Y, R (on the application of) v Secretary of State for the Home Department [2013] EWHC 2127 (Admin)

Case No CO/4923/2012[2013] EWHC 2127 (Admin)IN THE HIGH COURT OF JUSTICEQUEEN'S BENCH DIVISIONADIMINISTRATIVE COURTVenue Royal Courts of Justice, Strand, London, WC2A 2LLDate 18 July 2013
Before
HIS HONOUR JUDGE ANTHONY THORNTON QCSitting as a deputy judge of the High Court
Between
The Queen (on the application of Y)ClaimantThe Secretary of State for the Home DepartmentDefendant
Mr Alasdair Mackenzie (instructed by Birnberg Peirce) for ClaimantMr Mathew Gullick (instructed by The Treasury Solicitor) for SSHDHearing Hearing Date: 14 th June 2013
JudgmentIntroduction

Issue 3 - Is Y being subjected to inhuman or degrading treatment by the state?

[1]Y is a citizen of Afghanistan now aged 21. He challenges the decision of the Secretary of State of the Home Department (“SSHD”) dated 17 February 2012 to refuse to grant him indefinite leave to remain following Y’s application dated 7 October 2011 for the exercise of discretion to be granted indefinite leave to remain (“ILR”). The application was made in unusual circumstances since the claimant had been granted discretionary leave to remain on three previous occasions for the whole period from 10 June 2008 until 12 December 2013 and the application had been made some 26 months before the third of those discretionary periods had expired. The basis of Y’s application was his exceptional mental condition which it was claimed made a refusal of the application a breach of both his article 3 and his article 8 rights.[2]In order to do justice to his challenge and to set it in its full factual context, it is necessary to give some detail to his immigration history and his current mental health and social condition. The nature and extent of his psychological and other evidence makes it of particular sensitivity so that his identification at the hearing of his claim and in this judgment would potentially infringe his right to a private life. For those reasons, I ordered at the hearing that his name should be anonymised and that he should be known for all purposes connected with his claim as “Y”. This order was made pursuant to CPR 39.2(4) so as to protect his interests.

