Arsalan Fateh-Saleh and Another v The Regional Court of Lille, France
| Jurisdiction | England & Wales |
| Judge | Mr Justice Supperstone |
| Judgment Date | 10 March 2015 |
| Neutral Citation | [2015] EWHC 584 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 10 March 2015 |
| Docket Number | Case No: CO/688/2015 |
[2015] EWHC 584 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
In the matter of an appeal against extradition
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Supperstone
Case No: CO/688/2015
Malcolm Hawkes (instructed by JD Spicer Zeb) for the Appellant
Florence Iveson (instructed by CPS Extradition Unit) for the Respondent
Hearing date: 23 February 2015
Introduction
The Appellant appeals pursuant to section 26(1) of the Extradition Act 2003 ("the 2003 Act") against the decision of District Judge McPhee made at Westminster Magistrates' Court on 12 January 2015 to order his extradition to France.
He is the subject of a conviction European Arrest Warrant, issued by the Regional Court of Lille, France, for two offences, namely: participation in a criminal organisation, and facilitation of unauthorised entry and residence. He is alleged to have been the principal of an organised network of smuggling migrants to Great Britain, which he directed by telephone from the UK. On 5 and 6 December 2011 he was convicted in his absence by the Criminal Court of Lille and sentenced to 7 years' imprisonment, all of which remain to be served. He is entitled to a re-trial on his return to France.
The EAW was issued on 20 March 2013 and certified by the National Crime Agency on 28 October 2013. He was arrested on 8 July 2014.
Mr Malcolm Hawkes, for the Appellant, advances two grounds of appeal. First, that the Appellant's extradition would be oppressive in the light of his mental condition, there being a very high risk that he would commit serious acts of self-harm, including suicide, were he to be separated from his wife and two children and extradited. This separation is likely to be permanent because of his immigration status. Accordingly by virtue of section 25 of the 2003 Act the District Judge should have discharged him. Second, for the same reasons, his extradition would constitute a disproportionate interference with his and his family's Article 8 rights.
Evidence before the District Judge
The Appellant adopted his consolidated proof of evidence. In summary his account is as follows: he was born in Rania in the Kurdish part of north-western Iraq in 1983. His father died in 1988 and his only brother was executed under the regime of Saddam Hussein in 1993. He left his home country at the end of 1998, aged 15, when he was smuggled out through Iran, eventually arriving by lorry at Dover in October 1999.
He applied for asylum and was placed in a communal house for refugees in Wolverhampton. The other occupants were adults and they physically and sexually assaulted him, and took his food and money. After failing to obtain assistance from the police or social services he left the house.
In 2001 he decided to return to Iraq because his mother was very unwell. He left the UK on a lorry for France without waiting for the Home Office decision on his asylum application. On arrival in France he was apprehended and placed in a camp where he stayed for two months. He then discovered that his mother had died and he decided to return to the UK. However before doing so he was arrested in France for assisting illegal immigration. He received a four-year prison sentence from which he was released in November 2003 and told to leave France within 15 days. About six days after his release he was caught trying to get onto a lorry, prosecuted and sentenced to a further four years' imprisonment. He was released from this sentence in 2007.
The Appellant states that he was very depressed in France. He had received lengthy sentences, yet he had not really done anything. While in prison in August 2001 he attempted suicide by setting fire to himself in his cell, as a result of which he spent one year in hospital and has extensive scarring on his left leg. In about 2005 or 2006 he took to cutting himself as a result of which he has deep scarring on his left forearm and stomach. He has other scars and injuries from when he was assaulted by inmates and staff in prison. He states that if he is sent back to a French prison he will commit suicide. Recently he has caused a puncture wound to his neck whilst on remand which required suturing.
He came back to England in a lorry in 2007 and has lived here ever since. He reapplied for asylum in 2011. He has been living with his partner, Amy Boswell, since about 2012. They have known each other for several years and married in a religious ceremony on 19 January 2013. They have two children, born on 18 September 2013 and 27 June 2014. Before his arrest on these matters the Appellant worked in a car wash earning very little, but as a family they had enough on which to survive. He is very worried about how Ms Boswell would cope without him, financially and emotionally.
