BH (Eritrea) v Secretary of State for the Home Department

These are applications by the Appellant for permission to appeal the decision of the Upper Tribunal (Immigration and Asylum Chamber) dated 29 April 2015 (the President of that Chamber, McCloskey J, and Upper Tribunal Judge O'Connor) and secondly, to stay the Secretary of State's removal direction to Malta in respect of the Appellant due to be put into effect tomorrow at 10.50 am.

The Upper Tribunal decided to refuse the Appellant's application for judicial review of a number of decisions made by the Secretary of State, most notably the Secretary of State's final decision dated 29 October 2014 rejecting further representations from the Appellant and deciding to affirm her certification dated 1 April 2014 that the Appellant's claim for asylum was clearly unfounded on Dublin III third country grounds and her 8 May 2014 decision that the decision to remove the Appellant to Malta should stand.

The Appellant suffers from mental health problems and is a suicide risk. His immigration history is set out in some detail in paragraph 2 of the Upper Tribunal's decision and need not be repeated here. Suffice it to say that the Appellant ended up in Malta when a boat bound from Libya to Italy ran out of fuel in June 2012. In Malta the Appellant was detained in a detention centre and for one month, quite a considerable period, in a mental hospital until he was released on 19 December 2013. That allowed him to leave Malta and eventually he smuggled himself into the United Kingdom on 4 March 2014 in the back of a lorry.

When the Secretary of State requested Malta to take responsibility for the determination of his asylum claim and after the deadline for that procedure, Malta did indeed formally accept such responsibility. Indeed, the Maltese authorities have already decided the Appellant's asylum case against him and so far, at least, he has not appealed.

The Appellant submits that his case cannot and should not have been described as clearly unfounded. He submits that his case cannot be characterised as one in which no rational judge could conclude that his removal as a Claimant with mental health problems to Malta was without a real risk of harm and/or a denial of his fundamental rights.

The Upper Tribunal, led as I have said by the President of the Immigration and Asylum Chamber, heard the matter over, as I understand it, some two days in April 2015 and delivered itself of a 66-paragraph decision. Mr Zane Malik, counsel for the Secretary of State before me, tells me that the case was regarded at that hearing as the lead case on Dublin III issues in relation to the country of Malta.

The Upper Tribunal determined that the Appellant was indeed a suicide risk, founding itself on a detailed report from Professor Katona which I too have had an opportunity to consider. The Upper Tribunal said that, if the Appellant were to be returned to Malta, he would most likely be imprisoned as someone who had committed the offence of leaving Malta illegally and that as a result he would either be sent to the Corradino Correctional Facility ("CCF") or to the Mount Carmel Psychiatric Hospital ("Mount Carmel").

Having looked at all the evidence that was put before the Upper Tribunal as to Malta, it concluded in paragraph 47 that there was no legitimate view of the relevant facts upon which an appeal by the Applicant would succeed so that the Secretary of State's certification that the Article 3 claim was clearly unfounded was unimpeachable.

It also concluded that the Appellant would, if returned to Malta, not be denied his due process rights and therefore be subject to an Article 18 violation and that the Appellant had failed to establish that he would be at real risk of refoulment or forced removal to a country where he is liable to persecution. There is no basis, the Upper Tribunal found, for thinking that the Appellant would be subject to a violation of Article 5.

The matter comes before me as a matter of urgency because at the very last moment before the Appellant is due to be removed tomorrow he applies for a stay of that removal decision to allow his application for permission to appeal to be dealt with.

It seemed to me in looking at the matter on paper that the papers were ready for a decision to be reached on the application for permission to appeal and therefore that it was preferable to consider both the application for permission to appeal and the application for a stay of the removal decision together. There is little point in such circumstances in one judge reading the papers in detail in order to deal with the stay application and another judge speedily thereafter being required to read them again to reach a decision on the application for permission to appeal.

