R LB v First-Tier Tribunal (Asylum Support) The Secretary of State for the Home Department (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Judge Sycamore |
| Judgment Date | 06 March 2015 |
| Neutral Citation | [2015] EWHC 895 (Admin) |
| Date | 06 March 2015 |
| Docket Number | CO/5067/2014 |
| Court | Queen's Bench Division (Administrative Court) |
[2015] EWHC 895 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
His Honour Judge Sycamore
(Sitting As a Judge of the High Court)
CO/5067/2014
Mr M Spencer (Solicitor Advocate) (instructed by Child Poverty Action Group) appeared on behalf of the Claimant
The Defendant did not attend and was not represented
Mr R Harland (instructed by the Treasury Solicitor) appeared on behalf of the Defendant
(As approved)
Hearing Dated: 3 March 2015
This is an application by LB, (the claimant), for judicial review of the decision of the First-tier Tribunal (Asylum Support), (the defendant), of 17 October 2014, to dismiss her appeal against the decision of the Secretary of State for the Home Department, (the interested party), to discontinue support under section 4 of the Immigration and Asylum Act 1999.
Permission was granted on the papers by Richard Clayton QC, sitting as a Deputy High Court Judge, on 8 December 2014.
The claimant is a citizen of the Democratic Public of the Congo, who is a failed asylum seeker who became appeal rights exhausted on 3 August 2009. She subsequently made further submissions to the interested party, the last of which were refused on 26 April 2014.
The decision under appeal to the defendant was that of the interested party of 2 October 2014 to discontinue support on the basis that the claimant was unable to demonstrate that she was unable to leave the United Kingdom.
The grounds upon which the claimant relies are summarised in the claimant's skeleton argument as follows:
"The Defendant:
(a) failed to take into account material evidence and/or failed to make any findings in relation thereto;
(b) materially misdirected himself in law in relation to the status of the evidence of a medical adviser who has not himself examined the applicant, by failing to direct himself in accordance with the principles set out in Shala v Birmingham City Council [2007] EWCA Civ 624;
(c) made irrational findings as to whether there had been a material of circumstances rendering the Claimant now able to leave the United Kingdom, which in turn led to an irrational conclusion in relation thereto;
(d) made an irrational finding as to the availability of a suitable escort to facilitate the Claimant's departure from the United Kingdom."
The relevant regulation is found at regulation 3 of the Immigration and Asylum (Provision of Accommodation to Failed Asylum-Seekers) Regulations 2005, which provides as follows:
"(1) … the criteria to be used in determining the matters referred to in paragraphs (a) and (b) of section 4(5) of the 1999 Act in respect of a person falling within section 4( 2) or (3) of that Act are–
(a) that he appears to the Secretary of State to be destitute, and
(b) that one or more of the conditions set out in paragraph (2) are satisfied in relation to him.
(2) Those conditions are that–
(a) he is taking all reasonable steps to leave the United Kingdom or place himself in a position in which he is able to leave the United Kingdom, which may include complying with attempts to obtain a travel document to facilitate his departure;
(b) he is unable to leave the United Kingdom by reason of a physical impediment to travel or for some other medical reason;
(c) he is unable to leave the United Kingdom because in the opinion of the Secretary of State there is currently no viable route of return available;
(d) he has made an application for judicial review of a decision in relation to his asylum claim–
(i) in England and Wales, and has been granted permission to proceed pursuant to Part 54 of the Civil Procedure Rules 1998,
(ii) in Scotland, pursuant to Chapter 58 of the Rules of the Court of Session 1994, or
(iii) in Northern Ireland, and has been granted leave pursuant to Order 53 of the Rules of Supreme Court (Northern Ireland) 1980, or
(e) the provision of accommodation is necessary for the purpose of avoiding a breach of a person's Convention rights, within the meaning of the Human Rights Act 1998."
It was accepted that the only relevant regulation is that at 3(2)(b) and that reasonableness plays no part in its application. The question of the approach to regulation 3(2)(b) was considered by Holman J in R(Osman) v The Asylum Support Adjudicator [2006] EWHC 1248 (Admin). He concluded that the test was a two-stage one. First, it had to be considered whether the applicant was "unable to leave the United Kingdom" and then to consider whether the inability was for one of the reasons given; that is to say "a physical impediment to travel or some other medical reason". As to the meaning of the word "unable", Holman J said at paragraphs 28 to 29:
"28. … I decline to paraphrase it. It is a very ordinary English word. I make only the following comments. There is a difference in shade of meaning between use of the word 'unable' and use of the word 'impossible'. The question that has to be asked in these cases is whether, using the word in its ordinary sense, it can be said that the person 'is unable' to leave the United Kingdom. To substitute an absolute test of impossibility in the literal sense of that word would be to put it too high.
29. On the other hand, there is, in my view, no justification or warrant at all in these cases to imply into condition (b) the word 'reasonable' or some test of 'reasonableness'."
The central issue in this case arises from the medical evidence which was before the defendant and the approach taken to it by the tribunal judge in his determination.
The claimant was represented at the hearing by a solicitor on a pro bono basis. Prior to the hearing, the defendant had issued directions on 13 October 2014, which were sent to the claimant and included directions in relation to the medical evidence to be produced for the tribunal hearing. The directions said this:
"[LB] should send the Tribunal Judge and to the Home Office on or before noon on the 16th October 2014:
(i) any further evidence from her general Practitioner/Hospital Consultant or any other treating medical practitioner as to:
(a) her present state of health to include evidence of any current medical conditions and their symptoms;
(b) any treatment being received;
(c) whether the appellant is considered unable to leave the UK and, if so, the precise reasons for such inability;
(d) the likely consequences, if any, to the appellant and other passengers of her undertaking a single journey e.g. to DRC;
(e) the date by which the appellant is expected to be medically able to leave the UK."
The directions went on to require the interested party also to provide evidence, including medical evidence, for the hearing.
The claimant relied on evidence from her clinical psychologist, Dr Karen Ryder, who had reported on an earlier occasion. The most recent report was dated 15 October 2014 and had been provided at the request of the claimant's representative. Dr Ryder, in the introduction to that report, refers to a telephone conversation with them. The Tribunal Judge made it clear that he had read that and other reports, including reports from Dr Wilson, who was commissioned by the interested party to comment on the available reports. The Tribunal Judge said this at paragraph 19:
"There are a large number of reports in the file and which I have fully considered and I do not propose to repeat the information enclosed within those letters save to refer to the...
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