MA AGAINST THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
OUTER HOUSE, COURT OF SESSION
[2017] CSOH 13
P741/16
OPINION OF LORD MULHOLLAND
In the cause
MA
Petitioner
against
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Petitioner: Forrest; Drummond Miller LLP
Respondent: Smith; Office of the Advocate General
27 January 2017
Introduction
[1] This is a Judicial Review of the decision dated 11 May 2016 by the Secretary of State for the Home Department to refuse the petitioner’s Article 8 claim.
Immigration History
[2] The petitioner was born on 12 June 1947. He is a citizen of Pakistan. He claims to have arrived in the United Kingdom on 18 June 2006. He claimed asylum on 7 November 2011. This was refused on 16 December 2011. He appealed against this decision, which appeal was dismissed on 20 February 2012 by the First-tier of the Asylum and Immigration Chamber. He sought permission to appeal the decision of the First-tier Tribunal which was refused on 15 March 2012. He sought further permission to appeal the decision which was refused by the Upper Tribunal on 25 July 2012. This exhausted his appeal rights in respect of his asylum claim. He lodged further submissions on 21 May 2013 which were refused by the respondent on 14 April 2015. He again lodged further submissions on 4 February 2016 which were refused by the respondent on 11 May 2016. The decision letter dated 11 May 2016 is 6/1 of the inventory of productions and is the subject of this review.
Further Submissions made on 4 February 2016
[3] The petitioner submitted that returning him to Pakistan would breach Articles 2, 3 and 8 of the European Convention of Human Rights in respect that there was a risk to his life if returned to Pakistan. His health had deteriorated as he suffered from a number of long‑term chronic medical conditions and the availability of treatment for these conditions was uncertain in Pakistan. His wife, who is a Kenyan national may not be granted entry clearance to Pakistan, his children who reside in Pakistan have not provided their blessing for the marriage, and relations are strained such that they will not provide support to him if returned to Pakistan. He and his wife would face destitution if returned to Pakistan.
Grounds of Review
[4] The petitioner avers that the respondent failed to have regard to the uncertainty of the availability of medical treatment for the petitioner in Pakistan in her assessment of his Article 8 claim outside the Immigration Rules. The petitioner does not challenge the respondent’s refusal of the petitioner’s Articles 2 and 3 claims nor was any challenge taken to the adequacy of the respondent’s reasons for her decision. The petitioner does not challenge the rejection of the petitioner’s claim that returning him to Pakistan would result in destitution for him and his wife. The respondent accepts that Article 8 is engaged.
The Petitioner’s Circumstances
[5] The petitioner spent the vast majority of his lifetime living in Pakistan (59 years). As at the date of the decision letter the petitioner had resided in the UK for 9 years and 10 months. His immigration status is precarious as is the immigration status of his wife. He has three sons and a daughter who all reside in Pakistan. He resides with his partner and relies on her for day-to-day living. According to his partner his children in Pakistan are angry with his decision to marry her under Islamic law. They want nothing to do with him. However, this is inconsistent with the letter dated 9 May 2014 written by Dr Neilson which the petitioner submitted to the respondent in support of his claim. The letter makes reference to his relationship with his three sons and daughter, that he misses them but maintains contact by telephone. He and his partner speak the languages spoken in Pakistan and there is no suggestion that he is alien to the cultures and social norms of that country.
The Petitioner’s Health
[6] The petitioner suffers from type 2 diabetes, early onset of Alzheimer’s disease, myelodysplasia (a blood disorder), hypertension and stress (related to his immigration status), and stage 3 kidney disease. In respect of the stage 3 kidney disease, this was not supported by medical evidence and accordingly the respondent left this out of account. This aspect of the respondent’s decision was not challenged by the petitioner.
The Legal Framework
[7] The relevant immigration rule is found in paragraph 353 of the Immigration Rules. This provides:
“353. When a human rights or protection claim has been refused or withdrawn or treated as withdrawn under paragraph 333C of these Rules 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 from the material that has previously been considered. The submissions will only be significantly different if the content:
(i) had not already been considered; and
(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 correct approach to considering paragraph 353 is set out in the case of WM (DRC Congo) v Secretary of State for the Home Department [2006] EWCA Civ 1495. At paragraph 11 of the Judgment the Court of Appeal stated that the question was not whether the Secretary of State for the Home Department 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. The Home Secretary can treat her own view of the merits as a starting point for that inquiry but it is only a starting point in the consideration of the question that is distinctly different from the exercise of the Home Secretary making up her own mind. 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, the Home Secretary has to satisfy the requirement of anxious scrutiny. This case also confirmed that the correct approach for the court on judicial review is that the determination of the Home Secretary is only capable of being impugned on Wednesbury grounds, but that a decision will be irrational if it is not taken on the basis of anxious scrutiny. The Inner House decision in Dangol v Secretary of State for the Home Department [2011] CSIH 20 confirmed that the test to be applied is that set out in WM (DRC Congo) v Secretary of State for the Home Department, supra.
