Chen, R (on the application of) v Secretary of State for the Home Department & Anor

MR JUSTICE CRANSTON:

The claimant in this matter has two judicial reviews before the court. The first involves (1) a challenge to the decision of the Secretary of State to detain him in the fast-track detention centre for asylum claimants, notwithstanding that there was evidence of his medical condition and also evidence supporting his claim to have been tortured; and (2) a challenge because of the medical treatment he received in the centre. That judicial review, which we can term "JR1", is not before me today.

The second judicial review ("JR2") involves a challenge to the decision of the Asylum and Immigration Tribunal ("the Tribunal") to hear his asylum appeal, in broad terms notwithstanding that this court had granted permission in relation to JR1 and because of what the claimant said was his medical condition on the day of the hearing. The claimant has a right under section 103A of the Nationality, Immigration and Asylum Act 2002 to apply to the High Court for a review of a Tribunal decision and has exercised that right. As a result of the order of Flaux J, I am to consider that matter as well.

In relation to JR2, the claimant seeks orders that I set aside the Tribunal's decision refusing to adjourn his asylum claim and refusing to transfer his appeal from the fast-track process, and also to set aside the Tribunal's decision. In addition there is also an application in relation to the section 103A proceedings. JR2 comes to me with a somewhat unfortunate procedural history, not least because I sit this week as the duty judge. However, let me turn to what I consider to be the merits of the case.

The claimant is from China and, as explained shortly, claims that he was mistreated by the Chinese authorities, that he was detained and that he was tortured. Some time in June 2008 he entered this country and it appears started to work without permission. He was arrested in September on suspicion of being an illegal immigrant and at that point claimed asylum. At the screening interview he said that he had liver trouble caused by hepatitis B. He was admitted to hospital but was discharged, and at that point said that he had not had a serious illness. When he arrived a day later at the fast-track detention centre, however, he said that he had chronic disease and he wished to see a doctor to report torture. He saw a doctor the following day and he is said by the doctor to have denied having been tortured. The doctor who examined him noted, however, that he had poor English and there was no interpreter present. He was subsequently interviewed with regard to his asylum claim. That was refused and he then appealed against the refusal.

The claimant, meanwhile, had obtained legal representation. His representatives made submissions in relation to removing this case from the fast-track and pointing to a medical report by Dr Arnold. Subsequently, on 1st October, he appeared before the Tribunal, but he complained of pain to the right side of his chest. As a result, although the Tribunal refused to remove his appeal from the fast track, they did adjourn matters until 15th October. The matter was heard that day by the Tribunal, when the claimant said, again, that he had a pain on the right side of his chest. His representatives applied for the claim to be removed from the fast track. That was again refused. Although he was examined by a doctor, by the time the doctor's report became available it was too late in the day to hear the matter.

There is no need to examine the history of the matter any further, except to say that on 29th October JR1 came before this court and Mr Timothy Corner QC granted permission, although he refused bail with an order that the matter be relisted within seven days to reconsider the issue. On the same day the matter of the asylum claim was heard by the Tribunal. I return to that in a moment.

As mentioned, Dr Arnold prepared a report on the claimant. That report was dated 29th September 2008. Dr Arnold is an expert in wound healing and has prepared a number of reports seen by this court in relation to those claiming asylum. His reports, given his expertise, must be given close attention.

In his report on this claimant Dr Arnold said that he almost certainly had chronic hepatitis B. He went on to say that that particular viral infection affects about one-third of the world's population. It is endemic in China and about ten per cent of the Chinese population has the disease. Dr Arnold then went on to describe the bruise on the right upper back of the claimant and said that that was consistent with a fall against a hard object such as a chair during interrogation, as the claimant had described to him. "Consistent", of course, in terms of the Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, means that the particular wound could have been caused by the trauma described but it is non-specific and there are many other possible causes. Dr Arnold then went on to refer to the claimant's psychological symptoms and said that that they were consistent with torture. He then said:

Subsequently, on 13th October 2008, Dr Arnold wrote to the Senior Medical Officer at the fast-track centre raising certain concerns, which he had addressed in his report. On 5th December Dr Arnold gave a second medico-legal statement, in which he critiqued the findings made by that time by the immigration judge. In particular in her judgment, as I will describe in a moment, the immigration judge had said that "no evidence had been produced in the meantime to suggest that he was genuinely experienced discomfort or that he was in any way unfit to give evidence". Dr Arnold's comment on this was:

In addition to the evidence of Dr Arnold, there is the evidence of the general practitioner who is attached to the fast-track centre, a Dr George Kamil. In his report, which is dated 10th November 2008, Dr Kamil says that he examined the claimant when he prepared his Rule 35 report; that on 16th October 2008 the claimant had undergone a full blood test and also a liver and kidney function test; and that the results of those tests indicated that his kidney functioning was normal, and also that his liver functioning was normal, except that the test indicated the existence of a slightly raised enzyme, which would be expected in those suffering from hepatitis B. The tests also indicated that the claimant was not anaemic and that there was no evidence of an infection, kidney problem or obvious liver failure. Attached to Dr Kamil's report was a copy of the test results, on which the examining doctor has written:

What seems to have happened from the medical records is that there was a hepatitis B surface antigen test, and that that was to be confirmed by reference to a laboratory test on the blood samples which the claimant had given. In his report Dr Kamil also says that persons like the claimant who suffer from hepatitis B are able to live relatively normal lives, but that, in so far as there are problems, treatment is offered by the detention centre. Dr Kamil says:

The final evidence in relation to the claimant's medical condition is lay evidence. First of all, a barrister who represented him at the two adjourned hearings before the Tribunal, who comes from Mr Lee's chambers, Mr Fripp, says in a statement that the claimant's knowledge of English was minimal; that he had observed that the claimant appeared almost continuously to be subject to pain and distress on every occasion that he had met him; that he walked with a shuffle; he bent towards his right-hand side or held his right-hand side at his midriff or abdomen with one or both hands; and that at the hearing on 15th October, part way through the parties' submissions, the claimant had indicated that he was in severe pain and asked whether he could lie on the floor or put his head and upper torso on the table in front of him. The immigration judge hearing the matter that day, Immigration Judge Easterman, appeared to believe that neither party had brought the question of the claimant's hepatitis B condition or post-traumatic stress disorder to the attention of the healthcare section. Mr Fripp also records that the immigration judge indicated that he intended to adjourn the hearing and stated that he was "absolutely amazed" at what he, the immigration judge, saw as the continuing failure of the medical staff to address the claimant's health issues.

Secondly, there is the recent statement of the claimant himself, where he says, in relation to the immigration judge's decision on 29th October, that he felt very unwell:

It appears — and I say this simply for the sake of completeness and am not influenced by it in any way — that the claimant appears to have had a medical appointment arranged on 23rd December. He was seen by a doctor, but he refused to submit to a blood test or further treatment.

On 29th October Immigration Judge Kebede heard the claimant's asylum appeal and claim for protection on humanitarian and human rights grounds. She gave her reasons the following day. In that determination she sets out the evidence relating to the claimant's account of how he had been a teacher in China; had taught at secondary school; had attempted to visit the parents of one of his students who had been detained by the Chinese authorities; and had then been shocked to learn about what happened to those detained by the Chinese authorities. He then spoke to his elder brother, who had moved to Australia. Subsequently, on his account, because the claimant took up the matter of his student's treatment, he was arrested in April 2008. He was taken to a detention centre, where he was questioned. The contact with his brother was unearthed and he was then, on his account, tortured and beaten. He was not allowed to sit down. Because of his previous hepatitis, his family reported his health condition and the authorities discovered that the hepatitis was quite serious. He was allowed out on bail after two weeks' detention. In his account he then resigned from the Communist Party. Some time later he left his wife via Beijing, his brother having paid an agent. He left with a passport containing his photograph and his name, but a different date of birth. He arrived in the United Kingdom. On his account he did not claim asylum until he was arrested, since the person who had brought him to this country had told him that he would help him to apply.

After setting out the factual background the immigration judge referred to the response by the Secretary of State and the procedural history of the matters. She referred to the report of Dr Arnold and the adjournments on 1st October and 15th October. She said that the claimant's representatives had issued proceedings in the Administrative Court and she had awaited the outcome of the permission hearing. She had been told that earlier in the day the learned deputy judge had given permission, but that bail had been refused. The immigration judge then records that Mr Lee, who also appears for the claimant before me today, submitted that it was arguable that the claimant was being unlawfully detained and denied proper medical treatment in the light of the grant of permission by the deputy judge. The immigration judge then reviewed the medical evidence. She referred to the fact that the claimant had an appointment in December at the gastroenterology clinic at Mount Vernon hospital, which in Mr Lee's submission before her was evidence of his medical condition. She also referred to the fact that Dr Arnold had recommended his assessment for post-traumatic stress disorder.

