Upper Tribunal (Immigration and asylum chamber), 2006-08-23, [2006] UKAIT 70 (WK (Article 8, Expulsion cases, Review of case-law))
| Jurisdiction | UK Non-devolved |
| Judge | Mr J Perkins, Dr HH Storey, Mr Hon Justice Hodge |
| Status | Reported |
| Date | 23 August 2006 |
| Published date | 20 September 2006 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Hearing Date | 04 April 2006 |
| Subject Matter | Article 8, Expulsion cases, Review of case-law |
| Appeal Number | [2006] UKAIT 70 |
Asylum and Immigration Tribunal
WK (Article 8 – expulsion cases - review of case-law) Palestinian Territories [2006] UKAIT 00070
THE IMMIGRATION ACTS
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Heard at Field House |
DDetermination Ppromulgated |
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On 4 April 2006 |
23 August 2006 |
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………………………………… |
Before
MR JUSTICE HODGE, PRESIDENT
SENIOR Immigration Judge STOREY
SENIOR IMMIGRATION JUDGE PERKINS
Between
Appellants
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Ms E Mendoza, Counsel, instructed by Ben Hoare Bell Solicitors
For the Respondent: Mr J Gulvin, Home Office Presenting Officer
In view of the growing number of cases dealing with Article 8 post-Ullah [2004] UKHL 26 and post-Razgar [2004] UKHL 27, it is useful to summarise in the one place the main propositions which have now been established:
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Lord Bingham’s approach in Razgar applies to all Article 8 expulsion cases. Subject to it being necessary first to establish that there is an existing private or family life (or both), his five questions should serve as a framework for deciding all Article 8 expulsion cases.
(b) If an appellant cannot show that interference with his right to respect for private and family life will have consequences of such gravity as to engage Article 8, his case must fail at this (question two) stage. Being able to demonstrate grave consequences is also a necessary but not a sufficient condition for being able to show, in answer to Lord Bingham’s fifth question concerning proportionality, that the circumstances are “truly exceptional” (Buxton LJ, ZT [31], SN [17], [19]).
(c) The threshold in Art 8 expulsion cases is high and is properly summarised as requiring circumstances which are “truly exceptional”.
(d) The "small minority” of cases whose circumstances are truly exceptional are properly to be left for identification on a case by case basis, albeit such identification must always be informed by an awareness of the stringency of the “truly exceptional" test.
(e) All expulsion cases are primarily “foreign”’ cases and the high threshold of "truly exceptional" applies even where such cases have significant “domestic” aspects or elements (Buxton LJ, SN [2005] EWCA Civ 1683).
(f) “Health cases” encompass both physical and mental health cases and both types of cases can sometimes require consideration under Article 8 as well as under Article 3 (and Article 2).
(g) Health cases under Article 8 normally require specific focus on the effect health problems have on the appellant’s right to respect for private life and in particular on whether there would be a breach of his physical and moral integrity.
(h) In considering whether an appellant in a health case can show “truly exceptional” circumstances one particularly important consideration will be whether he was already suffering from physical and/or mental illness before coming to the UK or during a time, if any, when he was in the UK with valid leave.
(i) Suicide cases can engage an appellant’s rights under Articles 2, 3 and 8 of the Convention), but they are not to be seen as a wholly separate category (Baroness Hale, Razgar [64]).
(j) So far as suicide cases which seek to rely on Article 8 are concerned, the principles are still primarily those set out by the European Court of Human Rights in Bensaid v UK (2001) 33 EHRR 10 and the facts in Bensaid afford a particularly important yardstick in assessing whether the circumstances of a case are truly exceptional.
DETERMINATION AND REASONS
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The appellant claims to be a Palestinian. His mother is Lebanese. His father is Palestinian. He is thirty-two. He arrived in the UK on 28 August 1998 and applied for asylum. His application was refused on 12 May 2000. He appealed. His appeal against that refusal was dismissed by the Adjudicator, Mr D J B Trotter, on 23 September 2003. Because that appeal related to a decision made prior to 2 October 2000, Mr Trotter was not able to consider the appeal on human rights grounds. The appellant submitted a human rights application on 11 September 2003. On 8 November 2004 a decision was made to refuse his application for leave to enter on the grounds that removal would not place the United Kingdom in breach of its obligations under the Human Rights Act 1998. His subsequent appeal against this decision came before an Adjudicator, Mrs N.A. Baird, on 14 February 2005. She dismissed the appeal on Article 3 grounds but allowed it on Article 8 grounds. The respondent applied for permission to appeal. By virtue of transitional provisions made under the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004, this application took effect as one for an order for reconsideration. This was made.
