
England. I note that at Redford Lodge (the applicant) is undergoing a
programme of psychological intervention and occupational therapy. Bearing in
mind his mental illness and possible personality difficulties as a result of
abusive experiences in early life, it is showing good compliance and it is my
opinion that, on humanitarian grounds, he should be allowed to continue this
and following a successful course of treatment, be allowed to make use of the
facilities of aftercare in this country.
7. In April 1999, Dr Saliba writing from Malta said
Of necessity, I must be extremely prudent in any comments I make about this
patient that[sic] I have not seen for a very long time. However, it must be
self evident that repatriating a patient to a country and psychiatric team that
he reportedly does not wish for may have an adverse effect on his mental state,
including the possible risk of suicide. I am obviously not in a position to
hear (the applicant's ) wishes at first-hand, however, I would feel clinically
and ethically very uneasy in being instrumental to force him back under my care
when he is reportedly receiving high quality treatment in the UK which he
reportedly prefers.
* * * *
Our rehabilitation services are still being developed and we do not as yet have
the impressive and detailed care plans of some psychiatric services in the
United Kingdom. On the other hand we do have two half-way houses one run
directly by ourselves and the other by the Richmond Fellowship Foundation -
Malta. I could virtually guarantee that he would be offered a place in one of
these as and when his mental state permits. It would, however, entail
referring him to one of my two colleagues in rehabilitation.
8. There were, then, reports from Doctor Exworthy at Redford Lodge who
was initially responding to questions put to him on behalf of the Chief
Immigration Officer. In August 1999, Doctor Exworthy wrote
Currently the risk of self-harm is low but, in my opinion, this would increase
if the decision were taken to return (the applicant), against his will, to
Malta. Furthermore the level of risk would rise from the time that (the
applicant) became aware of that decision and, on the evidence available to me,
would be significantly increased once he was in Malta.
* * * *
Thus were the decision to return him to Malta to be made, adjustments to his
in-patient management would need to be put in place before he was informed of
the decision. Likewise, arrangements could be made for him to have a nursing
escort on the trip to Malta and it would be a sensible precaution to admit him
for in-patient assessment once in Malta to further evaluate the risk of
self-harm and how that might alter over time as (the applicant) adjusts, or
not, to the reality of his position. The management of (the applicant) in
Malta would obviously fall to Doctor Saliba and in-patient admission would be
subject to his agreement.
The assessment and management of risk, in this case that of self-harm, is a
prominent part of contemporary psychiatric practice. In (the applicant's) case
the clinical issues can be addressed but concerns have been expressed, not
least by Doctor Saliba, over the ethical issues involved.
Then, after saying that he agrees with Dr Pierzchniak's assessment, Doctor
Exworthy continued
From my reading of Dr Saliba's letter [above] I am of the opinion that the
facilities in Malta are adequate although I am less clear regarding the
multi-disciplinary input available to Dr Saliba's clinical team. Doctor Saliba
seems to be very much aware of the potential difficulties which would be
imposed if (the applicant) were to be returned to Malta. I also believe Dr
Harlow is right to point out ... that 'resource limitations' are not unknown in
this country. Were (the applicant) to remain in this country it has not been
agreed where he would be resettled or who would be responsible for the
funding.
9. Finally, Doctor Exworthy wrote again on 1 February 2000 and his
conclusions are worthy of repetition:
1. (The applicant) continues in his opposition to his return to Malta. He says
he cannot see that he has a future there and accordingly would consider harming
himself or even committing suicide. Thus in my opinion, arrangements for his
return to Malta would lead to an increased risk of self-harm.
2. The risk of self-harm could be properly managed during his removal from this
country and in Malta where he would be under the clinical care of Dr Saliba.
My response in the letter of the 15th August, to a similar question,
amplifies on this and these comment still stand. I would add that even
properly managed the risk is still a real one and can never be full
eliminated.
3. If (the applicant) is forcibly removed from this country and returned to
Malta which is against his consistently expressed wishes then I believe a
deterioration in his mental health would be almost inevitable.
4. It is very difficult to provide any comment about the likely nature, extent
or duration of such deterioration. We do have indications that (the applicant)
has made plans to attempt to harm himself during his current admission and
therefore, the risk that he might try to put such plans into operation should
he be returned to Malta must be considered to be high. It is possible that
over time he might become reconciled to the fact that he has been returned to
Malta and then such thoughts might decline. How quickly this might occur I am
unable to answer. However, because much of his opposition to return him to
Malta is based on longstanding concerns he has had about his upbringing and
family life there, it is equally possible that the risk may remain elevated for
some considerable time. This risk, in my view, would only partially be
amenable to treatment because it is also related to his environment and
circumstances.