The immigration judge then records that she was informed by the presenting officer for the Secretary of State about the claimant's medical care within the detention centre, including treatment of a boil. At paragraph 25 she refers to the blood tests of the claimant at Leeds Hospital, which apparently showed his blood to be normal. He had undergone further examination at Hillingdon Hospital on 27th October. The doctor had said there was no evidence of a failing liver, but the HG serology results were awaited, and the appellant was not unfit for detention. That of course refers to the report of the doctor I quoted earlier in this judgment. The immigration judge then examined the records of the Kalyx Healthcare Centre demonstrating that the claimant had received regular medical attention. She says:

Thus the immigration judge concluded at paragraph 26 that the only evidence of the claimant suffering from hepatitis B was Dr Arnold's report. At his induction interview he had raised no urgent physical or mental health issues. No further information had been forthcoming and no further medical evidence produced. She then said:

The immigration judge then records that Mr Lee asked whether she would consider an adjournment of 48 hours to apply for a stay of proceedings from the Administrative Court. She refused. She says, at paragraph 30, that the appellant had been aware of the discussions and that his response would be of limited weight. He had said he was very tired and felt uncomfortable in the liver area and was holding the right side of his chest. In her view, however, there was no evidence produced that the matter could not continue. Indeed, earlier, when he had been outside in the waiting room, he had not shown any signs of discomfort. She said that the previous hearing had been adjourned only because the confirmation from the Healthcare Centre of his fitness was received too late in the day for the appeal to commence. She found it significant that at the adjourned hearing the previous immigration judge specifically advised the claimant's representatives they could, if they wished, adduce further evidence. No evidence had been forthcoming. She then went on to hear the matter.

In passing I note that at paragraph 32 the immigration judge thought the claimant was being obstructive in giving evidence. She then describes the proceedings; that he was cross-examined by the presenting officer for the Secretary of State, but Mr Lee did not seek to cross-examine; that she herself had not asked questions; and that Mr Lee himself had said that it was a case which rested on the claimant's credibility, and that his account should be accepted as credible and consistent.

The immigration judge rejected that submission. The claimant was not credible. Various aspects of his account were implausible, including that of his release from detention in China simply on the basis of a doctor's certificate. The immigration judge was not at all persuaded by his account of the police visit to his home and she also was sceptical about what caused the injury to his back. She subsequently noted other inconsistencies, as she saw it, in the claimant's account. At paragraph 51 she concluded:

At paragraph 52 the immigration judge said that she did not accept that he was experiencing any particular discomfort at the hearing, but even if she were wrong in that regard, her decision would not have been otherwise. The appellant's account in her view was wholly lacking in credibility and she did not consider that his alleged physical discomfort at the hearing, or his alleged illness, would have led to any misunderstandings in his evidence which would not otherwise have occurred:

The section 103A procedure was enacted by Parliament, against a contentious political background, to enable the decisions of the Tribunal to be reviewed more expeditiously. Under that provision a party may appeal to this court on the grounds that the Tribunal made an error of law. If this court considers that the Tribunal may have done so, and there is a real possibility that it would make a different decision on reconsideration, it may order the Tribunal to reconsider the matter. There is no avenue of appeal against a refusal to order reconsideration.

In the case of R (G) v Immigration Appeal Tribunal[2004] EWCA Civ 1731, [2005] 1 WLR 1445, the Court of Appeal considered the interrelationship of a statutory appeal of an asylum decision and judicial review. Lord Phillips MR observed that to permit simultaneous applications for statutory review and for permission to seek judicial review would rob section 101 of the finality which it seeks to achieve. He considered that the expeditious procedure laid down by Parliament was not an attempt to oust the power of this court to supervise the decisions of the Tribunal. Rather it governed the procedure by which such supervision took place. Excluding an oral hearing on statutory review did not violate the rule of law, as understood in this country. The Court of Appeal asked itself whether the procedure as a whole carried a satisfactory assurance that the rights of those entitled to asylum would be upheld and decided that it did:

The G case had been decided in the context of the statutory appeal regime which preceded section 103A, but in a subsequent decision, R (F (Mongolia)) v Asylum and Immigration Tribunal[2007] 1 WLR 2523, the Court said that the same principles applied in the latter context.

The crucial decision in relation to this matter is R (AM (Cameroon)) v Asylum and Immigration Tribunal[2008] EWCA Civ 100, [2008] 1 WLR 2062. That was a case which raised the issue of the availability of judicial review in the context of section 103A. Waller LJ, giving the judgment of the court, began by recalling that it would be the rarest of cases where judicial review would operate where section 103A existed. Waller LJ also noted that the courts have been firm in resisting challenges to interlocutory decisions. On the other hand, if the circumstances revealed a denial of justice in reaching a decision, to allow that decision to stand would be difficult for the courts to contemplate. He then went on to examine the troubled procedural history of that particular case. Suffice it to say that, despite an order of one High Court judge that there be an inter partes hearing on a judicial review, another High Court judge had made a decision under section 103A. Therefore the issue for the Court of Appeal was whether it was possible to set aside the judgment made by the second High Court judge under section 103A. The Court of Appeal considered that it had jurisdiction to set aside a final judgment in certain cases. Those cases were where injustice would otherwise arise.

