SL (St Lucia) v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Bean,Lord Justice Hickinbottom |
| Judgment Date | 07 August 2018 |
| Neutral Citation | [2018] EWCA Civ 1894 |
| Date | 07 August 2018 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C5/2016/3537 |
[2018] EWCA Civ 1894
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
DEPUTY UPPER TRIBUNAL JUDGE RAMSHAW
Appeal No IA/37435/2013
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Bean
and
Lord Justice Hickinbottom
Case No: C5/2016/3537
Ali Bandegani (instructed by Duncan Lewis) for the Applicant
Christopher Staker (instructed by Government Legal Department) for the Respondent
Hearing date: 7 August 2018
The Court certifies that this judgment may be cited in other cases
The Applicant is a national of St Lucia, born in 1970. She lived in St Lucia until she was 32.
She arrived in the United Kingdom (“the UK”) on 7 October 2002, on a six-month visitor visa. On 22 April 2003, she was granted leave to remain as a student, which was successively extended until 31 May 2011. During that eight-and-a-half-year period, the Applicant was lawfully in the UK; but then she unlawfully overstayed.
On 4 July 2012, she applied for leave to remain on private life grounds under article 8 of the European Convention on Human Rights (“the ECHR”), on the basis of paragraph 276ADE(vi) of the Immigration Rules as they stood at the relevant time, namely she was aged 18 years or above, had lived continuously in the UK for less than 20 years but had “no ties (including social, cultural or family)” with St Lucia. On 27 March 2013, that application was refused both under paragraph 276ADE and as an application outside the Rules.
The Applicant appealed, but her appeal was dismissed by the First-tier Tribunal (Immigration and Asylum Chamber) on 13 October 2014. However, the Upper Tribunal (Immigration and Asylum Chamber) set aside the decision on procedural grounds, and remitted it to the First-tier Tribunal for full rehearing.
In a determination promulgated on 29 October 2015 following that hearing, First-tier Tribunal Judge E B Grant (“Judge Grant”) refused the appeal. The Appellant again appealed; but, in a determination promulgated on 29 June 2016, Deputy Upper Tribunal Judge Ramshaw (“the Deputy Judge”) refused the appeal. The Applicant now seeks to appeal against that refusal.
Judge Grant found that the Applicant was seriously mentally ill, and unable to give oral evidence. As a result, the account she gave in her witness statement could not be tested, and Judge Grant proceeded on the basis that her account was true (see [9] of her determination). That account was, briefly, as follows.
The Applicant was the subject of harsh physical and emotional ill-treatment at school and within her family, effectively being rejected by her mother. She was born with a severe squint, for which her mother would not allow her to wear prescribed glasses with the result that she suffered chronic headaches. At the age of about 17, her squint was rectified when her elder sister took her to an eye surgeon.
At about the same age, the Applicant looked to her local pastor for support; but, instead, he took advantage of her vulnerability and abused her for a period of several years. He obtained an office job for her at his wife's place of work. The abuse continued until the pastor's wife came home early one day, to find him lying naked on the Applicant who was fully clothed. The Applicant refused to have any further contact with him. She was made redundant from her job. That is when she decided to come to the UK. Her family remained in St Lucia.
The Applicant remains traumatised by these events. Judge Grant found that she suffers from chronic mental health problems for which she requires ongoing treatment, and that she is at serious risk of suicide and self-harm, a risk that was increased by the prospect of removal to St Lucia (see [12]).
However, the judge also found that well-established treatment for mental illness is available in St Lucia, including ongoing drug and non-drug treatment – and that the Secretary of State could put in place effective mechanisms for the Applicant's removal to St Lucia (including medical escorts, if necessary) and her immediate admission to a mental health clinic in St Lucia in order to minimise the risk of suicide during the removal process (again, see [12]). Those findings of fact were upheld in the Upper Tribunal, and are no longer the subject of any challenge. As a result, Judge Grant found that article 3 of the ECHR (which prohibits torture, and inhuman and degrading treatment), was not engaged. The Applicant no longer relies upon article 3.
Turning to article 8 (the right to respect for private and family life), before Judge Grant, the Applicant did not rely upon her family life in the UK; nor does she now. She apparently has some relatives here, but they are estranged, and she has had no contact with them.
