WK (Palestinian Territories) v Secretary of State for the Home Department

JurisdictionEngland & Wales
Judgment Date23 August 2006
Neutral Citation[2006] UKIAT 70
Date23 August 2006
CourtAsylum and Immigration Tribunal

Asylum and Immigration Tribunal

Hodge J, President, Storey SIJ and Perkins SIJ

WK (Article 8—Expulsion Cases—Review of Case-Law) Palestinian Territories

Representation

Ms E Mendoza instructed by Ben Hoare Bell Solicitors, for the Claimant;

Mr John Gulvin, Home Office Presenting Officer, for the Secretary of State.

Cases referred to:

AA (Algeria—Mental health) Algeria [2005] UKIAT 000084

Bensaid v United KingdomHRC (2001) 33 EHRR 10

Betts v Secretary of State for the Home DepartmentUNK [2005] EWCA Civ 828

BK (Kosovo—Subesh) Serbia and Montenegro [2005] UKIAT 00001

Boran v Secretary of State for the Home DepartmentUNK [2005] EWCA Civ 1141; [2006] Imm AR 140

Costello-Roberts v United KingdomHRC (1995) 19 EHRR 112, ECtHR

CW (Deportation—Huang—Proportionality) Jamaica [2005] UKIAT 00110; [2005] Imm AR 441

D v United KingdomHRC (1997) 24 EHRR 423, ECtHR

Devaseelan (Second Appeals—ECHR—extra-territorial effect) Sri Lanka* [2002] UKIAT 702; [2003] Imm AR 1

EH (Palestinian—entry clearance—proportionality) Iraq [2005] UKIAT 00062

FN (Article 8—removal—viable options) Eritrea [2006] UKAIT 00044

Golder v United Kingdom (1979–1980) 1 EHRR 524, ECtHR

GS (Article 8—public interest not a fixesy) Serbia and Montenegro [2005] UKAIT 00121

Huang, Abu-Qulbain and Kashmiri v Secretary of State for the Home DepartmentUNK [2005] EWCA Civ 105; [2005] Imm AR 240; [2005] INLR 247

IK (Suicide/mental stability: legal requirements) Turkey [2005] UKIAT 00049

J v Secretary of State for the Home DepartmentUNK [2005] EWCA Civ 629; [2005] Imm AR 409

Jakupovic v AustriaHRC (2004) 38 EHRR 595; [2003] INLR 499

Janosevic v Secretary of State for the Home DepartmentUNK [2005] EWCA Civ 1711

JS (Suicide risks—Articles 3 and 8) Sri Lanka [2005] UKIAT 00083

KJ (Entry Clearance—Proportionality) Iraq [2005] UKIAT 00066

KK v Secretary of State for the Home DepartmentUNK [2005] EWCA Civ 1082

Krasniqi v Secretary of State for the Home DepartmentUNK [2006] EWCA Civ 391

LH (Truly exceptional—Ekinci applied) Jamaica [2006] UKACT 00019; [2006] Imm AR 306

MA (DP3/96—interpretation) Algeria [2005] UKAIT 00127

MB (Huang—Proportionality—Bulletins) Croatia [2005] UKIAT 00092

MG (Assessing interference with private life) Serbia and Montenegro [2005] UKAIT 00113

Miao v Secretary of State for the Home DepartmentUNK [2006] EWCA Civ 75; [2006] Imm AR 379; [2006] INLR 473

MK (Mental Illness—Articles 3 and 8) Pakistan [2005] UKIAT 00075

MS (inability to make entry clearance application) Somalia [2005] UKIAT 00003

N v Secretary of State for the Home DepartmentUNKELR [2005] UKHL 31; [2005] 2 AC 296; [2005] Imm AR 353; [2005] INLR 388

Nhundu and Chiwera v Secretary of State for the Home Department 01 June 2001, (01/TH/0613) (unreported)

R v Secretary of State for the Home Department ex parte MahmoodWLR [2001] 1 WLR 840; [2001] Imm AR 229; [2001] INLR 1

Raninen v FinlandHRC (1998) 26 EHRR 563, ECtHR

RG (Suicide—Risk—Razgar considered) Sri Lanka [2005] UKIAT 00072

R (Iran), A(Afghanistan), M (Afghanistan), T (Afghanistan) and T (Eritrea) v Secretary of State for the Home DepartmentUNK [2005] EWCA Civ 982; [2005] Imm AR 535; [2005] INLR 633

R (on the application of Ekinci) v Secretary of State for the Home DepartmentUNK [2003] EWCA Civ 765; [2004] Imm AR 15

R (on the application of Karas and Miladinovic) v Secretary of State for the Home DepartmentUNK [2006] EWHC 747 (Admin)

R (on the application of Katshunga) v Secretary of State for the Home DepartmentUNK [2006] EWHC 1208 (Admin)

R (on the application of Razgar) v Secretary of State for the Home DepartmentUNKELR [2004] UKHL 27; [2004] 2 AC 368; [2004] Imm AR 381; [2004] INLR 349

R (on the application of Ropaigealach) v Financial Ombudsman ServiceUNK [2005] EWCA Civ 269

R (on the application of Tozlukaya) v Secretary of State for the Home DepartmentUNK [2006] EWCA Civ 379; [2006] Imm AR 417; [2006] INLR 354