[8] With regard to the issue of medical care and convention rights it is an essential principle that the European Court of Human Rights does not impose any obligation on the contracting states to provide those liable to deportation with medical treatment lacking in their “home countries”. This principle applies even where the consequence will be that the deportee’s life will be significantly shortened (see Lord Nicholls of Birkenhead in N v Secretary of State for the Home Department [2005] 2 AC 296, 304 [15] and N v UK [2008] 47 EHRR 885 (paragraph 44) and MM [Zimbabwe] v Secretary of State for the Home Department [2012] EWCA Civ 279). Despite this clear-cut principle, the courts in the United Kingdom have declined to hold that Article 8 can never be engaged by the health consequences of removal from the United Kingdom. The law on this issue is conveniently set out in the case of MM [Zimbabwe], supra, per Lord Justice Moses at paragraphs 21–23:
“[21] Since Razgar this court has reiterated the principle expressed in Bensaid v UK [2001] 33 EHRR 10 that if removal would have sufficiently adverse effect upon mental health, it is capable of engaging Article 8 (see AJ (Liberia) v Secretary of State for the Home Department [2006] EWCA Civ 1736 [17]). But again, the court pointed out that legitimate immigration control would ordinarily meet the test of necessity under Article 8(2) and decisions taken bona fide in the exercise of such control would be proportionate in all but a small minority of truly exceptional cases, in which the imperative of proportionality demands an outcome in the claimant’s favour’ [18].
[22] Thus the courts have declined to close the door on the possibility of establishing a breach of Article 8 but they have never found such a breach and have not been able to postulate circumstances in which such a breach is likely to be established. Since Bensaid in 2001 there has been no example of a successful Article 8 claim in a mental health case. The courts and tribunals have merely been left with the difficulty of identifying a ‘flagrant denial’ or a ‘truly exceptional’ case, neither of which provide any standard of measurement.
[23] The only cases I can foresee where the absence of adequate medical treatment in the country to which a person is to be deported will be relevant to Article 8, is where it is an additional factor to be weighed in the balance, with other factors which by themselves engage Article 8. Suppose, in this case, the appellant had established firm family ties in this country, then the availability of continuing medical treatment here, coupled with his dependence on the family here for support, together establish ‘private life’ under Article 8. That conclusion would not involve a comparison between medical facilities here and those in Zimbabwe. Such a finding would not offend the principle expressed above that the United Kingdom is under no Convention obligation to provide medical treatment here when it is not available in the country to which the appellant is to be deported.”
On 13 December 2016 the Grand Chamber of the European Court of Human Rights issued judgment in Paposhvili v Belgium (Application number 41738/10) providing guidance on what is meant by an exceptional case. At paragraph 183 the Grand Chamber said:
“…that the ‘other very exceptional cases’ within the meaning of the judgment in N v the United Kingdom (§43) which may raise an issue under Article 3 should be understood to refer to situations involving the removal of a seriously ill person in which substantial grounds have been shown for believing that he or she, although not at imminent risk of dying, would face a real risk, on account of the absence of appropriate treatment in the receiving country or the lack of access to such treatment, of being exposed to a serious, rapid and irreversible decline in his or her state of health resulting in intense suffering or to a significant reduction in life expectancy. The court points out that these situations correspond to a high threshold for the application of Article 3 of the Convention in cases concerning the removal of aliens suffering from serious illness.”
I have included this extract from the judgment for the sake of completeness. It is clear to me, and no submissions were made to me to suggest otherwise, that the petitioner does not come within the exceptional cases as envisaged by the grand chamber.
Submissions for the Petitioner
[9] The petitioner’s case was more narrow than that set out in the petition and the written note of argument. Counsel for the petitioner submitted that the information provided to the respondent as a fresh claim on 4 February 2016 had not previously been considered. The respondent considered this material but in reaching her decision on the Article 8 claim outside the Rules left out of account the information relating to the uncertainty of availability of medical treatment in Pakistan for the petitioner’s medical conditions. Had the respondent considered this material in combination with the other material on the petitioner’s private and family life, she would have been bound to hold that there was a realistic prospect of an Immigration Judge upholding his Article 8 claim. The respondent had therefore erred in rejecting the petitioner’s Article 8 claim.
