RA (Nigeria), R (on the application of) v Secretary of State for the Home Department [2016] EWCA Civ 384

Case No C4/2015/0217[2016] EWCA Civ 384
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(ANDREW THOMAS QC)
Venue Royal Courts of JusticeDate Wednesday, 23 March 2016
Strand
London WC2A 2LL
B e f o r e:
LORD JUSTICE DAVID RICHARDS
Between
THE QUEEN ON THE APPLICATION OF RA (NIGERIA)Appellantv
Between
SECRETARY OF STATE FOR THE HOME DEPARTMENTRespondent
DAR Transcript ofWordWave International Limited trading as DTI165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424(Official Shorthand Writers to the Court)
Mr R Halim (instructed by Duncan Lewis) appeared for AppellantMiss J Anderson (instructed by Government Legal Department) appeared for Respondent
J U D G M E N T

LORD JUSTICE DAVID RICHARDS:

[1]This is a renewed oral application for permission to appeal against a decision of Mr Andrew Thomas QC sitting as a Deputy High Court Judge in the Administrative Court, whereby he dismissed the application by the appellant for judicial review of a decision taken by the respondent Secretary of State dated 10 May 2013, whereby she refused to revoke a deportation order made against the appellant. In the decision, the respondent maintained a certificate placed on an anterior asylum claim that the application was clearly unfounded, thereby barring the appellant from making an in-country appeal against the decision. The relevant facts can be found in the judgment below, and I will not repeat them here.[2]There are two grounds of appeal advanced by the appellant. The first ground takes issue with a statement made by

the judge in the concluding part of his judgment that:

"The defendant was entitled to take into account all of the other material which was available to her. On any view, Dr Sultan and Dr Burrun had far more information available to them than Dr Bell and had been better placed to assess the claimant."
Dr Sultan and Dr Burrun are psychiatrists who have treated the appellant during his detention, while Dr Bell is a distinguished psychiatrist who was consulted on the instructions of the appellant's solicitors, and who examined the appellant. It is said that it was on that basis that the judge dismissed the claim, and it is objected that it leads to the proposition that the views of an independent medical expert instructed by the appellant can never gain sufficient parity with the views of doctors working within the immigration removal centre where the appellant was held.[3]In my judgment, the judgment below does not involve that proposition. The judge was careful to read the reports of the psychiatrists and to weigh the decision of the respondent Secretary of State against those reports. I do not accept that the judgment indicates that if the judge had formed the view that it was unreasonable of the Secretary of State not to rely on the views of Dr Bell, that nonetheless the decision would have been correct simply because Dr Sultan and Dr Burrun had treated the appellant in the detention centres where he has been held. It does not appear to me that there is any proposition of that sort upon which the judge was relying. He was, in accordance with established authority, reviewing the decision taken by the Secretary of State to conclude that the application was clearly unfounded, and was simply reviewing that decision in the light of the evidence that was before the Secretary of State. So I do not consider that the appellant can show any real prospect of success on the first proposed ground of appeal.[4]The argument in relation to the first ground moved on somewhat, because in her statement in opposition to the grant of permission to appeal, Miss Anderson on behalf of the respondent made reference the case of Das, in which this court held that the Secretary of State is generally entitled to rely on the opinions of the responsible clinicians in the event that there are conflicting medical opinions, and it has been pointed out by Mr Halim on behalf of the appellant that the issue decided in that case has been argued in another case, O, in the Supreme Court earlier this year and a decision from the Supreme Court is awaited.[5]I do not think that the first ground of appeal actually engages this point, but I am inclined to accept the submission of Miss Anderson that reading the judgment below, and in particular having regard to the sentence which I have already quoted from paragraph 63, it is reasonably apparent that the judge shared the view of the Secretary of State that on the basis of the evidence before the court the opinions of Dr Burrun and Dr Sultan were to be preferred.[6]The second ground of appeal focuses on the condition of the appellant as presenting a suicide risk, and on the opinion of Dr Bell that if he is told that he is to be returned to Nigeria, he will immediately present a suicide risk that will persist before, during and after his return to Nigeria. It is said on behalf of the appellant that having regard to his own subjective fears, he will continue to present a serious suicide risk in Nigeria, which the availability of psychiatric care in Nigeria will not materially reduce. Based on Dr Bell's report it is said that, because of the appellant's own subjective state, he will not access the psychiatric care available in Nigeria. It was the submission of the Secretary of State before the judge that there was psychiatric care available in Nigeria, and the judge accepts that as a fact and that acceptance is not challenged on this appeal. So it is not said that there will not be psychiatric care available to the appellant in Nigeria. It is said that only because of his own perceptions and conditions -- and I do not mean by saying "only" to downplay them -- that he will not gain access to the available care.[7]The background to this is that, on his evidence is that his wife was murdered by Boko Haram and I think his home was destroyed, and he has strong fears that on his return to Nigeria he will be subject to detention or ill treatment by Boko Haram. It is not suggested that he would be exposed to any ill treatment by state authorities in Nigeria, nor that he would be deprived of protection against Boko Haram by the state authorities.[8]It is submitted that this is a case which falls within the category discussed and decided by this court in Y (Sri Lanka) v Secretary of State for the Home Department [2009] EWCA Civ 362. The facts of that case were exceptional, and they were a long way from the facts of this case. The deportees in that case had been subjected to torture and other ill treatment by the state authorities in Sri Lanka, and their likely inability to access psychiatric care if they were returned to Sri Lanka was itself closely connected with their previous ill treatment by the Sri Lankan state. But the general principle quoted by

the judge in this case, is stated in Y as follows:

"Save in exceptionally compelling cases, the humanitarian consequences of returning a person to a country where his or her health is likely to deteriorate terminally do not place the returning state in breach of Article 3."
[9]It is clear that while there may be a low standard to be applied in determining whether an appellant has a good prospect of overturning a decision that has been stated by the Secretary of State to be clearly unfounded, there is a high hurdle to be overcome in order to establish that a return to the appellant's country will involve a breach of Article 3. The judge in this case was careful to have regard to the evidence before the court of the care available to the appellant, both before, during and after his return to Nigeria. Dr Bell himself accepts that emergency measures could be taken on the return of the appellant to Nigeria, but comments that the measures cannot be kept up indefinitely, and when they are removed the risk will return to what it was before.[10]In my judgment, there is no real prospect of the appellant in this case persuading this court to reverse the decision of the judge below on this second ground. Having regard to all the circumstances and the evidence before the court, I do not consider that there is any real prospect of it being held to fall within the category of exceptionally compelling case where a return of the appellant to Nigeria would involve a breach of Article 3. There is no real prospect of persuading the tribunal, if an in-country appeal were permitted, that a breach of Article 3 would be involved. Accordingly, I refuse permission to appeal.