The case has proved, however, not to be without some difficulty. As a result, I acceded to the Appellant's application for an oral hearing. I have been greatly assisted by the submissions from Mr Andrew Gilbert, counsel for the Appellant, and from Mr Zane Malik, counsel for the Secretary of State.

The grounds of appeal relied upon by the Appellant can be summarised as briefly as follows.

First, it is said that the Upper Tribunal was wrong to think that the Appellant was not at a real risk of harm if imprisoned in Malta because of his mental health problems and his very high risk of suicide and poor medical facilities at the CCF and Mount Carmel. Mr Gilbert placed special emphasis on the contention that the Upper Tribunal had failed properly to deal with the Council of Europe's reports on prevention of torture (CPT) dated 2008 and 2013 in respect of the Maltese situation. I shall return to that important ground of appeal in a moment. In relation also to that ground of appeal, the Appellant submits that the Upper Tribunal gave inadequate reasons for rejecting the CPT reports as to the treatment of suicidally inclined mental health patients, imposed an unreasonably high evidential threshold and gave inadequate reasons for rejecting Professor Katona's evidence as to the Appellant's inability to communicate with the Maltese health authorities in relation to the issues he faces.

The second main ground of appeal is that the Upper Tribunal failed to give adequate reasons for rejecting the prospect that the Appellant would, in fact, if returned to Malta become destitute or faced with a breach of Article 3 in an open reception centre as opposed to an incarcerated environment. The submission is that the Upper Tribunal failed to give any real credence to that possibility, having decided that it was most likely that the Appellant would be imprisoned for the offence of leaving Malta illegally, and failed properly to consider what would happen if he were not imprisoned, as had happened, according to the evidence, in some cases of persons given suspended sentences.

The third main ground of appeal relates to the Upper Tribunal's treatment of Article 18. It is submitted that the rate of recognition of asylum claims in Malta is very low, at first instance only 2.38 per cent and on appeal only 0.65 per cent, rates which approach those commented upon by the Strasbourg court in MSS v Greece as being unsatisfactory, and that the Tribunal failed to deal with those submissions made by Mr Gilbert at all, let alone in any satisfactory way. There were, so it is said, damning pieces of evidence that indicated that the process of dealing with asylum seekers in Malta was unsatisfactory and therefore likely to violate the Appellant's Article 18 rights if he were to be returned there.

I have found these applications to be difficult. I say that because the basis of an appeal against the Upper Tribunal's decision is on a question of law. When pressed, Mr Gilbert was constrained to submit that the decisions were challenged on the basis of the Upper Tribunal's treatment of the facts which was effectively perverse. That, of course, is a very high standard to meet.

As it seems to me on the first head, that is the main question as to the Tribunal's treatment of the CPT reports, the challenge is in effect an attempt to rerun the UT’s comprehensive evaluation of all the evidence concerned with Malta's human rights record and the treatment of prisoners with mental health problems and with suicidal ideation. That is not a promising start for an application for permission to appeal, particularly where that appeal is from a specialist Tribunal headed by the chairman of the Immigration and Asylum Chamber.

I have considered the Upper Tribunal's decision with some care. It seems to me that they did reflect the contents of the evidence that was placed before them, including the important CPT reports from the Council of Europe and made appropriate findings upon them.

Mr Gilbert has pointed out to me that in one respect, in paragraph 40 of the decision, the Upper Tribunal seems to have suggested that the CPT made no specific recommendations in relation to the material conditions in the Mount Carmel Irregular Immigrants Ward. That appears at first sight to be correct, but there is no basis, as I see the matter, for suggesting that the Tribunal did not look carefully at the CPT reports and the other evidence and evaluate them appropriately.

It is unlikely, in my judgment, in the extreme that the Court of Appeal if rerunning that exercise would reach a different conclusion. It is not suggested that there is material new evidence that changes the position, even if cases are proceeding to the Strasbourg court in relation to claims that concern Malta.

