White v Secretary of State for the Home Department

Friday, 28 February 2003

1. LORD JUSTICE SCHIEMANN: Lord Justice Brooke will give the first judgment.

2. LORD JUSTICE BROOKE: This is an appeal by David White against a determination of the Immigration Appeal Tribunal ("IAT") on 6 September 2002 whereby it dismissed his appeal against the determination of an adjudicator dated 20 January 2002. The adjudicator had dismissed his appeal against a decision by the Secretary of State on 12 February 2001 to the effect that his rights under the European Convention of Human Rights ("ECHR") would not be violated if he were to be returned to Jamaica as an overstayer.

3. The appellant was born in Jamaica in October 1974. His mother was aged 15 at the time, and for all practical purposes he was brought up by his grandmother. His mother moved to England in 1987, and her two younger daughters by a different father followed her here in 1997 and 2000. The appellant's father, who played no part in his upbringing and made contact with him briefly when he was 15, died in 1994. His grandmother, who brought him up in Jamaica and was his only real support there, died in March 2000. The problem at the centre of this case concerns the appellant's health, and in particular his mental health.

4. In 1983 when he was about eight years old, the appellant was seriously assaulted in Jamaica. His aunt's boyfriend pushed a piece of glass into the back of his skull, and he was later told that this injury was likely to affect his brain. A consultant psychiatrist said that Mr White told him that he was taken to the doctor in Jamaica on one occasion by his grandmother because she thought he was a bit funny. However it was not clear what came about following that consultation. He was not able to read or write and his school work was poor.

5. In 1987 he began an apprenticeship as a mechanic. He worked in this capacity for the next 12 years until he came to England as a visitor in September 1999. He was met by his mother (who had married a British citizen in 1995) and a cousin who has fulfilled an aunt-like role for him in this country. He overstayed his leave to enter as a visitor. At first he lived with his mother, and he then went from there to live with a woman he had met over here.

6. In March 2000 his grandmother died in Jamaica, leaving him grief-stricken. His mother believes that his mental state started to change following her death. In November 2000 he was arrested. At one time following his arrest he said he had a different name. It was then believed that he had entered this country by deception. He was detained in HM Prison Rochester, and his relationship with his woman friend collapsed at this time. Despite the representations made by his previous solicitors the Secretary of State decided to proceed with his removal, concluding that his removal would not breach ECHR Article 8. Following his appeal the appellant was released on bail and went to live with his mother and her family.

7. In August 2001 the appellant was again seriously assaulted, on this occasion with a hatchet. As a result he has sustained significant facial scarring, and has lost much of the functioning of his right hand and forearm.

8. The appellant called in aid both ECHR Article 8 and ECHR Article 3 in support of his appeal to the adjudicator. The adjudicator dismissed quite summarily any contention that his right to respect for his family life with the woman with whom he had cohabited prior to his arrest would be violated if he was sent back to Jamaica. So far as his family life with his mother was concerned, he said that both he and his mother would have been aware at all times of the fragile basis of his claim to be entitled to remain here. For this reason his improved relationship with his mother was not sufficient to make out a claim under ECHR Article 8. The adjudicator said that the crux of his case was the effect of the medical evidence upon the family as a whole.

9. After considering the medical evidence and the Strasbourg and English case law on this topic (to which I will return) the adjudicator considered that there was nothing to suggest that the appellant's mental condition was more parlous than that of the appellant's in the Strasbourg case of Bensaid v United Kingdom [2001] INLR 325, or the Court of Appeal case of R v Secretary of State for the Home Department ex parte X [2001] INLR 205. He was therefore not satisfied to the requisite standard of proof that the act of returning the appellant to Jamaica, even with a consequent deterioration in his mental condition, would constitute inhuman and degrading treatment in breach of ECHR Article 3.

10. It will be convenient to describe the evidence relating to the appellant's mental health before I come to consider the approach of the IAT on his appeal to that Tribunal. The medical evidence took the form of a report prepared by Dr Piyal Sen, who is a consultant psychiatrist, dated 7 January 2002. This report showed that the appellant's personal hygiene had deteriorated, and he often walked in the streets, talking to himself or looking at his wrists. He tended to sleep either in friends' places or in cars. He spent most of his time outside his mother's house. He felt frustrated by the loss of use of two fingers in his right hand, and extremely dejected at his changed facial appearance, following the severe assault in July 2001. All his family members acknowledged that he was exhibiting a significant change in personality compared with his condition before that assault. He medical records showed that he had been using opioids regularly, and there was also evidence in those records of excessive use of alcohol. While in prison he had made a number of attempts at self-harm, although the prison doctor was unable to detect any specific sign of mental illness.