Finally, should it be decided that (the applicant) is to be removed from the
United Kingdom and returned to Malta then I can confirm an up to date report
detailing his treatment and progress would be provided to Doctor Saliba to
inform him as fully as possible about (the applicant).
The decision under challenge
10. This is contained in a letter dated 8 September 1999. The letter
condescends to some particularity. It commences by referring to the letter
from Dr Saliba and concludes that the arrangements which can be made in Malta
for the applicant's reception, management and care "are sufficient". The
letter proceeds to consider the up to date report from Dr Pierzchniak and
concludes that arrangements which will be made by the medical authorities in
Malta will respect the views of those who have the care of the applicant in the
United Kingdom. Finally, the letter considers the position of the applicant's
immigration status. The letter discounts the point arising under section 86 of
the Act of 1983 and notes that
Quite apart from medical considerations, the essential issue in your client's
case is that he does not qualify for leave to enter the United Kingdom. There
is no basis under the provisions of the Immigration Rules for him to be
admitted here. Consideration has been given as to whether or not there are any
sufficiently compelling or exceptional circumstances which would justify
granting your client leave to enter outside the provisions of the Immigration
Rules, it has been concluded that this would not be justified.
The letter also addressed the submission which had been made, which was to the
effect that the removal of the applicant in the circumstances which obtain
would involve the United Kingdom in a breach of its obligations under Article 3
of the ECHR.
The case for the Secretary of State for the Home Department
11. This is foreshadowed in the witness statement of Roger Dyer, Chief
Immigration Officer in the Casework Section of the Immigration Service Ports
Directorate. From this statement, it is noteworthy that the Secretary of State
has regard to the ECHR when exercising his statutory functions. The Secretary
of State accepted that there was a risk of self-harm if the applicant were to
be returned to Malta. But he considered that steps could be taken to minimise
it by appropriate management. It is pointed out that although the applicant
has "negative" feelings about his past treatment in Malta it is possible that
such feelings might in time become extended to his carers in the UK if the
applicant were to remain here. Any deterioration in the applicant's health,
following removal, would not amount to inhuman or degrading treatment within
Article 3 and that if such deterioration were to occur it would not be to such
an extent that the grant of exceptional leave to remain would be appropriate.
The policy governing the grant of exceptional leave to remain in cases such as
the present is exhibited to the witness statement and is as follows:
Where ...return to the country of origin would result in the applicant being
subjected to torture or other cruel, or degrading treatment, or where the
removal would result in an unjustifiable break up of family life. For
example
* Where there are substantial grounds for believing that someone
will suffer a serious and wholly disproportionate punishment for a criminal
offence ...
* Where there is credible medical evidence that return, due to
the medical facilities in the country concerned, would reduce the applicant's
life expectancy and subject him to acute physical and mental suffering, in
circumstances where the UK can be regarded as having assumed responsibility
for his care. In cases of doubt, a second opinion should be sought from a
credible source.
In the passage, immediately following the second bullet point, can be detected
reference to Article 3 considerations. The statement asserts that the medical
evidence is insufficient to justify the proposition that removal would amount
to inhuman or degrading treatment and that adequate treatment for the purpose
of managing the applicant's state exist in Malta.
The applicant's submissions
12. At the forefront of the applicant's case was the submission,
already noted, that the existence of the power under section 86 of the Act of
1983 meant that the Secretary of State had to proceed by that route. Any
powers which the Secretary of State might have had under the Act of 1971 were
ousted by the Act of 1983. The alternative submission was that the Secretary
of State had unlawfully fettered his discretion from proceeding under the Act
of 1983 by reason of an unlawful policy.
13. The submissions noted that the Act of 1983 was the later in time of
the two Acts which were in play in these proceedings. Hence, it was said that,
the later Act made a clear and express provision for limiting the powers
contained in the Immigration Act such that it was impliedly amended by the
powers contained in the Act of 1983. The submission was refined by reference
to the fact that when the applicant was transferred from custody to hospital,
that was from the powers to detain available to the Secretary of State in
immigration matters to the power to detain in hospital in respect of mental
health matters, so there was a transfer of the source of the power from the
Immigration Act to the Act of 1983. Under the latter Act, so long as the
applicant is suffering from mental illness, the powers which the Secretary of
State is exercising are those under the Act of 1983 and not the Act of 1971;
see section 48(1) and (2)(d) of the Act of 1983. That power to detain, it was
submitted, continued either until discharge either under section 72 or section
73 or the applicant was removed from the UK under section 86; see section 91.
