MM (Zimbabwe) v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Moses,Lord Justice McFarlane,The Master of the Rolls |
| Judgment Date | 13 March 2012 |
| Neutral Citation | [2012] EWCA Civ 279 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C5/2010/1758 |
| Date | 13 March 2012 |
[2012] EWCA Civ 279
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Senior Immigration Judge Jarvis
IA/09494/2007
Royal Courts of Justice
Strand, London, WC2A 2LL
The Master of the Rolls
Lord Justice Moses
and
Lord Justice McFarlane
Case No: C5/2010/1758
Ms Rebecca Chapman (instructed by Battersea Law Centre) for the Appellant
Mr Matthew Barnes (instructed by Treasury Solicitors) for the Respondent
Hearing date: 14 th February, 2012
This is a sad and worrying case. The appellant, now 28, was born in Zimbabwe on 26 January 1983. He arrived in the United Kingdom in November 2000, at the age of 17. His mother had left to settle in the United Kingdom and he and his siblings had lived with their father. But his father died and his siblings left Zimbabwe to join their mother. The appellant remained in Zimbabwe where he lived with an uncle, who also died. When he came to the United Kingdom he settled with his mother, his stepfather and siblings. The only family members remaining in Zimbabwe are his grandmother, who in May 2008 was 92 and suffering from dementia, and a great-aunt with whom his grandmother lived, who also had health problems. They live in a remote area and have not featured in bringing up this appellant.
On 27 November 2001 he was granted indefinite leave to remain in the United Kingdom. On 15 July 2002 he was sentenced to 27 months in a young offenders' institution in respect of 15 burglaries. Between May and September 2004 he was sentenced to 21 days' imprisonment for separate offences of shoplifting. On 6 December 2004 he was sentenced to four years' imprisonment for attempted robbery, six months' imprisonment for theft and three months for possessing an imitation firearm. On 5 June 2007 the Secretary of State decided to make a deportation order against him on the grounds that his continued presence in the United Kingdom was considered not to be conducive to the public good, pursuant to s.3(5)(a) of the Immigration Act 1971.
The appellant had a history of serious mental illness. The appellant's condition is described in three psychiatric reports from Dr Judge dated 13 July 2007, 28 September 2007 and 21 April 2008, and a report of a senior forensic social worker dated 24 April 2008. These reports were before the Asylum and Immigration Tribunal, as it then was, and the Upper Tribunal. Dr Judge records that the appellant's first admission to psychiatric hospital was in February 2004, following a period of at least one year during which his family had been concerned about his mental health. He was exhibiting signs of self-neglect, withdrawal and bizarre behaviour. After discharge from hospital, where he had spent ten days, he was readmitted three days later after threatening his mother with a knife. His mental state improved spontaneously. After about six months in prison, following his sentence for robbery, he was diagnosed as suffering from a psychotic illness, most likely schizophrenia, and transferred to hospital on 27 April 2006, pursuant to ss.47 and 49 of the Mental Health Act 1983. He was treated by medication, transferred to a low-security ward and by March 2007 his illness appeared to be entirely in remission.
When interviewed, it appeared that he was willing to take his medication and believed that it had helped improve his mental state. He was optimistic about his future and had been accepted for a college course in Information Technology. The treatment plan was to discharge him to a supported housing scheme in Merton, near to his family. He was to remain under the care of a community mental health team and would receive regular follow-up and medication. He would be monitored for signs of mental illness or any return to the illicit drugs he had used when he began attending college in the United Kingdom. In her report dated 28 September 2007 the doctor took the view that continued contact with the appellant's mother and stepfather (he is a psychiatric nurse) would be likely to "be protective". Family members would be able to notice early warning signs. Ongoing contact with his family would be beneficial. The doctor foresaw that if there was a break in the continuity of his treatment there was a substantial risk of relapse (80% risk within one year, 98% within two years). With each successive episode of illness "the baseline level of functioning" deteriorates. Without treatment there was a high risk of relapse with a detrimental effect on long-term prognosis.