11. The appellant told Dr Sen that if they tried to send him back to Jamaica he would kill himself. He said that his response to the attack in July 2001 was one of intense fear, horror and helplessness. He slept badly, felt constantly on edge and was easily startled by small noises. His greatest fear of all was of being sent back to Jamaica.

12. Dr Sen diagnosed him as suffering from a major depressive episode. All the symptoms he described were causing a significant impairment of his social functioning. He was also suffering from chronic post-traumatic stress disorder. His symptoms had now persisted for more than three months, and he needed to have psychiatric treatment fairly urgently. His history suggested that he was vulnerable to depression and to self-harming attempts following psycho-social stressors. Dr Sen concluded:

"There is no doubt that a return to Jamaica would be perceived as an extremely negative life event by Mr White, on top of the adverse life experiences that he has had in recent times. Research suggests negative life events as one of the key factors precipitating depressive episodes in psychiatric patients. In such cases, the perception of the event as negative is more important than the event itself, and it is this subjective perception of an event being negative that is likely to bring about a reactivation of a depressive illness. In Mr White's case, even if he recovered from his depression and Post Traumatic Stress Disorder by means of antidepressant treatment and counselling, there is a strong possibility of a depressive relapse were he to be sent back to Jamaica. Bearing in mind his previous history of self-harm, his risk to self would also be substantially increased in such a situation. The Home Office needs to bear these facts in mind when considering his asylum application."

13. The main thrust of the appellant's appeal to the IAT was that the adjudicator ought to have considered the effect on his health, were he to be returned to Jamaica, in the context of his Article 8 complaint. The Tribunal believed that there was no appeal against the adjudicator's findings on Article 3, although Mr Seddon, who appears for the appellant, has shown us that such an appeal was in fact before it.

14. The IAT considered that although the adjudicator had in mind both the Article 3 and Article 8 claims he did not adopt the necessary step-by-step methodology. The Secretary of State had conceded that the appellant had established a family life with his mother in this country, and it was clear that to return him to Jamaica would interfere with this. The Tribunal also had to consider whether to return him would interfere with his sense of moral and physical integrity.

15. After considering the evidence and the submissions it had received, the Tribunal noted that there was no evidence to show that the appellant would receive inadequate medical and psychiatric treatment in Jamaica. Appropriate care, including psychiatric care, would be available to him there, even if there were some difficulties with mental health care in Jamaica. After assessing in the round all the different factors in the case, the Tribunal concluded that it would be a proportionate interference with his Article 8 rights to return him to Jamaica. The appellant had not established that to do so would infringe his physical and moral integrity. There was a risk of self-harm whether he stayed or was returned. The risk was likely to be somewhat greater if he was returned, but it was clear that help was available to him both inside and outside prison. (I should explain that at the time of the Tribunal hearing he was in prison for an unrelated matter. He was then released but is now in prison again awaiting sentence for an offence to which he has pleaded guilty).

16. The IAT granted the appellant leave to appeal to this court on two grounds. It refused leave on a third ground, but Mr Seddon has argued that he is entitled to pursue that ground in this court, even though neither the IAT nor this court has granted him permission to do so. In my judgment this submission is based on a misunderstanding of the correct position. We ruled at the outset of this hearing after hearing Mr Seddon's submissions that we were not willing to hear him on that ground. These are the reasons for that decision.

17. Paragraph 23 of Schedule 4 of the Immigration and Asylum Act 1999 provides, so far as is material:

"(1) If the Immigration Appeal Tribunal has made a formal determination of an appeal ... any party to the appeal may bring a further appeal to the appropriate appeal court on a question of law material to that determination.

(2) An appeal under this section may be brought only with the leave of the Immigration Appeal Tribunal or, if such leave is refused, of the appropriate appeal court."

18. This court is the appropriate appeal court in relation to this appeal (see paragraph 23(3)(c)). The arrangements for seeking leave to appeal to the IAT itself are set out in Rule 27 of the Immigration and Asylum Appeals (Procedure) Rules 2000 ("the 2000 Rules").