This would lead to an absurdity if the applicant, who was subject to detention
under section 48 and 49, would technically remain subject thereto after his
removal, unless his transfer was effected under section 86.
14. It was then submitted that, if there was any ambiguity as between
the 1971 Act powers and those in the Act of 1983, it should be resolved by
reference to the ECHR in accordance with the decision in Garland v.
British Rail Engineering [1982] 2 AC 751. Unless there was independent
scrutiny of the removal of patients from the United Kingdom, it would be in
breach of its obligations under Article 5.4 of the ECHR. It was following the
case of X v. United Kingdom (1981) 4 EHRR 188, that the
Government of the United Kingdom introduced the Mental Health (Amendment) Act
1982 with the provision which is now to be found in section 86 of the Act of
1983. In X v. UK it was held that
the scope of judicial review must be sufficient to enable enquiry to be made
whether, in the case of detention of a mental patient, the reasons which
initially justified the detention continue thereafter to exist. Habeas corpus
proceedings ... do not on their own secure the enjoyment to the full of the
right guaranteed by Article 5.4.
The court went on to hold that a MHRT was not competent to review the
lawfulness of a detention since its powers (as they were at the time) were
purely advisory. Because of the stated need for independent review by a
specialist tribunal, such as the MHRT, it would defeat the manifest purpose of
section 86 if the Secretary of State was able to exercise his powers under the
Act of 1971 to remove the applicant. It was submitted that the decision in
R v. Immigration Appeal Tribunal and another ex p. Alghali
[1986] ImmAR 376 (see below) did not assist the argument of the Secretary of
State because section 86 of the Act of 1983 was yet to be in force at the date
of the decision. In any event that case was wrongly decided.
15. If, notwithstanding the first submission, the court were to hold
that the Secretary of State did have power under the Act of 1971, then by his
decision he had fettered his discretion whether to proceed in that manner or
not. The submission here was that when Mr Dyer, on behalf of the Secretary of
State stated that
it is the practice of the Secretary of State to use s.86 only in the cases of
persons who have been granted leave to enter the UK, which this applicant has
not (see paragraph 16 of the statement).
he had fettered the very discretion which section 86 conferred. Thereby he
frustrated the policy of the Act.
16. The final argument of substance was concerned with the decision of
the Secretary of State that in the applicant's case, the risk which was posed
by the threat of his return to Malta was such that for him to disregard the
terms of Article 3 of the Convention, meant that he must have misdirected
himself. It was not in issue before the court that the Secretary of State was
correct to have taken into account provisions of the Convention. What was in
issue was whether he was correct in the way in which he had sought to apply
them. It was submitted that when Mr Dyer had stated that
[16](The Secretary of State) uses (the section 86 power) at the request of an
individual's responsible medical officer in cases where such officer has formed
the view that an individual would be better cared for in all the circumstances
if returned to his own country. ... [17](The Secretary of State) acknowledges
that it may not be in the applicant's best interests, at least in the short
term, for him to be removed to Malta. However the applicant's interests are
not the only matter to which the Secretary of State has regard. He has a
statutory responsibility for immigration control. He ... has an interest in
protecting the limited resources of the National Health Service.
Where the Secretary of State had gone wrong was in his conclusion that the risk
of self-harm and mental deterioration could properly be set against the
consideration to which he had adverted in the passage above. The reason is
that the obligation contained in Article 3 is "an absolute and unqualified
right".
17. In Soering v. UK 11 EHRR 439, a case concerning the
treatment of a person convicted of an offence of murder in the State of
Virginia while awaiting the execution of the death penalty, the legitimate
punishment for that offence, it was held that it was the existence of the
'death row phenomenon' which constituted the inhuman and degrading treatment
and not the death penalty itself. It was submitted that expulsion from the UK
would constitute
inhuman and degrading treatment if it has the effect of inducing feelings of
fear and anguish that will humiliate and degrade him and break
down his physical and mental resistance.
18. It was also contended that if the applicant were to be returned to
Malta this would constitute an interference with respect for private life,
contrary to Article 8 of the Convention. This has been held to include the
physical and moral integrity of the person; see X and Y v. The
Netherlands (1986) EHRR 235 where at p239 the Court said
(the obligation) does not merely compel the State to abstain from such
interference: in addition to this primarily negative undertaking, there may be
positive obligations inherent in an effective respect for private life and
family life. These obligations may involve the adoption of measures designed
to secure respect for family life even in the sphere of relations of
individuals between themselves.
The damage which was alleged to have occurred consisted of "major mental
disturbance" as the result of the interference. The underlying argument put on
behalf of the applicant was that to the extent that the decision of the
Secretary of State interferes with the private life of the applicant
specifically his moral and physical integrity and that his removal from the UK
was not proportionate to any interest of the State.
