R T (Sri Lanka) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Philip Mott Qc |
| Judgment Date | 01 May 2013 |
| Neutral Citation | [2013] EWHC 1093 (Admin) |
| Docket Number | Case No: CO/11654/2011 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 01 May 2013 |
[2013] EWHC 1093 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice Strand,
London, WC2A 2LL
Philip Mott QC
Sitting as a Deputy High Court Judge
Case No: CO/11654/2011
Shivani Jegarajah (instructed by Duncan Lewis) for the Claimant
Oliver Sanders (instructed by Treasury Solicitor) for the Defendant
Hearing dates: 16 th and 18 th April 2013
The Claimant, a Sri Lankan Tamil refugee with a right of residence in the UK, seeks to prevent the Defendant removing her brother to Germany as a safe third country which has accepted the responsibility of dealing with his asylum claim under the provisions of the Dublin II Regulation. She does so on the basis that his removal will breach her rights as a refugee because of the likely effect on her mental health.
For reasons which appear in this judgment I conclude that her claim must fail.
Factual Background
The Claimant is a Sri Lankan of Tamil ethnicity born on [a date in] 1976, now aged 38. Her brother JT was born on [a date in] 1980, and is now aged 32.
The Claimant arrived in the UK in September 2008 and claimed asylum on the basis that she feared persecution in Sri Lanka from the LTTE and the Sri Lankan authorities. Her asylum statement dated 15 November 2008 catalogues the loss of a number of members of her family and the horrific treatment she herself received in Sri Lanka. She escaped Sri Lanka and arrived in the UK believing herself to be the only surviving member of her immediate family.
She was given leave to remain as a refugee by letter dated 5 February 2010, effective from 18 January 2010, following a successful appeal to the Asylum and Immigration Tribunal. The Immigration Judge set out his findings at length. Wherever the Claimant's credibility was challenged, in at least eight respects, he found in her favour (see paragraphs 5.2, 5.5, 5.7, 5.8, 5.10, 5.11, 5.12 and 5.17).
The Claimant's brother JT arrived in the UK on 2 August 2010. This followed contact with the Claimant by an uncle who lives in Canada. JT claimed asylum on 4 August 2010. Investigations by the UKBA disclosed that he had previously claimed asylum in Germany in 2006. He asserted that he had left Germany the same year, had gone to Korea, and had been returned from there to Sri Lanka. If true, he would not have been liable to return to Germany under the terms of the Dublin II Regulation. His assertions were rejected both by the UK and (it would appear) by Germany, which accepted Dublin II responsibility on 18 August 2010. Accordingly Removal Directions were set following a refusal of JT's asylum application on safe third country grounds.
JT sought to challenge this decision. The basis of challenge was initially limited to the assertion that he had been away from Germany for such a period that its obligations had ceased by virtue of Article 16(3) of the Dublin II Regulation. Permission was refused on consideration of the papers.
At a renewed oral hearing, on 15 July 2011, there was added a late challenge to the Secretary of State's decision to reject JT's Article 3 claim, based on his own mental state and the effect of removal on him. Permission was refused.
JT then changed his counsel and was represented by Ms Jegarajah, who has appeared for this Claimant before me. She drafted an application to the Court of Appeal for permission to appeal. Permission was refused by Pill LJ on paper, and renewed to an oral hearing before Toulson LJ on 21 November 2011. The application was again refused.
On the same day, 21 November 2011, the Claimant wrote a letter to the Secretary of State begging her to consider JT's asylum claim in the UK. The letter painted a picture of the Claimant as the necessary carer of a vulnerable younger brother in poor physical and mental condition. Nothing was said in that letter about her own mental state or the likely effect on her of her brother's removal to Germany. That plea was rejected. Further Removal Directions were issued on 25 November 2011 for JT to be returned to Germany on 5 December 2011.
