Arslan Mehmet (R) v Secretary of State for The Home Department

Hearing date: 22 nd October 2010; further written submissions 8 th and 15 th December 2010

I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

His Honour Judge Grenfell:

1

This Immigration Asylum Fresh Claim has a complex procedural history. The application for permission to apply for judicial review of the Secretary of State's decision refusing the claim was lodged 6 ^th May 2009. Permission was refused 27 ^th May 2009 on papers by His Honour Judge Kaye QC and certified totally without merit. On the 16 ^th July 2009 I ordered the claimant not to be removed from the United Kingdom pending further directions of the court and ordered the renewal hearing to be listed with expedition. At the renewed oral application 29 ^th September 2009, His Honour Judge Kaye on amended grounds granted permission to challenge the decision of 30 ^th April 2009. On the 5 ^th February 2010, His Honour Judge Kaye approved a consent order to vacate the hearing scheduled for 10 ^th February pending a fresh determination, permitted the claimant to file amended grounds and the defendant's grounds thereafter. Finally, on 31 ^st August 2010 His Honour Judge Behrens, noting the complex history of the claim, granted permission to challenge the new decision of 12 ^th April 2010 on the amended grounds. It is common ground that it is this decision that is now under review.

2

I heard oral argument on the 22 ^nd October 2010 and reserved judgment. Following a request by Mr Dunlop, counsel for the Secretary of State, I permitted further written submissions restricted to the application of Sir Michael Harrison's decision given on the 22 ^nd October 2010 in R (on the application of M) v Secretary of State for the Home Department (2010)1 which I have now considered and which has some factual similarities to the instant case.

3

The claimant Arslan, a Turkish national of Kurdish origin and failed asylum-seeker, who has exhausted his rights of appeal, challenges the 12 ^th April 2010 decision to refuse to treat his further representations under paragraph 353 Immigration Rules as a fresh claim (thereby excluding an 'in-country' right of appeal) on the amended grounds that the defendant:

(i) failed to apply the necessary 'anxious scrutiny' when considering the further representations;

(ii) failed to take into account properly the evidence relating to the claimant's medical condition when assessing his vulnerability in relation to a potential breach of Article 3 ECHR upon being interviewed at the airport on his return.

The Background

4

On the 26 ^th April 2001 the claimant entered the United Kingdom illegally and claimed asylum. On the 7 ^th June 2001 his asylum claim was refused. It was reconsidered, but again refused on the 23 ^rd May 2007. His appeal was dismissed on the 17 ^th July 2007, his appeal rights becoming exhausted by the 31 ^st July 2007. On the 23 ^rd August 2007

further information was submitted as a fresh asylum claim and human rights claim; medical evidence was submitted as part of the fresh claim on the 4 ^th October 2007 and 18 ^th June 2008. On the 21 ^st October 2008 the fresh claim was refused. Further information was submitted on the 26 ^th November 2008. On the 27 ^th April 2009 this fresh claim was refused: the claimant was detained and served with removal directions for 5th May 2009 (since cancelled). Yet further representations were made on the 30 ^th April 2009, but the further fresh claim was refused by letter of the same day. At the oral renewal hearing on the 29 ^th September 2009 the claimant filed further evidence (medical reports dating back to 9 ^th June 2009). As I have already indicated permission was granted at this hearing. Following the consent order vacating the hearing on the 5 ^th February 2010 the amended grounds were filed; on the 13 ^th March 2010 Dr Gardner, psychiatrist, reported further; the decision now under challenge was issued on the 12 ^th April 2010. On the 5 ^th May 2010 the amended grounds were filed and defence detailed grounds filed on the 7 ^th June. Finally Dr Gardner on the 17 ^th June 2010 confirmed that his medical opinion remained unaltered having considered the immigration judge's determination, the decision of 12 ^th April 2010 and the claimant's amended grounds.

