MM (Zimbabwe) v Secretary of State for the Home Department

This is a sad and worrying case. The appellant, now 28, was born in Zimbabwe on 26 January 1983. He arrived in the United Kingdom in November 2000, at the age of 17. His mother had left to settle in the United Kingdom and he and his siblings had lived with their father. But his father died and his siblings left Zimbabwe to join their mother. The appellant remained in Zimbabwe where he lived with an uncle, who also died. When he came to the United Kingdom he settled with his mother, his stepfather and siblings. The only family members remaining in Zimbabwe are his grandmother, who in May 2008 was 92 and suffering from dementia, and a great-aunt with whom his grandmother lived, who also had health problems. They live in a remote area and have not featured in bringing up this appellant.

On 27 November 2001 he was granted indefinite leave to remain in the United Kingdom. On 15 July 2002 he was sentenced to 27 months in a young offenders’ institution in respect of 15 burglaries. Between May and September 2004 he was sentenced to 21 days’ imprisonment for separate offences of shoplifting. On 6 December 2004 he was sentenced to four years’ imprisonment for attempted robbery, six months’ imprisonment for theft and three months for possessing an imitation firearm. On 5 June 2007 the Secretary of State decided to make a deportation order against him on the grounds that his continued presence in the United Kingdom was considered not to be conducive to the public good, pursuant to s.3(5)(a) of the Immigration Act 1971.

The appellant had a history of serious mental illness. The appellant’s condition is described in three psychiatric reports from Dr Judge dated 13 July 2007, 28 September 2007 and 21 April 2008, and a report of a senior forensic social worker dated 24 April 2008. These reports were before the Asylum and Immigration Tribunal, as it then was, and the Upper Tribunal. Dr Judge records that the appellant’s first admission to psychiatric hospital was in February 2004, following a period of at least one year during which his family had been concerned about his mental health. He was exhibiting signs of self-neglect, withdrawal and bizarre behaviour. After discharge from hospital, where he had spent ten days, he was readmitted three days later after threatening his mother with a knife. His mental state improved spontaneously. After about six months in prison, following his sentence for robbery, he was diagnosed as suffering from a psychotic illness, most likely schizophrenia, and transferred to hospital on 27 April 2006, pursuant to ss.47 and 49 of the Mental Health Act 1983. He was treated by medication, transferred to a low-security ward and by March 2007 his illness appeared to be entirely in remission.

When interviewed, it appeared that he was willing to take his medication and believed that it had helped improve his mental state. He was optimistic about his future and had been accepted for a college course in Information Technology. The treatment plan was to discharge him to a supported housing scheme in Merton, near to his family. He was to remain under the care of a community mental health team and would receive regular follow-up and medication. He would be monitored for signs of mental illness or any return to the illicit drugs he had used when he began attending college in the United Kingdom. In her report dated 28 September 2007 the doctor took the view that continued contact with the appellant’s mother and stepfather (he is a psychiatric nurse) would be likely to “be protective”. Family members would be able to notice early warning signs. Ongoing contact with his family would be beneficial. The doctor foresaw that if there was a break in the continuity of his treatment there was a substantial risk of relapse (80% risk within one year, 98% within two years). With each successive episode of illness “the baseline level of functioning” deteriorates. Without treatment there was a high risk of relapse with a detrimental effect on long-term prognosis.

The doctor took the view that both the offending and the substance misuse occurred in what she described as the “prodromal” phase of the appellant’s illness. This is a period prior to the development of overt symptoms when subtle changes in thinking and behaviour occur. In the doctor’s opinion, effective treatment and ongoing management of the appellant’s illness “significantly reduces the risk of further offending”. She took the view that there was no evidence to suggest that the appellant presented any risk to the public at the time she wrote her report, dated 28 September 2007.

She wrote an addendum on 21 April 2008. She recorded that the appellant’s mother had contacted the ward when he was staying at the end of December 2007 because she was concerned that the appellant’s mental health was deteriorating. In January 2008 he tested positive for cannabis. He absconded from the ward without leave, out of contact with his family and using cannabis, until he was found by the police. But despite this behaviour the doctor maintained her view that the prognosis, should the appellant remain in the United Kingdom where he can receive ongoing treatment, was good. She described his illness as well-controlled by medication and said that he was able to work, study and to return to live in the community and re-engage with society. She reported that should he be deported to Zimbabwe, the prognosis would be “extremely poor”. He would receive neither appropriate medication nor support. The senior forensic social worker reported, on 24 April 2008, to similar effect.