The doctor took the view that both the offending and the substance misuse occurred in what she described as the "prodromal" phase of the appellant's illness. This is a period prior to the development of overt symptoms when subtle changes in thinking and behaviour occur. In the doctor's opinion, effective treatment and ongoing management of the appellant's illness "significantly reduces the risk of further offending". She took the view that there was no evidence to suggest that the appellant presented any risk to the public at the time she wrote her report, dated 28 September 2007.
She wrote an addendum on 21 April 2008. She recorded that the appellant's mother had contacted the ward when he was staying at the end of December 2007 because she was concerned that the appellant's mental health was deteriorating. In January 2008 he tested positive for cannabis. He absconded from the ward without leave, out of contact with his family and using cannabis, until he was found by the police. But despite this behaviour the doctor maintained her view that the prognosis, should the appellant remain in the United Kingdom where he can receive ongoing treatment, was good. She described his illness as well-controlled by medication and said that he was able to work, study and to return to live in the community and re-engage with society. She reported that should he be deported to Zimbabwe, the prognosis would be "extremely poor". He would receive neither appropriate medication nor support. The senior forensic social worker reported, on 24 April 2008, to similar effect.
AIT and Upper Tribunal
On 6 May 2008 the appellant appealed against the Secretary of State's decision. Dr Judge gave evidence at that hearing. She confirmed that the appellant's family were close and that his mother attended the hospital and meetings to discuss his welfare. She described the members of the family as best placed to observe early warning signs of a relapse and to provide support and encouragement. She said that the appellant was one of a small group of people (about a third of patients) who have a good prognosis and respond well to treatment. She was shown a list of drugs available in Zimbabwe. Chlorpromazine was a possible drug available he could use but that could have "very serious side effects" without other drugs to balance those effects. She described what the tribunal found to be horrific and extremely distressing side effects, such as tremors, locking of the neck muscles with the head forced back and a rolling of the eyes, which became fixed, looking upwards and backwards. Those symptoms could last for several hours and were very distressing for the patient. The AIT accepted the doctor's evidence.
The issue before the AIT was whether the appellant had established a private life which might engage Article 8 of the European Convention on Human Rights and if so, whether it was disproportionate to interfere with that private life to deport the appellant on the grounds that his continued presence would not be conducive to the public good. The Tribunal found that he did have a private life in the United Kingdom but only to a limited extent:-
"While he has a caring and loving family, it cannot properly be said that the concern and affection that ordinarily go with blood ties are, by themselves or together, enough to constitute family life…
This appellant's private life does not arise because of work, friendships or loose social ties, but because of his family ties, his illness, his dependency on his clinicians and his medication and the obligation under s.117 Mental Health Act 1983 to provide him with community care after discharge…we are, therefore, satisfied that the appellant has an established private life in the United Kingdom where anyone on whom he has depended in terms of his health now lives."
The Tribunal then found that were he to be returned to Zimbabwe his schizophrenia would return and his condition would deteriorate. The Tribunal described a health system in Zimbabwe "in collapse" where treatment would barely be available, if at all. It accepted the improvement to his condition, despite the lapse described by Dr Judge and concluded:-
"The evidence points to clear progress for the appellant since his release, progress that demonstrates that the appellant is not a risk to the public. Given this fact, and the humanitarian considerations of the very severe impact of his removal, we are satisfied that deportation would be disproportionate to any legitimate aim under Article 8(2)."
The Tribunal did not find it necessary to consider whether there existed exceptional circumstances under paragraph 364 of HC 395 (Statement of Changes in Immigration Rules).
The Secretary of State appealed. On 13 November 2008 Senior Immigration Judge Moulden identified a number of grounds for reconsideration. In particular, he took the view that the AIT had erred in its reliance on the difference between medical treatment in the United Kingdom and Zimbabwe. A return to...
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