19. In the present case the IAT granted leave to appeal on two questions of law. It refused leave to appeal in relation to a third suggested question, and the appellant did not then seek leave to appeal on that question from this court. In my judgment the appellant cannot now pursue his third suggested ground of appeal in these circumstances. Paragraph 23(1) of Schedule 4 of the Act does not, on its proper construction, permit an appellant, once he has been granted leave to appeal by the IAT on one question of law, to pursue one or more additional questions of law in this court without being given permission to do so. I consider Mr Seddon can gain no assistance from his reference to the quite different procedural rules relating to appeals from an adjudicator to the IAT (see para 22 of Schedule 4 to the 1999 Act and Rule 18 of the procedural rules). There there is a simple provision for an appeal, provided the IAT grants leave, and it is hardly surprising to find in Rule 18(9) express provision which enables the Tribunal to identify the grounds upon which the appellant may appeal (and impliedly to disallow other grounds). On the further appeal to this court, by contrast, express permission on an unidentified question or questions of law is required, and if the permission is not granted on any particular question of law, it cannot then be pursued (unless this court itself were to grant permission in relation to that question).

20. I will now return to the two grounds to which leave to appeal was granted. Mr Seddon's first complaint is that the IAT adopted a flawed approach to Dr Sen's unchallenged evidence. Dr Sen's report referred to numerous incidents of self-harm, suicidal attempts and suicidal gestures, as well as to verbal indicators of suicidal intent which are, it is said, plainly linked to the threat of removal to Jamaica. Dr Sen felt that the appellant's self-harming attempts resulted from psycho-social stressors, and there was no doubt that a return to Jamaica would be conceived by the appellant as an extremely negative life event. Dr Sen concluded in the passages from the report from which I have quoted, that bearing in mind his previous history of self-harm, the appellant's risk to self-harm would be substantially increased if he was sent back.

21. In those circumstances, Mr Seddon argues that the Tribunal was wrong to say that the risk of self-harm would merely be "somewhat greater" if he was returned, when the unchallenged evidence was that this risk would be "substantially increased". He also says that the Tribunal was wrong to say that there was a risk of self-harm whether he stayed or returned and that in any event treatment was available to the appellant both inside and outside prison. He maintains that the main thrust of Dr Sen's report was to the effect that the appellant could obtain treatment and avoid relapse and self-harm or suicide if psycho-social stressors (of which return to Jamaica was "the greatest") could be avoided.

22. The other ground of appeal for which leave to appeal was granted was that since Dr Sen's unchallenged evidence posited a very clear risk to the appellant if he was returned to Jamaica, a risk which was qualitatively different from any risk inherent in his condition if he were to remain in this country, the IAT's finding that there would be no violation of he ECHR Articles 3 and 8 Convention rights were not rationally based on the evidence. This was not, like Bensaid , a case based on hypothetical factors relating to the availability of treatment and other such matters. It was based on uncontradicted expert evidence specifying a clear risk of harm to the appellant if he were to be deported.

23. For convenience I will consider both these grounds of appeal together. ECHR Articles 3 and 8 read, so far as material:

"3. No one shall be subjected to ... inhuman or degrading treatment...

8.1 Everyone has the right to respect for his private and family life, his home...

8.2 There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of ... the economic well-being of the country ... or for the protection of the rights and freedoms of others."

24. For the application of Article 3 to a case like the present, I will quote from the judgment of the European Court of Human Rights ("ECtHR") in Kudla v Poland 30201/96 at paras 90-92:

"As the court has held on many occasions, Article 3 of the Convention enshrines one of the most fundamental values of a democratic society. It prohibits in absolute terms torture or inhuman or degrading treatment or punishment irrespective of the circumstances and the victim's behaviour ...

91. However, ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minium level is in the nature of things relative. It depends on all the circumstances of the case such as the nature and context of the treatment, the manner and method of its execution, its duration, its physical or mental effects and in some instances the sex, age and state of health of the victims...

92. The Court has considered treatment to be inhuman because inter alia it was premeditated, was applied for hours at a stretch, and caused either actual bodily injury or intense physical or mental suffering. It is deemed treatment to be degrading because it was such as to arouse in the victims feelings of fear, anguish and inferiority capable of humiliating and debasing them. On the other hand the court has consistently stressed that the suffering and humiliation involved must in any event go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment."