On 6 May 2008 the appellant appealed against the Secretary of State’s decision. Dr Judge gave evidence at that hearing. She confirmed that the appellant’s family were close and that his mother attended the hospital and meetings to discuss his welfare. She described the members of the family as best placed to observe early warning signs of a relapse and to provide support and encouragement. She said that the appellant was one of a small group of people (about a third of patients) who have a good prognosis and respond well to treatment. She was shown a list of drugs available in Zimbabwe. Chlorpromazine was a possible drug available he could use but that could have “very serious side effects” without other drugs to balance those effects. She described what the tribunal found to be horrific and extremely distressing side effects, such as tremors, locking of the neck muscles with the head forced back and a rolling of the eyes, which became fixed, looking upwards and backwards. Those symptoms could last for several hours and were very distressing for the patient. The AIT accepted the doctor’s evidence.

The issue before the AIT was whether the appellant had established a private life which might engage Article 8 of the European Convention on Human Rights and if so, whether it was disproportionate to interfere with that private life to deport the appellant on the grounds that his continued presence would not be conducive to the public good. The Tribunal found that he did have a private life in the United Kingdom but only to a limited extent:-

“While he has a caring and loving family, it cannot properly be said that the concern and affection that ordinarily go with blood ties are, by themselves or together, enough to constitute family life...

This appellant’s private life does not arise because of work, friendships or loose social ties, but because of his family ties, his illness, his dependency on his clinicians and his medication and the obligation under s.117 Mental Health Act 1983 to provide him with community care after discharge…we are, therefore, satisfied that the appellant has an established private life in the United Kingdom where anyone on whom he has depended in terms of his health now lives.”

The Tribunal then found that were he to be returned to Zimbabwe his schizophrenia would return and his condition would deteriorate. The Tribunal described a health system in Zimbabwe “in collapse” where treatment would barely be available, if at all. It accepted the improvement to his condition, despite the lapse described by Dr Judge and concluded:-

“The evidence points to clear progress for the appellant since his release, progress that demonstrates that the appellant is not a risk to the public. Given this fact, and the humanitarian considerations of the very severe impact of his removal, we are satisfied that deportation would be disproportionate to any legitimate aim under Article 8(2).”

The Tribunal did not find it necessary to consider whether there existed exceptional circumstances under paragraph 364 of HC 395 (Statement of Changes in Immigration Rules).

She then considered Article 8. She accepted that the high threshold which must be overcome to establish a breach of Article 3 also applied in an Article 8 case in circumstances where it was sought to compare the availability of treatment in Zimbabwe with that which was available in the United Kingdom.

The Senior Immigration Judge concluded that the private life of the appellant was to a very great extent limited to the relationship between the appellant and his clinicians and support workers. She acknowledged some relationship between the appellant and his family. She then referred to the lapse of time during which no evidence had been obtained as to the appellant’s up-to-date condition or treatment. Nor was there evidence as to up-to-date conditions in Zimbabwe. She underlined the importance of deportation on the grounds of previous offending designed to reflect deterrence and public disapproval. She noted that Dr Judge regarded the link between the schizophrenia, the cannabis and the offending as ‘pivotal’ but said:-

“Weight must be given to the opinion that the appellant was sane when the crimes were committed and the evidence does not show that the appellant committed the crime solely because of his illness.

Since the crimes were committed he has had some problems during home leave, returning to the use of cannabis and going absent without leave. It may be that his conduct has been exemplary since the last reports were prepared, so much is not clear, and his progress since the hearing before the panel is unknown.” [88 and 89]

The judge recorded that the appellant had been in the United Kingdom for some nine years at the time of her decision and six and a half at the time of the respondent’s decision. But most of his life had been in Zimbabwe. She recognised that the appellant’s family was in this country and that only his grandmother and great-aunt remained in Zimbabwe. He would have to re-establish himself socially and economically, and she recognised the difficulties in Zimbabwe should not be underestimated. She recalled Dr Judge’s evidence as to the availability of medication and the distressing side effects, but concluded:-

“However I find that evidence in relation to the availability of suitable drugs and as to whether the appellant still needs them, to be lacking. Such evidence as has been presented does not, I find, suffice to show that it outweighs the public interest in deportation. It follows that the respondent’s decision does not disclose any disproportionate breach of the right to respect for private life under Article 8 ECHR.” [92]

The judge then appears to have expressed a desire that the Secretary of State should consider a grant of discretionary leave, referring to Sir Nicholas Bratza’s reference to powerful and compelling humanitarian considerations in his separate opinion in Bensaid v United Kingdom [2001] 33 EHRR 10. Senior Immigration Judge Jarvis again referred to ‘the very real difficulties’ faced by the appellant in dealing with his mental illness and by his family in trying to support him as best they can, combined with the failed infrastructure in Zimbabwe.

