Muwanguzi, R (on the application of) v Secretary of State for the Home Department [2003] EWHC 813 (Admin)

Case No CO/4353/02[2003] EWHC 813 Admin
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Tuesday, 1 April 2003
Strand
London WC2
B E F O R E:
MR JUSTICE GOLDRING
Between
THE QUEEN ON THE APPLICATION OF MUWANGUZIClaimant-v-
Between
THE 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)
MISS C FIELDEN (instructed by Battersea Law Centre, 14 York Rd, London SW11 3QA) appeared for CLAIMANTMISS M DEMETRIOU (instructed by Treasury Solicitor) appeared for DEFENDANT
J U D G M E N T(As Approved by the Court)
Crown copyright©
[1]This is an application to quash the decision of the Secretary of State to disperse the claimant from London to Leeds under his obligation to provide support to asylum seekers under section 95 of the Immigration and Asylum Act 1999. The circumstances within which the claimant falls within those provisions will soon become apparent. It is said the decision to do so was irrational and/or in breach of the claimant's Article 8 rights. The factual background[2]On any view, this is a sad case. The claimant is from Uganda. She came to the United Kingdom as a visitor in October 2000. She was afterwards diagnosed as HIV positive. At first, private accommodation was found for her. From about February 2001 the Secretary of State has been supporting her. She has full-blown AIDS and is being treated at St George's Hospital in London. She has applied to stay in the United Kingdom. The basis of her application is Article 3 of the Convention on Human Rights. It is said that she would not be able to receive the particularly specialised treatment she needs in Uganda. If she were required to return there, she would die. The Adjudicator, as I understand it, refused the application. An appeal is due to be heard before the Immigration Appeal Tribunal. I have ascertained that the date it is due to be heard is 12th May of this year. I was concerned that should I find against the applicant in the present application, she might be transferred to Leeds, remain there for a short time and then be deported. Given her condition, that did not seem to me appropriate. Miss Demetriou, on behalf of the Secretary of State, has indicated that, whatever decision I make, the applicant would not be moved to Leeds pending the decision of the the Immigration Appeal Tribunal, assuming the hearing takes place on 12th May 2003. The basis of

