Hareef, R (on the application of) v Secretary of State for the Home Department

On 14 August 2012, the Claimant, who is a national of Afghanistan, applied for judicial review of the decision of the Upper Tribunal (Immigration and Asylum) Chamber (“UT”), dated 15 May 2012, refusing him permission to appeal against the decision of the First-tier Tribunal (“FTT”), dated 20 March 2012, dismissing his appeal.

The Claimant’s appeal to the FTT was against the decision of the Secretary of State for the Home Department (“the SSHD”), made on 28 December 2011, refusing his application for leave to remain in the United Kingdom (“UK”) on grounds of asylum, humanitarian protection and Articles 3 and 8 of the European Convention on Human Rights (“ECHR”).

The Claimant was born in Afghanistan on or about 8 January 1989. The Claimant entered the UK without leave on 10 May 2009. He was served with an IS.151A as an illegal entrant on 5 June 2009.

Upon arrival in the UK the Claimant collapsed and was taken to hospital where he was diagnosed with chronic renal failure. He was discharged from hospital on 13 May 2009. Thereafter he received treatment in the form of dialysis, medication and monitoring. On 22 February 2015 the Claimant underwent a successful kidney transplant operation, and so dialysis is no longer required. However, he will need lifelong monitoring as he is dependent upon immunity suppressant drugs, and the transplant will eventually fail.

The Claimant applied for asylum on 14 May 2009. The SSHD refused his application by letter dated 28 December 2011.

The Claimant appealed to the FTT and gave evidence at an oral hearing. In a decision dated 20 March 2012, FTT Judge Eban dismissed the Claimant’s appeal, holding that he had failed to establish that:

On 4 April 2012, FTT Judge Holmes refused the Claimant permission to appeal against the FTT decision. His decision was sent to the parties on 16 April 2012.

On 15 May 2012, UT Judge Dr Kekic refused the Claimant permission to appeal against the FTT decision. Her decision was sent to the parties on 21 May 2012.

On 14 August 2012, the Claimant filed his application for judicial review.

On 19 November 2012, Holman J. refused permission on the papers, holding there was no reviewable error of law in the UT’s decision; that the criteria in R (Cart) v Upper Tribunal [2011] UKSC 28, [2012] 1 AC 663 were not met; and that the claim was totally without merit.

The Claimant applied for reconsideration, and at an oral renewal hearing on 21 February 2013, HH Judge Thornton granted permission to apply for judicial review on the following grounds:

Thereafter, the SSHD reconsidered the Claimant’s case, and on 8 May 2013 she granted him 30 months discretionary leave to remain on medical grounds, until 5 November 2015.

On 18 March 2014, Collins J. ordered that the claim for judicial review be adjourned to a date to be fixed in the following term; and that the Claimant should file and serve amended grounds for judicial review.

The Claimant filed amended grounds in support of his claim for judicial review on 21 April 2014.

On 25 June 2014, Supperstone J. stayed the claim pending judgment by the Court of Appeal in the case of GS (India). In his judgment, he expressed the provisional view that the SSHD was correct to submit that HH Judge Thornton had no power to grant permission at a renewed hearing, as reconsideration at a hearing pursuant to rule 54.12(3) was expressly dis-applied in challenges to the decisions of the UT by CPR Pt 54 r. 7A(8), which was inserted by an amendment with effect from 1 October 2012.

On 30 January 2015, the Court of Appeal gave judgment in GS (India) [2015] EWCA Civ 40, and the stay was lifted.

On 13 October 2015, Sir Stephen Silber gave directions for the parties to file written submissions on the question whether or not the claim could properly continue after Holman J. refused permission on 19 November 2012.

On 29 February 2016, Gilbart J. ordered that the substantive claim for judicial review should proceed, dis-applying CPR Pt 54 r.7A(8) in the particular circumstances of this case, and he gave further directions.

In November 2015 the Claimant applied for a further extension of leave to remain which was acknowledged together with a notice that he could not work until it was determined.

On 1 April 2016 the SSHD granted him further discretionary leave to remain until 1 October 2018.

The SSHD submitted that the Claimant’s claim ought not to be heard because it had become academic because he has been granted discretionary leave to remain until 1 October 2018. However, I accepted the Claimant’s submission that, since the SSHD was only willing to grant periods of discretionary leave for 30 months at a time, with no promise as to the grant of further leave upon the expiry of the current grant of leave, the Claimant was in a less secure position than he would be in if his claim for asylum/humanitarian protection was accepted or if the court or tribunal held that removal to Afghanistan would be a breach of Articles 3 and/or 8 ECHR. In those circumstances, his claim was not academic.

Where Convention rights are engaged, the Court must itself act compatibly with those rights, and thus it adopts an intensive review which includes the consideration of events which have occurred since the issue of proceedings and makes a judgment by reference to the circumstances prevailing at the date of its decision (D v UK (1997) 24 EHRR 423, at [50]; Huang v Secretary of State for the Home Department [2007] 1 AC 167, per Lord Bingham at [8]; R (SB) v Governors of Denbigh High School [2007] 1 AC 100, per Lord Bingham at [30]).

The decision of the FTT was more than 4 years ago, and since then the Claimant has been given a kidney transplant. However, counsel presented the case solely as a challenge to the tribunal decisions in 2012. Apart from some short reports from Dr Shah, consultant nephrologist, in August 2015, I was not provided with sufficient updating evidence to enable me to re-assess the current and future risks to his health if he were now to be returned to Afghanistan. Since there is a negligible risk of removal prior to 1 October 2018, I am satisfied that it is not necessary for me to undertake the exercise of assessing whether there would be a breach of his human rights if he was returned to Afghanistan now. If the SSHD seeks to remove him after 1 October 2018, I consider that she would have to consider afresh any claim he made to remain in the UK on human rights grounds, because of the passage of time since his case was last considered by the SSHD in 2011 and the FTT in 2012.