The response of the Secretary of State
19. There is nothing in the Act of 1983 which curtails the power
vested in the Secretary of State under the provisions of paragraph 8 of the
Second Schedule to the Act of 1971. Given the legislative history of section
86, there was nothing to indicate that the draftsman was unaware of the
provisions of the Act of 1971. Quite to the contrary, since sections 48(2)(d)
and 86 make express references to it. Schedule 6 also repeals part of section
30(2) of the earlier Act, which imposed a restriction on the powers of the
Secretary of State to remove a person from the United Kingdom if he was a
patient. In these circumstances it was submitted that there was no room for an
argument that there had been an implied repeal of any other provisions of the
Act of 1971. Moreover, section 86(2) gave to the Secretary of State a power
which he "may" choose to exercise. It is not a duty. In this context,
reference was made to Alghali (above). This was a case in which the
applicant challenged the decision of an adjudicator to uphold removal
directions made in respect of an over-stayer who was suffering from
schizophrenia and epilepsy. The Mental Health Act 1959 was in force at the
time of the decision, section 90 was the precursor to the present section 86.
This empowered the Secretary of State to authorise the removal by warrant a
person who was a patient, for the purposes of the Act. What that section did
not provide was that the powers of the Secretary of State were only exercisable
after a MHRT had approved the proposed course of action. In Alghali,
Simon Brown J (as he then was) held that the power of the Secretary of State to
issue removal directions was not 'suspended, superseded or otherwise
necessarily replaced' by the provisions of the Mental Health Acts, as they then
were. It was, thus, submitted that the position was in effect no different
under the Act of 1983 than it had been under the Act of 1959. R v.
Secretary of State for the Home Department ex p Talmansi [1987] IAR 32
was another case where a similar result was reached by the Court of Appeal.
20. Counsel for the Secretary of State also referred to textbook
commentary in support of his submissions on this issue. In Hoggett, Mental
Health Law 4th Edition at p163 it is stated that
However, the Home Secretary may have other powers to deport a patient, for
example under the Immigration Act 1971 or the Repatriation of Offenders Act
1984, where there is no safeguard for the patient's care. He may use these
instead (R v. Home Secretary ex p. Alghali [1986] IAR 376),
unless the patient is so severely ill that it would be inhumane to do so, when
his decision might be susceptible to judicial review (. R v.
Secretary of State for the Home Department ex p Talmansi [1987] IAR
32).
Comment to the like effect is also to be found in the Encyclopedia of Social
Services and Child Care Law paragraph E1-220. Finally, on this point,
attention was drawn to the provisions of section 53(1) of the Act of 1983.
Specifically, this section is applied to section 48(2)(d) of the same Act.
These submissions, if correct, do not, however, leave this applicant without
any protection. In D v. United Kingdom 24 EHRR 423 the
Strasbourg Court confirmed that judicial review was an effective remedy
available to an applicant who wished to challenge a decision to deport which
was held to be a violation of Article 3 of the ECHR.´
21. It was then submitted that on a proper understanding of Mr Dyer's
statement, the Secretary of State had not fettered his discretion. What Mr
Dyer had said was that
It is the practice of the Secretary of State to use section 86 only in cases of
persons who have been granted leave to enter the United Kingdom, which this
Applicant has not. He does not regard it as a mechanism for ensuring
immigration control. He uses it at the request of an individual's responsible
medical officer in cases where such officer has formed the view that an
individual would be better cared for in all the circumstances if returned to
his own country. The Secretary of State sees no good reason to depart from
his practice in the present case. (emphasis added)
Counsel cited British Oxygen Company v. Board of Trade [1971 AC 610 at 625, per Lord Reid in support of the proposition that in expressing
himself as he had done in the passage quoted above, the Secretary of State had
not bound himself only to apply his policy.
22. It was submitted that, as is true, the Convention is not (yet) part
of domestic law. In consequence, the court has no power to rule on the merits
of the decision made by the Secretary of State, so long as he has not
misdirected himself or made a decision which was outside the range of
reasonable response. Such was the decision in Regina v. Secretary
of State for the Home Department ex p. Brind [1991] AC 696 which rejected
the idea that the exercise of a discretion vested in the Secretary of State had
to be exercised in conformity with the ECHR, in every case. Such, too, was the
decision of the House of Lords in Regina v. Secretary of State for
the Home Department ex p. Launder [1997 ] 1 WLR 839. It was submitted
that in a case in which the Secretary of State has said that he has taken into
account the requirements of the Convention and that his decision is compliant
with it, the English Court is entitled to determine whether or not he has
misdirected himself, that is whether or not he has misconstrued the Convention
or reached a decision which was outside the discretionary area of judgment.