The first issue with which this appeal is concerned relates to the application of Article 3 and Article 8 of the Convention to cases where it is sought to compare the availability of medical treatment in the United Kingdom with the country to which it is proposed to deport an applicant. The decisions of the House of Lords and of the European Court of Human Rights establish that even where a claimant is suffering from mortal illness such as advanced HIV/Aids and, if deported, would deteriorate rapidly and suffer an early death, no breach of Article 3 is established.

The essential principle is that the ECHR 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 in N v Home Secretary [2005] 2 AC 296, 304 [15] and N v UK [2008] 47 EHRR 885 (paragraph 44)).

Although that principle was expressed in those cases in relation to Article 3, it is a principle which must apply to Article 8. It makes no sense to refuse to recognise a “medical care” obligation in relation to Article 3, but to acknowledge it in relation to Article 8. In N v UK, the ECHR took the view that no separate issue under Article 8 arose [517].

Despite that clear-cut principle, the courts in the United Kingdom have declined to say that Article 8 can never be engaged by the health consequences of removal from the United Kingdom. In R(Razgar) v Home Secretary [2004] 2 AC 368, the question of principle was whether the rights protected by Article 8 could be engaged by the foreseeable consequences for health or welfare of removal of the United Kingdom pursuant to an immigration decision, where such removal does not violate Article 3 [1]. Lord Bingham’s answer was that such rights could be engaged by the foreseeable consequences for health of removal from the United Kingdom, even where such removal does not violate Article 3, “if the facts relied on by the applicant are sufficiently strong” [10]. Lord Steyn agreed with Lord Bingham. Lord Walker agreed with Lord Bingham’s observation and Lord Carswell considered the question to be whether removal would amount to a “flagrant denial of the appellant’s Article 8 rights to the preservation of his mental stability” [74].

Baroness Hale admitted of the possibility that in a case where removal will lead to a violation of a person’s convention rights in the country to which he is to be removed (a “foreign case”) a case could fail under Article 3 but succeed under Article 8. But she acknowledged:-

“Although the possibility cannot be excluded, it is not easy to think of a foreign health care case which would fail under Article 3 but succeed under Article 8. There clearly must be a strong case before the Article is even engaged and then a fair balance must be struck under Article 8(2). In striking that balance, only the most compelling humanitarian considerations are likely to prevail over legitimate aims of immigration control or public safety. The expelling state is required to assess the strength of the threat and strike that balance. It is not required to compare the adequacy of the health care available in the two countries. The question is whether removal to the foreign country will have a sufficiently adverse effect upon the applicant. Nor can the expelling state be required to assume a more favourable status in its own territory than the applicant is currently entitled to. The applicant remains to be treated as someone who is liable to expulsion, not as someone who is entitled to remain.” [59]

None of the other members of the Committee expressly refer to this passage.

Since Razgar this court has reiterated the principle expressed in Bensaid (q.v. supra) 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].

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.

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.

But the question remains whether the appellant has established that deportation would infringe his rights enshrined in Article 8.

It must be recalled that the grounds upon which the Secretary of State has sought to deport this appellant is the prevention of disorder or crime and not effective immigration control. It is, accordingly, necessary to consider the extent to which it can be said to be necessary in a case where, as the appellant would have it, if medical treatment for his schizophrenia is available and he has the support of his family, there is little if any risk of his offending again. Viewed in that way, this is not a case which relies upon a comparison of the medical facilities in the United Kingdom and Zimbabwe, but rather a case where deportation is unnecessary in the light of the medical evidence from Dr Judge. The risk of re-offending only arises absent treatment and the appellant is only likely to be deprived of such treatment in Zimbabwe.

Part of the difficulty with this approach is that it forms no part of the grounds of appeal. There were two amended grounds of appeal following permission granted after an oral hearing by Sedley LJ on 3 December 2010. In the first ground the appellant contended that the original decision of the AIT disclosed no error of law and, accordingly, should not have been overturned. There should have been no reconsideration by the Upper Tribunal. For the reasons I have given, the AIT did err in basing its decision upon its comparison between health facilities in Zimbabwe and those available to the appellant in the United Kingdom. That was the foundation of its conclusion that deportation would be disproportionate to any legitimate aim under Article 8(2). The second ground related to Senior Immigration Judge Jarvis’s references to the absence of up-to-date evidence.

As Mr Barnes, on behalf of the Secretary of State, pointed out, the starting point for consideration of the legality of the deportation order is the Secretary of State’s decision that deportation would be conducive to the public good on the grounds of the appellant’s convictions on 10 September 2004. There has never been any challenge on the basis that the Secretary of State was not entitled to take the view that by virtue of those convictions deportation was necessary to safeguard the public from the risk of crime to which the appellant’s continued presence gave rise. The appellant focussed his challenge upon Articles 3 and 8 of ECHR. It is, accordingly, not open to advance a case based on the proposition that the Secretary of State was not entitled to reach that view.

