R (on the Application of RA - Nigeria) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Andrew Thomas QC |
| Judgment Date | 08 December 2014 |
| Neutral Citation | [2014] EWHC 4073 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 08 December 2014 |
| Docket Number | Case No: CO/5903/2013 |
[2014] EWHC 4073 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Andrew Thomas QC
(Sitting as a Deputy High Court Judge)
Case No: CO/5903/2013
Raza Halim (instructed by Duncan Lewis) for the Claimant
Julie Anderson (instructed by The Treasury Solicitor) for the Defendant
Hearing date: 21 October 2014
This is a claim for judicial review relating to the Defendant's decision to certify, or purport to certify, the Claimant's asylum and human rights claims as 'clearly unfounded' thereby preventing him from exercising an in-country right of appeal to the First Tier Tribunal.
The Claimant has made repeated threats to kill himself if he is returned to Nigeria. He relies upon medical evidence which states that he has been diagnosed as suffering from severe depression. Both the diagnosis of severe depression and the authenticity of the threats are disputed by the Defendant. The views of the Claimant's own expert were contradicted by two other Consultant Psychiatrists.
This is not a challenge to the substantive decision. The issue is whether, notwithstanding her rejection of his claim, the Defendant should have accepted that the Claimant had a prospect of successfully appealing her decision to the First Tier Tribunal.
Background
The Claimant is now 38 years of age. He first came to the United Kingdom in 2012 aged 35 on a six months visitor's visa. He arrived on about the 29 th of January 2012. One week later he was arrested whilst attempting to take an onward flight to France. He was found to be travelling on a false passport. In April 2012 he was convicted at Chelmsford Crown Court of possession of identity documents with intent and sentenced to 12 months imprisonment.
It is common ground that by reason of this conviction the Claimant is a 'foreign criminal' within the meaning of Section 32 of the UK Borders Act 2007. There are two relevant consequences:
a. pursuant to Section 32(4), there is a presumption that the Claimant's deportation is conducive to the public good; and
b. pursuant to Section 32(5), the Secretary of State must make a deportation order unless one of the statutory exceptions under Section 33 is made out.
Section 33 contains six different forms of exception. The Claimant relies upon Exception 1, which applies in cases where deportation would breach a person's Convention rights or the UK's obligations under the Refugee Convention.
On 30 th April 2012 the Claimant was served with a notice inviting him to show reasons why a deportation order should not be made. On 8 th May 2012 he made a claim for asylum.
The Claimant gave an account of the events which led to him coming to the UK. The Defendant does not accept the truth of this account, but it has never been the subject of an adverse adjudication.
The Claimant states that he was born in Lagos and brought up in Kaduna. His father held a senior University post. He was educated at a boarding school to the age of 18 years and thereafter studied IT at college. He met his wife at college and they married in 2011. He was a practising Christian.
His case is that in November 2011 he witnessed an attack at his church in which several Christians were murdered by members of Boko Haram. On 25 th December 2011, his own home was attacked. It was destroyed by fire and his wife was shot. A few days after that, another friend was killed. He believes that members of Boko Haram were targeting him and that he would be murdered. He obtained a visitor's visa but he was too scared to tell anyone that the real reason he was coming to the UK was to flee Boko Haram.
Having made the asylum claim, the Claimant instructed Solicitors. They made further representations on his behalf in a letter dated 28 th May 2012. They added a Convention rights claim to the submissions. Accordingly, both parts of Exception 1 fell for consideration. The Claimant stated that he was suffering from memory loss but no other medical concerns were raised.
In a notice of decision dated 30 th July 2012, the Defendant rejected the Claimant's asylum claim, his Convention rights claim and any claim for humanitarian protection. In summary, the Defendant concluded that even if the alleged events were true they did not prevent the Claimant from returning to Nigeria. Christians are not identified as a persecuted group in Nigeria as a whole. The Claimant could re-locate to a safe area. Further, there is a sufficiency of protection in Nigeria through its police services. There was no risk of unlawful killing or ill-treatment. Any claim for humanitarian protection was barred by virtue of the conviction. As to any medical issues, it was noted that treatment is available in Nigeria, albeit that their services may have limitations. The Convention rights claim was refused.