23. The case of D v. United Kingdom (above) was no
authority for the proposition that if the applicant were returned to Malta and
that his condition deteriorated in anticipation, or in the aftermath, of his
removal that would of itself constitute a violation of Article 3. In
Akdag v. Secretary of State for the Home Department [1993] IAR
172 the Court of Appeal had considered Brind and Soering (above)
and Parker LJ, in giving the leading judgment, went on to hold
(I)t is clear that the mere removal of an applicant from this country cannot of
itself amount to inhuman treatment and, since the first ground of the
application fails, the ground upon which Soering was decided is not
available to (counsel for the applicant). It is submitted, however, that the
deportation itself may amount to inhuman or degrading treatment if the result
is that the applicant suffers from any (emphasis added) mental or
physical disorder. If it were right, it would mean that every time anybody had
a decision by a proper authority made against him about which he felt so
strongly that he was exposed to some form of mental anguish and physical
illness, the decision would have to be withdrawn or overturned. That is, in my
judgment, an untenable position.
In the present case, it was submitted that the Secretary of State had properly
directed himself as to the facts; see Dyer's statement, Doctor Exworthy's
report of February 2000, Doctor Saliba's letter of February 2000 and the
Secretary of State's letter of 23 June 1999.
24. The approach which the Secretary of State invited the court to
approve was that exemplified in a passage of the judgment of Simon Brown LJ in
R v. Secretary of State for the Home Department ex p. Turgut Case
No FC3 1998/7436/C, transcript 28 January 2000. There, at p14 of his judgment,
the Lord Justice said
Where, therefore, the (Strasbourg) Court in Soering, Vilvarajah and
D speak of the domestic court in judicial review having the power to
quash a decision "where it was established that there was a serious risk of
inhuman or degrading treatment", that can only mean "where it was established
that on any reasonable view of the facts there was a serious risk of inhuman or
degrading treatment" i.e. where it was established that no rational Secretary
of State could have reached a different conclusion upon the material in the
case.
This analysis of the Strasbourg jurisprudence, moreover, seems to me to gain
support from the applicant's own argument in Smith and Grady. The ECHR
note in paragraph 132 of their judgment:
... the applicants pointed to the comments of the High Court and of the Court
of Appeal as the best evidence that those courts lacked jurisdiction to deal
with the substance of the applicant's Convention complaints. In this context,
the Soering and Vivalrajah cases cited above could be
distinguished because the test applied in judicial review proceedings
concerning proposed extraditions and expulsions happened to coincide with the
Convention test.
I therefore conclude that the domestic court's obligation in an Article 3 case
is to subject the Secretary of State's decision to rigorous examination, and
this it does by considering the underlying factual material for itself to see
whether or not it compels a different conclusion to that arrived at by the
Secretary of State. Only if it does will the challenge succeed.
25. One of the applicant's complaints, in submission, had been that
the Secretary of State had not considered whether his decision would be
'degrading' for the purposes of Article 3. The decision of the Strasbourg
Court in Raninen v. Finland [1998] 26 EHRR 563 showed that there
must be an element of intention if a violation of the Article was to be
established. In paragraph 55 of the judgment, the Court held that
(I)n considering whether a punishment or treatment was "degrading" within the
meaning of Article 3, the Court will have regard to whether its object is to
humiliate and debase the person concerned and whether, as far as the
consequences are concerned, it adversely affected his ... personality in a
manner incompatible with Article 3.
Finally, it was submitted that if the challenge to Article 3 failed, then so
too must the challenges to Article 2. For the reasons set out in paragraph 8
of Mr Dyer's statement, it was submitted that no breach of the provisions of
Article 8 could be established.
The Reply
26. By way of reply, reference was made to the, now, repealed provisions
of section 30(2) of the Act of 1971. These read:
Under section 90 of the Mental Health Act 1959 ... the Secretary of State shall
only authorise the removal of a patient if it appears to him to be in the best
interests of the patient; and accordingly in section 90 after the words "and
for his care or treatment there" shall be inserted the words "and it is in the
interests of the patient to remove him".