Submissions for the Respondent
[10] Counsel for the respondent submitted that it was clear from the decision letter, when read whole, that the respondent in reaching her decision on the petitioner’s Article 8 claim had considered the information on the uncertainty of the availability of medical treatment for the petitioner’s medical conditions in Pakistan. The petitioner has taken an overly technical approach to the structure of the decision letter. The respondent had considered this information in respect of both the petitioner’s Articles 3 and 8 claims. This can be seen from a fair reading of the contents and structure of the decision letter, in particular the references to Article 8 case law on the availability of medical treatment at page 12 and the detailed consideration of this issue at pages 10–12 of the letter. It is well recognised that decision letters should avoid repetition so that letters are not unnecessarily long and tedious. It is necessary that informed readers can understand the reasons why decisions were taken. The issue of the uncertainty of availability of medical treatment was set out in detail in respect of consideration of the Articles 3 and 8 claims within the Rules and when moving to consider the Article 8 claim outwith the Rules the respondent did not require to repeat this information. She made it clear in the decision letter that the Article 8 claim outside the Rules included consideration of the uncertainty of the availability of medical treatment set out in detail in the letter in respect of the other heads of claim.
Decision
[11] The decision letter’s structure follows a familiar path with a summary of the new and old submissions under consideration, the petitioner’s immigration history, a structured consideration of the information, new and old, for Article 8 (within and outwith the Rules) and Article 3, a detailed examination of the availability of medical treatment for the petitioner’s medical conditions in Pakistan, consideration of compassionate circumstances and the conclusion. The consideration of the availability of medical treatment can be found at pages 10–12 of the decision letter. It is considered in detail (over 20% of the decision letter is devoted to consideration of this issue). Consideration of the issue commences with a review of a medical report and two letters on the petitioner’s medical conditions. Then the respondent reviews the Home Office Country Information and Guidance for Pakistan, “Medical and Healthcare issues” dated February 2015. It was noted that this confirms the availability of treatment for diabetes in Pakistan (page 10). It also noted the availability of treatment for cardiac conditions, the availability of medicines for the treatment of hypertension and the availability of psychiatric support and medicines for Alzheimers. The petitioner’s case was presented on the basis of uncertainty of the availability of medical treatment. The case law on availability of medical treatment is based on the absence of treatment rather than uncertainty of availability. In the petitioner’s case the guidance looked at by the respondent confirms the availability of treatment in Pakistan for most of his conditions. This places the petitioner in a much weaker position than a case predicated on the unavailability of treatment. The respondent then reviews the law bearing on this issue citing the cases referred to in paragraph 8 above. This section notes that Pakistan has a functioning healthcare system, care not being as readily as available as in the UK does not demonstrate that the petitioner would be unable to access the facilities in Pakistan and he had the support of his family in Pakistan. It is clear to me that on a fair reading of the decision letter the respondent considered this information both in respect of the Article 3 and 8 claims. With regard to the Article 8 claim the review of the relevant law on the availability of medical treatment makes explicit reference to Article 8. As counsel for the respondent put it rhetorically, why would the respondent cite Article 8 case law on the availability of medical treatment if it was not under consideration. Further the respondent’s decision letter makes explicit reference to the petitioner’s claim set out in a letter from the petitioner’s law agents which incorporates an e mail to the respondent setting out the details of the Article 8 claim which is part founded on the availability of medical treatment. The whole tenor of the letter is such that the availability of medical treatment is relevant to both Articles 3 and 8 claims. I agree that repetition should be avoided where the same information is under consideration in respect of separate claims. What is required is cross referencing so that the informed reader knows what information has been considered in respect of each head of claim. This has been done in this case. I therefore conclude that the respondent did consider the availability of medical treatment when addressing the petitioner’s Article 8 claim.
[12] Even if I am wrong, the availability of medical treatment for the petitioner’s medical conditions, if considered by the respondent as part of the Article 8 family and private life claim, would not have resulted in a different decision. To that end the error is not material. The Article 8 claim is a poor one, the petitioner’s family lives in Pakistan and is available for help and support, he has spent the majority of his life there, the cultural and social norms of Pakistan are familiar to him, he speaks the languages of the country as does his wife. His wife has lived in Pakistan and like the petitioner has spent most of her years residing outwith the UK, and the health system of Pakistan treats most if not all of the petitioner’s medical conditions. This is not an exceptional case. Against that set of facts, consideration by the respondent of the uncertainty of availability of treatment for the petitioner’s medical conditions would have made no difference to her decision.
[13] I therefore refuse the petition, repel the petitioner’s plea in law and sustain the respondent’s third and fourth pleas-in-law.