TH (Pakistan) v Secretary of State for the Home Department

This is a renewed oral application for a stay of removal directions in relation to the appellant and an injunction on an interim basis against the Secretary of State to prevent a removal of the appellant from the United Kingdom to Pakistan this evening.

The appellant was born on 6th June 1965 and is a Pakistani national. During his growing up in Pakistan he was diagnosed with Achondroplasia known as short limb dwarfism. He spent some 41 years in Pakistan until he came to the United Kingdom on a visitor’s visa in March 2006. The visa expired on 15th September 2006 and the appellant remained as an unlawful over-stayer.

On 4th August 2009 the appellant was encountered and arrested by immigration officers at a shop in Ayrshire. He was arrested for working illegally and being in possession of counterfeit national insurance cards and a Pakistani passport containing forged stamps. In 2009 he pleaded guilty to offences in relation to these acts of illegal working and deception.

On 1st September 2009 the applicant claimed asylum. That claim included reliance on what he maintained were his rights under Article 8 of the ECHR against removal from the United Kingdom. The asylum claim was dismissed and his appeal was also dismissed by the Asylum and Immigration Tribunal in a decision of September 2009. This included a rejection of the appellant's case in reliance on Article 8. An application for reconsideration by the Tribunal was refused, as was an application to the High Court for reconsideration.

It seems that the appellant was detained for a period. It is not altogether clear from the papers before me the basis of the detention, but it is said that in about 2010 or 2011 he underwent a transfer of detention location which was conducted in a manner which significantly exacerbated his medical condition. I was told by Mr Jones, who appears for him on the present application, that he brought a claim for unlawful detention which was settled with a payment being made to him by way of compensation.

Since then the appellant has received medical treatment in this country and has been living in a care home here. He made further representations in June 2012, inviting reconsideration by the Secretary of State of his case including by reference to his medical condition, relying on Article 3 of the ECHR and also in reliance on Article 8 of the ECHR relying both on his medical condition and his private and family life in the United Kingdom.

A further set of submissions were put to the Secretary of State on his behalf on 30th September 2014. Again, I think it is fair to say that these were based on new evidence in relation to his medical condition which was relied upon primarily in support of a case based on Article 3 as providing grounds to prevent removal; but he also relied in the alternative on an alleged breach of Article 8. It was submitted that these new materials gave rise to a realistic prospect of success, should his case be considered again as a fresh claim, including by the First-Tier Tribunal.

By a Decision Letter dated 28th January 2015 the Secretary of State rejected the claim for reconsideration of the case as a fresh claim. The Secretary of State analysed in her Decision Letter the submissions that had not previously been considered but which in her view did not create a realistic prospect of success. She considered that the new medical evidence did not give rise to a prospect of success under Article 3 and then, at pages B305 and following of the bundle, she considered and dismissed the alternative case based on Article 8 of the ECHR. She considered that Article 8 case both by reference to the relevant Immigration Rules and also as an application for leave to remain outside the Rules. On the present application to this court, which turns on the appellant’s argument by reference to private life, the relevant paragraph in the Rules is para. 276ADE of the Immigration Rules, which so far as material provides as follows:

The Secretary of State's reasoning in relation to this rule was as follows:

The first point that Mr Jones makes for the appellant on this renewed oral application is that the Secretary of State has not given proper consideration to the application of para. 276ADE(vi). The Secretary of State, following the approach in WM(DRC) [2006] EWCA Civ 1495, ought rationally to have found that by reason of the deterioration in the appellant's health there was a real prospect of him being able to show that he was entitled to leave to remain under rule 276ADE(vi). Mr Jones says that the Secretary of State has misdirected herself by referring in this context to insurmountable obstacles preventing a return to Pakistan.

In my view, this ground of appeal / ground of application does not create a reasonable arguable case of error of law on the part of the Secretary of State such as could support an application for the stay and injunction. The Secretary of State had lawfully and rationally reached a conclusion that the appellant's health conditions, though severe, were not such as to prevent his removal to Pakistan under Article 3, a point which Mr Jones accepts the Secretary of State was rationally entitled to arrive at. In that context, in my view, it could not be said that on health grounds the appellant had wider rights under Article 8 preventing his removal to Pakistan: Article 3 imposes more stringent obligations on the Secretary of State than Article 8.

Since there was no Article 3 impediment to his removal to Pakistan the Secretary of State was rationally entitled to conclude that there was no insurmountable obstacle to his removal there. That being so, the Secretary of State was, in my view, fully entitled to have regard to the long period of his life that the appellant has spent in Pakistan. I consider her reasoning in the Decision Letter cannot be said to have been arguably unlawful so far as consideration of the claim based on private life under the Rules is concerned. The Secretary of State was entitled to conclude that there were not any very significant obstacles to the integration of the appellant if returned to Pakistan.

Mr Jones then submits that the Secretary of State's consideration of the appellant's case under Article 8 outside the Rules was flawed or arguably so, and that this provides a sufficient basis for a grant of injunctive relief and a stay on this application.

The Secretary of State's reasoning as to whether there were exceptional circumstances of the requisite character to require the grant of leave to remain outside the Rules extended over several pages of the Decision Letter. Again, the Secretary of State referred to reasoning that the appellant did not meet the threshold for protection under Article 3. Mr Jones accepts that was a rational and defensible conclusion on the part of the Secretary of State. Against that background the Secretary of State went on to say:

The Secretary of State considered on the basis of this reasoning that the submissions did not amount to a fresh claim in light of WM(DRC).

