Prela, R (on the application of) v Secretary of State for the Home Department [2003] EWHC 583 (Admin)

[2003] EWHC 583 Admin

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT

Venue Royal Courts of Justice

Date Friday, 14 March 2003

Strand

London WC2

B E F O R E:

MR JUSTICE GAGE

THE QUEEN ON THE APPLICATION OF PRELA

(CLAIMANT)

-v-

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

(DEFENDANT)

Computer-Aided Transcript of the Stenograph Notes of

Smith Bernal Wordwave Limited

190 Fleet Street London EC4A 2AG

Tel No: 020 7404 1400 Fax No: 020 7831 8838

(Official Shorthand Writers to the Court)

MISS VICTORIA NASSAR (instructed by Immigration Services Limited, London) appeared on behalf of the CLAIMANT

MR SAM GRODZINSKI (instructed by the Treasury Solicitor) appeared on behalf of the DEFENDANT

J U D G M E N T

(As Approved by the Court)

Between

Prela, R (on the application of)Claimant

Secretary of State for the Home DepartmentDefendant

[1]MR JUSTICE GAGE: The claimant in this case is a citizen of the Republic of Yugoslavia, a Kosovon. He came to this country with his wife and children, arriving on 30 September 1998. They were stopped by the police and claimed asylum on the same day.

[2]His application for asylum was refused on 27 June 2000. On 13 October 2000 an adjudicator allowed his appeal. However, in turn, the Immigration Appeal Tribunal allowed the respondent's appeal from that decision on 13 February 2001.

[3]The claimant then raised Human Rights Act grounds and appealed a second decision by the Secretary of State to the adjudicator, Mr District Judge Adam sitting as an adjudicator. He raised a number of points, all relating to breaches or alleged breaches of the European Convention on Human Rights. Each of those allegations was dealt with in turn and dismissed by the adjudicator. However, at the very end of his written decision the adjudicator inserted the following paragraph, numbered 34, at page 35 of the bundle:

"However, there are a number of factors in this case which lead me to make a strong recommendation that this Appellant and his family are given four years exceptional leave to remain in the United Kingdom. The factors are these. Firstly, the Appellant's mental health as set out in Dr Steadman's report. Secondly, the Appellant and his family have been in the United Kingdom since September 1998 and during that time the Appellant's wife has given birth, here, to another child of the Appellant, making three children in all. The Appellant underwent a particularly gruesome form of torture in having his teeth removed in Kosovo. He saw dead bodies and saw people being killed. Had the original appeal come before me I might well have considered that the cessation clause would have applied. Finally, life in Kosovo would be extremely hard for the Appellant and his young family. They have no home to go to; their house was destroyed. The Province's infrastructure is in the painfully slow process of being rebuilt."

[4]In response to that recommendation the Secretary of State wrote to the claimant a letter dated 30 July 2002. In that letter the Secretary of State referred to the recommendation of the Special Adjudicator, but refused to follow it. In the penultimate paragraph of that letter the Secretary of State states:

"The recommendation made in the special adjudicator's determination dated 04/04/2002 has been carefully considered and for the reasons mentioned above the Secretary of State is not satisfied that it contains additional clear compassionate circumstances. Consequently, the Secretary of State is not prepared to take further action on the recommendation."

[5]The result of that letter was for the claimant to launch these proceedings for judicial review, reviewing the Secretary of State's decision. One of the grounds in the claim for judicial review was that the Secretary of State, in the letter to which I have referred, had inaccurately and in error made a comment about a medical report. The result of that assertion was that the Secretary of State reconsidered the matter and wrote another letter, dated 5 February 2003, and it is that letter which is now the subject of the challenge which comes before me in respect on amended grounds.

[6]The amended grounds are twofold. First, under the heading "Issue of the applicant's torture", the claimant states that the Secretary of State has failed to pay sufficient attention to and properly consider the horrendous torture to which he was exposed and which the adjudicator accepted. Secondly, in ground two it is submitted that the Secretary of State failed to take into account the medical condition of the claimant and the fact that he was a person who not only was likely to require medical attention, but subsequent letters and reports show has had to undergo medical treatment. Those are the two short grounds in respect of this matter.

[7]I deal first with ground one. There can be no doubt that this claimant, on the findings of the adjudicator which cannot be challenged, suffered horrendous torture. I repeat the sentences in paragraph 34:

"The Appellant underwent a particularly gruesome form of torture in having his teeth removed in Kosovo. He saw dead bodies and saw people being killed."