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The appellant's personal history is complicated. He was born in the Lebanon. He moved to the United Arab Emirates when he was aged six or seven. When he was aged seventeen he became mentally ill. At paragraphs 7 and 8 the Adjudicator, Mrs Baird, summarised the appellant's subsequent history, drawing on the account given in a medical report prepared on 1 October 2004 by Dr K G Shoilekova, a Consultant Psychiatrist with County Durham and Darlington NHS.
“7…. He remembers not sleeping very well, being argumentative, shouting at his parents and reading a great deal about religion. He claimed that there were six to eight gods in England compared to twenty in Arabia. He then believed he had authority from God and was superior to other people. He was first admitted to a psychiatric hospital at the age of 17 and was diagnosed with paranoid schizophrenia. He was further admitted six or eight times. The information given by the appellant was not consistent. He was treated with typical anti-psychotic medication and mood stabilisers. Later the diagnosis varied from schizoaffective disorder to bipolar affective disorder.
8. After his arrival in the UK, the appellant initially stayed with relatives in Glasgow, and some time at the beginning of 2000 his mental condition deteriorated and he was admitted to the Southern General Hospital in Glasgow at the end of February 2000 under the care of Dr Caplin, Consultant Psychiatrist. At one point he become “disinhibited” and was transferred to a psychiatric intensive care unit at Leverndale Hospital where he was aggressive towards a member of staff and apparently bit a staff member. He was detained under section 26 of the Scottish Mental Health Act and was treated with injections of anti-psychotic medication. He was discharged in July 2000 but re-admitted at the beginning of September that year because he had bitten the girlfriend of his flatmate. He was treated with various drugs and then discharged, but soon afterwards was re-admitted on a formal basis to Leverndale where he was diagnosed with schizoaffective disorder and mania with psychotic features. He was in intensive care. He was having grandiose illusions, claiming he had been chosen by God. He also felt he was Jesus and it is mentioned that he was responding to auditory hallucinations at that time. He was discharged and moved to Darlington, and has been in the care of County Durham and Darlington Priority Services NHS Trust since July 2001.
9. When he first attended in Darlington, he was complaining of feeling low in mood, tiredness and of having thoughts of self-harm. He said he had stopped taking his mood stabiliser medication as he was worried about possible sexual dysfunction. He was found to be depressed and started on anti-depressant medication. Following on this he failed to keep his appointments with his doctor and almost fully disengaged from services.
10. Sometime at the end of December 2001/beginning of January 2002 he was admitted to the Pierremont Unit as his behaviour had become increasingly inadequate and openly inappropriate. He was taken to the Accident and Emergency Department in a mute state following an attempt to cover the windows of his house and burn his property. He shared some ideas that he had risen from the dead and had a belief that people were watching him through the television. During his admission he continued to be quite agitated, inadequate in behaviour and at one point openly violent. He was making threatening gestures to the staff, taking off his clothing and crawling on the floor screaming. He was placed in intensive care on Section 3 of the Mental Health Act because of his behaviour, which included kissing a fellow male patient and engaging in inappropriate sexual talk. He was shouting at the top of his voice and claiming he was God. He was also thought to be responding to auditory hallucinations, believing that he was influenced by telepathy and that patients and staff members were going to harm him. Sometime in April 2000 he appealed against his detention under section 3 of the Mental Health Act, but was not successful and was not discharged from this section.
11. His condition gradually started to improve and his medication was adjusted. He was discharged at the end of summer 2002, but again was not compliant with his medication and stopped attending for his depot injections. When Dr Shoilekova saw him for the first time, he described him as hypomanic, talkative, hyperactive,...
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