However, the Applicant did and does rely upon her private life. Judge Grant noted that, where an individual is receiving treatment in the UK, a mental health condition and suicide risk that is not severe enough to engage article 3 may nevertheless engage article 8, at least in principle (see [13]). However, given that appropriate mental health services and support facilities were available in St Lucia, she concluded that “it cannot be argued that the [Applicant's] return to St Lucia will have such grave consequences that article 8 is engaged with respect to the right for private life encompassing mental stability” (at [14]).
Judge Grant also found, at [15] of her determination, that the Applicant had provided scant evidence of a private life in the UK. The judge accepted that she had received assistance from the Black Women's Rape Action Project (“BWRAP”), and that she had some support from those who attended her church. However, she concluded that the Applicant had no network of friends, and did not make or retain friends easily. Two witnesses gave evidence in her support at the hearing. One was from BWRAP; and the other was someone who had lost contact with the Applicant several years earlier, but who had been contacted to give evidence at the hearing. No other friends or acquaintances gave evidence in support of her appeal. The only other social or other contacts upon which she relied were those from within BWRAP; but Judge Grant was satisfied that similar assistance could be obtained in St Lucia.
Finally, Judge Grant found that the pastor no longer posed any risk to the Applicant (see [16]).
The Applicant accepted those factual findings. Indeed, in the Upper Tribunal, the Deputy Judge observed as much (at [13]). She said:
“There was no evidence that she had strong social or economic ties to the UK…. The real basis of her claim to remain in the UK is her private life by reference to the medical treatment and support from counsellors which she receives here. The positive aspects of her private life in the UK do appear to be centred on the treatment she receives and the support that she receives from BWRAP.”
The Deputy Judge accepted that Judge Grant erred in considering the medical basis of the article 8 claim discretely from the rest of the private life claim; but did not consider that error material, because the private life claim was very weak and in any event was centred upon the medical strand. On the basis of the findings of Judge Grant, the Deputy Judge concluded that the Applicant's appeal never had any real prospect of success. Judge Grant's determination thus contained no material error of law. The appeal was dismissed.
The Applicant, through Mr Ali Bandegani of Counsel, now seeks to rely on four grounds of appeal, the Applicant having submitted proposed amended grounds (drafted by other Counsel) at the court's request following the judgment of the Grand Chamber of the European Court of Human Rights (“ECtHR”) in Paposhvili v Belgium [2017] Imm AR 867.
Mr Paposhvili was a Georgian national suffering from chronic lymphocytic leukaemia whom Belgium wished to return to Georgia. He claimed that his removal to Georgia would violate article 3 of the ECHR, because he would not receive effective medical care there and would therefore suffer “degrading treatment” for the purposes of article 3. “Degrading treatment” means treatment “such as to arouse in their victims feelings of fear, anguish and inferiority capable of humiliating and debasing them and possibly breaking their physical and moral resistance” ( Republic of Ireland v United Kingdom (1978) EHRR 25 at [167]). For treatment to amount to a breach of article 3, it requires a “minimum level of severity” (see, e.g., Pretty v United Kingdom (2002) 35 EHRR 1 at [52]).
Mr Paposhvili's claim was dismissed by the Fifth Section of the ECtHR, by a majority, by reference to the test in N v United Kingdom (2008) 47 EHRR 39, under which the category of exceptional situations in which article 3 would prevent removal to another country with lesser standards of healthcare was confined to “deathbed cases”, i.e. circumstances in which the death of the individual would be imminent if he were removed.
On the evidence, at the time of the European court judgment, Mr Paposhvili was stable, and he was not in imminent danger of dying; and, further, the court considered that though there were limits on treatment available in Georgia, the applicant was not without resources which might help in that regard.
The application was referred to the Grand Chamber. The effect of its judgment was considered by this court in AM (Zimbabwe) v Secretary of State for the Home Department [2018] EWCA Civ 64. First, of course, the court emphasised that the position in domestic law was authoritatively settled in favour of the criteria in N in N v Secretary of State for the Home Department [2005] UKHL 31; [2005] 2 AC 296, the House of Lords case...
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