The significance was obvious. The words were added because, it was said that,
without them, the Secretary of State was able to remove any person as he
thought fit. The restriction on the power of the Secretary of State to remove
such a person is now only to be found in section 86 of the Act of 1983. Hence,
the explanation for the repeal of section 30 of the Act of 1971, was that a
fetter (the consent of the MHRT) was introduced by the Act of 1982 which was
consolidated into the Act of the following year. It was inconsistent with the
thinking reflected by the Act of 1982 that the Secretary of State should have
an unrestricted power under the Act of 1971 as it now stood. It followed that
Simon Brown J had been wrong when he had said, in Alghali, that
(I)f Parliament had intended that the Schedule 3 powers [of removal] should be
ousted in regard to all patients falling within the ambit of section 90 [of the
Act of 1959], one would have expected to find that expressly provided for in
the 1971 Act, not least when one recognises that it in fact dealt with the
relevant Mental Health Act power. So far from the 1971 Act making any such
provision, however, it provides on the contrary, by section 30(2), as follows
... (see above) and the relevant amendment to section 90 is then provided
for.
The limitation upon the Secretary of State's powers is thus expressly related,
and in my judgment confined, to his powers "under section 90 of the Mental
Health Act 1959". The sub-section so easily could, but so manifestly does not,
provide for the limitation upon which the Secretary of State's power to give
removal directions not merely under section 90, but generally under the
Immigration Act.
It was said that section 91 of the Act of 1983 meant that there was a
comprehensive scheme as to the manner in which the Secretary of State can deal
with a person who is subject to the Act of 1983. In such circumstances there
was no legal basis for the Secretary of State to purport to exercise any powers
which he might have under the Act of 1971.
27. It was then submitted that judicial review was incapable of
providing an effective remedy whereby the factual basis of the decision of the
Secretary of State could be reviewed. By contrast the provisions in section
86(2) were specifically provided for that very purpose. The MHRT was an
independent impartial tribunal which was capable of reviewing the underlying
facts. That was the tribunal which should review the decision of the Secretary
of State.
Conclusions
28. It is convenient to identify the separate areas upon which the
court's decision is required. These are:
1. The inter-relationship of the Acts of 1971 and 1983; if the applicant
succeeds on this argument, it is unnecessary to consider the further points.
If he fails, then
2. The extent to which the Secretary of State fettered his discretion not to
grant exceptional leave to remain;
3. Whether or not there will be a violation of Article 3 of the ECHR if the
applicant is returned to Malta on the basis that he will be subjected to
inhuman or degrading treatment if so returned;
4. Whether the decision of the Secretary of State is susceptible to challenge
as being outside the range of reasonable response and is, therefore
Wednesbury unreasonable;
5. Whether the power of the court in judicial review is capable of meeting the
standards of independent review for the purposes of the applicant's Convention
rights. (Article 5.4 or 13).
29. As to 1: This submission must fail. Section 30(2) of the Act of
1953 constituted a restriction on the power of the Secretary of State freely to
remove a person from the United Kingdom if they were a patient under the Mental
Health Act, as it then stood. By the removal of the restriction, the
power itself is undiminished and, therefore, remains. The argument
that, given the historical and legal reasons for the amendment to the Act of
1959, the Act of 1983 impliedly amended the Act of 1971 is one which, in my
judgment, cannot be sustained. As has been noted, the later Act refers in a
number of sections and the 6th Schedule to various provisions of the
Immigration Act. It is inconceivable that when it came to passing the Act of
1983 Parliament was unaware of its statutory predecessors and the reasons why
there had been an amendment to the earlier Act. Like Simon Brown J who
remarked that he would have expected to find the intention to remove the power
expressly provided for in the 1971 Act, I would expect that repeal of the now,
unrestricted power to remove a patient under the Immigration Act to have been
expressly provided for. I respectfully agree with, and would adopt, the
reasoning in the case of Alghali as being equally applicable to the
circumstances of the current statutory regime. It is consistent with this
construction of the two Acts that the powers conferred on the Secretary of
State by section 86(2) are discretionary and not mandatory. It is not clear
that the Court of Appeal in Talmansi considered that case as one in
which the applicant was at the time of its decision still suffering or may have
been suffering from mental illness. It may be sufficient for present purposes
that Sir John Donaldson MR recognised the point that although section 86(2) was
already in force that did not impinge directly on the power of the Secretary of
State to make a straightforward deportation order.
30. As to 2: This point is, in my judgment, untenable since it must
fail on the facts as they were set out in the letter from the Secretary of
State. The phrase " The Secretary of State sees no good reason to depart from
his practice" is not only consistent with the recognition that a policy exists
but also the ability to depart from it if circumstances so warrant.
31. As to 3: It is necessary to subject the decision to rigorous
scrutiny, see Turgut (above), Launder (above) and D v.