The Claimant applied for asylum on the grounds summarised in the SSHD’s decision letter of 28 December 2011, as follows:

“12.

The following paragraphs are a summary of your statements and evidence in support of your application for asylum.

13.

You claim the following:

a)

You were born on 8th January 1989 in Jalalabad, Afghanistan.

b)

You lived with your father, Bismillah Hareef, your mother Baba Gul and your three sisters and two brothers.

c)

One of your sisters is currently living in the United Kingdom, one of your brothers’ is still living in Afghanistan with your mother. Your other siblings are dead.

d)

You attended Chak-newai High School in Jalalabad for twelve years.

e)

Your father was commander of Security of Nangarhar Province under Dr Najibullah’s government.

f)

After the fall of this government he joined Ahmed Shah Masood and was working for him as head of transport until the current government came into power.

g)

You rarely saw your father as he was away on business most of the time.

h)

Your father would send you money and you owned a second home in Jalalahad which you rented out.

i)

When the Taliban came into power you had to sell the second house.

j)

In 2001, when the Kharzai government came into power your father ceased working for Ahmed Shah Masood and started working for the ministry of interior affairs. He was working in Kabul.

k)

In 2008, or two years before your asylum interview your family home was bombed. Three of your siblings were killed and you were injured.

l)

You were taken to hospital where you remained for three to four weeks. Your father’s injuries were not serious and he was discharged.

m)

After completing the funeral rituals at your old house you went to live with your maternal uncle Sayed Haroon.

n)

One year later, or in 2009 you were arrested. You were taken to Jalalabad and questioned about your father’s whereabouts.

o)

The authorities believed he had been leaking information to the Taliban.

p)

You were detained for four months. You were tortured and beaten. Your uncle paid a bribe to secure your release.

q)

Your uncle then took you to his home and the next day you left Afghanistan with an agent and fled to Pakistan.

r)

When you arrived in the United Kingdom you collapsed on the road and taken to hospital where, on 10th May 2009 you were diagnosed with chronic renal failure.

…

15.

You claim that you would have a well founded fear of persecution on return to Afghanistan due to your imputed political opinion. You claim your father was politically active in Afghanistan. You claim that he was working as commander of Security of Nangahar Province under Dr Najibullah’s government and then worked for Ahmed Shah Masood as Head of Transport.”

The SSHD did not accept the Claimant’s claim that he would be at risk if he returned to Afghanistan because of his father’s work in government and so concluded that he did not qualify for asylum, humanitarian protection or discretionary leave.

The SSHD also found that, in January 2008 when the Claimant said he was in Afghanistan, he had been fingerprinted in Greece. This inconsistency with his evidence, and his failure to seek asylum in Greece meant that he failed to establish general credibility under section 8 of the Asylum and Immigration (Treatment of Claimants) Act 2004.

By the date of the FTT hearing, the Claimant admitted that he had not been truthful about his journey from Afghanistan, and he had left in 2007, travelling via Greece, Turkey and Iran. His evidence now was that the bombing of the family home occurred in 2005 or 2006, not 2008; and he had been detained in 2007, not 2009. Despite these changes in his evidence, and other discrepancies and gaps in his account, FTT Judge Eban accepted “the core of the appellant’s evidence” and made the following findings in paragraph 16:

“1.

the appellant is from Afghanistan.

2.

the appellant’s father worked away from home a lot. He was with Dr Nabijullah and Ahmed Shah Masoud, both of whom were opposed to the Taliban and then the Karzai government.

3.

the appellant does not know precisely what his father did.

4.

the appellant’s home was bombed in or about 2005 or 2006. The appellant believes that this was done by enemies of his father.

5.

the appellant has not seen his father since immediately prior to the bombing. The appellant’s father survived the bombing.

6.

in or about 2007 the appellant was detained by the authorities. He was ill-treated during detention. He was questioned about his father’s whereabouts. He was told that his father was working for the Taliban.

7.

the appellant does not know precisely why the authorities wanted to know his father’s whereabouts, nor does he know whether his father was in fact working for the Taliban.

8.

the appellant’s maternal uncle arranged for the appellant’s release from detention and arranged for him to leave Afghanistan.

9.

the appellant has never been a member of the Taliban and was never politically active.

10.

the appellant is suffering from renal failure.”

Although Judge Eban accepted that the Claimant was detained because of his father, and that his father was accused of supporting the Taliban, she concluded that there was no reasonable likelihood that the authorities would now have any interest in him as it was more than 5 years since his detention and release and he had been out of the country since then. He had never been involved with the Taliban, and if the authorities had had an interest in him, they would not have released him in 2007. He was a sick man and would not be suspected of being an insurgent.

The Claimant produced three summonses dated 8 September and 8 December 2010 and 6 February 2011 which purported to be from the authorities requiring the Claimant to attend for questioning. Judge Eban concluded that they were false, and could not be relied upon.

Judge Eban gave careful consideration to PM (Kabul – Hizb-i-Islami) Afghanistan CG [2007] UKIAT 00089, at [133] & [135], in which the UT found that those who had been away from Afghanistan for some considerable time would not be suspected of being insurgents when they returned.

Judge Eban concluded that the Claimant had not discharged the burden of proof upon him to establish that he was a refugee, as defined in regulation 2 of The Refugee or Person in Need of International Protection (Qualification) Regulations 2006 and Article 1(A) of the Geneva Convention, and that returning him to Afghanistan would expose him to a real risk of persecution for a reason set out in regulation 6 of the 2006 Regulations.