The application

[3]Miss Fielden, who has argued this case sensibly and with moderation, essentially puts her case in this way. The claimant has full-blown AIDS. The medical evidence reveals that she is difficult to treat. However, treatment for full-blown AIDS would be available to her in Leeds. This case, she effectively submits, is exceptional. The claimant suffers from severe depression. She needs a particular support system. Without it, her medical treatment would suffer. Such support system is not available in Leeds. It is only available to her in London. Miss Fielden accepts that in London in any event the claimant would have to be moved for she cannot remain forever in her present emergency accommodation.[4]What then is the evidence upon which Miss Fielden relies?[5]They are several reports and letters. I have read each with care. I shall only refer to a limited number. Many, it is clear, were prepared for a hearing before the Adjudicator or the Immigration Appeal Tribunal. Dr Macallan[6]He is the honorary consultant at St George's Hospital, who is responsible for the treatment of the claimant. In a report dated 9th August 2000 he deals with prognosis:
"In terms of her prognosis, with continued anti-retroviral therapy, she should be able to retain good general health for several years to come. As I am sure you are aware, the future of anti-retroviral therapy and the future of individuals that have developed resistance, remains somewhat uncertain... He also says: ... she has needed considerable support and [assistance] from the clinic staff and I do feel that the success of her on-going treatment is to some extent dependent upon maintaining that link [ with clinical staff]. That is why I have argued against her dispersal on previous occasions."
It is not necessary to refer in detail to Dr Macallan's reports of 15th January 2002 and 29th May 2002. In his report of 24th July 2002, he expresses profound concerns about dispersal. He speaks too of the claimant's anxiety and distress in the delay in having her case heard. He is there referring to her immigration case.[7]In his report of 15th January 2003 he speaks of the claimant's:
"... quite profound depressive illness. I am sure that her mental state is being adversely affected by continuing problems with her immigration status."
That is another example of the claimant being affected, at least in part, and not surprisingly, by the uncertainty of her immigration status.[8]In his final report of 28th February 2003 (not before the decision-maker ), Dr Macallan speaks of the claimant's psychological state. He states that it has been compounded by a problem regarding food and support, which I am told has now been clarified. He argues strongly against dispersal. Dr Connell[9]Dr Connell is a consultant psychiatrist. He saw the claimant on 23rd September 2002. He describes a close relationship with those treating the claimant at St George's Hospital. He describes the house in which the claimant is living in these terms: "It seems that currently she is living in a three bedroom house with three other people. There are three from Uganda and one from Zimbabwe. All her housemates have AIDS. She has also become close to her fellow housemates, particularly a women from Zimbabwe whom she has known for over two years now. In addition to these close contacts [the claimant] described how on average she sees one or two people a month from her home town who come to this country either on holiday or business, conveying news, bringing presents and food, etc from family. These contacts are very important to her. [The claimant] described on how learning of her diagnosis of AIDS she developed some depressive symptoms, particularly low mood, some biological features of depression including appetite and sleep disturbance and a belief that life wasn't worth living... On learning she was likely to be dispersed to Leeds, where she tells me she has no friends, relatives or contacts of any kind, she started to feel low and tearful and again described feeling as if life wasn't worth living.[10]In paragraph 11 of the report, Dr Connell says:
"In terms of her mental state today, [23rd September 2002] she presented with excellent self-care. However, eye contact was limited. Rapport was good. She was tearful throughout the consultation. Her speech lacked spontaneity. She answered questions but found it difficult to elaborate for crying. She described her mood as depressed and appeared low and anxious."
In paragraph 12 Dr Connell states:
"In terms of her future, is she extremely distressed about the thought or being dispersed to Leeds where she knows nobody. She said at one point 'I would prefer to go homeless'."
A little further on:
"She has little confidence in herself and her self-esteem has also suffered. She says she feels hopeless and has been made to feel worthless by the way she has been treated by NASS and she says that she has also been made to feel a burden to this organisation. She denied feeling guilty about anything. There was no evidence of psychosis."
In paragraph 14:
"In my view the claimant is suffering with some depressive symptoms which would amount to a depressive episode. These symptoms seem undoubtedly to have been brought on initially by the unexpected diagnosis of AIDS and secondly by her imminent dispersal to Leeds where she has no contacts of any kind. [The claimant] has always been a resourceful person who has managed to support her children through a good education."
A little later on in the report, Dr Connell says:
"Despite the unexpected news about her diagnosis and her having to leave close family back in Uganda, she has made every effort to become involved in her local community, forming strong friendships with not only her housemates but also a number of people who attend HIV/AIDS related support groups. She is also an active member of her local church. Without these contacts and supports I think it is highly likely that [her] depressive symptoms would worsen."
There is reference to the very close relationship with the consultant. Dr Connell states:
"I would recommend that every effort is made to ensure that [the claimant] remains in London as I believe that dispersal to Leeds is likely to have a devastating effect on [her] mental state."
[11]It is clear from other reports which I have and have read, that the claimant has made use of a number of support organisations available to her in London. I will refer to them by their various acronyms: one is called PLACE; another IVO; another the Positive Place; another Widows and Orphans International.[12]Another is called the Globe Centre, a charity in east London. Ms Barton, the HIV assessment worker, has written various letters, among other things she states:
"I would be extremely concerned for her already vulnerable psychological health if she were to be dispersed outside of London."
