Bouchenaki v Secretary of State for the Home Department

J U D G M E N T

1. LORD JUSTICE PILL: This is an application for permission to appeal against a decision of the Immigration Appeal Tribunal, notified on 13th February 2004. The Tribunal dismissed an appeal from the finding of an adjudicator and themselves refused permission to appeal to this court.

2. The applicant, Mr Choukri Bouchenaki, is a citizen of Algeria. He is almost 30 years old now. In his determination of 4th July 2003, the adjudicator dismissed the applicant's appeal against the decision of the Secretary of State that he was not entitled to refugee status and that removing him was not contrary to his rights under the European Convention on Human Rights.

3. The applicant was represented before the Tribunal by Mr O'Callaghan of counsel, who has also submitted an up-to-date skeleton argument to this court and has addressed the court orally. The issues are succinctly stated in the skeleton argument. Having found that the applicant enjoyed family life in the United Kingdom, the Tribunal failed reasonably to consider the issue of proportionality with regard to the Secretary of State's intended interference in the applicant's family life. Second, that the Tribunal came to a decision as to proportionality without properly considering the medical evidence before it. Third, it failed in its role with regard to fact-finding. Fourth, assessed proportionality without adequately assessing the effect removal would have upon the physical and mental health upon those close family members, and the impact that such extreme deterioration would have upon the applicant. Reliance is placed on the decision of Jack J in R (AC) v Immigration Appeal Tribunal[2003] EWHC 389 (Admin). The judge held that it is appropriate to look into the effect of a deportation upon the feelings and health of the applicant's family, and of the effect which that would then have on the applicant.

4. Mr O'Callaghan's point is a short one. He submits that the key is in the medical evidence, the appropriate paragraphs of which he has set out in his skeleton argument. There was before the Tribunal a psychiatric report from Dr Saal Seneviratne, consultant psychiatrist, dated 21st January 2004 and a report from Ms Ellen Golden, psychotherapist, dated 23rd December 2003. Both refer to Mrs Bouchenaki's serious ill health and to the possibility that Mrs Bouchenaki may "very possibly" kill herself if her brother is deported.

5. The risk of suicide emerges from the evidence which was before the Tribunal. The submission is that in their consideration of the evidence the Tribunal did not deal with that risk. At paragraph 6 of their decision, they refer to the psychotherapist's report and to her comment that it would be "highly detrimental" to Mrs Bouchenaki if the applicant were to be deported. Mr O'Callaghan points out correctly that there is no reference in that paragraph, where the facts are being set out, to the risk of suicide.

6. The Tribunal's findings are at paragraph 15:

"We have seen additional evidence emphasising the fact that the appellant's sister and niece will be distressed by his removal. It is quite plain to us that this will distress the appellant. It will be frustrating for him to know that he will be leaving behind close relatives that want him to give his support at a time when they need it. The appellant's sister has problems ahead of her. She says (and we have no reason at all to doubt) that her marriage is at an end but she continues to live in the same house as her husband who is being obstructive and difficult about the possibility of a divorce."

7. Mr O'Callaghan's submission is that there is no reference to self-harm or to the risk of suicide. The only reference is to "distress". He submits that the risks of self-harm and of suicide are not covered by the word "distressed" and that that risk should be addressed expressly in the reasoning of the Tribunal. He submits that they have not engaged with argument made to them, and their failure to engage with it amounts to an error of law. The test to be applied is that in Huang v Secretary of State for the Home Department[2005] EWCA Civ 105 and the statement of Laws LJ at paragraph 56. That decision was not of course available to the Tribunal, but it is the test which should be applied in this court.

8. This is a renewed application, the application having been refused on paper. Carnwath LJ stated that:

"Having correctly found an error of law in the adjudicator's treatment of the 'family' issue, the Tribunal was entitled to deal with the proportionality issue on its merits. The grounds of appeal challenge the weight given to certain factors, particularly the reports on the appellant's sister's state of mind; but they do not raise any arguable issue of law."

9. Mr O'Callaghan submits that this is not merely a question of weight. This is a case where the Tribunal has failed to consider an important aspect of the evidence and submissions made to them on the basis of it. I have no doubt that the submissions were made. Mr O'Callaghan has also referred to his grounds of appeal where the points are set out, including the reverberative impact which actual harm to the sister would have on the applicant.

10. When themselves refusing permission to appeal, the same vice-president, Mr Perkins, being concerned with the refusal of permission as had presided at the substantive hearing, states the "nature of the hearing", then, by way of reasons for refusal, refers to the case of AC and adds:

"Whilst it is right the Tribunal has to consider the appellant's circumstances at the date of decision, the fact is that, at the date of decision, he faced the prospect of an organised and dignified departure. There is no merit in the suggestion that the Tribunal was wrong not to consider the consequences of an unplanned removal. This is not a case where the appellant's departure would lead to his sister's death. The evidence that it could make her contemplate suicide has to be seen in the context of her living in the United Kingdom where mechanisms exist to protect people with suicidal ideas. The grounds of appeal show no arguable error by the Tribunal."

11. Mr O'Callaghan points out that the summary under "nature of hearing" again does not refer to the risk of self-harm or suicide, and the first reference is that in the "reasons" which I have just read. He submits that that goes to highlight the defect in the decision itself.

12. The point is persuasively argued by Mr O'Callaghan, but I am unable to find that it is arguable that, on the basis of it, this court would take action in the applicant's favour.

13. Mr O'Callaghan has quite rightly referred to paragraph 16 of the Tribunal's decision, which follows their general conclusion already cited. That refers to the effect of the applicant's removal on his sister. Reference is made to the support which, from another country, the applicant can continue to give her, and to the fact had there are other relatives in the United Kingdom. It is necessary also to bear in mind what they have said in refusing permission about the medical facilities available in the United Kingdom. The last part of the paragraph reads as follows:

"Mr O'Callaghan submitted that there would be a dangerous time caused by the appellant's removal. That may be right. However, the appellant's removal would not be a sudden and unexpected departure. He can be expected to make arrangements to help his sister cope without him."

14. In my judgment it is clear from that part of the decision, not only that Mr O'Callaghan made the point about self-harm, which I have no doubt he did forcefully and persuasively, but that the Tribunal accepted what is described as a "dangerous time". That demonstrates a correct analysis of the situation. It is right to say they have not stated the risk of self-harm or suicide in terms, but in my judgment it is not arguable that they failed to have it in mind. It may have been better if they had summarised the medical evidence more fully, and included the paragraphs in it on which the applicant relied. But I am unable to hold that this is a case where an error of law arises from any failure of the Tribunal to address a material issue.

15. I should refer to the fact that an up-to-date psychotherapist's report has been placed before the court. Mr O'Callaghan rightly has not addressed me on that. It would not be appropriate for me to comment on it, beyond acknowledging that it has been received by the court.

16. For the reasons I have given, this application must be refused.

ORDER: Application for permission to appeal refused.

(Order not part of approved judgment)

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