Judge Eban rejected the claim for humanitarian protection under paragraph 339C of the Immigration Rules for the same reasons. GS (Article 15(c); indiscriminate violence) Afghanistan CG [2009] UKIAT 00044 was authority that the risk of indiscriminate violence in Kabul did not satisfy article 15(c). The Claimant had failed to establish that particular factors placed him at additional risk above that which applied to the civilian population generally, such that he was at real risk of serious harm from the levels of indiscriminate violence that did exist.

In his Grounds of Appeal dated 28 March 2012, the Claimant applied for permission to appeal against Judge Eban’s refusal of his claims for asylum and humanitarian protection.

Judge Holmes refused permission to appeal stating:

“3.

The second ground asserts that the asylum appeal should have been allowed given the findings of fact made in his favour. This is no more than a disagreement with the conclusion that he was not now at risk, and given the Appellant’s release from detention and the passage of time, and the lack of interest in any other family members, was one the Judge was entitled to reach on the evidence.

4.

The third ground asserts that the humanitarian protection appeal should have been allowed since the situation in Afghanistan has deteriorated since GS and because the personal circumstances of this Appellant rendered his return unduly harsh. The Judge was however entitled to reach the conclusion that she did, and it cannot be said that she did not have the Appellant’s personal circumstances and health well in mind.”

When the Claimant renewed her appeal to the UT (Grounds of Appeal dated 23 April 2012), the previous grounds of appeal against the asylum and humanitarian protection decisions were abandoned. Instead it was submitted that the FTT should have allowed his claim for humanitarian protection because of his post-traumatic stress disorder (“PTSD”). Therefore Judge Kekic did not address them.

The Claimant sought judicial review on the grounds that Judge Eban’s decision that he was not now at risk of persecution was irrational and unsupported by evidence in the light of her acceptance of his evidence that his family home had been bombed and he had been detained and ill-treated by enemies of his father. He submitted that the Judge had been improperly influenced by her view that she was bound by (GS (India) [2011] UKUT 25 (IAC) to return him to Afghanistan (referred to in detail later in my judgment).

In my view, it is clear from the determination that Judge Eban considered the asylum claim first, and separately from the claim under Article 3. She did not take (GS (India) [2011] UKUT 25 (IAC) into account when deciding the asylum claim, as that was not relevant to the questions which she had to determine. In my view, it is the Claimant’s representatives who have repeatedly confused the two issues, as demonstrated by their grounds and skeleton arguments. I consider that Judge Eban was entitled to take into account the Claimant’s severe illness in assessing whether the authorities in Afghanistan would have an adverse interest in him as his illness was a part of his personal circumstances.

In my judgment, Judge Eban’s consideration of the Claimant’s asylum and humanitarian protection claims was careful, fair and balanced. She accepted the Claimant’s core account despite his untruthfulness and falsification of documents. She evaluated the evidence and concluded that he would no longer be at risk, for legitimate reasons. I consider that the Claimant’s challenge to her conclusions was, in reality, a disagreement with her findings and her exercise of judgment. This could not amount to an arguable error of law, for which permission to appeal ought to have been given. So I consider that Judge Holmes was correct in refusing permission to appeal, for the reasons he gave.

The Claimant relied in his judicial review claim upon the decision of the FTT dated 8 August 2012 granting asylum to his younger brother, Reshed Hareef. The FTT granted him refugee status, and found that it would be in breach of Articles 2 and 3 ECHR to return him to Afghanistan. The FTT accepted Reshed’s case that:

Counsel for the Claimant fairly acknowledged that it was inevitable that different FTT Judges might make different judgments on the same or similar facts, and that alone could not be a basis for appeal. However, she submitted that the stark difference in the findings in respect of two brothers supported her submission that Judge Eban’s conclusions were irrational and unsupported by evidence.

In my judgment, the most significant aspect of Reshed’s case was his evidence of a targeted assassination attempt on him after the bombing, and the further threats, occurring as recently as 2010/11. Although the brothers identified different groups as likely perpetrators of the attacks, with different motives, it is possible that if Judge Eban had been made aware of the more recent, direct threats to Reshed, it might have altered her assessment of the current level of risk to the Claimant in 2012. But for reasons which have not been explained, the Claimant did not adduce any evidence of his brother’s experiences, even though he had been reunited with him in late 2011/early 2012 before the appeal hearing. At that stage Reshed was in a wheelchair as a result of the gunshot injuries, so his experiences could hardly have been overlooked. At paragraph 17, Judge Eban said:

“Whilst I accept that the appellant may have been interviewed about his father in 2006 or 2007, I do not consider that there are substantial grounds for believing that after the appellant was released from detention and left Afghanistan in about 2007, the authorities would have continued to send him summonses to attend before them … Further there is no evidence from the appellant’s brother who is in the United Kingdom that the appellant was sought after he left Afghanistan. Ms Hulse was clearly aware of the appellant’s brother’s presence in the United Kingdom and opposed an application that his case be linked to the appellant’s on the grounds that his evidence would have no bearing on the appellant’s case.”

It seems to me to be unfortunate that the appeals were not heard together. There were some significant contradictions in the evidence given by the brothers. Reshed relied upon the fact that he was an orphan without family in Afghanistan and that his surviving siblings could not be traced. But according to the Claimant, who gave instructions to Ms Hulse in the course of the hearing before me, his mother was still alive in 2012 and living in Afghanistan, though sadly she has since died. Although Reshed had become separated from all his family after the bombing, the UK authorities had put him in touch with his sister after he arrived in the UK in 2011, and he was now living with her. The Claimant and Reshed had met once before the Claimant’s appeal hearing.

I do not, however, criticise Judge Eban’s decision to hear the Claimant’s appeal alone, in the light of the representations made to her by Ms Hulse. Judge Eban recorded at paragraph 4:

“4.