Ms Boswell gave evidence. She said that the Appellant does his best as far as the children are concerned. She finds living without the Appellant extremely stressful. She receives benefits but she has very little money left over at the end of the week. She is just surviving. Even when the Appellant was living with her it was hard, but he was able to earn some money which made a difference.
Ms Boswell said that if the Appellant is extradited she would not be able to visit him for several reasons: she does not have a passport and cannot afford to obtain one; she could not afford to travel to France in any case and would find travelling with two very young children very stressful.
Dr L.A. Rowland, a consultant clinical psychologist, provided a psychological report dated 12 November 2014, following an assessment of the Appellant carried out at HMP Wandsworth on 3 November 2014.
He found that the Appellant had significant learning difficulties and is placed in the bottom 5% (reduced to 1% in his oral evidence) of the population in terms of intellectual functioning. He cannot read or write, either in English or Kurdish.
Dr Rowland specifically considers six issues in his report.
Is the Appellant suffering from a mental illness, and if so what? Dr Rowland concluded that the Appellant belongs to a group at high risk of developing mental health problems. He is reporting the symptoms of a moderate to severe depression. He is also reporting many of the symptoms associated with a diagnosis of Post-Traumatic Stress Disorder ("PTSD"). While he does not appear currently to meet all the criteria for diagnosis of PTSD "there is little doubt that he has suffered and continues to suffer significant stress and increased vulnerability to mental health problems as a result of the traumas he has experienced" (para 17.2.4). He did not find any evidence the Appellant was suffering from a psychotic disorder (para 15.4.2).
How, if at all, could that illness be treated, particularly in a custodial context? Dr Rowland refers to the guidance provided by the National Institute for Health and Care Excellence ("NICE") on the treatment of moderate to severe depression and to the NICE guidance on the treatment of PTSD. He recommends that these two sets of NICE guidelines be followed. At paragraph 17.3.10 Dr Rowland states:
"As most, if not all, prisons in England now have access to a Mental Health Prison In-Reach Team it should be this team which takes the lead in putting in place an appropriate care plan and package of interventions to meet [the Appellant's] mental health needs."
Is the Appellant at risk of future incidents of self-harm, attempted or completed suicide? Dr Rowland notes that as a prison inmate, this puts the Appellant at a higher risk of committing suicide than the general population. Further, he has a history of making serious suicide attempts. If the Appellant believed that he had failed his family it is likely that he would conclude that he had no purpose in life. This would further increase his risk of committing suicide. Dr Rowland adds at paragraph 17.4.6:
"I understand that [the Appellant's] wife finds herself in difficult financial circumstances and, in consequence, is unlikely to be able to visit him or even maintain regular telephone contact with him if he is returned to France. If this is the case and [the Appellant] believes that he will lose contact with his family it is likely that he would see himself as having failed his family. This is likely to further exacerbate his mental health problems and place him at very serious risk of committing suicide."
Could those risks be managed or contained; if so, how? Dr Rowland considers that "enabling [the Appellant] to maintain contact with his family and supporting a belief that he can resume the role of provider is likely to be central to managing [the Appellant's] risk of suicide" (para 17.5.2). Dr Rowland continues (at para 17.5.3):
"If [the Appellant's] risk of committing suicide is to be successfully managed it is important that his mental state is regularly monitored and assessed and his mental health problems are tackled appropriately, as noted above following the appropriate clinical guidelines with interventions carried out by competent practitioners."
What effect would extradition to France have on the Appellant's well-being? The Appellant has little faith in the French judicial system. He believes that his voice would not be heard which, as in the past, is likely to engender a sense of hopelessness. This, Dr Rowland concludes, in its turn, increases the likelihood that he will attempt to take his own...
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