Balamurali, R (on the application of) v Secretary of State for the Home Department [2003] EWHC 1183 (Admin)

Case No CO/4825/2002[2003] EWHC 1183 Admin
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Friday, 9 May 2003
Strand
London WC2
B E F O R E:
MR JUSTICE MITTING
Between
THE QUEEN ON THE APPLICATION OF BALAMURALIClaimant-v-
Between
SECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant
Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR J WALSH (instructed by VAN-ARKADIE & CO, 1ST FLOOR, 586 HIGH RD, WEMBLEY, MIDDLESEX HA0 2DB) appeared for CLAIMANTMR A SHARLAND (instructed by Treasury Solicitor) appeared for DEFENDANT
J U D G M E N T(As Approved by the Court)
Crown copyright©
[1]MR JUSTICE MITTING: On 6th November 1998 the claimant arrived in the United Kingdom and claimed asylum. On 28th October 1999 he was refused asylum and leave to enter. On 29th March 2000 his appeal to an adjudicator on asylum grounds was dismissed.[2]In the course of giving his reasons for dismissing the appeal, the Special Adjudicator accepted that the claimant had been subjected to ill-treatment in Sri Lanka, but doubted the full extent of that ill-treatment and considered that the claimant had exaggerated its extent.[3]On 14th April 2001 the Secretary of State refused leave to remain. His notice of refusal was accompanied by a one-stop notice issued under the one-stop procedure contained in sections 74 to 77 of the Immigration and Asylum Act 1999. The notice contained the prescribed statements, which included the following:
"Consequences of failure to disclose additional grounds The purpose of this procedure is to make sure that there is no unnecessary delay in dealing with your case. Where you have a right of appeal already, it is important that the adjudicator should be able to deal with all aspects of your case which he is entitled to consider on one single occasion. If you believe you qualify to stay in the United Kingdom, then it is clearly of benefit to you to have a final and comprehensive decision as quickly as possible. If you raise additional grounds after the period allowed, you may lose the chance to have any decision on them reviewed by an independent adjudicator. It may be concluded that they were put forward late to delay your removal from the United Kingdom or the removal of a member of your family. Even if you still have an opportunity to appeal, the appeal may be limited and the fact that you had not disclosed your grounds when required to do so would not be in your favour. There are safeguards for exceptional circumstances: for example if you only become aware of a reason for staying in the United Kingdom when it is too late or if you can give a reasonable excuse for not mentioning additional grounds when asked to do so. The consequences of raising additional grounds late may be serious: you should always disclose your reasons for wishing to stay here and any change of circumstances without delay."
The claimant completed the one-stop notice form and accompanied it with a statement of his grounds of appeal against refusal of leave to remain on human rights ground. In summary, they were that the removal of the claimant to Sri Lanka would be a breach of his human rights in that his life would be endangered (Article 2) and he would be at risk of being detained and tortured (Article 3).[4]On 12th September his appeal was rejected by an Adjudicator. She had before her, in addition to the claimant's evidence, a medical report from Dr Taghipour dated 9th August 2001. In that report Dr Taghipour reported upon the signs of injury to the claimant's body and upon his mental state. In his summary, on page 13 of his report, he opined:
"Psychologically, he is suffering mild post-traumatic disorder and moderate to severe depression with anxiety. He is in need of counselling and psychological treatment, best under the care of a psychiatrist. Due to his psychological condition, he will not be able to furnish an accurate and reliable testimony and, his psychological condition would deteriorate further if he were subjected to stressful situations, for example deportation to Sri Lanka."
He went on to note the signs of injury to his body, and stated:
"He also has many scars on his body. The appearance of most of these scars on his body is consistent, in my opinion, with Mr Balamurali's description."