The Court of Appeal then turned to the third stage of its consideration to examine whether in the particular circumstances an injustice had arisen. Without going into the details, there was the immigration judge's decision not to allow a video telephone link for the taking of evidence from key witnesses. There was his behaviour in court, refusing to listen and banging a fist, whether in frustration or irritation. There was what might be described as his cursory approach to medical evidence. It was on these bases that the Court of Appeal concluded that that was one of those rare cases where traditional judicial review was appropriate because of injustice.

In submissions before me it is said by Mr Lee that the decision in AM (Cameroon) should be interpreted widely: whenever there is a denial of justice judicial review is possible, notwithstanding the section 103A procedure. By contrast, Mr Payne, on behalf of the Secretary of State, submits that AM (Cameroon) was an exceptional case, and only applies where the challenge is to a judgment entered against the claimant. It was, in the exceptional circumstances of that case that the court was allowing judicial review. In my view it is not appropriate for me at what is a permission hearing to decide how that Court of appeal ruling should be interpreted. For the purpose of this hearing I assume that Mr Lee's wider view should be adopted.

In his considered and cogent submissions on behalf of the claimant, Mr Lee says that this is one of the exceptional cases envisaged by AM (Cameroon). He says that firstly it is arguable that the refusal of the Tribunal to adjourn the case and the determination which flows from that is unlawful, and that secondly the standard section 103A reconsideration procedure would be inadequate. He points to the order of Flaux J, which led to this hearing today, and submits that his Lordship concluded in effect that the Tribunal had erred in law in refusing to adjourn. Mr Lee submits that the decision by the immigration judge not to adjourn the claimant's appeal was contrary to what she knew was a decision of a deputy High Court judge to grant permission in relation to JR1, in other words, contrary to the decision of a judge who had thought that there was an arguable case that the claimant was not appropriate for detention and that there also had been failures in his medical care.

What Mr Lee in essence submits is that the immigration judge wrongly considered issues which related to JR1, concerning the claimant's medical condition, and the history of torture, which were by that time within the jurisdiction of this court. In effect what she was deciding was in contradiction to an order of this court. He also says that in relation to the claimant's own condition it was unfair that the matter should have proceeded that day. Evidence of his pain and medical condition was clear and was highlighted by the immigration judge who heard the matter on 15th October. It was also inappropriate for Immigration Judge Kebede, on 29th October, to take into account information provided informally, that the claimant had apparently shown no signs of discomfort in the waiting room. The immigration judge's view of the claimant's medical condition had an effect not only on the question of whether the hearing should proceed but coloured her view of his credibility. In effect it negated the Administrative Court's order and the supervisory role of this court over the Tribunal. Perhaps more importantly, submits Mr Lee, to conduct a hearing in circumstances where the medical evidence supported the claimant's claims about his medical condition was in clear breach of natural justice. Thus the case clearly fell within the ruling of the Court of Appeal in AM, and it was "more properly conducted by the High Court in its supervisory jurisdiction". The case raised important issues of the interrelationship between judicial review and section 103A, and therefore it was appropriate that I should grant permission.

In my view, there is no denial of justice in this case so as to justify allowing judicial review, even on the wider interpretation of AM (Cameroon) which Mr Lee has advanced. In terms of the context, this was a case where there was a complaint about procedure. It was in essence a claim that there had been a breach of natural justice. That is a matter which, if it were established, would be an error of law and is therefore a matter which falls directly within the terms of section 103A. The circumstances of the failure to grant an adjournment on the day, to which I will turn in a moment, do not in any way approach the concerns which were raised in the AM decision. There, as I said earlier, there were matters involving a denial of important evidence to support the claimant's case, the behaviour of the judge in court, which might well have been interpreted as demonstrating bias, and also his attitude to the medical evidence. The present case was not one which involved an assessment of any evidence which was not before the immigration judge. It did not involve any specific issues of bias or improper conduct on behalf of the immigration judge and, notwithstanding the conclusion which the immigration judge reached in relation to the medical evidence, it did not constitute the sort of cursory treatment which was identified by the Court of Appeal in AM (Cameroon).