But there does remain the question of proportionality in the light of the unchallenged factual finding that the appellant has established a strong private life in the United Kingdom based on his family ties, his illness, his dependency on his clinicians and his medication, and the obligation under the Mental Health Act 1983 to provide him with community care after discharge (as recorded at paragraph 11(vi) and [71] of Senior Immigration Judge Jarvis’s determination). Normally, as this court explained in JO and JT v SSHD [2010] EWCA Civ 10 [29] the need to protect society against serious crime is even more important and can be given greater weight than the need to maintain effective immigration control. But as the Court of Appeal recognised, the weight to be placed on the criminal offending will depend on the seriousness of the offences and all the other circumstances of the case.

In this case, there was substantial evidence that provided the appellant took his medication and received the care available, both from the state and from his family, prognosis is good. It was that prognosis which led to the conclusion of the AIT that the appellant was not a risk to the public [65], a view based upon Dr Judge’s prognosis that provided the appellant continues to receive treatment for his illness and receives follow-up from community mental health services, the prognosis is “excellent”.

It is, of course, correct that deportation is designed in part to deter others and express public disapproval. But an assessment of the risk of re-offending is a vital ingredient in reaching the conclusion that deportation is necessary for the purposes of protecting the public. Senior Immigration Judge Jarvis said that the risk of re-offending:-

“appears to have been shown as minimised while the appellant takes his medication and receives support from the team. But that was according to a report in 2008 and it is not wholly clear what minimised means.”

I have to confess that it is not clear to me why the judge was troubled. Reading the reports as a whole it is plain that Dr Judge took the view that the prognosis was excellent and that provided the prognosis was correct there was no realistic risk of further offending.

It was open to Senior Immigration Judge Jarvis on reconsideration to reach the conclusion that it was not established that the sole reason the appellant committed the crimes was because of his schizophrenia. But the evidence was all one way, and unchallenged by the Secretary of State, that his illness was pivotal or a central cause of his offending. Because of the way the case was argued, Senior Immigration Judge Jarvis did not go on to consider the impact of that evidence on the proportionality of his deportation for the purposes of the balancing exercise under Article 8(2). Whilst there was no guarantee that the appellant would not have offended but for his schizophrenia and thus no guarantee that he would never offend again, when considering the risk to the public of his continued presence in this country it was of great importance to assess the extent to which continued medication and support would remove the risk of further offending. If the correct conclusion was that although the risk could never be said to have been entirely removed, it would, for practical purposes, be minimal, that was a powerful factor in considering the proportionality of the deportation order.

Senior Immigration Judge Jarvis focussed upon the issue of comparative availability of treatment and not on this question. It is true that she said there had been no more recent evidence in relation to medication and support (see paragraphs 87 and 89). She also noted that the evidence as to whether the appellant still needed drugs was lacking (paragraph 92). But all those considerations were directed to the question whether deportation would breach the appellant’s rights enshrined in Article 8 because medication was not available in Zimbabwe.

It is in that context that the final paragraph of Senior Immigration Judge Jarvis’s determination is of significance. She recommends consideration of a grant of discretionary leave and cites Sir Nicholas Bratza’s reference to “powerful and compelling humanitarian considerations”.

In my view, the Upper Tribunal was diverted, by reason of the arguments advanced, from an important aspect of the case, namely, whether it was disproportionate to deport the appellant on the grounds of his previous convictions in the light of the evidence of the prognosis and the relationship between his mental illness and his offending. The judge never seems to have reached any clear conclusion based on an assessment of the risk of re-offending despite continued medication and support from his family here. If the correct view is that there is no realistic risk of further offending and the prognosis is excellent then it is difficult to see how it could be proportionate to deport this appellant. He has been in this country for 12 years and he has nothing to go back to save his grandmother and great-aunt, if they are still alive.

It seems to me that there are two choices open to this court. It could dismiss this appeal but reiterate the strong recommendation made by Senior Immigration Judge Jarvis, or quash the determination on the basis that she misdirected herself in her approach to the impact of the prognosis on the proportionality of deportation. I favour quashing the decision and remitting the appeal back to the Upper Tribunal (IAC) for a further hearing. It is dispiriting to have to do so after so long a time but at least it gives both sides the opportunity to consider the up-to-date position. There is, as Senior Immigration Judge Jarvis noted, no up-to-date evidence after April 2008. There is no point in going over ground as to whose fault that is. A further hearing would at least give the opportunity for up-to-date evidence to be prepared and for the Secretary of State to consider whether it is, in the light of that up-to-date evidence, and the insufferable delay in this case, necessary to deport this man. I would allow the appeal on that limited basis and remit the appeal for a further hearing confined to the question of proportionality.

I agree.

I also agree.