The Queen (on the application of Y) v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | HH Anthony Thornton |
| Judgment Date | 18 July 2013 |
| Neutral Citation | [2013] EWHC 2127 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/4923/2012 |
| Date | 18 July 2013 |
[2013] EWHC 2127 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADIMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
His Honour Judge Anthony Thornton QC
Sitting as a deputy judge of the High Court
Case No: CO/4923/2012
Mr Alasdair Mackenzie (instructed by Birnberg Peirce) for the Claimant
Mr Mathew Gullick (instructed by The Treasury Solicitor) for the SSHD
Hearing Date: 14 th June 2013
Introduction
Y is a citizen of Afghanistan now aged 21. He challenges the decision of the Secretary of State of the Home Department ("SSHD") dated 17 February 2012 to refuse to grant him indefinite leave to remain following Y's application dated 7 October 2011 for the exercise of discretion to be granted indefinite leave to remain ("ILR"). The application was made in unusual circumstances since the claimant had been granted discretionary leave to remain on three previous occasions for the whole period from 10 June 2008 until 12 December 2013 and the application had been made some 26 months before the third of those discretionary periods had expired. The basis of Y's application was his exceptional mental condition which it was claimed made a refusal of the application a breach of both his article 3 and his article 8 rights.
In order to do justice to his challenge and to set it in its full factual context, it is necessary to give some detail to his immigration history and his current mental health and social condition. The nature and extent of his psychological and other evidence makes it of particular sensitivity so that his identification at the hearing of his claim and in this judgment would potentially infringe his right to a private life. For those reasons, I ordered at the hearing that his name should be anonymised and that he should be known for all purposes connected with his claim as "Y". This order was made pursuant to CPR 39.2(4) so as to protect his interests.
Factual background
Y was born on 1 January 1992 and was therefore, 21 at the date of the hearing. He was born and grew up in Jalalabad Province, Afghanistan with his parents and two brothers. He was the middle child. His father and elder brother were tragically shot dead at the family home during a hot summer night in 2005. They had been sleeping downstairs whilst Y, his mother and younger brother had been sleeping on the roof. Y and his mother went downstairs immediately following the shooting to find both of them had been shot dead. Although the police were involved immediately after this tragedy, the murderers were never apprehended and Y has no idea to this day who they were or why they committed these crimes. The remaining family members immediately moved in with Y's maternal uncle where he remained until coming to the UK.
Y was aged 13 when his father and brother were murdered. When he was 16, his mother and uncle made arrangements for him to be sent to safety in the UK since his mother remained terrified that the same fate awaited him as had befallen his father and older brother. He travelled to the UK by lorry with the aid of a people smuggler and arrived in the UK at the beginning of April 2008 and was placed in the care of social services as an unaccompanied minor. He was placed in a young person's hostel in Camden, London by Camden Social Services and a local authority social worker was allocated to monitor and support him. He claimed asylum on 16 April 2008 and this claim and its associated claim for humanitarian protection was refused by the SSHD on 16 June 2008 but, in conformity with the policy that applied to a minor whose asylum claim had been refused, he was granted discretionary leave to remain until 1 July 2009, being a date 6 months before his eighteenth birthday. He appealed to the Asylum and Immigration Tribunal against the refusal of his asylum claim and that appeal was dismissed on 21 October 2008. At the time of his asylum application and the subsequent appeal there was no reference to, or manifestation of, his deteriorating or deteriorated mental health or to a human rights claim based upon the breakdown of his mental health.
On 24 June 2009, Y applied for further leave to remain. Whilst waiting for the SSHD's decision, he was assaulted in the street in November 2009 by being hit over the head with a plank. His resulting injuries required sutures. He had a CT scan which showed normal results and subsequent neurological assessments and tests showed no signs of epilepsy. However, Y displayed the first acute signs of stress soon after this assault. This stress showed itself with symptoms of what was subsequently diagnosed as being Conversion Disorder with Seizures ("CDS") which was also referred to as violent pseudo-seizures or conversion seizures. Y's seizures manifested themselves by the onset of more rapid heart beating, strange sensations at the top of his head and neck, bad headaches, a collapse onto the floor, thrashing around and the banging of his limbs and head on surrounding surfaces.