At the beginning of the hearing Ms Everett [the Home Office Presenting Officer] made an application that the hearing be adjourned so that the appellant’s appeal could be heard with that of his brother which was listed for 30 March 2011. She submitted that the core of their claims were based on similar facts and that credibility issues had been raised in both cases. Ms Hulse opposed the application. She argued that the appellant had been waiting for almost three years to have his claim resolved, joining the case would be of no great assistance as the bomb blast attack which the appellant described had occurred almost five years ago when the appellant’s brother was only eight, and different circumstances applied to the appellant’s and his brother’s life after that event. Having considered all the matters raised by the representatives I was satisfied that there was no reason why the appeal could not be justly determined in the absence of the appellant’s case being linked with that of his brother and I therefore decided not to adjourn the hearing.”

Judge Eban’s decision to proceed was a legitimate exercise of her discretion. It is not open to the Claimant to complain that his brother’s circumstances were not taken into account by Judge Eban when he expressly opposed consolidation of the two appeals and did not adduce any evidence from his brother.

Following Reshed’s successful appeal in August 2012, the Claimant could have renewed his application for asylum to the SSHD, relying on the fresh evidence from his brother, and the findings of the FTT. I was informed by Ms Hulse that no such application has ever been made.

For the reasons which I have given, the Claimant has failed to establish grounds for judicial review of the decision of the UT to refuse permission to appeal from the decision of the FTT in respect of the claims for asylum and humanitarian protection.

Article 3 provides:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

In the leading case of N v UK (2008) 47 EHRR 885, the Grand Chamber of the ECtHR decided that the removal of the applicant, who was HIV positive, to Uganda, where she would not be able to receive life-saving medical treatment, was not a breach of Article 3. The judgment of the court set out the principles to be applied:

“42.

In summary, the Court observes that since D v United Kingdom it has consistently applied the following principles.

Aliens who are subject to expulsion cannot in principle claim any entitlement to remain in the territory of a Contracting State in order to continue to benefit from medical, social or other forms of assistance and services provided by the expelling State. The fact that the applicant’s circumstances, including his life expectancy, would be significantly reduced if he were to be removed from the Contracting State is not sufficient in itself to give rise to breach of Article 3. The decision to remove an alien who is suffering from a serious mental or physical illness to a country where the facilities for the treatment of that illness are inferior to those available in the Contracting State may raise an issue under Article 3, but only in a very exceptional case, where the humanitarian grounds against the removal are compelling. In the D case the very exceptional circumstances were that the applicant was critically ill and appeared to be close to death, could not be guaranteed any nursing or medical care in his country of origin and had no family there willing or able to care for him or provide him with even a basic level of food, shelter or social support.

43.

The Court does not exclude that there may be other very exceptional cases where the humanitarian considerations are equally compelling. However, it considers that it should maintain the high threshold set in D v the United Kingdom and applied in its subsequent case-law, which it regards as correct in principle, given that in such cases the alleged future harm would emanate not from the intentional acts or omissions of public authorities or non-State bodies, but instead from a naturally occurring illness and the lack of sufficient resources to deal with it in the receiving country.”

The Claimant’s case was that it would amount to inhuman or degrading treatment, in breach of Article 3, for him to be returned to Afghanistan because he would not be able to obtain appropriate treatment for his end stage renal failure. He would die within a matter of weeks without dialysis and it was not possible to obtain a kidney transplant. Further, that he would die in circumstances which were inhuman or degrading because of lack of care and support.

In the SSHD’s decision letter dated 28 December 2011, on consideration of the medical evidence, the SSHD accepted that the Claimant had end stage renal failure. He had been suffering from kidney disease in Afghanistan and had surgery to remove kidney stones (this has been subsequently doubted). There were a number of private hospitals in Afghanistan e.g. Kaisha Healthcare Hospital in Kabul, which had the capacity to treat his condition. Provided he received dialysis, his death was not imminent and so the UK would have to provide him with medical care indefinitely if he was given leave to remain. The very high threshold sets out in the authorities (N v Secretary of State for the Home Department [2005] 2 AC 296; N v UK 26565/05 [2008] ECHR 453 referring to D v UK (1997) 24 EHRR 423; GS (India) [2011] UKUT 25 (IAC)) for the grant of leave to remain on medical grounds had not been met; there were no exceptional circumstances in his case.

On the Claimant’s appeal to the FTT, the Claimant adduced written medical evidence, the key parts of which are summarised as follows:

The Claimant adduced evidence that there were no facilities for dialysis or kidney transplants in Afghanistan, which Judge Eban accepted.

Judge Eban’s analysis and conclusions were as follows:

“26.

I have considered N [2005] UKHL 31, upheld by the European Court of Human Rights in N 26565/05 [2008] ECHR 453 and GS (Article 3 – health – exceptionality) India [2011] UKUT 35 (IAC) which analyses the case law dealing with article 3 medical cases. The facts relating to the appellant in GS are similar to those of the appellant in this case. He too had chronic kidney disease, was dependant on dialysis to remain alive, and would expect to die after a period of one to two weeks if the treatment were discontinued. Ms Hulse sought to distinguish GS from the case before me. In GS it was accepted that medical facilities were available in India, the receiving state, although it was unlikely that the appellant would be able to access them. In this appeal there is evidence of the enquiries made by the appellant’s solicitors about available treatment in Afghanistan for patients with end stage kidney failure. An email from the Kaisha Healthcare Hospital, which hospital was referred to by the respondent as providing such treatment, records that they do not in fact have treatment for end stage renal failure, nor are they aware of any other hospital in Afghanistan which provides such treatment. This means that there is no prospect of medical care in the appellant’s country of origin if he is returned.

27.