[5]In her decision, the Adjudicator noted in paragraph 9 the claimant's account of the ill-treatment to which he had been subjected in Sri Lanka which, if true, plainly amounted to torture. She noted Dr Taghipour's report and the opinions which I have quoted in paragraphs 21 and 22 of her decision. In paragraph 37 she noted that the Adjudicator, who had determined his asylum appeal, had determined that he had exaggerated his account of his experiences in detention, and concluded that she agreed with that determination in these words:
"The report of Dr Taghipour does not in my view interfere with that finding. The very many scars all over the appellant's body are mostly attributed by the appellant to the shelling. There is what I shall call a 'boot mark' on his back and a scar on his forearm which was cut. The appellant had claimed that he had been in detention for two months and severely beaten usually twice daily. There are few visible scars that relate to any beatings the appellant states he received at least twice a day. I find that it is implausible that the appellant should have been beaten and tortured in the way he suggests over two months. I accept that some of the torture he claims to have been subjected to would leave no physical sign and therefore it is not the scars alone that I need to consider in looking for corroboration of his account. His psychological condition would also be of major significance and I have examined the Doctor's report in that regard."
She went on in paragraph 38 to note Dr Taghipour's assessment of his psychological condition, but doubted his conclusion that the claimant would not be able to furnish an accurate and reliable testimony because of his condition. She noted that apart from her concerns about exaggeration, he gave a clear account of the events which were before him. In the conclusion of this part of her determination, she said:
"The Doctor has expressed an opinion that his 'psychological condition would deteriorate further if he were subjected to stressful situations, for example deportation to Sri Lanka.' This does not establish that there is a serious possibility that the appellant's suffering in consequence of his removal would reach such a level as to give rise to the conclusion that it would be inhumane to return him. In the appellant's case there is no reason to believe that he would be unable to receive appropriate treatment for any psychological symptoms such as depression in Colombo and there is no evidence that his symptoms are unusually grave or severe. There would therefore be no breach by the respondent under Article 3"
. She went on in paragraph 40 to consider his human rights claim (again apparently under Article 3) in these terms:
"In terms of the appellant's human rights claim I have to consider whether there is a real possibility that if returned to Sri Lanka the appellant would suffer inhuman or degrading treatment."
She went on to identify his personal characteristics: the scarring, which might or might not alert the authorities in Sri Lanka to the fact that he may have belonged to, or assisted, the LTTE. She went on to find that there was not a serious possibility of that scarring leading to detection by the security forces. She went on in paragraph 41 to conclude that there were no grounds to fear that if he was returned to Sri Lanka he would be exposed to a risk of torture, and found indeed that he was not at any greater risk than any other Tamil living in Colombo of suffering detention or ill-treatment whilst detained. Leave to appeal against that decision was apparently refused on an unknown date by the Immigration Appeal Tribunal.[6]On 14th July 2002 the claimant applied for exceptional leave to remain and supported his application with a report from another psychiatrist, Dr Coleman, dated 6th June 2002. In that report, Dr Coleman expressed the following opinion:
"(1) Depressive Disorder Mr Selvaratnam Balamurali looked extremely depressed. His mental state had all the typical features of depressive disorder. He gives a typical history of severe depression symptoms including severe insomnia, diurnal variation in mood. Early morning waking. Loss of appetite, loss of weight, tiredness, lethargy, weakness, loss of energy, loss of motivation, loss of interest, difficulty in socialising, social withdrawal, isolation, loss of concentration and forgetfulness about the ordinary activities of daily living."
As to post-traumatic stress disorder, he observed:
"- this is also severe in the case of Bala, he suffered the most severe degree of tortures. He cannot bear to think about them. He was certain that he was going to be killed at any time throughout his detention. He gives a history of recurrent nightmares which are frightening and make him scream. He has terrible flashbacks he cannot bear them. Anything at all can precipitate flashbacks including the sight of policemen, watching films about violence, talking about Sri Lanka. In addition his is always jittery, nervous and panicky, always worried, always tense, never able to relax. When he is outside he is always over aroused, always watchful."