25. In Bensaid v United Kingdom [2001] INLR 325 the ECtHR said (at paragraph 34):

"While it is true that Article 3 has been more commonly applied by the court in the contexts in which the risk to the individual of being subjected to any of the proscribed forms of treatment emanates from intentionally inflicted acts of the public authorities or non-State bodies in the receiving country... the Court has, in light of the fundamental importance of Article 3, reserved to itself sufficient flexibility to address the application of that Article in other contexts which might arise. It is not therefore prevented from scrutinising an applicant's claim under Article 3 where the source of the risk of proscribed treatment in the receiving country stems from factors which cannot engage either directly or indirectly the responsibility of the public authorities of that country, or which, taken alone, do not in themselves infringe the standards of that Article. To limit the application of Article 3 in this manner would be to undermine the absolute character of its protection. In such contexts, however, the Court must subject all the circumstances surrounding the case to rigorous scrutiny, especially the applicant's personal situation in the expelling State (see D v United Kingdom [[1997] 24 EHRR 423 at para 429])."

26. In Bensaid the court considered that the suffering associated with a relapse into hallucinations and psychotic delusions involving self-harm and harm to others, as well as restrictions on social functioning, could in principle fall within the scope of Article 3. There were factors present in the case, however, which led the court to conclude, having regard to the high threshold set by Article 3, particularly where the case did not concern the direct responsibility of the contracting state for the infliction of harm, that there was not a sufficiently real risk that the appellant's removal would be contrary to the standards of Article 3. The case did not disclose the exceptional circumstances of D v United Kingdom where the appellant was in the final stages of a terminal illness and had no prospect of medical care or family support on expulsion to the island of St Kitts.

27. The matters which influenced the court to reject Mr Bensaid's complaint are set out in paragraphs 38-40 of its judgment, which I summarise as follows: (i) Mr Bensaid faced the risk of relapse even if he stayed in this country because his illness was long term and required constant management; (ii) medical treatment was available to him in Algeria; (iii) the risk that he would suffer a deterioration in his condition if returned, and that if he did, he would not receive adequate support or care was to a large extent speculative; (iv) other arguments based on what might happen in Algeria were also speculative.

28. Mr Seddon argues that his client's case can be distinguished from Mr Bensaid's case because there is nothing at all speculative in Dr Sen's report.

29. Miss Anderson, who appears for the Crown, says in her skeleton argument that there was a very similar psychiatric report in Bensaid , but the court did not find this conclusive. In that case the following passages appeared in the evidence:

"Dr Johnson stated that there was a high risk that the applicant would suffer a relapse of psychotic symptoms on returning.

Any suffering which might accompany a relapse would be likely to be substantial.

If he began to relapse I think that there would be a great risk that his deterioration would be very great and he would be at risk of acting in obedience to the hallucinations telling him to harm himself and others."

30. In relation to the alleged risk of self-harm in the present case Miss Anderson says that this might be obviated by minimising the period for the implementation of removal directions and keeping the appellant under supervision if that was considered appropriate. A medical escort would travel with him, and ensure that he was transferred to the care of the Jamaican authorities, who would have been fully briefed as to his mental difficulties. If he was manifested a suicide risk in Jamaica, there was no evidence that the Jamaican authorities would refuse assistance in contravention of his human rights.

31. So far as the IAT's approach to Dr Sen's evidence was concerned, Miss Anderson has reminded us that this court has held that even where it is accepted that the IAT proceeded on the basis of a mistake of fact, it is not appropriate for this court to allow an appeal unless it could be shown that the appeal would otherwise have been successful ( Manseke v Secretary of State for the Home Department [1997] Imm AR 524). In any event Dr Sen's reference to a relapse was based on his concern that if the appellant sought treatment in this country and if that treatment (in the form of an antidepressant treatment and counselling) was successful the appellant might well relapse if he was to be sent back.

32. There was, however, no clear evidence before the IAT that the appellant was in fact receiving psychiatric treatment or that he had agreed to comply with a treatment regime (although Mr Seddon has told us that reference was made at the IAT hearing to the appellant receiving some unspecified psychiatric treatment in prison). Dr Sen found that his chaotic lifestyle in this country and his drug and alcohol abuse problems presented real impediments to engaging in successful treatment. Moreover the evidence that he had reacted badly to normal life events such as the death of his grandmother and losing his girlfriend to another man gave no optimism that his life would be free from such adverse events if he remained in this country.