The next step was that the Claimant issued these proceedings on 1 December 2011. They were supported by a witness statement from her dated 28 November 2011 and a psychiatric report from Dr Raj Persaud of the same date, written after an examination of the Claimant that day. I shall deal with the medical evidence later in this judgment. It was sufficient to persuade Mitting J on 2 December 2011 to stay JT's Removal Directions on an application for urgent consideration on paper. He said this:
"This may be one of the very rare cases in which the removal of an adult sibling will infringe the right of the other adult sibling to respect for her private and family life under Article 8. The claimant's mental state is clearly fragile. It results, at least in part, from horrifying experiences in Sri Lanka, about which her evidence was accepted to be true by an immigration judge. Dr Persaud's opinion that she urgently requires treatment and poses a serious risk of suicide if her brother is removed cannot lightly be dismissed. Although this is a last ditch attempt to prevent the removal of an adult to an obviously safe country, Germany, it is not obviously an abuse of the process of the court."
The Defendant responded to the claim, both in a letter dated 20 January 2012 and in an Acknowledgement of Service and Summary Grounds dated 23 January 2012. I deal later with the basis of challenge. It was considered on paper by HHJ Behrens on 30 March 2012 when he granted permission and ordered this hearing.
The Nature of the Claim
The Claimant's Grounds asserted that the removal of her brother "amounts to inhuman and degrading treatment" of her. Those words of course are taken from Article 3 of the ECHR. The basis for that assertion was the risk that his removal would cause her to commit suicide.
In Amended Grounds and a skeleton argument for this hearing it was asserted that "The removal of the Claimant's brother places the UKBA in breach of the Article 3 and 8 rights of a recognised refugee".
At the hearing before me, Ms Jegarajah initially put her case very much more broadly, and boldly. She submitted that the claim could and should be decided on the basis of obligations imposed on the UK by the EU Council Directive 2004/83/EC on minimum standards for the qualification and status of third-country nationals as refugees ("the Qualification Directive"). For that reason, she submitted, the established tests for Article 3 challenges on the basis of suicide risk were not applicable, either directly or by analogy. The obligation to protect a refugee from harm, she said, overrode the public duty to effect proper immigration control by returning JT to Germany.
After further consideration she accepted that this was in effect an ECHR claim, but maintained that it was not merely a suicide risk case. The threshold for Article 3, she submitted, is a flexible one and the anxiety and stress caused by JT's removal to Germany would be enough to trigger it in the case of a refugee like the Claimant who has already suffered so much. She pointed out that the Defendant has a discretion under the Dublin II Regulation to determine JT's asylum claim here.
The Defendant's Case
In a letter dated 20 January 2012 the Defendant raised two grounds of defence. First, it was not believed that the Claimant's claims about her mental condition were genuine, as they had only arisen after JT's own challenge to removal had failed. Secondly, and in any event, the letter asserted that there would be no disproportionate interference with the Claimant's Article 8 rights for JT to be removed to Germany.
In essence, the same points were raised in both the Summary and the Detailed Grounds of Defence. In the first place, the claim was said to be not genuine, and an abuse of process. But in any event, it was asserted that the matters relied upon by the Claimant failed to meet the high threshold set by the law for Article 3 claims based on suicide risk, or for a disproportionate interference with Article 8 rights.
There was a further letter from the Defendant of 20 March 2013, which again rejected any claims under Articles 3 or 8 by the Claimant.
Before me, Mr Sanders raised a preliminary point as to the nature of the claim and the court's role in determining it. He submitted that this is not a challenge to a decision directly affecting the Claimant, and thus not an attack on the rationality or lawfulness of any decision letter directed to her. The decision under attack is the setting of Removal Directions for JT dated 25 November 2011, but the basis of attack is that it amounts to a collateral breach of her human rights. The letter of 20 January 2012 was not a decision letter, nor was the more recent one of 20 March 2013.
As a result, he submits, the court is not considering whether a decision was the product of a defective process, as traditionally arises in judicial review proceedings. The court must adopt a more intensive review and make a value judgment on the alleged breach of human rights. Mr Sanders cited R (SB) v Governors of Denbigh High School [2007] 1 AC 100, at paragraphs [29] to [31], and Belfast City Council v Miss Behavin' Ltd [2007] 1 WLR 1420, at paragraph [31]. Ms Jegarajah did not dissent from this analysis, but reminded me of the power to transfer proceedings for disputed evidence to be heard if appropriate.
Mr Sanders also submitted that this application was an abuse of process. It is well established that the ECHR rights of extended family members can and should be raised in the challenge of the person to be removed, not in separate...
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