He concluded, as Dr Taghipour had not, that the claimant was at risk of taking his own life:
"Suicide Risk - this is always high in an individual who has had two major psychiatric disorders and fears he will be sent back to a place where he will have to suffer terrible tortures. In the case of Mr Selvaratnam Balamurali he cannot bear the thought of going back he would rather be dead here. All these facts add together to form a high risk of suicide."
He went on to observe that he needed intensive anti-depressant treatment, including medication, and to observe that he would be very concerned about this man being returned to Sri Lanka. He would expect a severe deterioration in his mental health in addition to the high risk of suicide as described above.[7]The claimant's solicitor's letter of 14 July 2002 set out those concerns of Dr Coleman in detail and submitted, apparently for the first time in any proceedings concerning his stay in or removal from the United Kingdom, the following:
"For the above reasons, it is submitted the removal of Mr Balamurali to Sri Lanka will lead to a breach of articles 3 and 8 ECHR. It is contended that the effect of any removal action upon Mr Balamurali because of his psychological state is such as to constitute inhuman or degrading treatment. In the alternative, it is submitted that this factor engages the lower threshold of Article 8 in respect of the 'personal integrity' aspect of Mr Balamurali's private life."
On 27th September the Secretary of State set removal directions for 16th October 2002. The appellant, by a notice of appeal dated 7th October 2002, gave notice of appeal against that decision. The grounds of appeal can be shortly stated. They refer to the claimant's frail state of mental health, and assert in paragraph 5:
"On the basis of the facts of my claim submitted to the Secretary of State, if I were returned to Sri Lanka, there is a real risk that I would face (a) torture, inhuman or degrading treatment or punishment (b) disruption to my private and family life as I have lived in the UK for nearly 4 years (c) violation of my physical and moral integrity. Hence, there is a substantial risk of breaches of articles 3 & 8 of the ECHR."
While it is true that that notice of appeal did not expressly refer to Dr Coleman's concerns and opinion, or to the way in which the application for exceptional leave to remain was put in the claimant's solicitor's letter of 14th July 2002, it is plain from the facts (to which I shall refer shortly) that the Secretary of State did take all of those factors into account in reaching his decision and, in my view, he was correct to do so.[8]On 14th October 2002 the Secretary of State rejected the claimant's representations and certified his appeal under section 73 of the 1999 Act. He correctly recited the procedural history, and went on to say:
"The Secretary of State has firstly considered the medical report by Dr Anthony Coleman submitted about your client and the request for exceptional leave to remain on the basis of that report. It must firstly be pointed out that the medical report is based upon an acceptance of the totality of your client's story; however, as you know, both the Adjudicator that heard his asylum appeal and the Adjudicator that heard his human rights appeal felt that your client had exaggerated his claim in regard to his experience of detention and ill-treatment. Also the Secretary of State takes the view that there are adequate medical facilities available for your client in Sri Lanka; this view is based upon the Home Office Country Information and Policy Unit report dated April 2002 paragraphs 4.23 to 4.26 inclusive... "
A reference was then made to the case of Rhahchitha, and the paragraph concluded:
"In view of the above the Secretary of State is firmly of the view that the medical report provides no justification for allowing your client to remain exceptionally in the United Kingdom."
[9]The letter then went on to consider certification. It began by citing the one-stop notice, to which I have already made reference, and concluded:
"There was no mention in this one-stop appeal notice of Article 8 of the ECHR You also had the opportunity to raise those matters in your appeal which was dismissed in the determination promulgated on 12th September 2001. The Secretary of State accordingly certifies under Section 73(2) of the Act that in his opinion your claim that the removal of your client would be a breach of Article 8 . Could reasonably have been included in a statement required from you under Section 74 of the Act but was not so made, or . Could reasonably have been made in your original appeal but was not so made. In his opinion, one purpose of your claim would be to delay the removal of Mr Balamurali from the United Kingdom and you had no other legitimate purpose for making it. By virtue of section 73(3) of the Act, your appeal, so far as it relates to this claim, is to be treated as finally determined. Your other grounds of appeal relate to Article 3 but this ground was considered in your client's earlier appeal. The Secretary of State accordingly certifies under Section 73(5) of the Act that these grounds contained in your notice of appeal were considered at your earlier appeal."
