MM (Sudan) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | SIR PAUL KENNEDY,LADY JUSTICE HALLETT,Lord Justice Keene |
| Judgment Date | 03 December 2009 |
| Neutral Citation | [2006] EWCA Civ 1675,[2009] EWCA Civ 1014 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | C5/2006/1289,Case No: C5/2009/0923 |
| Date | 03 December 2009 |
[2006] EWCA Civ 1675
Lady Justice Hallett
Sir Paul Kennedy
C5/2006/1289
[AIT No. HX/15620/2004]
MS F WEBBER (instructed by Immigration Advisory Service) appeared on behalf of the Appellant.
THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED.
Judgement
The applicant was born on 15 July 1970, so he is now 36 years of age and he is a native of the Sudan. He came to this country in about 2000. It is not entirely clear the circumstances in which he came here because he is, for reasons I will explain, not a particularly reliable historian. Having originally lived in the Sudan and apparently started to go to university, he left university and for a time went to Saudi Arabia. He probably went in about 1996. He claimed at one stage that it was in March 2001 that a Saudi prince brought him to the United Kingdom and that he escaped from the control of that Saudi prince in that same month and claimed asylum on 22 March 2001. However, there is reason to believe that he may have been here before that. In any event, it was in 2001 that he was diagnosed in this country as suffering from schizophrenia.
His application for asylum was considered by the Secretary of State and refused in a decision letter dated 30 April 2004. He then appealed to an adjudicator and the matter came before an adjudicator on 7 December 2004. That appeal was dismissed but the Immigration Appeal Tribunal, as it then was, gave permission to appeal on 31 March 2005 and on 4 January 2006, the Asylum and Immigration Tribunal noted the acceptance of the Home Office that the applicant had a psychiatric condition and took the view that the adjudicator should have conducted a risk assessment which had not been carried out and that there should therefore be in essence a fresh determination. It is against that background that the matter came before HHJ Kekic as a designated Immigration Judge on 12 April 2006.
Before that judge, the applicant claimed that he arrived in the United Kingdom on 25 May 2000. Before that judge also, the claim in relation to asylum was not pursued. That therefore need not be further considered by this court. But what was pursued was the applicant's human rights claim. In essence, the applicant contended that because of the severity of his medical condition and because of the lack of available facilities in Sudan, it would not be compliant with the obligations of the United Kingdom under the European Convention to return the applicant to the Sudan.
Medical evidence was laid before the judge and the judge carefully considered that medical evidence, as can be seen from her determination in paragraphs 21 to 24. Criticism is made this morning by Ms Webber of the fact that the judge did not make explicit reference to the penultimate report of Dr Behr — but it is noticeable that that report was followed by a further report more up-to-date than that particular report — and furthermore that the complaint now made does not specifically feature either in the grounds of appeal or in the applicant's skeleton argument. The point which Miss Webber seeks to emphasise in referring to that report is that the doctor made reference to what, in his judgment, was likely to happen if the applicant were to be returned to the Sudan. As one can see from the totality of the evidence that was in the forefront of the considerations of both Dr Behr and Dr Lorimer and indeed is reflected in the summaries prepared by the judge with what I, for my part, would regard as exemplary care.
There is no doubt that this medical condition does exist. There is no doubt that it has existed for some time. The first signs of unusual behaviour were observed in 2001. Then the applicant became so disturbed that there was violence and ultimately he was found a place at St Mungo's, which is a mental health supported hostel where with the appropriate treatment he is able to live a reasonable life. Clearly, he has a serious condition and he does need support.
It is also clear from the evidence which was before the judge that the medical facilities in the Sudan are not the same as those which exist in the United Kingdom. The judge set out the evidence quite clearly at paragraphs 28 and 29 of her determination. It may be that in a perfect world it would be possible to allow those who have the misfortune to be afflicted by a medical condition to choose where to live in order to receive treatment. But that was not the law which the judge had to apply. She considered the law and the authorities which were laid before her. Noticeably this morning, nothing has been said by Miss Webber to suggest that the learned judge misunderstood the law. She summarised the cases to which she had been referred at paragraph 39 of her determination, saying this:
"The main principles derived from these cases then, are: the UK has the right to control the entry, residence and expulsion of...
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