There is reference too in Ms Barton's reports to the various organisations with which the claimant has become involved. In her final letter of 6th December 2002, Ms Barton speaks of the groups having become the claimant's family and her extreme concern for the claimant's physical and psychological wellbeing if she were dispersed, or threatened with dispersal.[13]There is also a reference in her letter of 26th February 2003 to what she describes as the limited resources available to someone in the claimant's position in Leeds.[14]It is clear too that the claimant has close contact with her church. The letter of decision[15]The final decision letter is dated 21st February 2003. It was preceded by earlier correspondence. On 31st July 2002, the Secretary of State, in the light of submissions made to him, asked for medical evidence. On 30th August 2002 the Secretary of State indicated there were no exceptional circumstances to warrant the claimant remaining in London. On 12th September 2002 the Secretary of State justified the decision of dispersal on the basis of the NASS policy bulletin (see below). Finally, there is the decision letter to which I have referred.[16]In the third paragraph Simon Bentley, who wrote the letter, says:
"[The claimant] applied for support and accommodation from the National Asylum Service Support (NASS) In February 2001. Accommodation was arranged for her at Leeds from September 2002, but she has so far failed to take up the offer. I have carefully considered the background evidence, especially the reports by Dr Macallan and Dr Connell, but have decided that we will not be agreeing to her request that we provide accommodation in London. The treatment [the claimant] is receiving and the state of her physical health is set out in Dr Macallan's report. The general position appears to be that her condition is controlled by medication and that she should be able to retain 'good general health for several years to come.' As I believe you know, our own medical advisor has reported that appropriate treatment in respect of HIV is available throughout the United Kingdom. In our view, therefore, there is nothing to prevent her continuing with the same treatment wherever she is accommodated in the United Kingdom."
I do not take Miss Fielden, within their limited terms, to disagree with those observations. "I understand that your primary concern is the effect that relocation away from London might have on the claimant's mental health. I have considered Dr Connell's report carefully. The report records that she is suffering symptoms of depression brought about by the discovery that she is HIV positive and the prospect of relocation away from London, with the consequential loss of contact she has built up in the two years she has lived there. These contacts consist of her current housemates, who she no doubt sees daily, fellow members of her church (one of whom she speaks to daily), two friends who live locally and who she sees once a week and various visitors from Uganda who she sees, on average, about once or twice per month. I accept that these contacts will to some extent be disrupted if the claimant moves from London, though there will, of course, be some disruption, particularly in regard to her contacts with her present housemates, even if she is allocated accommodation in London. That said, it is far from the case that contact will necessarily have to cease altogether. If, for example, she were once again allocated accommodation in Leeds, it would hardly be unreasonable to expect her friends to travel to see her quite regularly, particularly at weekends. Moreover, she described herself to Dr Connell as a 'normal outgoing woman who found it easy to make friends and was generally quite resourceful and motivated.' His conclusion, that relocation will have a devastating effect on her mental state appears to be in large part predicated on her losing all contacts with her present circle of friends and acquaintances and failing to establish new contacts In all the circumstances, I do not consider that this conclusion is justified by the facts of the case. Having considered all the evidence I do not consider that it would be unreasonable to expect the claimant to take up accommodation outside London. Her circumstances present some compassionate factors. However, these considerations have to be balanced against the overall public interest of providing asylum seekers with accommodation where it is available, which in practice means outside London. I recognise that she would prefer to remain in London and that the prospect of relocation is causing her a certain amount of distress. Nonetheless, her present condition does not appear to be sufficiently serious as to require regular psychiatric treatment and she has expressly denied any intention of suicide or self harm. It is regrettably the case that many asylum seekers who have uprooted themselves from their home countries, leaving families behind in the process, exhibit very similar feelings of depression to the claimant. It would be surprising if they didn't. No doubt those feelings are exacerbated if their asylum applications are refused and they face the real prospect of being removed from the United Kingdom; as, subject to her appeal, the claimant does. In all the circumstances, however, I do not consider that the compassionate factors in her favour, even taking into account Dr Connell's opinion, are sufficiently strong to justify offering her accommodation in London." The legal framework[17]Section 95 of the Immigration and Asylum Act 1999 provides in subsection (1) that:
"The Secretary of State may provide, or arrange for the provision of, support for (a) asylum-seekers.... Who appear to the Secretary of State to be destitute or to be likely to become destitute within such period as may be prescribed."
[18]Section 97 provides:
"(1) When exercising his power under section 95 to provide accommodation, the Secretary of State must have regard to- (a) the fact that the accommodation is to be temporary pending determination of the asylum-seeker's claim; (b) the desirability, in general, of providing accommodation in areas in which there is a ready supply of accommodation; and (c) such other matters (if any) as may be prescribed. (2) But he may not have regard to- (a) any preference that the supported person or his dependants (if any) may have as to the locality in which the accommodation is to be provided..."
The claimant falls within these provisions by reason of her application under Article 3.[19]The statutory provisions are reflected in the Dispersal Guidelines. Paragraph 2.1 of those Guidelines, under the heading:
"Due Regard To Areas With A Ready Supply Of Accommodation" states: "