It went on to conclude that:
"By virtue of Section 73(6) of the Act, your appeal, so far as it relates to these grounds, is to be treated as finally determined."
[10]The claimant challenges that decision to certify pursuant to permission granted by Wall J on 11th February 2003. The relevant provisions of section 73 and 74 are as follows (I omit irrelevant references to appeals under the Special Immigration Appeals Commission Act):
"(1) This section applies where a person (the appellant) has appealed under ... this Act and that appeal ('the original appeal') has been finally determined. (2) If the appellant serves a notice of appeal making a claim that in taking a decision ... a decision of a decision-maker, was in breach of the appellant's human rights, the Secretary of State may certify that in his opinion- (a) the appellant's claim- (ii) could reasonably have been made in the original appeal but was not so made (b) one purpose of such a claim would be to delay the removal from the United Kingdom of the appellant or of any member of his family; and (c) the appellant had no other legitimate purpose for making the claim. (3) On the issuing of a certificate by the Secretary of State under subsection (2), the appeal, so far as relating to that claim, is to be treated as finally determined. (4) Subsection (5) applies if a notice under section 74 was severed on the appellant before the determination of his original appeal and the appellant has served a further notice of appeal. (5) The Secretary of State may certify that ground contained in the notice of appeal were considered in the original appeal. (6) On the issuing of a certificate by the Secretary of State under subsection (5), the appeal, so far as relating to those grounds, is to be treated as finally determined."
Section 74(4) defines what should be contained in a one-stop notice:
"The decision-maker must serve on the applicant and on any relevant member of his family a notice requiring the recipient of the notice to state any additional grounds which he has or may have for wishing to enter or remain in the United Kingdom."
The scheme of section 73 in both of the two subdivisions which I have cited is reasonably plain. For the Secretary of State to issue a certificate he must first of all be of the opinion that the factors identified in subsections (2) and/or (5) obtain. If he is of that opinion then he may issue a certificate. The use of the word "may" signifies that that is a discretionary exercise. He is not obliged to issue the certificate, but he may do so.[11]The issues raised by this application are fourfold: first, the meaning of "claim" in section 73(2)(a); secondly the meaning of "grounds" in section 73(5); thirdly the meaning of "no other legitimate purpose" in section 73(2)(c); and fourthly what, if any, factors the Secretary of State should take into account in the exercise of his discretion.[12]As to the first and second issues, Mr Walsh submits that "claim" and "grounds" mean the factual basis for advancing a claim not to be removed from the United Kingdom. Mr Sharland, for the defendant, submits that they refer to the legal basis for such a claim. After those issues were canvassed in the usual Socratic debate, both came close to a common position, which I believe accurately represents the law, and it is this. Both "claim" and "grounds" comprise the factual and legal grounds for contending that the claimant should not be removed from the United Kingdom. If there is a common law analogy it is with the concept of a cause of action. (The one thing that claim cannot mean is the claim referred to in the opening words of section 73(2) (a notice of appeal making a claim that in taking a decision, a decision of the decision-maker was in breach of the appellant's human rights. The reason for that is self-evident: it is because that claim in relation to that decision could not have been made in any previous appeal because the decision postdated the appeal.)[13]As to the third issue, Mr Walsh submits that a legitimate purpose must be, first, to remain in the United Kingdom and, secondly, to pursue an appeal which is not hopeless. He relies on the observations of Burton J in Vemenac v The Secretary of State [2002] EWCH 1636 Admin. Burton J when confronted with the same difficulty that I face about the construction of "other legitimate purpose" in paragraph 20 of his judgment, observed:
"I am satisfied after hearing argument that what that means is that the Secretary of State must be shown reasonably to have been satisfied that in his opinion the appellant had no legitimate purpose because [my emphasis] the case put forward was so hopeless that it was not properly arguable. That is the basis upon which I have heard Mr Tattersall today, and he agreed that that was the basis on which his case should be put forward, and I am satisfied after hearing submissions and argument from both counsel that this was indeed correct."