In this case, even if we accept that the claimant was in pain on the day, this did not prevent him giving evidence, although it might have impaired to one extent the quality of his evidence. But it is not usual that those giving evidence before a court or tribunal to be affected by illness, stress or other such factors. The claimant here was able to get his case across, it previously having been given by way of statement to his solicitors, and then orally before the Tribunal. There is no accusation that the immigration judge in this case was in any way biased or behaving improperly. She certainly thought the medical evidence did not support the claimant's asserted condition, but as I have outlined the treatment of the medical evidence cannotbe characterised in the same way the Court of Appeal regarded the immigration judge's handling of the medical evidence in AM (Cameroon). Consequently, I conclude that this is not one of the exceptional cases where it is possible to seek judicial review, given that there is a procedure under section 103A for reviewing errors of law, if there be errors of law, in this case.

Given the order of Flaux J, it is appropriate for me to consider this issue at the same time as considering the issue of permission on JR2. However, as a result of Mr Lee's persuasive submissions I will suspend the effect of this part of the judgment for 14 days.

The crucial issue here is whether there is an arguable error of law. It is implicit in what I have already said that I do not consider that there is an arguable error of law. Therefore I do not order this matter to be reconsidered under the statutory provision. The fact is that even if a claimant were suffering from illness, it does not necessarily inhibit his ability to put his case on his asylum, humanitarian and human rights claim. There is no evidence in this case that the conduct of the immigration proceedings were in any way unfair. It seems to me that there is quite clearly no arguable error of law.

In the course of his submissions, Mr Lee said that in the light of the decision of the deputy High Court judge to give permission on JR1, the immigration judge was precluded from making decisions on certain matters. But in as much as she made any determination on the claimant's medical condition, that was essential, given that she had to decide whether it was appropriate to continue to hear the matter on 29th October. I can see no basis for concluding that somehow there is an error of law because the grant of permission on JR1 meant that the hearing of the matter on that day should be aborted. The issue before the immigration judge was whether his asylum, humanitarian and human rights claims could be fairly determined. That was a matter she was entitled to decide on the evidence before her. The claimant was able to give evidence. Although as I said earlier he might, if he were fully fit medically, have been able to give more effective evidence, that does not in any way vitiate the proceedings. The immigration judge gave cogent and rational reasons for deciding that the matter could be heard. In no way can I find that there was any arguable error of law in her decision or in the conduct of the proceedings.

I have decided that this is not one of those rare cases where it is possible to permit judicial review despite the alternative statutory review procedure laid down by Parliament in section 103A. Therefore, I refuse permission on JR2. JR1 of course will need to be decided in due course and that will involve an assessment of whether the Secretary of State properly conducted herself in terms of the claimant's detention in the fast track, and also in terms of whether the independent medical provider offered the appropriate level of medical care for which the Secretary of State is arguably responsible. On those matters I make no findings.

MR PAYNE: My Lord, there is one minor matter. I do not think you have power in law to stay a section 103A reconsideration application. Perhaps the pragmatic way forward would be if you were to perhaps delay issuing the judgment for 14 days.

MR LEE: Yes.

MR JUSTICE CRANSTON: I am going to do whatever is needed.

MR LEE: I think that sounds the least dangerous route.

MR JUSTICE CRANSTON: So what do I have to do?

MR PAYNE: Perhaps if you could just say that your judgment is not to have effect until 14 days' time.

MR JUSTICE CRANSTON: Yes.

MR LEE: I am grateful.

MR PAYNE: My Lord, sorry.

MR LEE: My Lord, there are just a couple of slight corrections in the judgment, if I may.

MR JUSTICE CRANSTON: Slight, you say, Mr Lee.

MR LEE: Nothing of substance.

MR JUSTICE CRANSTON: Thank you.

MR LEE: My Lord, you referred to the date of the medical examination as being 25th December. It was in fact 23rd December. A slip of the tongue, I am sure, my Lord. It is the Nationality, Immigration and Asylum Act. Other than that....

My Lord, given that you are going to effectively delay judgment on the section 103A application for 14 days, I would ask my Lord if it is possible for an expedited transcript of your Lordship's judgment to be made available, pursuant to --

MR JUSTICE CRANSTON: That would be at public expense?

MR LEE: Yes, please. That is simply pursuant to a possible application.

MR JUSTICE CRANSTON: Yes, I do that.

MR LEE: I am grateful. Can I also ask for a detailed assessment of my publicly funded costs?

MR JUSTICE CRANSTON: Yes.

MR LEE: Thank you.

MR PAYNE: My Lord, there is an application for the Secretary of State's costs of filing the supplemental summary grounds, assessed at £450. They are legally aided, so....

MR LEE: I have nothing to say about that.

MR JUSTICE CRANSTON: Thank you very much. Good, thank you.