Under the provisions of section 97 of the Immigration and Asylum Act 1999 caseworkers must have regard to the desirability, in general, of providing accommodation in areas in which there is a ready supply of accommodation. 2.2 This means that, as a general rule, caseworkers should allocate accommodation in areas outside London and the south east." Paragraph 2.4 provides:
"Asylum seekers may ask to be allocated accommodation in London or the South East. Caseworkers should assess: . whether it is reasonable to allocate accommodation in a dispersal area (i.e. outside London or the South East) . whether an allocation of accommodation will meet the person's accommodation needs . whether the decision to disperse is compatible with the Human Rights Act 1988 Based on the information available on the application form and any other information submitted with the application. 2.5 There may also be occasions when caseworkers will need to obtain further information, for example from the reception assistant or from the NASS doctor, to inform their decision. 2.6 Each application should be examined on its own merits. Careful consideration must be given to the individual circumstances of each case and when deciding whether it is reasonable to allocate dispersed accommodation particular attention should be given to the following: . Medical treatment . Special needs..."
I need not refer to any of the other matters there set out. It is in particular to special needs that Miss Fielden refers.[20]Miss Fielden submits there are special needs which the claimant has. As well as submitting the decision was Wednesbury unreasonable, Miss Fielden submits it involved a breach of the claimant's Article 8 rights. She submits that requiring the claimant to live in Leeds (assuming support is to continue) involves an interference with the claimant's right to respect for private and family life. On the facts of this case that interference is not necessary, she submits, for any of the reasons set out in the article. The Secretary of State's submissions[21]As to Article 8, Miss Demetriou submits it goes no further than this. It obliges the Secretary of State to take account of the claimant's personal circumstances. A failure to do that would amount to a breach. It would amount anyway to a decision susceptible of challenge on Wednesbury principles. Article 8, therefore, she submits, adds nothing. Family life she submits does not arise here. The claimant's family is in Uganda. Article 8 does not give the claimant a right to choose where to live. If Article 8 does add anything, she submits, the decision here was proportionate and lawful.[22]Miss Demetriou seeks to justify the decision on a number of bases. First, there is a serious shortage of accommodation in London. It is not simply a question of cost. Second, the statute and the bulletin are clear. Hard choices, as she puts it, have to be made. Many asylum seekers would prefer to be accommodated in London. For many to move outside London would be both disruptive and upsetting. Third, such particular problems as the claimant may have were carefully concerned by the decision-taker. He has to ignore the claimant's wishes. There will be disruption in any event, albeit possibly to a lesser extent, if she remains in London and has to be relocated from the emergency accommodation. In addition, Miss Demetriou refers to the other problems which the claimant has relating to whether or not she can remain in this country at all. Conclusion[23](1) Article 8 requires the Secretary of State to provide the claimant as a destitute asylum seeker with adequate accommodation. It requires him to consider the claimant's personal circumstances when he does so. It does not require him to provide particular accommodation: see Hetoja [2002] EWCHC 2146.[24](2) Although limited authorities have been cited, it seems to me clear that Article 8 enjoins respect for physical and psychological integrity. Here, the claimant will be uprooted from London to Leeds. On any view, her support systems will be affected. Such action is capable of amounting to a breach of her Article 8 rights. Whether or not it does, or whether or not it is justified, is of course another matter.[25](3) The first and fundamental issue is whether the Secretary of State could rationally have reached the decision he did, having regard to section 97 and the guidance provided. To put it another way, were what Mr Bentley termed "the compassionate factors" so strong here as to make that decision irrational?[26](4) I confess I have not found this an easy case. I have no doubt been influenced by the sympathy anyone must feel for someone in the claimant's position. However, the test is not whether I would have reached that decision, but whether such a decision could lawfully have been reached.[27](5) One factor can be disposed of straight away. It is agreed that the claimant would receive proper medical treatment when in Leeds.[28](6) The Secretary of State had to balance two competing factors. On the one hand was the need to provide people in the claimant's position with accommodation where it is available, with the distress that relocation will mean for her. It is clear from Dr Connell's report that much of her support comes from her housemates, all of whom have AIDS. Once moved, even in London, that support will be removed, certainly to its present extent. She receives visits from Uganda which are important to her. There is no reason why such visits should not continue if she is in Leeds.[29]Moreover, while I accept that her connection with many support groups will be broken, it does seem to me that the defendant was entitled to conclude this was not a case where the claimant would not be able to make new friends or have contact with support mechanisms in Leeds. There is another feature too. While I have no doubt the move to Leeds has caused the claimant considerable concern, there is here another factor which causes her and must cause her much greater concern. It is the imminent Immigration Appeal Tribunal hearing. For if that were to fail, she would be deported. If that were to succeed, I have no doubt that within the grave difficulties which she faces she would feel her position relatively transformed.[30]In short, after some hesitation, I have concluded that the Secretary of State was entitled rationally to reach the decision he did. It seems to me that it was, moreover, proportionate given the need to disperse those in the position of the claimant and the facts of her particular case.[31]The application is, therefore, refused. However, as I have said at the outset, and repeat now, the Secretary of State has indicated that nothing will be done pending the decision of the Immigration Appeal Tribunal.[32]MISS FIELDEN: My Lord, I am grateful, this case is funded by the Community Legal Service. May I please have assessment?