R (on the application of Ullah) v Special Adjudicator; Do v Secretary of State for the Home DepartmentUNKELR [2004] UKHL 26; [2004] 2 AC 323; [2004] Imm AR 419; [2004] INLR 381

R (Rodriguez-Torres) v Secretary of State for the Home DepartmentUNK [2005] EWCA Civ 1328; [2006] Imm AR 75

Secretary of State for the Home Department v AbbasUNK [2005] EWCA Civ 992

Secretary of State for the Home Department v AkaekeUNK [2005] EWCA Civ 947; [2005] Imm AR 701; [2005] INLR 575

Secretary of State for the Home Department v Sadri AlihajdarajUNK [2005] EWCA Civ 1084

Shala v Secretary of State for the Home DepartmentUNK [2003] EWCA Civ 233; [2003] INLR 342

SN v Secretary of State for the Home DepartmentUNK [2005] EWCA Civ 1683; [2006] INLR 273

Strabac and Another v Secretary of State for the Home DepartmentUNK [2005] EWCA Civ 848; [2005] Imm AR 504

Sun Myung Moon (Human rights—entry clearance—proportionality) USA [2005] UKIAT 00112; [2005] Imm AR 624; [2006] INLR 153

ZT v Secretary of State for the Home DepartmentUNK [2005] EWCA Civ 1421; [2006] Imm AR 84; [2006] INLR 256

Evidence — assessment of evidence — medical evidence — objective evidence — burden of proof — whether burden of proof reversed — correct legal test to be applied — human rights — Article 3 of the ECHR — Article 8 of the ECHR — expulsion cases —R (on the application of Razgar) v Secretary of State for the Home Department [2004] UKHL 27 —‘truly exceptional’ test — proportionality — health cases

The thirty-two year old Claimant, who was born in Lebanon and grew up in the United Arab Emirates, claimed to be a Palestinian. He arrived in the United Kingdom on 28 August 1998 and applied for asylum. The Claimant suffered from a serious mental illness which began when he was seventeen years old. He was diagnosed in the United Kingdom as suffering from Bipolar Affective Disorder and Psychotic Mania, which caused hallucinations and violent behaviour. His asylum application was refused on 12 May 2000. His appeal was dismissed by an Adjudicator, who could not consider it on human rights grounds because the original decision was made prior to the date on which the Human Rights Act 1998 entered into force. On 11 September 2003 the Claimant submitted a human rights application, which was refused by the Secretary of State for the Home Department and directions were given for his removal to Palestine. The Claimant appealed to an Adjudicator, who dismissed the appeal under Article 3 but allowed it under Article 8 of the ECHR on the ground that his removal would constitute a disproportionate interference with his private life and his right to physical and moral integrity. The Adjudicator found that the Claimant was ‘still very ill indeed’; there was a ‘very high risk of relapse’ and the treatment and medication that he required might not be available in the Occupied Territories. She also considered that the volatile conditions in the Occupied Territories would present difficulties for a vulnerable person like the Claimant, who had no family there. Reconsideration was ordered on the grounds first, that the Adjudicator's finding that there was a lack of available healthcare in the Occupied Territories was mere speculation and effectively transferred the burden of proof from the Claimant to the Secretary of State; secondly, that the Adjudicator had misapplied the correct legal tests as set out in Bensaid v UKHRC (2001) 33 EHRR 10 and R (on the application of Razgar) v Secretary of State for the Home Department [2004] UKHL 27* and had she applied the correct tests, she would have reached a different conclusion.

Held, affirming the original determination allowing the Claimant's appeal against the decision of the Secretary of State:

(1) the Adjudicator did not err in her approach to the evidence concerning the lack of available medical treatment in the Occupied Territories; her close reliance on the background evidence in making her assessment showed that she did not substitute speculation for evidence and she had not reversed the burden of proof as regards the availability of relevant medical treatment (paras 10–12);

(2) Lord Bingham's approach in Razgar applied to all Article 8 expulsion cases; provided that an existing private and/or family life was established, his five questions should serve as a framework for deciding all Article 8 expulsion cases (paras 19, 20, and 30);

(3) the threshold for Article 8 was high; although Article 8 could be engaged even when a case failed under Article 3, decisions taken pursuant to the lawful operation of immigration control would be proportionate in all save a small minority of exceptional cases which should properly be left for identification on a case by case basis: Razgar applied; identification was a question of fact which must always be informed by an awareness of the stringency of the ‘truly exceptional’ test; it was, however, a question of secondary fact dictated by law and therefore susceptible of closer scrutiny than findings of primary fact: Krasniqi v Secretary of State for the Home DepartmentUNK [2006] EWCA Civ 391 applied (paras 25 and 30–33);

(4) all expulsions were primarily ‘foreign’ cases, in which the alleged violation occurred as a consequence of a person's removal from a state rather than as a consequence of that state's actions within its territory; the high threshold of ‘truly exceptional’ applied even where such cases had significant ‘domestic’ elements (paras 43–46);

(5) physical and mental ‘health cases’ could give rise to issues under Article 3, Article 8, or both; such cases arose as an aspect of the right to respect for private life under Article 8, in particular the right to physical and moral integrity; in order for interference with this aspect of private life to be shown, there must be sufficiently adverse effects on physical and moral integrity (paras 47–49, 51 and 52);

(6) one particularly important consideration in determining whether a Claimant was able to...

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