Y learnt that his application for further leave to remain had been refused by the SSHD soon after the refusal letter was promulgated on 25 February 2010. Y's solicitors lodged an appeal against this refusal to the First-tier Tribunal (Immigration and Asylum Chamber) ("FtT"). However, Y's learning of the dismissal of his application appeared to trigger a whole series of what were initially referred to as bizarre reactions which were subsequently diagnosed as being a series of seizures by his GP which the GP considered to be more consistent with Post-Traumatic Stress Disorder ("PTSD") than with epilepsy arising from his being violently assaulted in the street a few months earlier. In one of the first of these reactions, Y had started to scream and shout outside his hostel. He acted in a similar strange way on a number of subsequent occasions within his hostel and, on 14 March 2010, he was admitted to the A & E department at University College Hospital because he was again acting in that way in a manner giving rise to particular concern. Whilst in a cubicle at the hospital, he had another seizure and dropped to the floor and became tearful. He was discharged because he was not suicidal. On 7 April 2010, he assaulted another hostel resident and punched two holes in the wall. He was arrested and taken to Holborn police station and whilst in a cell there on 8 April 2010, he described his cell as his office and said that he was waiting for the queen. When interviewed by a member of the community-based psychiatric crisis team, he sat huddled in a blanket and said very little. He agreed to be admitted as a voluntary patient to St Pancras Psychiatric Hospital. Soon after his admission, he became very stressed and, when asked about his family, fell to the ground and started to bang his head against the floor. In a later episode, he was found walking up and down the ward corridor singing. He was diagnosed during his 8-week stay in hospital as suffering from PTSD.
He was discharged on 4 June 2010 having been prescribed Risperidone and Citalopram medication which are used as stress relievers to help suppress the symptoms of PTSD. In September 2010, his community-based psychiatrist prepared a report for use at his forthcoming FtT appeal hearing that summarised his then conditions as:
"… experiencing over the past year, symptoms of post-traumatic stress disorder, recurrent vivid nightmares of the death of his brother and father, which he witnessed. He reports that these occur every night. He tries to avoid thinking about the stressful event, and he describes distress when he sees or hears something that reminds him of what happened. He describes difficulties, irritability, difficulty in concentrating and hyper vigilance. He said that these symptoms have occurred since he has been forced to recall the past traumatic events as a result of inquiries about his history and asylum status. 1"
He was referred by his community-based psychiatrist on 17 September 2010 to the specialist Refugee Service within the Traumatic Stress Clinic ("TSC") that forms part of the Camden & Islington NHS Foundation Trust. The TSC offers assessment and treatment specifically for refugees and asylum seekers suffering from the effects of traumatic experiences for more than 10 years. He embarked on therapeutic assessments and pre-treatment for his PTSD. Y's referral was prioritised for treatment at the TSC due to his young age and extreme vulnerability. The purpose of the referral was for him to be provided with specialist psychological trauma-focused therapy for PTSD which was intended to be an adjunct to the medication that he had been prescribed by the hospital which he continued to take daily. He was initially assessed in October 2010 and began attending weekly treatment sessions at the TSC's clinic in November 2010. At one of his early sessions, he was asked to speak about his PTSD experiences in Afghanistan in detail. When speaking about his father and brother's tragedy, he suddenly lost all awareness of his surroundings, began violently shaking and crushed the plastic cup he was holding. He required smelling salts to bring him back mentally to his surroundings.
Given the complex nature of his case, he was soon afterwards transferred to the care of Dr Ehntholt, a clinical psychologist with considerable experience in the assessment and treatment of refugees and asylum seekers who are suffering from the effects of traumatic experiences and started weekly sessions with her.
Y's FtT appeal from the refusal of his application for further leave to remain was heard on 14 October 2010. His sole ground of appeal, which was accepted in its entirety by the FtT judge, was based on article 8 and on his claim for a private life. In...
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