I am told by Mr Sharland that although Burton J did not record that that view was the agreed view of counsel, the skeleton arguments disclosed that counsel for the Secretary of State did not dissent from that proposition. Mr Walsh also relies on observations of Ouseley J in Ngamguem [2002] EWHC 156 at 46:
"The last point raised by Mr Fripp was that the Secretary of State erred in certifying the decision. He submitted that where, as here, the claimant had a genuine fear as to his future upon his return, the raising of the fresh applications showed that he had a legitimate purpose in so doing and it could not be said that these had been done for the purpose of delay with no other legitimate purpose. I do not for one moment accept that the Secretary of State should regard as a legitimate purpose the raising of an application simply on the grounds that the claimant, albeit genuinely, fears for himself upon his return to his home country. In order for there to be a legitimate purpose there has to be some new material of substance placed before the Secretary of State which goes beyond what has been presented to the Special Adjudicator and it is for the Secretary of State to consider whether it does or does not have any weight. If he considers that it does not, the conclusion follows that he is entitled to certify the claim as one made for the purposes of delay with no other legitimate purpose."
[14]Having heard the submissions of counsel to me, and having heard their answers to various propositions that I have put to them in the course of the hearing, I respectfully decline to follow Burton J's analysis of the meaning of the phrase "no other legitimate purpose" and also that of Ouseley J.[15]"Legitimate purpose" seems to me to focus on the purpose for which the claimant makes his claim, not on its sounddness nor on the prior availability or lack of availability of material relied on for the first time in his new appeal. Other phrases could easily have suggested either proposition: in section 72 of the 1999 Act the phrase "manifestly unfounded", deals with hopeless claims. In section 73(2)(a)(ii) itself, the availability or lack of availability of material is explicitly addressed. I have struggled to discern what the draughtsman might have had in mind.[16]Mr Sharland, on instructions, submitted first that what was meant was "a good reason why he did not include the claim in his earlier appeal" but, as I observed, that is already dealt with in section 73(2)(a)(ii), and the words of subsection (2)(c) are not apt to describe that situation. In the end, Mr Sharland submitted that the words were there to accommodate situations not foreseen by the draughtsman as a long-stop against potential injustice. On the submissions that I have heard that seems to me to be the only acceptable construction of that phrase.[17]Mr Walsh's propositions as to the meaning of the phrase would, if correct, frustrate the manifest purpose of section 73, which is to produce finality. I am unable to accept that the draughtsman had those factors in mind when choosing that phrase. The purpose of section 73 is to require the claimants to bring all claims in one appeal, and to achieve finality in determination of that single appeal. Again, if a common law analogy is permitted, the analogy is with issue estoppel as expanded by the rule in Henderson and Henderson [1843] 3 Hare Reports 100.[18]It seems to me, therefore, that if the Secretary of State is satisfied that the appellant's claim, in the sense that I have indicated, could reasonably have been made in the original appeal but was not, and that one purpose of such a claim would be to delay removal from the UK, then, save in unusual circumstances in which the claimant had another legitimate purpose, the Secretary of State is entitled to go on to consider whether or not to issue the certificate.[19]It is common ground that he has a discretion in so doing and that his discretion is governed by administrative law principles. It is not possible in this judgment for me to attempt to identify all factors which the Secretary of State should or may take into account, let alone any factors which he should not take into account, because I have not heard full and considered argument upon the point. The list that follows is, therefore, both incomplete and tentative. But it seems to me that the Secretary of State must take into account two factors: first, the scheme of this part of the Act, which is intended to produce finality resulting from a single appeal; and secondly, by virtue of section 6 of the Human Rights Act 1988, the human rights of the claimant. Factors which it will commonly be appropriate to take into account are likely to be the strength or weakness of any new claim and the reasons why such a claim was not advanced in the original appeal.