The Notice concluded with a certificate under Section 94(3) of the Nationality, Immigration and Asylum Act 2002 ("the 2002 Act"). The Defendant determined that the claim was 'clearly unfounded', thereby barring the Claimant from pursuing any in-country right of appeal.
A deportation order accompanied the notice of decision. The Claimant was transferred to Colnbrook IRC in August 2012 following completion of his prison sentence.
Medical Evidence
The first suggestion of any threat of suicide was in a letter from the Claimant to the Defendant in September 2012. The Claimant was assessed by Dr Sultan, a visiting Consultant Psychiatrist at the IRC. He found some symptoms of depression and insomnia and initially concluded that the Claimant was unfit to fly. A further note dated 24 th September 2012 states that the Claimant may be well enough to travel within two to four weeks.
On 7 th October 2012, Dr Sultan reviewed the Claimant again. He accepted the evidence of symptoms but concluded that the threats to end his life were manipulative behaviour. He suggested a potential diagnosis of Borderline Personality Disorder. He was now fit to fly.
There were a number of further reviews by Dr Sultan between October 2012 and January 2013. He found that the Claimant's anxiety and despair were attributable to his situation. They were a natural reaction to events rather than the consequence of any severe or enduring mental illness. By now, deportation had been stayed as a result of the issuance of a claim for judicial review.
In January 2013 the Claimant was transferred to Harmondsworth IRC where he was assessed by another Consultant Psychiatrist, Dr Burrun. He concluded that the Claimant was fit to fly although he noted that the Claimant was maintaining his threat to kill himself if he was deported.
At no time did the Claimant seek any form of treatment. He never sought any medication nor did he wish to undertake any sort of counselling. He has never suffered injury through self harm. There has never been any report to Dr Sultan or Dr Burrun of hallucinations or any other potential psychotic symptoms.
The Claimant's solicitors instructed an independent consultant psychiatrist, Dr Bell, to carry out a review. He saw the Claimant for the purposes of his report on 23 rd January 2013. He subsequently set out his findings in a report dated 18 th February 2013. That report is the basis for the present claim.
Dr Bell carried out a review of the written notes, but it was a limited one. He refers to seven relevant entries which date between August 2012 and October 2012. On six of those occasions there is reference to the Claimant threatening to kill himself. On two occasions his mood is recorded as 'low' or 'flat'. On one occasion the Claimant stated that he had tried to kill himself when he was in prison. Dr Bell makes no reference to the assessments by the other consultants.
Dr Bell obtained a full history and carried out his own assessment. The Claimant disclosed that his brother had committed suicide two years earlier. Dr Bell noted that the Claimant looked objectively depressed. The Claimant said that he was not taking medication 'because I do not believe in it'. He said that his sleep was poor, he was eating poorly and he had suffered panic attacks. He reported suffering both auditory and visual hallucinations. He said that on two occasions in December 2012 he had in fact attempted to kill himself by placing a bag over his head.
Dr Bell concluded as follows:
"It is clear to me that RA suffers from psychiatric disorder. His condition would satisfy the diagnostic criteria for Severe Depressive Disorder with psychotic features [DSM-IV 296.34]. … The aetiology of his condition would appear to be complex. Although it is possible that his view of his life is coloured, retrospectively, by his current Severe Depressive Disorder, I think it is more than likely that there has been in reality psychological disturbance for much of his life.
…
In my view the psychiatric disorder as I have described it is real. I have considered the possibility that it is fabricated and I am clear that it is not the case. I do not think that it would be possible to fabricate this kind of psychiatric disorder or to maintain it over this long period of time.
…
Currently there is a moderate to high risk of self-harm and suicide. …
It is my view that return to Nigeria would cause a further serious deterioration in RA's psychiatric state for a number of reasons which include the following:
— RA has not even begun to metabolise the traumatic events that have occurred. Being returned to...
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