United Kingdom (above). In D, the Strasbourg Court said
49. (The Court) is not therefore prevented from scrutinising an applicant's
claim under Article 3 where the source of the risk of proscribed treatment
stems from factors which cannot engage directly or indirectly the
responsibility of the public authorities of that country, or which, taken
alone, do not themselves infringe the standards of the Article. To limit the
application of Article 3 in this manner would be to undermine the absolute
character of its protection. In any such contexts, however, the Court must
subject all the circumstances surrounding the case to a rigorous scrutiny,
especially the applicant's personal situation in the expelling state.
50. Against this background the Court will determine whether there is a real
risk that the applicant's removal would be contrary to the standards of Article
3 in view of the present medical condition in the light of the material before
it at the time of the consideration of the case, including the most recent
information on his state of health.
51. The Court notes that the applicant is in the advanced states of a terminal
and incurable illness. ... The limited quality of life he now enjoys results
from the availability of sophisticated treatment and medication in the United
Kingdom and the care and kindness administered ... .
The judgment then dwelt on the consequences to the applicant if the facilities
which he had been enjoying were to be withdrawn and the situation which would
confront him on return to St Kitts. It continued
53. In view of these exceptional circumstances and bearing in mind the critical
stage now reached in the applicant's fatal illness, the implementation of the
decision to remove him .. would amount to inhuman treatment in violation of
Article 3.
The Court also notes in this respect that the (UK) has assumed responsibility
for treating the applicant's condition since August 1994. He has become
reliant on the medical and palliative care which he is at present receiving and
is no doubt psychologically prepared for death in an environment which is both
familiar and compassionate. Although it cannot be said that the conditions
which would confront him in the receiving country are themselves in breach of
the standards of Article 3, his removal would expose him to a real risk of
dying under most distressing circumstances and would thus amount to inhuman
treatment. ...
54. Against this background the Court emphasises that aliens who have served
their prison sentences and are subject to expulsion cannot in principle claim
any entitlement to remain in the territory of a Contracting State in order to
continue to benefit from the medical social or other forms of assistance
provided by the expelling State during their stay in prison.
32. With these considerations in mind, it is necessary to examine
further the reasons advanced by the Secretary of State for his decision in the
letter of 8 September 1999. It recognised that the liability of the applicant
to cause harm to himself was likely to occur if he was involuntarily
repatriated to Malta but that steps could be taken both in advance of and after
that step was taken to lessen the risk. The Secretary of State has ascertained
that the Maltese authorities are in a position to accept clinical
responsibility and that facilities exist for providing support in social,
occupational therapy and psychological areas. Just as there are resource
implications in Malta, so too are they not unknown in the United Kingdom. The
Secretary of State had also considered the consequences which might occur if
the risk of deterioration materialises, and the ability of the medical
authorities in Malta to meet the applicant's needs. Since the date of this
letter, it will be recalled that there was a further report obtained from
Doctor Exworthy which was addressed in the statement of Mr Dyer, paragraph 14.
In the course of this paragraph, Mr Dyer recognises that removal would lead to
a deterioration in the applicant's mental health but expresses the judgment
that
(A)ny such deterioration would (not) be so severe in nature that the
applicant's removal could properly be regarded as constituting ... inhuman or
degrading treatment ... in circumstances where adequate treatment for (his)
condition will be made available and where steps to manage the risk of any
attempt at self harm will be taken. The medical evidence does not establish
that, due to the medical facilities in Malta, the applicant's return to Malta
would reduce his life expectancy and subject him to acute mental suffering.
It is this judgment which is in issue at this point in the case. It was
submitted that the Secretary of State had in this respect failed to take
account of his own medical evidence.
33. It is reasonable to infer that the Secretary of State has had regard
to the observations of the Strasbourg Court in D (above). If the true
ratio of that decision is to be found in paragraph 53 of the judgment, then it
can be said with a degree of confidence that the present applicant would be met
with conditions in Malta which did not themselves involve any violation of the
standards of Article 3. The sole question is whether or not exposing the
applicant to the risk that his condition would deteriorate to the point where
he would probably attempt some form of self harm would, in the circumstances in
which he could be detained in his own interests of health and safety by means
of a renewable Treatment Order [see 3rd bullet point on second page
of Doctor Saliba's letter dated 24 April 1999], amount to inhuman treatment.
Such is the approach contained in the decision letter under challenge in the
present case. Given this feature, while it is certainly the case that the
applicant will be subjected to stress as the result of an adverse decision in
this case, that is not sufficient, in my judgment, arguably to show
irrationality (as being beyond the range of reasonable response) on the part of
the Secretary of State. This is so because, in my judgment, it was open to the
Secretary of State to conclude that to constitute inhuman treatment when the
consequences of return would represent the precise position in which the
applicant would have found himself if he had remained in his home country and
had not sought, unsuccessfully, to claim asylum in the United Kingdom.
