R LINDITA MEHMETI v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE BEATSON |
| Judgment Date | 03 December 2004 |
| Neutral Citation | [2004] EWHC 2999 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 03 December 2004 |
| Docket Number | CO/1817/2004 |
[2004] EWHC 2999 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand London WC2
Mr Justice Beatson
CO/1817/2004
MR SATVINDER JUSS appeared on behalf of the CLAIMANT
MISS JULIE ANDERSON appeared on behalf of the DEFENDANT
Friday, 3rd December 2004.
On 8th April 2004 the claimant launched these judicial review proceedings, challenging the Secretary of State's decision, dated 5th March 2004, maintained in letters dated 7th and 25th October, to reject her claim that to remove her to Greece, in accordance with the Dublin Convention, would be a breach of article 3 and 8 of the European Convention on Human Rights.
The renewed application for permission came before me on 2nd July. Permission was only given in respect of the Secretary of State's decision to certify the claim as clearly unfounded under section 93(2)(b) of the Nationality, Immigration and Asylum Act 2002.
The claimant is originally from Kosovo. She arrived in the United Kingdom from Greece with her husband and two children on 24th October 1997. Their Yugoslav passports bore Greek visas, issued to them on 20th October by the Greek Embassy in Belgrade. Her husband claimed asylum on arrival, with the claimant and their children as his dependents.
On 24th November 1997 the Greek authorities accepted that, under the Dublin Convention, Greece was responsible for considering their asylum claim. The claims to asylum, including the claimant's as a dependent, were certified, pursuant to section 2(2) of the Asylum and Immigration Act 1996. The certification letter was served on 1st December 1997.
The claimant's immigration history thereafter shows a pattern of repeated failure to report for removal, litigation, and changes of solicitors. This case is also another example of the problems faced by this court in dealing with the review of decisions where the facts or the evidence presented to the court by the claimant differs from that presented to the defendant at the time of the decision that is being challenged. On 5th March, when the decision was originally taken, the only medical evidence put before the Secretary of State by those representing the claimant was a report, dated 12th September 2003, by a consultant psychiatrist, Dr Philip Steadman. The judicial review bundle, however, contains a letter dated 11th September 2001 from Dr Turvill, the claimant's general practitioner, and one dated 13th December 2001 from Dr Sheilagh Davies, a consultant psychiatrist to whom her GP referred the claimant. A further letter from Dr Davies, dated 7th April 2004, the day before these proceedings were launched, was not before the court on 2nd July at the hearing of the application for permission. Mr Juss stated this was because his instructing solicitors had not got a copy of the letter at that time. The letter was, in fact, only served on the defendant immediately before the hearing on 12th October before Silber J to consider the substantive application. That hearing had to be adjourned to enable the defendant to consider this and a further letter from Dr Davies dated 5th October, and to make a further decision in the light of that.
As Sullivan J said in R (Sopa) v Secretary of State for the Home Department [2004] EWHC 904 at paragraph 8:
"In these circumstances the court has to do its best to consider the justification for certification on the basis of the most up-to-date factual and legal material."
Before turning to the substance of the appeal, I summarise the claimant's complex immigration history. Removal directions were initially put in place for 5th December 1997. They were cancelled but reinstated for 11th December. On that day, the claimant and her family failed to report from removal and launched judicial review proceedings. Those proceedings were stood out to await the outcome in the cases of Elshani and Berisha. After leave to appeal to the House of Lords in those cases was refused on 17th November 1999, the defendant invited the claimant's then solicitors to withdraw the judicial review. It was ultimately withdrawn in September 2001. In October 2001 the claimant's representatives alleged that a return to Kosovo would breach her human rights. This was certified as being manifestly unfounded under section 72 (2) (a) of the Immigration and Asylum Act 1989. Notwithstanding threatened judicial review proceedings, the defendant refused to suspend removal directions for 26th November 2001. The claimant and her family failed to report on that day and 3rd December and were therefore treated as immigration absconders.
She made a further human rights claim in 2003 and it is the certification of this which is the subject of the present proceedings.
On 17th June the House of Lords gave its decision in Razgar v Secretary of State [2004] 2 AC 368 and that case was at the centre of the submissions made at the hearing on 2nd July and the present hearing. That case recognised that, in principle, the rights protected by article 8 can be engaged by the foreseeable consequences for health of the removal from the United Kingdom, pursuant to an immigration decision; even where such removal does not violate article 3, provided the facts relied on by the application are sufficiently strong. It was held that the evidence that Mr Razgar, an Iraqi of Kurdish origin, who the defendant proposed to remove to Germany on Dublin Convention grounds, would attempt to kill himself if removed, meant that his claim could not be characterised as manifestly unfounded. The Secretary of State's certificate was, accordingly, quashed.
Since, in the present case, permission was only give in respect of the challenge to the certification, on the basis of the decision in Razgar, I indicated that the defendant should reconsider certification of the claim in the light of it. The defendant did so and in a letter dated 7th October maintained its position. It will be recalled that the adjournment of the hearing on 12th October was to enable the defendant to consider the two letters from Dr Davies and to make a further decision in the light of them. The defendant did this, but again, maintained its position, giving its reasons in a letter dated 25th October. The 5th March and 7th October decision letters make it clear that the Secretary of State considered that if, contrary to his clear views, article 8 was engaged by the claim, he also considered the argument that any alleged interference with the rights under article 8(1) was not proportionate and justified under article 8(2) was clearly unfounded.
I have stated that the claimant's form N461 relies on both article 3 and article 8. Article 3 was, however, not pursued at the hearing. Mr Juss's submissions were confined to article 8. In the circumstances of this case, the claimant's position is not affected by this. If the Secretary of State is entitled to conclude that the claim under article 8 is bound to fail, he is also entitled to conclude that the claim under article 3, relying on the same material, is bound to fail.
I turn to the medical evidence. Mr Juss primarily relied on Dr Davies' letter dated 7th April 2004. This letter records the date of the arrival of the claimant and her family into the country, that their applications had been refused, that they had been unable to work and received no benefits, and that the children were well-integrated in the schooling system. It records that the claimant was referred to the North Camden Mental Health Services Psychotherapy Unit in 1998 by her general practitioner and has attended for periods of treatment since, mostly under Dr Davies' care. An earlier letter from Dr Davies stated the claimant had been under her care since July 2000.
Dr Davies states that she understands that the patient's mother, living in Australia, suffers from schizophrenia and is seriously incapacitated. She also states she understands the claimant, who at some point prior to coming to the UK, had lived in Libya for 11 years, came with a doctor's statement that she had suffered from a psychotic episode herself in 1996, which was treated with anti-psychotic medication. The material part of the letter states:
"The patient presents with severe anxiety, depression and intermittent suicidal ideation. She has at times presented in a confused state with some paranoid ideation. She suffers from hypochondriacal concerns, besides a number of somatic symptoms, which her GP could report on in full.
In my opinion deportation would be extremely detrimental to the patient's mental health and would be very likely to precipitate a serious deterioration in her mental state —with the strong possibility of her becoming actively suicidal or psychotic. It goes without saying that there would be massive implications for the children, who have never been to Kosovo.
I trust that this family's situation can be reconsidered. Please let me know if you require further information."
On 5th October, apparently in response to a request by the claimant's solicitors, Dr Davies wrote to the solicitors, confirming that claimant's mental state and situation remained as set out in the letter of 7th April, and that stating the risks to her mental health, if deported, stood.
I have referred to other communications from medical practitioners. As far as consultant psychiatrists are concerned, the first in time is Dr Davies' letter dated 13th December 2001. Dr Davies then advised that the decision to remove the claimant be...
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