I have considered whether the analysis of the Strasbourg case law in N permits me to find that the case of the appellant before me is exceptional within D, because there would be no treatment whatsoever available to him in Afghanistan. I have noted that at paragraph 50 of N Lord Hope says

But it cannot be said that the court is unaware of the advances of medical science in this field. All the recent cases since SCC v Sweden have demonstrated this feature. The fact that the court appears to have been unmoved by them is due, I think, to its adherence to the principle that aliens who are subject to expulsion cannot claim any entitlement to remain in the territory of a contracting state in order to continue to benefit from medical, social or other forms of assistance provided by the expelling state. The way this principle was referred to and then applied in Amegnigan v The Netherlands (“the court recalls that in D v United Kingdom it emphasised [the principle]”) is, in my opinion, highly significant. What the court is in effect saying is that the fact that the treatment may be beyond the reach of the applicant in the receiving state is not to be treated as an exceptional circumstance. It might be different if it could be said that it was not available there at all and that the applicant was exposed to an inevitable risk due to its complete absence. But that is increasingly unlikely to be the case in view of the amount of medical aid that is now reaching countries in the third world, especially those in Sub-Saharan Africa. For the circumstances to be, as it was in Amegnigan v The Netherlands, “very exceptional” it would need to be shown that the applicant’s medical condition had reached such a critical stage that there were compelling humanitarian grounds for not removing him to a place which lacked the medical and social services which he would need to prevent acute suffering while he is dying. This is, in effect, the same test as that which my noble and learned friend Baroness Hale of Richmond has identified. (emphasis added)

28.

I have also considered what was said by Baroness Hale at paragraphs 68 and 69

In common with Dyson LJ, I have found helpful the concurring opinion of Judge Pettiti in D v United Kingdom, p 455:

“The inequality of medical treatment was not the criterion adopted by the Court as medical equipment in the Member States of the United Nations is, alas, not all of the same technological standard; the case of D, however, is concerned not with hospital treatment in general, but only with the deportation of a patient in the final stages of an incurable disease.”

As Lord Hope's analysis shows, the later cases have made it clear that it is the patient's present medical condition which is the crucial factor. The difficulty is in understanding where conditions in the receiving country fit into the analysis. Even in those cases where the illness is not in an advanced or terminal stage, the Court does refer to the medical care and family support available there. But it does so in terms of there being “no prospect” of such care or support, rather than in terms of its being likely to be available. It is difficult to see, therefore, whether this consideration adds anything in those cases. Where the illness is in an advanced or terminal stage, then conditions in the receiving country should be crucial. It is not yet clear whether the applicant has to show that appropriate care and support during those final stages was unlikely to be available or whether again the “no prospect” test applies. That was undoubtedly the situation in D v United Kingdom and the Court has made it clear that the “compelling humanitarian considerations” are those which arise in a case where the facts come close to those in D. But if it is indeed the case that this class of case is limited to those where the applicant is in the advanced stages of a life-threatening illness, it would appear inhuman to send him home to die unless the conditions there will be such that he can do so with dignity. As the European Court said in Pretty v United Kingdom (2002) 35 EHRR 1, paragraph 65, “The very essence of the Convention is respect for human dignity and human freedom.” [68] (emphasis added)

In my view, therefore, the test, in this sort of case, is whether the applicant’s illness has reached such a critical stage (i.e. he is dying) that it would be inhuman treatment to deprive him of the care which he is currently receiving and send him home to an early death unless there is care available there to enable him to meet that fate with dignity. This is to the same effect as the text prepared by my noble and learned friend, Lord Hope of Craighead. It sums up the facts in D. It is not met on the facts of this case. [69]

29.

It is with regret that I have come to the view that the essential principle is that article 3 does not require contracting states to undertake the obligation of providing aliens indefinitely with medical treatment lacking in their home countries. In the case of D and in later cases the Strasbourg court has constantly reiterated that in principle aliens subject to expulsion cannot claim any entitlement to remain in the territory of a contracting state in order to continue to benefit from medical, social and other forms of assistance provided by the expelling state. Article 3 imposes no such ‘medical care’ obligation on contracting states. This is so even where, in the absence of medical treatment, the life of the would-be immigrant will be significantly shortened (see Lord Nicholls in N [15]). The logic behind this is that “it would be strange if the humane treatment of a would-be immigrant while his immigration application is being considered were to place him in a better position for the purposes of article 3 than a person who never reached this country at all … it is difficult to see why this should subject this country to a greater obligation than it would to someone who is turned away at the port of entry and never receives any treatment” (see Lord Nicholls in N [17]).

30.

Although that principle was expressed in relation to article 3, it is a principle which must apply to article 8. In N v UK, the ECHR took the view that no separate issue under article 8 arose [517].

31.

I therefore find that the appellant has not discharged the burden of proof under article 3 or article 8 and I find that to return the appellant to Afghanistan would not be a breach of the United Kingdom’s obligations under the Human Rights Convention.”

In her grounds of appeal, the Claimant submitted that Judge Eban wrongly believed that she was bound to refuse the appeal in accordance with GS (India), whereas the Claimant’s case was distinguishable on the facts. Dialysis and transplants were not available in Afghanistan; the Claimant was on an active transplant waiting list; the Claimant was in better health than GS and would be able to support himself if he had a successful transplant; his renal failure and PTSD were arguably the consequence of his injuries in Afghanistan which had become more violent since then. Judge Eban also failed to take account of Dr Cohen’s evidence of his PTSD, and that his condition would be worsened by the prospect of being returned to the country in which he had been the victim of violence, and where he would quickly deteriorate through lack of medical treatment.

