KH (Afghanistan) v Secretary of State for the Home Department

In July 2008 Burnett J, in a full and very carefully reasoned judgment [2008] EWHC 1911 Admin), refused an application for judicial review of the Secretary of State’s refusal to treat this applicant’s renewed application for humanitarian protection as a fresh claim. At that date, the test for judicial review of such a refusal was still thought to be a Wednesbury-type test which accorded to the Secretary of State a substantial margin of judicial deference. Since then, the House of Lords in ZT (Kosovo) [2009] UKHL 6 has held that this is not the right approach. In most cases (and the present case does not appear to me to rank as an exception) the right approach is for the court simply to ask whether the Home Secretary was right or wrong in deciding that the new material could not be found by an immigration judge to afford a fresh claim. To the House of Lords’ reasons, I would respectfully add another which I have said in the past seemed to me every bit as important: it is that, in taking a decision of this kind, the Home Secretary acts as judge in her own cause, and that too makes it incumbent on the court to take an independent view.

In the present case, interestingly, it is evident that Ms Busch, for the Home Secretary, seems to have appreciated the good sense of this approach: she argued, as recorded by the judge, that the Home Secretary’s decision was both legally correct and inevitable. The judge, however, asked himself the Wednesbury question and, although he accepted Miss Busch’s stronger contention, took it as sufficient that the Secretary of State was entitled to reach the view she did.

For the reasons I have given, however, I propose to treat that as the wrong test and to ask simply whether it is arguable in this court that the applicant has a realistic prospect of succeeding either with an Article 3 or an Article 8 claim or, failing that, whether there is some other compelling reason why an appeal should be entertained.

Keene LJ in refusing an extension of time and permission to appeal wrote:

“There is no arguable error of law in Burnett J’s judgment. The Secretary of State was entitled to conclude as she did, both in respect of Article 3 and in respect of Article 8.

Had the substantive merits of the case warranted a grant of PTA, I would have been prepared to grant the necessary extension of time, despite the lack of any real justification for the delay, but they do not.”

That decision, I stress, was given in December 2008. I will, in fairness, take the same approach to the enlargement of time as Keene LJ and let it go with the merits, to which I now turn.

The applicant, who is now in his late twenties, arrived here and sought political asylum in 2002. The claim failed. He consequently lost his NASS benefits and began the process of mental and physical decline which ended with his living rough, sleeping in a graveyard and showing several clear signs of mental disturbance. By  2005 he had sought and found professional help through the National Heath Service and been found eligible for support under the National Assistance Act 1948. He had also found capable solicitors, who submitted a new application for non-removal, this time on grounds of his mental condition, which remains fragile and prone to self-harm including, it appears, the possibility of suicide. The diagnosis is recurrent depressive disorder with features of PTSD. Only a substantive support network, it seems, keeps the applicant in relative stability.

The argument presented on his behalf by Mr Jacobs is not that he should be allowed to stay here because the treatment available here is infinitely better (although it is) than he would expect to find in Afghanistan where there is effectively none. It is that this is a case of inability to cope with the destitution which would almost certainly be his lot if he is returned. That, Mr Jacobs submits, is not dealt with by the very high threshold for Article 3 protection set by the House of Lords in the European Court of Human Rights in N [2005] UKHL 31, which is in the class of cases where removal will mean the probable cessation of treatment and imminent or eventual death. It is, he submits, dealt with by the destitution test adopted in Limbuela [2005] UKHL 66 in relation to the withdrawal of asylum support. This test, he submits, corresponds in turn with the European Court of Human Rights account of degrading treatment in Pretty v  United Kingdom 2346/02 [2002] ECHR 427. The passage he particularly relies on is at paragraph 52:

“Where treatment humiliates or debases an individual, showing a lack of respect for, or diminishing, his or her human dignity, or arouses feelings of fear, anguish or inferiority capable of breaking an individual's moral and physical resistance, it may be characterised as degrading and also fall within the prohibition of Article 3.”

There is an issue between the applicant and the Home Office which I am in no position to resolve as to whether he has cousins in Afghanistan to whom he can turn for support. Assuming for the moment that he has none, I do not find it easy to accept that between them Pretty and N set differential standards for the application of Article 3 depending on whether the state’s action involves the removal of access to treatment (that is the N situation) or more broadly degrades the individual (that is the Pretty situation). One would think that these are two aspects of a single and unqualified human right with different manifestations but a single threshold.

More immediately, I can see little prospect of unsettling the judge’s conclusion that this is a medical case: that is to say one to be decided in the light of N. So regarded, Pretty would add the proposition that the state can violate Article 3 by making a bad condition worse. But Bensaid v UK 44599/98 [2001] ECHR 82 equally clearly demonstrates that returning an ill person to a country where his condition is likely to be made worse by the lack of treatment is not by itself a breach of Article 3, and N establishes that there is no breach of Article 3 in a medical case unless the victim is close to death.

As I have said elsewhere, there is at least as much policy as law in some of these decisions, but they are, for better for worse, binding. Accordingly, applying a test which involves no deference to the Home Secretary’s view but asks simply whether she was right, I find great difficulty in concluding that there is any realistic prospect that, in the present state of the law, this court would hold that she was not right. I say this despite the sympathy that one must have for this troubled young man, and despite all the recognition which one would want to accord to the dedicated professionals who have given him treatment, counselling, advice and support. But the fact remains that the ostensible divide, within Article 3, between the jurisprudence of N and the jurisprudence of Pretty is troubling and, even though it is as unlikely as I presently think it is to come to the applicant’s aid, is capable of affecting other cases. Moreover the fact that I am not sanguine about the prospects of success on the matters I have mentioned does not mean that they are unarguable. In all these circumstances, the reason I have given seems to me a sufficiently compelling reason, but the only one to grant permission to appeal and that, with some hesitation, I do.

Earlier today, sitting with Richards LJ, I was party to giving permission to appeal in a pair of cases, JA (Ivory Coast)[2009] EWCA Civ 562and ES (Tanzania) C5/2009/0959, which raise another question in relation to N and the impact of removal upon an Aids sufferer. This case does not raise the same question, but it may be useful to list it sequentially with those two so that the court which is looking at Article 3 can look at it in this dimension as well.

The appropriate time marking, I think, is probably half a day.