5

In the Acknowledgement of Service the defendant contended that the claim had been considered in accordance with the Immigration Rules and the guidance in WM (DRC) v Secretary of State for the Home Department [2006] EWCA Civ 149 In relation to mental health facilities in Turkey and the claimant's human rights submissions, the Secretary of State relied on the decision in N v United Kingdom [2008] ECHR 453 and also relied on the letters dated 21 ^st October 2008 and 27 ^th April 2009.

6

In the Detailed Grounds of defence the Secretary of State contends that:

(i) the further information has been considered in accordance with WM (DRC) and YH (Iraq) v Secretary of State for the Home Department [2010] EWCA Civ 116;

(ii) Turkey is a signatory to the ECHR and there is nothing to rebut the presumption that a mentally ill person such as the claimant would not be interrogated in such a way as to breach his Article 3 ECHR;

(iii) the claimant's medical condition is not such an exceptional case that any questioning at all would amount to a breach of Article 3: N v United Kingdom

(iv) the report of Dr Gardner of 13 ^th March 2010 was based on the rejected claims of the claimant regarding his past mistreatment in Turkey.

7

The parties agree that the central issue for me to decide is whether or not the claimant's claim, that there is a real risk that he will suffer an interrogation that would constitute a breach of Article 3 ECHR, would have a realistic prospect of success before an immigration judge considering the fresh material.

8

The claimant's case, put clearly and succinctly by Ms Plimmer, his counsel, is that there is fresh material in the form of psychiatric medical evidence that relates specifically to the risk of a severe mental health breakdown in the form of re-traumatisation in the event that he were to be interrogated on arrival at the Turkish airport for some 6 to 9 hours. This was against a relatively recent diagnosis of Post Traumatic Stress Disorder. The difficulty which she accepts is that the factual basis of the diagnosis was the claimant's account of mistreatment at the hands of the Turkish authorities. This was the account which the immigration judge considering his asylum claim rejected on the basis that his evidence generally was unreliable. Ms Plimmer argues, however, that many of the immigration judge's criticisms of the claimant's evidence amounted to mere observations rather than findings of unreliability; that, nonetheless, the diagnosis is not dependent on the factual reliability of the account; that the diagnosis is now clear and forms the basis of the risk of harm. She submits that the fresh material which the Secretary of State had to consider in April 2010 did not call into question the availability of suitable treatment in Turkey, but related simply to the risk associated with prolonged interrogation on return to Turkey. The claimant relies on the country guidance cases of A (Turkey) CG [2003] UKIAT 00034 and IK (Turkey) CG [2004] UKIAT 00312, which have not since been modified, as indicators that people, who return to Turkey in circumstances such as will probably apply to the claimant, are likely to face interrogation of an average of 6 to 9 hours. It is not suggested that the interrogation would on its own necessarily lead to the risk of intentional ill treatment such as could amount to a breach of Article 3 ECHR. Rather, it is argued that the perception of ill treatment, which forms the basis of the Post Traumatic Stress Disorder, itself would be sufficient to trigger the breakdown, which in turn would amount to the kind of serious harm that would bring it within the ambit of Article 3. The serious harm which is envisaged by Dr Gardner is self harming, possibly to the extent of suicide.

9

Ms Plimmer acknowledges that this has to be one of those rare cases where the potential for sustaining serious harm at the hands of a state's authority can amount to a risk of a breach of Article 3 without there being an intention to cause serious harm. It will be necessary to consider the two country guidance cases in this regard.

10

Thus, the claimant's case is that the decision maker in April 2010 did not engage in anxious scrutiny of the specific risk to which the medical evidence was directed, but should have decided that there was a realistic prospect of an immigration judge concluding on the basis of this fresh material that there was a risk of a breach of Article 3 should the claimant be returned to Turkey. Ms Plimmer emphasised that the decision maker was only considering the relatively modest test whether there was a realistic prospect of success and not prejudging the outcome. That said, she acknowledged that the Secretary of State in these circumstances is a 'gate keeper' and to a certain extent can and should exclude...