In refusing the Claimant’s application for permission to appeal, FTT Judge Holmes said:

“The first and fourth grounds assert that the Judge’s approach to the human rights appeal was wrong in law, but the approach taken was consistent with the guidance to be found in GS (Article 3 – health – exceptionality) India [2001] UKUT 35, and JA (Ivory Coast) & ES (Tanzania) [2009] EWCA Civ 1353, and KH (Afghanistan) [2009] EWCA Civ 1354.”

I agree with Judge Holmes’ view. Although Judge Eban understandably did not refer to all the cases, she correctly directed herself in accordance with the leading case of N v UK and the judgments of the Supreme Court in N v Secretary of State for the Home Department.

I also agree with the assessment made by UT Judge Kekic who refused the Claimant’s application for permission to appeal, saying:

“The grounds argue that the First-tier Tribunal failed to appreciate that the appellant is an “exceptional case” and that his circumstances allow his case to be distinguished from GS (India). It is argued that the judge did not take the appellant’s PTSD into account. It is maintained that the appellant has renal failure and is on the active waiting list for a kidney transplant. On that basis his circumstances are exceptional.

The judge considered GS and found that the facts were similar. She took account of the appellant’s ill health but found that the jurisprudence did not require contracting states to provide aliens with medical treatment lacking in their home countries. Given that this life threatening condition did not assist the appellant to succeed in his appeal it is difficult to see how PTSD could. No challenge is made to the asylum/Article 3 claim and those findings therefore stand. The judge was entitled to find as she did. The grounds identify no arguable error of law in the determination.”

Judge Kekic rejected the ground of appeal that Judge Eban considered herself bound to follow GS (India) and failed to appreciate that the Claimant’s case was distinguishable from GS. I consider she was correct to do so.

Judge Eban was entitled to have regard to GS as both cases concerned dialysis treatment for life-threatening kidney failure, but she plainly accepted in paragraph 26 of her determination the most important distinction, namely, that dialysis and transplants were not available in Afghanistan, whereas they were in India. The other factual differences between their cases would have been obvious to her, and I do not accept that she disregarded them. She took into account the Claimant’s medical evidence, setting out Dr Donghue’s evidence in paragraph 25, which included a reference to the Claimant being on the active transplant list. Contrary to the Claimant’s submission, none of the doctors was able to say that the injuries which he sustained were the probable cause of his kidney failure, ahead of other possible causes. In any event, I doubt whether these distinctions relied upon by the Claimant as grounds of appeal were likely to be determinative of the outcome.

On my reading of her determination, Judge Eban did not apply the decision in GS merely on the basis of the factual similarities between the two cases. She identified the legal principles to be applied from the leading cases of N and D, and properly applied them to the particular circumstances of the Claimant’s case.

Judge Eban plainly had regard to Dr Cohen’s evidence of the Claimant’s PTSD and depression, as she set it out very fully in paragraph 14. She did not, however, address the question of whether these psychological conditions were sufficient to amount to the exceptional circumstances required by D and N, either on their own or combined with the kidney failure. However, I agree that this submission had no prospect of success since, as Judge Kekic said, “given that this life threatening condition did not assist the appellant to succeed in his appeal it is difficult to see how PTSD could”.

The Claimant submitted that Judge Eban erred in not accepting that there were exceptional circumstances in his case, just as in the case of D, because “he could not be guaranteed reasonable care in which to die with dignity and without unnecessary suffering” (Grounds of Appeal to the UT, paragraph 7v).

It is clear from the citation of authority in paragraphs 27 and 28 of her determination that Judge Eban applied the correct legal tests, and I am satisfied that she was well aware of the decision in D to the effect that, very exceptionally, there might be compelling humanitarian grounds for not removing a person to a place where he would be deprived of the care to enable him to die with dignity. On my reading of her determination, she was not satisfied that the Claimant’s case fell into this category.

Judge Eban’s reasoning focussed on the lack of medical treatment, rather than the Claimant’s care and accommodation, because that was the main thrust of the Claimant’s case. The Claimant did not adduce any adequate evidence as to the accommodation, financial resources and care available, or not available, to him if he returned. No evidence was given in relation to the assistance and accommodation which could be provided by his mother, who was still alive and living in Afghanistan, and by other extended family members in Afghanistan. On appeal to the UT, the highest that the Claimant could put his case was that there was an absence of evidence that he would be cared for. His Grounds of Appeal to the UT merely stated:

“7.vi His mother, his only close remaining relative in Afghanistan, is in Jalalabad. It is accepted that the family home remains destroyed since 2006. There is no information as to his mother’s physical and economic circumstances or evidence that she could provide the Appellant with care and accommodation. Nor is there evidence that the Appellant would on arrival in Kabul be fit enough to travel on to Jalalabad.”

The SSHD’s decision letter referred to the financial means of the Claimant and his family: his father was employed as a senior government official who owned property and was able to provide for the family financially; they were able to afford medical treatment for the Claimant; to pay a bribe; and to fund his travel to the UK. The Claimant did not adduce evidence to show that his family now had no funds with which to assist him.

The Claimant’s expert witness, Dr Guistozzi, gave general evidence of the limited health care provision in Afghanistan, the absence of social security benefits, the cost of housing and the civil unrest. But this was not sufficient to establish a very exceptional case for not returning an Afghan national to Afghanistan.

In my judgment, the onus rested on the Claimant to adduce evidence to demonstrate that his case was very exceptional, and that he would not be able to die with dignity because, for example, he would be homeless, unable to pay for palliative care, or that his family would not be able to care for him. On the evidence before the FTT and the UT, the Claimant’s case did not come close to passing the “high threshold set in D” (N at [43]). The FTT was entitled to conclude that he had failed to discharge the burden of proof to establish a breach of Article 3.

The Claimant’s main ground in the amended claim for judicial review was that the decisions of the SSHD, FTT and UT were flawed because they proceeded upon the basis that the determination of the UT in GS (India) was good law, whereas in fact it had been set aside, following the grant of permission to appeal by the Court of Appeal. It was argued that Holman J. made the same error when refusing permission to apply for judicial review.