MR JUSTICE GOLDRING: I assume the documentation has been filed?

[34]THE ASSOCIATE: My Lord, no.[35]MR JUSTICE GOLDRING: Could I have an undertaking that the appropriate documentation is filed within seven days?[36]MISS FIELDEN: My Lord, it is within the bundle.[37]MR JUSTICE GOLDRING: Could you hand over the documentation, Miss Fielden, that is the sensible thing.[38]MISS FIELDEN: I hope it is the funding certificate.

MR JUSTICE GOLDRING: The answer is "yes" to your application.

[40]MISS FIELDEN: My Lord, I am grateful. I am also instructed, my Lord, to ask for leave to appeal?[41]MR JUSTICE GOLDRING: Well, I am going to refuse permission to appeal, and you will have to renew that before the full court. But I am grateful to you, Miss Fielden. Thank you very much.[42]MISS DEMETRIOU: My Lord, could I first confirm that we did hand you a decision of the IAT?[43]MR JUSTICE GOLDRING: Thank you very much. I assumed so. I then looked at my notes and it was not clear. It was a decision, as I have taken it, assuming the case was heard on the date anticipated.[44]MISS DEMETRIOU: That is exactly right. This is really not a question for me, but might I raise with my learned friend and I see members of the Press are here, whether or not it is appropriate to ask for an anonymity order. It is not a question for me, but I wonder whether that question might be considered.[45]MISS FIELDEN: My Lord, I have not been -- it is considered as far as to----[46]MR JUSTICE GOLDRING: It does seem to me that given this woman's condition that it would be appropriate to make such an order where such an application to be made. I gathered that she was named yesterday in newspaper reports.[47]MISS FIELDEN: I had not realised. I suppose that means it is too late?[48]MR JUSTICE GOLDRING: Well, I do not think I can make an order given that she has been named. All I can say is that I hope that the Press, I am sure they will, appreciate the position. I do not think in the circumstances, given that it is in the public domain already, I could seriously remove it from the public domain. Miss Demetriou, do you have any observation?[49]MISS DEMETRIOU: My Lord, I think that is right. If it is in the public domain, then it is difficult for my Lord to make an order now.

MR JUSTICE GOLDRING: It seems to me that would be right.

[51]MISS DEMETRIOU: If I could confirm that we are not seeking any order for costs.[52]MR JUSTICE GOLDRING: Thank you very much. I assumed that.[53]MISS FIELDEN: My Lord, can I just raise one other possibility. I did say yesterday, your Lordship may remember, that it is in fact not easy necessarily to appeal from a substantive decision of the Tribunal to the Court of Appeal, because of course one does have to have a good and proper point of law, but I just wondered, I mean I cannot possibly predict what would happen at the Tribunal, I just wondered what would happen if there were to be an appeal from the immigration----[54]MR JUSTICE GOLDRING: Miss Fielden, I think you need to take each stage at a time. I do not think now is the time to deal with that.[55]MISS FIELDEN: I expect your Lordship is right.

MR JUSTICE GOLDRING: I think that must be so.

[57]MISS FIELDEN: There is just one other thing that was worrying me. I was very concerned yesterday at the information your Lordship was given about the adjournments at the Immigration Appeal----[58]MR JUSTICE GOLDRING: I am glad you mention that, Miss Fielden, I have had since further information and I think that I was misinformed, and it was nothing to do, I need not go into the detail, but it was nothing to do with your unavailability.[59]MISS FIELDEN: I am grateful, because I was quite worried that my memory had gone.

MR JUSTICE GOLDRING: No, it had not.

[61]MISS FIELDEN: Because I was there on each occasion. I am grateful, my Lord.

MR JUSTICE GOLDRING: Thank you.