Petition R.a. For Judicial Review Against A Decision Of The Home Department
| Jurisdiction | Scotland |
| Judge | Lord Hodge |
| Neutral Citation | [2011] CSOH 68 |
| Docket Number | P1340/10 |
| Court | Court of Session |
| Published date | 19 April 2011 |
| Date | 19 April 2011 |
| OUTER HOUSE, COURT OF SESSION [2011] CSOH | |
| P1340/10 | OPINION OF LORD HODGE in the Petition RA (AP) Petitioner; against THE SECRETARY OF STATE FOR THE HOME DEPARTMENT Respondent: for Judicial Review of the Secretary of State's decision to refuse to accept representations on the Petitioner's behalf as a fresh claim for asylum ________________ |
Petitioner: Caskie; Drummond Miller LLP
Respondent: Olson; Office of the Solicitor to the Advocate General
19 April 2011
[1] The petitioner ("RA") is a citizen of Pakistan and is forty six years old. He arrived in the United Kingdom in 2003 using a false passport. His wife and children joined him in 2007; they also used false passports. He claimed asylum in October 2008. His application was refused and his appeal was dismissed. When a Senior Immigration Judge reconsidered the appeal he identified certain errors in the Immigration Judge's decision but those did not affect the decision that RA was able to relocate in flee to another part of Pakistan to avoid persecution.
[2] RA was accepted as a credible witness who had experienced a pattern of persecution for religious reasons and was viewed as a person at risk of persecution for a reason specified in the Refugee Convention. Significantly, however, the risks which RA faced were limited to the area around his initial home near Lahore and it was held that he could reasonably be expected to relocate to another part of Pakistan. In reaching that conclusion the Immigration Judge observed that RA had business experience and had been a photographer, that his health was reasonably good for his age, that he might be able to call for support from on his family, who lived in his home area and close to Lahore, and that he could use his experience and skills to establish himself in business or employment.
[3] In about August 2010 further submissions,s which were undated, were submitted on RA's behalf to the UK Border Agency in which he claimed a change of personal circumstances. He stated, first, that his wife's uncle had been killed and his brother had been attacked by members of the organisation, Sipah-e-Sahaba Pakistan ("SSP"), who had persecuted him, and that his wife's brother had fled to Spain. Secondly, he claimed that he had serious health problems and attached a psychiatric report dated 3 June 2010 from Dr Andrew Gray.
[4] Dr Gray diagnosed RA as suffering from a severe and long standing depressive illness and stated that disorders of that kind were associated with a significant risk of suicide. He had first had contact with a psychiatrist in Pakistan in 2000 after he had been seriously assaulted. He had no further psychiatric care until he was referred to psychiatrists in Glasgow in October 2008. Dr Gray diagnosed him as suffering from Recurrent Depressive Disorder, severe with psychotic symptoms (F33.3). Dr Gray recorded that RA had experienced persistent low mood, severe anxiety, auditory hallucinations, nihilistic delusions, sleep disturbance, poor appetite and weight loss, poor motivation, self neglect and poor concentration and memory. He had had recurrent thoughts of suicide and had a brief spell of inpatient treatment in May 2010 after a suicide attempt. At the time of the report he was being treated as an outpatient with antidepressants and antipsychotic medication. Dr Gray expressed the view that the uncertainty surrounding RA's immigration status had contributed to the persistence of his symptoms.
[5] Dr Gray expressed concern that RA's mental health would deteriorate if he were returned to Pakistan. He gave two reasons for that concern. First, he thought that, while there were facilities for treating severe mental illness in Pakistan, it was likely that there would be a break in his treatment, which would significantly increase the risk of the deterioration of his condition. Secondly, the stress associated with a return to uncertain circumstances in Pakistan would of itself be likely to damage his mental health.
[6] In a decision on behalf of the Secretary of State dated 24 August 2010 an official of the UK Border Agency commented on the allegations that members of RA's family had been attacked by the SSP and concluded that, even if the allegations were true, the incidents had occurred in the vicinity of Lahore and did not call into question the viability of internal relocation in Pakistan. The official expressed the view that there was not a realistic prospect of success that another Immigration Judge, applying the rule of anxious scrutiny, would reverse the decision of the original Immigration Judge on this ground. In his submissions challenging the Secretary of State's decision, Mr Caskie, who appeared for RA, did not strenuously challenge that conclusion. He confined his comments to the observation that those events would reduce the support which RA's family might be able to give him if he were to relocate within Pakistan.
[7] The UK Border Agency official went on to consider Dr Gray's report, which he summarised accurately. He concluded that RA's condition did not meet the high threshold that of whether the illness had reached a critical stage so that removal would amount to a breach of his Article 3 rights under the European Convention on Human Rights ("ECHR"). He referred to N (FC) v Secretary of State for the Home Department [2005] UKHL 31, Y (Sri Lanka) & Z (Sri Lanka) v Secretary of State for the Home Department [2009] EWCA Civ 362 and KH (Afghanistan) v Secretary of State for the Home Department [2009] EWCA Civ 1354 and to the Country of Origin Report for Pakistan dated 18 January 2010 in relation to mental health facilities in that country. He concluded that there were mental health facilities and treatment available in Pakistan, although they might not be of the standard available in the United Kingdom. He concluded that there was no realistic prospect of success of another Immigration Judge, applying anxious scrutiny, concluding that the removal of RA from the United Kingdom would amount to a breach of his rights under Articles 3 or 8 of ECHR because of his mental condition. Accordingly he determined that RA's submissions did not amount to a fresh claim.
The Petitioner's challenge
[8] Mr Caskie's submission raised a number of issues but at its heart it involved a criticism of the Secretary of State for failing to reconsider the decision on reasonableness of internal relocation in the light of RA's mental illness. In essence his submission was that the Secretary of State had not considered this question and thus had not reached a view on whether an appeal on this issue had a realistic prospect of success. Thus while he pleaded his case as one of Wednesbury unreasonableness, the circumstance could also be analysed as a failure to take account of a relevant consideration.
[9] Mr Caskie summarised the law on internal relocation in five propositions. First, he submitted that it applied to both refugee claims and Article 3 cla...
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