34. Similarly, the Secretary of State did also consider the question of
the application of his own policy in respect of exceptional leave to remain.
He recognised, correctly, in my judgment, that the applicant did not meet the
relevant criterion set out in the document made available by the Asylum
Directorate, as recorded above. It is explicit that the policy of the
Secretary of State on this issue was intended to take account of the
obligations of the United Kingdom under Article 3. Having regard to all the
medical evidence, his assessment of the question whether or not the applicant's
case fulfilled that criterion is not one which can be successfully impugned as
inadequate as to the facts which he has considered or unreasonable in its
conclusions.
35. The applicant submitted that the need for the Secretary of State to
maintain a fair and consistent policy in the operation of immigration had no
place in the consideration of the issues which arise under Article 3.
Similarly, it was argued that, cost to the national purse through the demands
on the National Health Service was irrelevant and inadmissible to Article 3
considerations. I have no doubt but that both submissions are correct. The
obligations imposed on states under the provisions of the Article are absolute
and do not admit of any qualification such as is to be found, by way of
example, in Articles 8.2, 9.2, 10.2 and 11.2. Such considerations are not
irrelevant to the decision which the Secretary of State has to make when he
decides whether to proceed to by the Immigration or Mental Health Act routes in
a situation such as the present. No doubt he does consider them at that stage.
It is not apparent from the facts in this case that he took either matter into
account in arriving at his decision on the first issue. It is not vulnerable
to challenge on the basis that he took any irrelevant matters into account.
36. The short answer to the question posed at paragraph 28. Serial 3 is
that the decision is not in my judgment unreasonable in the sense of that word
as used in the field of judicial review.
37. As to 4: As the exercise, which has been performed in the
immediately preceding paragraphs of this judgment, is intended to demonstrate,
judicial review has proved that it is capable of achieving that which the
Strasbourg Court considered was necessary and accomplished in the case of
D (above). The point which the applicant was seeking to make was that,
without prejudice to the submissions on the first point above, the Secretary of
State, in violation of Article 13, was effectively denying the applicant an
effective remedy by invoking his powers under the Immigration Act and refusing
to proceed by way of section 86(2) and the MHRT. It is relevant to note
certain passages from the judgment in D. Thus:
70. In its VILVARAJAH AND OTHERS JUDGMENT and in its SOERING judgment the Court
considered judicial review proceedings to be an effective remedy in relation to
complaints raised under Article 3 in the contexts of deportation and
extradition. It was satisfied that the English Courts could effectively
control the legality of the executive discretion on substantive procedural
grounds and quash decisions as appropriate. It was also accepted that a court
in the exercise of its powers of judicial review would have power to quash a
decision to expel or deport an individual to a country where it was established
that there was a serious risk of inhuman or degrading treatment, on the ground
that in all the circumstances of the case the decision was one that no
reasonable Secretary of State could take.
* * * *
71. The applicant maintained that the effectiveness of the remedy invoked first
before the High Court and subsequently before the Court of Appeal was
undermined on account of their failure to conduct an independent scrutiny of
the facts in order to determine whether they disclosed real risk that he would
be exposed to inhuman and degrading treatment. He relied on the reasoning in
the CHAHAL v. UNITED KINGDOM judgment. However the Court notes that in that
case domestic courts were precluded from reviewing the factual basis underlying
the national security considerations invoked by the Home Secretary to justify
the expulsion of Mr Chahal. No such considerations arise in the case at
issue.
The applicant thus had available to him an effective remedy in relation to his
complaints under Articles 2, 3 and 8 of the Convention. Accordingly there has
been no breach of Article 13.
The point of distinction between the present case and Chahal, which was
relied upon by the applicant, is that an effective remedy was held to have been
denied in that case because "neither the advisory panel nor the courts could
review the Home Secretary's decision with reference solely to the question of
risk [to the applicant], namely a review of the decision of the Secretary of
State's decision "to depart with reference solely to the question of risk (to
Chahal's safety), leaving aside national security considerations"; see Holding
7(f) at p420 of the report in Chahal. The advisory panel was restricted
to offering advice and had no power to make any decision.
38. For the reasons given above the challenge based on the failure of
the Secretary of State to proceed by way of section 86(2) fails substantively
as well as procedurally.
39. As to 5: The answer is plainly 'Yes' and for the reasons already
adumbrated.
40. No separate issues arise under either Article 2 (right of life) or
Article 8 (respect for private and family life).
This application must therefore fail.
© 2000 Crown Copyright
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