[20]Applying the test which results from that analysis of section 73, it seems to me that the Secretary of State's letter of 14th October 2002, read as a whole, and the certificate which it contains, are unimpeachable. The Secretary of State was undoubtedly right to conclude that the Article 3 claim, that the claimant would be subjected to inhuman or degrading treatment or torture, if returned to Sri Lanka, was raised explicitly in the earlier human rights appeal. It seems to me also that his decision that arguments based on Article 8, arising out of the claimant's mental health (actual and prospective) if removed, were available to him at the time of the human rights appeal and could reasonably have been advanced then.[21]It is self-evident that the grounds now relied on had as their purpose the delay in removing the claimant from the United Kingdom either indefinitely, or for so long as his mental health remains fragile. The letter does not in terms state that having satisfied himself of those grounds, the Secretary of State went on to exercise his discretion to certify, but it is both implicit and obvious from the long paragraph towards the beginning of the letter, referring to Dr Coleman's report, which I have already read, that the Secretary of State did take those factors into account in reaching the decisions notified in the letter. They appear to me to be perfectly proper reasons for the Secretary of State to take into account. I cannot conclude that he has taken into account anything which he should not have taken into account, or failed to take into account something which he should. He had Dr Coleman's report. He reached a view which was open to him about it.[22]For those reasons, the decision to certify seems to me to be unimpeachable. This application for judicial review fails.[23]MR WALSH: My Lord, the claimant is publicly funded, would your Lordship order detailed assessment of his costs?

MR JUSTICE MITTING: Certainly.

[25]MR WALSH: The second application, my Lord, in view on a point of principle, I say, that the matter should be considered by the Court of Appeal. So I am seeking permission to appeal?[26]MR JUSTICE MITTING: Now are you seeking it on one or other, or both, of the two grounds upon which permission may be granted: realistic prospect of success and some other compelling reason?[27]MR WALSH: Well, realistic prospect of success, and I say also compelling reason, precisely because there is disagreement amongst their Lordships as to the scheme of this provision. So, for the sake of clarity, and so on, it would be good for the Court of Appeal to consider this.[28]MR JUSTICE MITTING: I am bound to say I am not persuaded about the first ground, but I want to hear from your opponent about the second. Mr Sharland?[29]MR SHARLAND: My Lord, I am afraid I am not going to assist you particularly. We are taking a neutral stance on the issue of appeal generally. We are not opposing it but we are not supporting it. That is our position.[30]MR JUSTICE MITTING: Mr Sharland, it would be desirable that this somewhat difficult subsection is finally determined by the Court of Appeal, but I wonder whether or not that is something that ought to occur perhaps in another case after other judges at first instance have had the opportunity of considering the views which I have expressed and to compare them with those of Burton J and Ouseley J. So, as it were, the Court of Appeal has an informed debate upon which to base its ruling?[31]MR SHARLAND: Well, my Lord, I hear what you are saying. We say that the approach you take is clearly right, and in future it will be your approach rather than the approach of Burton J that is going to be followed. But I cannot deny that there are now differences of opinion amongst High Court judges on this point, regrettably. The question is what happens next: do we appeal, or do we have further High Court decisions and they are appealed? Can I just briefly take instructions on this?

MR JUSTICE MITTING: Yes.

[33]MR SHARLAND: I am very grateful, my Lord, after further discussions we would prefer it goes to the Court of Appeal now, if it is going to go rather than later.[34]MR JUSTICE MITTING: Right. I will give permission to appeal on the ground that there is another compelling reason for appeal, namely the need for an authoritative ruling upon the proper interpretation of section 73.[35]MR WALSH: I am obliged, my Lord. ADDENDUM Since delivering this judgment, I have discovered a summary of the judgment of Davis J in Soylemez v SSHD [2003] EWHC 1056 Admin delivered on 15th April 2003, in which he accepted a concession by counsel for the Secretary of State that the Vemenac test applied. I do not believe it takes the matter further.

Cited in 2 later judgments