In my view, this part of the Secretary of State's Decision Letter also cannot arguably be said to have been unlawful. The pattern of reasoning is essentially the same. Since the appellant could not show that his medical condition was such as to preclude his removal to Pakistan on the basis of Article 3, I consider that it was rationally open to the Secretary of State to conclude that it was also lawful for him to been removed there under Article 8 notwithstanding that medical condition.

Mr Jones submitted that it made a significant difference that the appellant's medical condition may have been worsened by the way in which he was moved between detention facilities at an earlier period of time by the Secretary of State. In my view, that background feature of this case does not arguably affect the lawfulness of the decisions that the Secretary of State took in relation to whether this set of submissions by the appellant constituted a fresh claim, such as to require the Secretary of State to take a new decision and open up afresh the Article 8 issues which have been decided against the appellant previously.

The appellant's application for judicial review of the Secretary of State's Decision Letter has been dismissed on the papers by Upper Tribunal Judge Ward, for reasons with which I agree. Upper Tribunal Judge Ward focused on the Article 3 and N v United Kingdom jurisprudence, for reasons which, in light of the way in which the claim was presented, I think are understandable. There was no separate detailed consideration of a case under Article 8; but for the reasons that I have given, I do not consider that the appellant has an arguable claim of unlawfulness in respect of the Secretary of State's Decision Letter based upon Article 8.

The appellant's application for a stay and injunctive relief pending an oral consideration of an application for permission to apply for judicial review was considered earlier today by Ryder LJ, who dismissed the application. Ryder LJ came to the conclusion that "there is nothing in Article 8 argument." Against the background of the lawful consideration of the appellant's case, based on Article 3 and up-to-date medical evidence and the rejection of such a case by the Secretary of State, I likewise have concluded that there is nothing in the Article 8 argument.

In addition to the grounds put forward in the appellant's main notice of appeal, Mr Jones relies on a further argument based, as I understood him, on Article 8, or it may be Article 3. This relates to the arrangements which have been made by the Secretary of State for the transportation of the appellant from the care home where he is currently located to the airport for his onward travel to Pakistan. Mr Jones submits that it is arguable that the Secretary of State will fail to make proper arrangements as appropriate in light of the appellant's medical condition in relation to the transport arrangements on the care home to the airport.

The backdrop to this contention is a set of representations made by those acting for the appellant, sent to the Government Legal Department on 19th June 2015 (see pages 40 and 41 of the bundle) which attached a letter from the appellant's GP giving details of the assistance that the appellant would need in relation to his transportation. The response of the Government Legal Department was to thank the appellant's representatives for that information and to pass it on to the Secretary of State.

In my view, there is nothing in this background to support an arguable case that the Secretary of State will approach the transportation of the appellant in anything other than an appropriate and lawful way. There is no material to show that the Secretary of State is threatening to violate the appellant’s rights with respect to the manner in which he is transported to the airport.

Mr Jones refers to the history of earlier transportation of the appellant when he was in detention in about 2010 or 2011, which it is said exacerbated his medical condition. But it appears that was transportation organised at a time when the Secretary of State was not on notice of his condition and the difficulties that might be encountered by transporting him in a particular way. That is not the case now. I do not consider that it can be inferred from that background event some years ago that the Secretary of State will now disregard the notice of the appellant's medical condition that has been passed on to her.

Mr Jones referred to a letter sent yesterday by the Secretary of State to the appellant's solicitor which stated as follows (see bundle page 25E):

Mr Jones submits that the inference to be drawn from the letter is that the Secretary of State will not make appropriate arrangements in relation to the transportation of the appellant from his care home to the airport. I do not agree. The letter plainly reveals that the Secretary of State is aware of the appellant's medical situation - which is not surprising in view of the transmission to her of the details provided in that regard by the appellant's representatives. I do not consider that an inference can be drawn from this letter that although Secretary of State is plainly making an effort to ensure a proper treatment of the appellant on the flight, she does not propose to do so in relation to his transportation from the care home to the airport. In my view, there is nothing in this letter which supports the supplemental submission by Mr Jones that injunctive relief should be granted by reason of a concern in relation to the arrangements made regarding transportation of the appellant from the care home to airport.

Mr Jones also submits that the Secretary of State has misunderstood the position in relation to what assistance might be available from the Weldo Organisation at the airport in Pakistan. In that regard he showed me a clip of documents (bundle pages 25A to 25D) in which a charity called Choices says, having apparently previously worked with Weldo:

Having examined those materials, they do not say that the Weldo organisation no longer exists, nor that it no longer provides for assistance in any cases at the airport in Pakistan. That documentation relates to the partner, not of the Secretary of State, but of the charity Choices.

In my view, there is nothing in that material which supports the appellant’s case that the Secretary of State has failed to make proper and appropriate arrangements for the transportation of the appellant to the airport and then on to Pakistan. Accordingly, in relation to this supplemental ground of application for interlocutory relief, I again consider that no good arguable case of any violation of the appellant’s rights has been put forward by the appellant on the basis of the materials put before the court and there is no proper basis on which this court should grant the interlocutory relief or grant of a stay such as is sought on this application.

For these reasons this application is dismissed.