The facts in GS (India) were that GS entered the UK as a working holidaymaker and then overstayed. He developed advanced chronic kidney disease, and required dialysis to stay alive. He applied for leave to remain in the UK on health grounds under Articles 3 and 8. The SSHD refused his application.

GS successfully appealed to the FTT, which held that, exceptionally, a forced return to India would amount to a breach of Article 3 since GS could not afford to obtain dialysis in India and would die.

The SSHD successfully appealed to the UT (GS (India) [2011] UKUT 25 (IAC)) which held that no breach of Article 3 or Article 8 had been established, and GS did not fall within the exceptional categories identified in N v SSHD and D v UK.

GS appealed to the Court of Appeal. Following the grant of permission to appeal by Toulson LJ, the UT’s decision was set aside and the case was remitted by consent to the UT in about January 2012 in order to determine whether “the consequences of lack of funds are capable of making a case exceptional in terms of N”.

The appeal was re-heard by the UT on 18 July 2012. Argument was not limited to the issue of lack of funds preventing treatment. In its determination promulgated on 17 October 2012, reported as GS (India) [2012] UKUT 00397 (IAC), the UT dismissed GS’s appeal, finding that his circumstances were not exceptional and return to India would not amount to a breach of Article 3.

GS appealed to the Court of Appeal. The Court of Appeal gave judgment in GS (India) [2015] EWCA Civ 40 on 30 January 2015 and dismissed his appeal. The Court of Appeal considered six cases in which the appellants were suffering from serious medical conditions and would be at risk of an early death if returned to their home countries, because of a lack of adequate medical treatment. Five had terminal renal failure; one had advanced HIV infection. Laws LJ reviewed the authorities, and re-stated the principles set out in N v UK at [42] – [43], which I have cited above. At [39], he held that “the language of [Article 3] shows that the paradigm case of a violation is an intentional act which constitutes torture or degrading treatment or punishment”. After reviewing the authorities, he said, at [62]:

“This learning shows that there may be departures from the Article 3 paradigm other than of the kind vouchsafed in D v UK. These departures are variously justified. But such an approach is indicated in D itself, at paragraph 49, and in N at paragraph 43 …. In my judgment it is clear that the departures from the Article 3 paradigm given in MSS and the other cases to which I have referred do not extend the reach of the departure allowed in D and discussed at paragraphs 42-45 of N v UK. The plight of an individual whose life expectancy may be severely shortened by his removal or deportation to his home State is a distinct state of affairs whose treatment under the Convention is not qualified by the court’s approach, for example, to the reception conditions for asylum-seekers. The circumstances in which a departure from the Article 3 paradigm is justified are variable; the common factor is that there exist very pressing reasons to hold the impugned State responsible for the claimant’s plight. But the fact that there are other exceptions unlike D or N does not touch cases – such as these – where the claimant’s appeal is to the very considerations which D and N address.”

The Supreme Court refused permission to appeal on 30 July 2015.

Thus the legal approach adopted by the FTT and the UT in the Claimant’s case has since been confirmed. The error which the Judges and the legal representatives made in not appreciating that the judgment of the UT in GS (India) had been overturned made no difference to the outcome. Their decisions on Article 3 were not vitiated by any error of law.

For the reasons I have given, the Claimant has failed to establish grounds for judicial review of the decision of the UT to refuse permission to appeal from the decision of the FTT in respect of the claim under Article 3.

Article 8 provides:

“1.

Everyone has the right to respect for his private and family life, his home and his correspondence.

2.

There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

The Claimant’s case was that removal to Afghanistan would be a disproportionate interference with the private life which he had developed whilst in the UK since May 2009.

The SSHD in her decision letter found that the Claimant did not enjoy any family life in the UK. His only family member was his sister, whom he had seen twice, and their relationship did not go beyond normal emotional ties.

The SSHD accepted that the Claimant had developed elements of a private life in the 2 to 3 years he had been in the UK, though he had not undertaken any course of study, he was not in a relationship and he had no established ties. She went on to conclude that any interference caused by returning him to Afghanistan would be entirely proportionate and for the legitimate aim of maintaining the economic well-being of the country. He was a young man who had spent the majority of his life in Afghanistan with his family.

On appeal to the FTT, the Claimant relied primarily on his claim for asylum and Article 3. His claim under Article 8 was very limited in scope. It was conceded that he could not rely on the right to family life. In a very brief submission, the Claimant’s skeleton argument stated:

“10.

It is submitted that the Appellant has lived in the UK for a little less than three years and has developed a private life in the UK. If he were now removed that private life would be destroyed. It is not disputed that such interference would be lawful and for a legitimate aim. It is submitted however that such removal would constitute a disproportionate interference with the right to private life …. ”

“11.

The Appellant’s surviving siblings are now in the UK and there is no suggestion that the Appellant has committed any crimes.”

The Claimant’s sister, who moved to the UK in 2007, said in her witness statement that they had a close relationship, and she called him daily and visited him when possible. No evidence was given about his relationship with his brother, Reshed Hareef. I now have the benefit of seeing the FTT determination in his case (AA/02286/2012), following a hearing in July 2012, in which he gave evidence that he had had no contact with the Claimant or his sister since their family home was bombed. Ms Hulse took instructions from the Claimant during the hearing before me and told me that the true position was that Reshed had been reunited with his sister and the Claimant some time in late 2011 or early 2012. The Claimant had met him once before the Claimant’s FTT hearing.

Judge Eban addressed his Article 8 rights at paragraphs 30 and 31, in the context of his medical condition and availability of treatment, and found that he had not discharged the burden of proof upon him to establish a breach of Article 8.