33. In those circumstances Miss Anderson argues that the IAT was not irrational to consider that there was a risk associated with the appellant remaining in this country on the evidence of his life here to date. So far as the claim under Article 3 was concerned it was formally before this court, although Mr Seddon in the last resort did not press it very hard. In Secretary of State for the Home Department v Z [2002] EWCA Civ 952, Schiemann LJ said (at paragraph 11):

"There have been many cases where a breach of Article 3 has been alleged but has not been found although a breach of another Article has been found. Probably because Article 3 does not have a public interest clause such as one finds in Article 8(2) and because it is non-derogable, there has been a series of cases in which the E.Ct.H.R has emphasised the severity of the treatment which is required before an infringement of Article 3 will be found. That type of consideration is there in all immigration cases but is particularly acute in cases, unlike the present ones, where the claimant is an alleged terrorist or constitutes a clear danger to the expelling State. The E.Ct.H.R. has recognised this factor in Soering paragraph 89: it appears to suggest that, because of this factor, the standard of what constitutes inhuman or degrading treatment for the purposes of Article 3 must be set at a high level."

34. I have considered Mr Seddon's admirably clear arguments with care, but in my judgment Miss Anderson provides a complete answer to them. I consider that the Tribunal was entitled on the evidence that was before it to use the kind of language that it did. In my judgment this case gets nowhere near the threshold of a successful Article 3 complaint. I would therefore dismiss the appeal in so far as it relates to Article 3.

35. So far as the appellant's Article 8 complaint is concerned, there is settled Strasbourg jurisprudence to the effect that treatment which does not reach the severity of Article 3 treatment may nevertheless breach Article 8 in its private life aspects where there are sufficiently adverse effects on physical and moral integrity (see Costello-Roberts v United Kingdom [1995] 19 EHRR 112). In Bensaid the ECtHR said (at paragraph 47):

"Mental health must always be regarded as a crucial part of private life associated with the aspect of moral integrity. Article 8 protects a right to identity and personal development, and the right to establish and develop relationships with other human beings and the outside world... the preservation of mental stability is in that context an indispensable precondition to effective enjoyment of the right to respect for private life."

36. Article 8, unlike Article 3, does not confer an unqualified right. The European Court of Human Rights has always been astute to recognise the right under international law of a State to control immigration into its territory. The present appellant has no right to be in this country. He is only here because he overstayed the limited period of leave permitted to him four years ago to enter this country as a visitor. In Bensaid the European Court of Human Rights conducted the requisite balancing act in paragraph 48 of its judgment, after reminding itself that it had found that the risk of damage to Mr Bensaid's health was based on largely hypothetical factors and that his Article 3 claim had been dismissed. It said:

"Nor in the circumstances has it been established that his moral integrity would be substantially affected to a degree falling within the scope of Article 8 of the Convention. Even assuming that the dislocation caused to the applicant by removal from the United Kingdom where he has lived for the last eleven years was to be considered by itself as affecting his private life, in the context of the relationships and support framework which he enjoyed there, the Court considers that such interference may be regarded as complying with the requirements of the second paragraph of Article 8, namely as a measure 'in accordance with the law', pursuing the aims of the protection of the economic well-being of the country and the prevention of disorder and crime, as well as being 'necessary in a democratic society' for those aims."

37. As I have suggested, this claim is bound up with the medical evidence which supported the Article 3 claim. As I have held, the Tribunal understood the effect of that medical evidence. In my judgment it was quite entitled to conclude that the removal to Jamaica could be a proportionate interference with the appellant's right to a private and family life guaranteed by Article 8. This was very much a matter for the Tribunal to assess on the evidence, and there was strong evidence based on the State's right to maintain firm and fair immigration policies to justify the State, if it considered it appropriate, to proceed with Mr White's removal, and the arguments in favour of respecting what are prima facie his Convention rights were not, on the facts of this case, sufficient to sustain a successful Article 8 claim.

38. For those reasons I would dismiss this appeal.

39. LORD JUSTICE JONATHAN PARKER: I agree.

40. LORD JUSTICE SCHIEMANN: I also agree.

(Appeal dismissed with costs; such costs to be the subject of a detailed assessment).