It is submitted before me that, in the most recent decision letter, the Secretary of State has failed properly to take those matters into account. Reliance is placed on the fourth paragraph on the second page of the Secretary of State's letter. In that the Secretary of State says:

"The Secretary of State does not condone any violation of human rights which may have been committed against your client and his family before they left Kosovo in 1998. The Secretary of State accepts that your client may have suffered torture in the past, but given the current improved political situation in Kosovo, he is of the opinion that your client can reasonably be expected to live in relative peace on return to Kosovo."

Miss Nassar, who appears on behalf of the claimant, submits that that paragraph simply does not do any kind of justice to the horrendous torture suffered by this claimant. The words "may have suffered" are an indication that the Secretary of State has not given full weight to matters which are set out in the adjudicator's decision.

[8]For the Secretary of State, it is submitted by Mr Grodzinski that he must have had well in mind the nature of the torture. The next paragraph in the letter continues:

"Notwithstanding your client's account of events including his ill-treatment, his current medical condition and any difficulties the family may encounter on return to Kosovo, the Secretary of State has concluded that these matters do not amount to sufficiently exceptional circumstances that had not previously been considered, such as to warrant departure from his policy."

It is submitted that the reference there to ill-treatment and the reference in the proceeding paragraph to which I have referred to torture show that the Secretary of State had well in mind the observations of the adjudicator in paragraph 34, to which I have also referred.

[9]In respect of this ground, in my judgment the ground is not made out. It seems to me quite clear that the Secretary of State must have had in mind everything in relation to this matter to which the adjudicator had referred. He accepted that he was tortured. It is an acceptance, despite the word "may" in subsequent paragraphs, which is without qualification, and in my judgment it is impossible to say that he has not fully considered it when making his decision. It is equally, in my judgment, impossible to say that he has not given it sufficient weight. In effect, the submission that is being made to me is that no Secretary of State in those circumstances could possibly, in the light of the allegations of torture, have arrived at the decision which he did. In my judgment that is quite untenable.

[10]I turn to the next ground and that is the question of medical treatment. So far as that is concerned, Miss Nassar submits that the real gravamen of this complaint is that the medical evidence, as set out in a medical report by Dr Steadman, was not sufficiently considered by the Secretary of State because, if it had been, it must have been obvious to him that the claimant's medical condition was such that it required treatment.

[11]I turn to the report itself. There are references in it, at page 21 of the document, to scars from torture, a reference to scars for matters unrelated to any detention, torture or beating, and there are psychological difficulties. There is a reference to the fact that the claimant describes being anxious in seeing people being killed, in seeing dead bodies, and seeing people being beaten up. As the doctor reports, he appeared anxious in talking about all of this, but he went on to state (the date of the report is September 2001) that he had made significant psychological improvement since coming to the United Kingdom. Further, the doctor reports that the claimant has suffered sleeping disturbance since his detention (again that has improved since he has been in the United Kingdom), and that he is otherwise, apart from the above references, currently relatively psychologically settled, feeling safe in the United Kingdom and he has never been on psychological medication and has never received any counselling.

[12]Miss Nassar submits that the documents recently produced to the court show that he has been receiving treatment from time to time. Albeit those were not before the Secretary of State, Miss Nassar submits, as I have already indicated, that the nature of his condition was such that it must have been obvious that it was so serious that it would require treatment. To this, I have to say that that is not the impression given by Dr Steadman's report.

[13]However that may be, it is quite clear from the Secretary of State's decision letter that he did take into account Dr Steadman's medical report. In the final paragraph on page 1 of the letter of 5 February the following is set out:

"The Secretary of State accepts the substance and findings of Dr Steadman's medical report but has concluded that the report does not demonstrate clear exceptional compassionate circumstances on which the Secretary of State may be inclined to grant your client leave to remain. In particular, the Secretary of State has considered that your client's anxiety symptoms and sleep disturbance are far from exceptional and indeed these symptoms are very common in many former residents of the Federal Republic of Yugoslavia."

Again, in my judgment it cannot be said that he has (a) failed to take the report into account; or (b) not given it proper weight when arriving at his decision.

[14]As Mr Grodzinski points out, there is no question here of there being any breaches or likely breaches of any Article of the Convention. They are all expressly ruled out by the adjudicator. The policy of the Secretary of State, in regard to exercising his discretion in granting exceptional leave, is also not challenged.

[15]In the circumstances, in my judgment, these grounds do not come anywhere near showing that the exercise of the Secretary of State's discretion in the terms of his policy was Wednesbury irrational, unreasonable, or flawed and, accordingly, I reject the claim.

[16]MR GRODZINSKI: My Lord, I have no application.

MR JUSTICE GAGE: I am grateful.

[18]MISS NASSAR: Nor have I, my Lord.

[19]MR JUSTICE GAGE: Thank you both very much. I am grateful to you.