On appeal to the UT, the Claimant submitted that Judge Eban erred in law (1) in dismissing his appeal under Article 8 in respect of his need for medical treatment and (2) failing to consider the Claimant’s Article 8 right to a private life. In addition to his relationships with his brother and sister, the Claimant relied for the first time on un-particularised “relationships with a number of people, many of whom are involved in his care, with whom he has forged bonds of trust and friendship”. It was argued that it would be disproportionate to move him to Afghanistan with the foreseeable consequence of his death in a violent and impoverished country.

In refusing permission to appeal, FTT Judge Holmes said:

“Whilst the grounds appear to suggest that the Appellant could succeed on Article 8 grounds, even if he failed on Article 3 grounds, on the same basis – the authorities state that it “would be a very rare case which could succeed if it failed the Article 3 threshold”. The grounds do not engage with that guidance, and the suggestion that the Judge’s approach to the Article 8 appeal was flawed is inconsistent with the approach taken in GS JA and KH.”

I agree with Judge Holmes’ conclusion. The Court of Appeal in GS (India) has helpfully re-stated the principles to apply to an Article 8 claim in these circumstances, per Laws LJ at [85] to [87]:

“85.

It is common ground that in cases where the claimant resists removal to another State on health grounds, failure under Article 3 does not necessarily entail failure under Article 8 . In her skeleton argument at paragraph 55 Ms Giovanetti for the Secretary of State cites JA (Ivory Coast) & ES (Tanzania) v SSHD [2009] EWCA Civ 1353, in which the appellants had been given a “de facto commitment” that they would be allowed to remain in the UK for treatment. Sedley LJ, with whom Longmore and Aikens LJJ agreed said this at paragraph 17:

“There is no fixed relationship between Art. 3 and Art. 8. Typically a finding of a violation of the former may make a decision on the latter unnecessary; but the latter is not simply a more easily accessed version of the former. Each has to be approached and applied on its own terms, and Ms Giovannetti is accordingly right not to suggest that a claim of the present kind must come within Art. 3 or fail. In this respect, as in others, these claims are in Mr Knafler's submission distinct from cases such as D and N, in both of which the appellant’s presence and treatment in the UK were owed entirely to their unlawful entry …”

86.

If the Article 3 claim fails (as I would hold it does here), Article 8 cannot prosper without some separate or additional factual element which brings the case within the Article 8 paradigm – the capacity to form and enjoy relationships – or a state of affairs having some affinity with the paradigm. That approach was, as it seems to me, applied by Moses LJ (with whom McFarlane LJ and the Master of the Rolls agreed) in MM (Zimbabwe) [2012] EWCA Civ 279 at paragraph 23:

“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.”

87.

With great respect this seems to me to be entirely right. It means that a specific case has to be made under Article 8. It is to be noted that MM (Zimbabwe) also shows that the rigour of the D exception for the purpose of Article 3 in such cases as these applies with no less force when the claim is put under Article 8:

“17.

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)).

18.

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 my judgment, in this case there was no special or additional factual element under Article 8, in the context of the Claimant’s medical condition, care and treatment. He was not being cared for by siblings or residing with them. The emotional support which his sister provided, mainly by telephone, could be maintained if he moved to Afghanistan.

Judge Kekic made no specific reference to Article 8 in his reasons for refusing permission, though I am prepared to assume that his general conclusion that “[t]he grounds identify no arguable error of law in the determination” was intended to cover all the grounds pleaded, including Article 8. Permission decisions are, of necessity, briefly stated.

However, I consider that there is force in the Claimant’s complaint that not one of the three tribunal Judges has given any reasons for rejecting the Claimant’s Article 8 appeal based on his private life, other than in respect of his medical condition, treatment and care. It appears to have been overlooked. In those circumstances, I grant the application for judicial review on this ground.

I decline to grant any relief for the following reasons. On the evidence, the claim was weak and had no realistic prospect of success. Removal would be in accordance with the law, as the Claimant was an illegal entrant with no right to remain in the UK. The interference with his private life was for the legitimate aim of maintaining the economic well-being of the country and it was most unlikely to be held to be disproportionate. The Claimant had only been in the UK for under three years, after a lifetime spent in Afghanistan, where his mother still resided. He had no employment, education or home here, and no community ties. He was not in any relationship and had no children. After his arrival in the UK in 2009, he resumed contact with his sister, whom he had not seen since she left Afghanistan in 2007, and she was not even aware that he had been detained. They had now formed a close bond but their contact was mainly by telephone, with occasional visits. He had had no contact with his brother since the family home was bombed in 2005/6, and were only reunited in late 2011/2012. They had met only once before the FTT hearing. Little weight could be given to the other relationships referred to in the grounds of appeal to the Upper Tribunal, particularly as they were un-particularised and not supported by evidence.

Under section 31(2A) of the Senior Courts Act 1981, the Court must refuse to grant relief where it appears to the court to be highly likely that the outcome would not have been substantially different if the conduct complained of had not occurred. In my judgment, if Judge Eban had fully addressed this aspect of the Claimant’s appeal in her determination, she would still have dismissed his claim under Article 8.

Furthermore, in the exercise of my discretion, I consider that it would serve no useful purpose to remit the case to the UT for re-consideration on this ground alone, since the Claimant has already been granted limited discretionary leave to remain in the UK. Indeed, the SSHD indicated to me that this would have been the likely outcome of a successful Article 8 claim on his part. If at some later date he is threatened with removal, he will be able to make a fresh claim under Article 8.

The claim for judicial review is allowed in respect of the UT’s refusal to grant permission to appeal in respect of the FTT’s failure to address fully the Claimant’s appeal under Article 8 ECHR. No relief is granted.

The claim for judicial review is refused on all other grounds.