In those circumstances, therefore, the application for permission to appeal under the first head boils down to an attempt to re-argue the facts rather than raising any true point of law. In those circumstances, I would be inclined to reject the application for permission to appeal under that head.

I do not think that there is any basis for an appeal against the Upper Tribunal's treatment of Professor Katona's evidence, which it broadly anyway accepted. The point on whether or not the Appellant will be able to communicate with the Maltese health authorities as a result of the traumatic stress that he may face on being returned to Malta is, as far as I can see, far more nuanced that Mr Gilbert submitted. The reality is that he may face difficulties, but those are not difficulties that are likely to breach his Article 3 or indeed Article 18 rights. I do not think that by itself it is a point of law that can vitiate the Upper Tribunal's decision.

As regards the second ground of appeal, namely that the Upper Tribunal ought to have considered the position that would pertain if the Applicant were not imprisoned but were instead allowed to live in a reception centre and might thereby become destitute, this is obviously a possibility, but it does not seem to me to be a possibility that was entirely ignored by the Upper Tribunal. They considered all the evidence as it affected the treatment of migrants in Malta and the risks of an infringement of the Appellant's Article 3 rights.

There is no real basis for saying that as a matter of law the Upper Tribunal went wrong in failing to reach the view that if released in Malta the Appellant would suffer an infringement of his Article 3 rights.

As for the third head, which gave me as much trouble as any of the other two heads of appeal, this related, as I say, to Article 18. Mr Gilbert quite rightly draws attention to the fact that the recognition rate for asylum claims in Malta is very low and that the Tribunal did not deal expressly with his submission to that effect.

I do not think that the Tribunal failed properly on any analysis to deal with Article 18 and the challenges that were made in respect of it as they were placed before it. It is clear from paragraph 49 of the Tribunal's decision that it was well aware of the contention that there were various shortcomings in the Maltese process and procedures for the consideration and determination of asylum claims. So whilst they did not make specific reference to the low recognition rate, the Tribunal quite plainly in rejecting the suggestion that the Appellant was subject to a risk of Article 18 violation was aware of those contentions.

In those circumstances, it seems to me that the Appellant has failed to make out a good basis for the grant of permission to appeal in this case.

I have also considered whether permission should be granted on the basis that other cases relating to Malta are proceeding through the system. I have been told about one particular case called I think YH (Libya), case number C4/2015/3182, where the High Court Judge decided against the Secretary of State in relation to a claim for unlawful detention, but in favour of the Secretary of State as to her certification in respect of Malta. That case is the subject of a pending application for permission to appeal to the Court of Appeal, but permission has not been granted. It does not seem to me, therefore, to offer any reason why this case should be granted permission on the back of it.

I also take the view that if in a lead case the Upper Tribunal considers all the facts with the benefit of expert assistance of counsel and reaches a considered determination, it is not for this court, unless a serious point of law is raised, to second guess that expert determination. The reason for having an Upper Tribunal composed of experts is precisely to avoid such second guessing and re-arguing of factual circumstances, however distressing and important they may be.

I should not conclude this judgment without expressing a certain amount of sympathy for the plight in which the Appellant finds himself. It is obviously an unfortunate situation for any person with mental health problems and suicidal ideations to be faced with forced deportation to another country, even one within the EU and particularly to a country in which he feels he has been previously badly treated, but that is not the matter which I have to decide. I have only to decide whether there is a real point of law raised by his proposed appeal. I should say that I do not believe I would be doing him any favours by granting a stay and putting off the day on which further consideration of this matter was made. I am quite clear, having looked at the papers that have been placed before me, a comprehensive set of papers, that any appeal in this case would be doomed to fail. All, therefore, that I would be doing by staying the removal decision would be putting off the evil day when eventually the Appellant will have to be returned to Malta.

In those circumstances, I will dismiss the application for a stay of the Secretary of State's removal decision and I will refuse permission to appeal to the Court of Appeal. I would, had all other matters been equal and had I been inclined to grant permission, have extended time for the filing of the appellant's notice.