Ms For Judicial Review Of A Decision Of The Secretary Of State For The Home Department
| Jurisdiction | Scotland |
| Judge | Lady Stacey |
| Neutral Citation | [2016] CSOH 118 |
| Docket Number | P157/16 |
| Date | 29 July 2016 |
| Published date | 29 July 2016 |
| Court | Court of Session |
| Year | 2016 |
OUTER HOUSE, COURT OF SESSION
[2016] CSOH 118
P157/16
OPINION OF LADY STACEY
In the cause
MS
Petitioner;
for
Judicial Review of a decision of the
Secretary of State for the Home Department
Respondents:
Petitioner: Irvine; Drummond Miller LLP
Respondents: McIver; Office of the Advocate General
29 July 2016
[1] This is an application for judicial review by the petitioner of refusal by the Secretary of State, the respondent, to recognise his claim made in February 2015 as a fresh human rights claim. The letters in which the Secretary of State expressed the decision are dated 23 September 2015 and 13 November 2015.
[2] The petitioner is a national of Pakistan who lives in Glasgow and whose date of birth is 21 October 1971. He has lived in the UK for a total of 13 years over two periods, between 1996 and 2004 and 2010 to 2016. During both periods he applied unsuccessfully for asylum, and his appeal rights became exhausted.
[3] In February 2015 the petitioner submitted a claim which he maintains was a fresh human rights claim on grounds of his mental ill-health. It was submitted by solicitors on his behalf bearing to be a claim under paragraph 353 of the Immigration Rules.
[4] The claim was based on the petitioner’s poor health. The solicitors produced a letter from Jane Pennington, psychological therapist of the organisation “Freedom from Torture” dated 18 December 2014. She reported that the petitioner was first referred in 2001 due to psychological problems relating to, according to him, experiences of torture in Pakistan. He was referred once again in January 2012 and November 2013 by his GP because the GP had concerns about his psychological state and his vulnerability. Miss Pennington saw the petitioner several times between February 2014 and June 2014, commenting that the assessment process was extended due to his physical health problems and high level of distress during assessment appointments. Treatment by Miss Pennington took place thereafter, comprising a consultation first every month and latterly every two weeks. She reported that the petitioner is a frail and physically vulnerable man. He was often distressed at consultation and felt ashamed of his condition. He was socially isolated spending most of his time alone. He had been badly affected by the death of his mother in January 2014. He felt responsible for her death, and his siblings in Pakistan blamed him for the death. He had recurrent thoughts of death and being reunited with his mother.
[5] Miss Pennington is not medically qualified and therefore does not diagnose or prescribe. She did however state in her letter that the symptoms which the petitioner described to her are recognised by her as symptoms involving mental ill-health conditions, namely severe depression and post-traumatic stress disorder (PTSD). She noted that the petitioner had cognitive issues in that he had memory difficulties, needing to be reminded about appointments, and that he often felt confused and disoriented. In Miss Pennington’s opinion, return to Pakistan would have a very detrimental effect on the petitioner’s mood and level of distress. She expressed concern that it may lead to him harming himself or attempting suicide.
[6] The letter from the solicitors asserted that mental health care provision in Pakistan was inadequate for the number of potential patients. While there are psychologists in that country, most of the work is done on a private basis and in any event there is a shortage of practitioners, there only being 1 psychiatrist for every 80,000 adults. The solicitors to a Home Office report on Pakistan dated 9 August 2013 for the following comment:
“In practice there is no law which protects mentally disordered patients in Pakistan ... the current situation is that a person suffering from some mental health disorder is almost completely at the mercy of his family [in order to introduce and oversee that they are cared for].”
The solicitors submitted that those who got access to mental health care did so by paying privately and with physical emotional and financial support of their families. They pointed out that the petitioner has no family in Pakistan (as his parents are dead and his siblings do not wish to know him) and so he had no one to help him.
[7] The respondent requested further information about the petitioner’s medical condition and frail physical health and that he had severe depression. His medication was listed.
[8] The claim was made under both articles 3 and 8 of ECHR. It is asserted that the petitioner had built up a private life in the UK having been in this country for a number of years. He had no family or other relationships and his only real contact was with his psychologist whom he saw every fortnight. It was contended that that amounted to private life and that were he to be returned to Pakistan he could not continue that private life. Nor could he strike up a new relationship with a psychologist in that country because he would have no family or friends to make sure that he got care and that he attended for appointments.
[9] The Secretary of State replied to that application by letter of 23 September 2015. In that letter the petitioner’s immigration history is set out; the respondent did not note the petitioner leaving the UK in 2004, although she did note that he arrived back in the UK in 2010. The respondent did not grant the application. She stated that the submissions regarding mental health had not previously been considered. The respondent noted that claims were made under article 3 and article 8. She went on to consider them, and decided that there was no reasonable prospect of success before a First-tier tribunal. It can be seen from the letter, the decision maker on behalf of the respondent considered the application under the heading “Article 8 – family and private life based submissions.” She did so under appendix FM of the Immigration Rules. She noted that the petitioner made no claim to have a partner or a child and so any claim on the basis of family life was refused.
[10] The decision maker then considered private life, noting that it was for the petitioner to prove that he had a private life in this country. The relevant rule is 276 ADE (1). The decision maker described the petitioner as 43 years of age and as he claimed to have arrived in the UK on 20 January 2010, he had 5 years residency. She found that that did not meet the rules under 276 ADE (1), as the petitioner did not have 20 years continuous residence in the UK, nor was he between the ages of 18 and 25, being 43 at the date of application, and that he had not spent half his life in the United Kingdom. The decision maker then considered the last part of 276ADE (1), that is whether the petitioner had demonstrated that there would be very significant obstacles to his integration into Pakistan were he required to leave the UK. The decision maker stated the following:
“You have failed to demonstrate that there would be very significant obstacles to your reintegration to Pakistan. It is not accepted that there are any significant obstacles which would prevent you from continuing with and re-establishing your private life upon return to Pakistan, the country of your birth and a country in which you speak the language and therefore you would be able to re-integrate back into society. You are a 43-year-old adult and you claim to have spent 5 years in the UK. It is considered that you have spent the majority of your life in Pakistan, 38 years as opposed to just 5 in the UK. Upon your return to Pakistan you can maintain contact with any UK based friends and other associates through modern channels of communication. You are a 43-year-old adult who enjoyed an established private life before coming to the UK and that is no reason why you should not do so again upon your return to Pakistan you have failed to demonstrate that there would be very significant obstacles to your integration into the country of return and therefore fail to fulfil rule 276ADE (vi). “
Having found that the petitioner did not satisfy the rules the respondent went on to consider whether in his particular circumstances he should be granted leave to remain outside the immigration rules. In her first letter she found that there was nothing to indicate that there was any realistic prospect of success before an immigration judge, noting as follows: in particular “you have not demonstrated that you have a relationship that cannot continue outside the UK.”.
[11] The respondent then considered whether the removal from the UK would breach the article 3 rights of the petitioner. The decision-maker considered the case of Bensaid v UK (2001) 33 EHRR 10 and N v UK (2008) 47 EHRR 39. She decided that the petitioner had depression and anxiety. Even if the petitioner had suffered a severe medical condition, removal would only be a breach of article 3 if the illness had reached are very critical stage and the conditions to which the petitioner would be removed would be such that it would be inhuman or degrading treatment to remove the petitioner. Such circumstances did not apply, according to the decision maker, where current object of information available to have indicated that a sufficient level of care does exist in Pakistan. Finally, the decision maker considered compassionate circumstances as required by paragraph 353B of the Immigration Rules. She found...
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