Factual background

[3]Y was born on 1 January 1992 and was therefore, 21 at the date of the hearing. He was born and grew up in Jalalabad Province, Afghanistan with his parents and two brothers. He was the middle child. His father and elder brother were tragically shot dead at the family home during a hot summer night in 2005. They had been sleeping downstairs whilst Y, his mother and younger brother had been sleeping on the roof. Y and his mother went downstairs immediately following the shooting to find both of them had been shot dead. Although the police were involved immediately after this tragedy, the murderers were never apprehended and Y has no idea to this day who they were or why they committed these crimes. The remaining family members immediately moved in with Y’s maternal uncle where he remained until coming to the UK.[4]Y was aged 13 when his father and brother were murdered. When he was 16, his mother and uncle made arrangements for him to be sent to safety in the UK since his mother remained terrified that the same fate awaited him as had befallen his father and older brother. He travelled to the UK by lorry with the aid of a people smuggler and arrived in the UK at the beginning of April 2008 and was placed in the care of social services as an unaccompanied minor. He was placed in a young person’s hostel in Camden, London by Camden Social Services and a local authority social worker was allocated to monitor and support him. He claimed asylum on 16 April 2008 and this claim and its associated claim for humanitarian protection was refused by the SSHD on 16 June 2008 but, in conformity with the policy that applied to a minor whose asylum claim had been refused, he was granted discretionary leave to remain until 1 July 2009, being a date 6 months before his eighteenth birthday. He appealed to the Asylum and Immigration Tribunal against the refusal of his asylum claim and that appeal was dismissed on 21 October 2008. At the time of his asylum application and the subsequent appeal there was no reference to, or manifestation of, his deteriorating or deteriorated mental health or to a human rights claim based upon the breakdown of his mental health.[5]On 24 June 2009, Y applied for further leave to remain. Whilst waiting for the SSHD’s decision, he was assaulted in the street in November 2009 by being hit over the head with a plank. His resulting injuries required sutures. He had a CT scan which showed normal results and subsequent neurological assessments and tests showed no signs of epilepsy. However, Y displayed the first acute signs of stress soon after this assault. This stress showed itself with symptoms of what was subsequently diagnosed as being Conversion Disorder with Seizures (“CDS”) which was also referred to as violent pseudo-seizures or conversion seizures. Y’s seizures manifested themselves by the onset of more rapid heart beating, strange sensations at the top of his head and neck, bad headaches, a collapse onto the floor, thrashing around and the banging of his limbs and head on surrounding surfaces.[6]Y learnt that his application for further leave to remain had been refused by the SSHD soon after the refusal letter was promulgated on 25 February 2010. Y’s solicitors lodged an appeal against this refusal to the First-tier Tribunal (Immigration and Asylum Chamber) (“FtT”). However, Y’s learning of the dismissal of his application appeared to trigger a whole series of what were initially referred to as bizarre reactions which were subsequently diagnosed as being a series of seizures by his GP which the GP considered to be more consistent with Post-Traumatic Stress Disorder (“PTSD”) than with epilepsy arising from his being violently assaulted in the street a few months earlier. In one of the first of these reactions, Y had started to scream and shout outside his hostel. He acted in a similar strange way on a number of subsequent occasions within his hostel and, on 14 March 2010, he was admitted to the A & E department at University College Hospital because he was again acting in that way in a manner giving rise to particular concern. Whilst in a cubicle at the hospital, he had another seizure and dropped to the floor and became tearful. He was discharged because he was not suicidal. On 7 April 2010, he assaulted another hostel resident and punched two holes in the wall. He was arrested and taken to Holborn police station and whilst in a cell there on 8 April 2010, he described his cell as his office and said that he was waiting for the queen. When interviewed by a member of the community-based psychiatric crisis team, he sat huddled in a blanket and said very little. He agreed to be admitted as a voluntary patient to St Pancras Psychiatric Hospital. Soon after his admission, he became very stressed and, when asked about his family, fell to the ground and started to bang his head against the floor. In a later episode, he was found walking up and down the ward corridor singing. He was diagnosed during his 8-week stay in hospital as suffering from PTSD.[7]He was discharged on 4 June 2010 having been prescribed Risperidone and Citalopram medication which are used as stress relievers to help suppress the symptoms of PTSD. In September 2010, his community-based psychiatrist prepared a report for use at his forthcoming FtT appeal hearing that summarised his then conditions as:
“… experiencing over the past year, symptoms of post-traumatic stress disorder, recurrent vivid nightmares of the death of his brother and father, which he witnessed. He reports that these occur every night. He tries to avoid thinking about the stressful event, and he describes distress when he sees or hears something that reminds him of what happened. He describes difficulties, irritability, difficulty in concentrating and hyper vigilance. He said that these symptoms have occurred since he has been forced to recall the past traumatic events as a result of inquiries about his history and asylum status. Quoted in paragraph 28 of the FtT decision. ”
[8]He was referred by his community-based psychiatrist on 17 September 2010 to the specialist Refugee Service within the Traumatic Stress Clinic (“TSC”) that forms part of the Camden & Islington NHS Foundation Trust. The TSC offers assessment and treatment specifically for refugees and asylum seekers suffering from the effects of traumatic experiences for more than 10 years. He embarked on therapeutic assessments and pre-treatment for his PTSD. Y’s referral was prioritised for treatment at the TSC due to his young age and extreme vulnerability. The purpose of the referral was for him to be provided with specialist psychological trauma-focused therapy for PTSD which was intended to be an adjunct to the medication that he had been prescribed by the hospital which he continued to take daily. He was initially assessed in October 2010 and began attending weekly treatment sessions at the TSC’s clinic in November 2010. At one of his early sessions, he was asked to speak about his PTSD experiences in Afghanistan in detail. When speaking about his father and brother’s tragedy, he suddenly lost all awareness of his surroundings, began violently shaking and crushed the plastic cup he was holding. He required smelling salts to bring him back mentally to his surroundings.[9]Given the complex nature of his case, he was soon afterwards transferred to the care of Dr Ehntholt, a clinical psychologist with considerable experience in the assessment and treatment of refugees and asylum seekers who are suffering from the effects of traumatic experiences and started weekly sessions with her.[10]Y’s FtT appeal from the refusal of his application for further leave to remain was heard on 14 October 2010. His sole ground of appeal, which was accepted in its entirety by the FtT judge, was based on article 8 and on his claim for a private life. In summary, it was contended that he was suffering from a serious mental condition that he developed whilst in the UK which required continuing treatment which was being met in the UK. The evidence showed that there was no suitable treatment for him back in Afghanistan whose mental healthcare facilities were virtually non-existent and which did not include any treatment of the kind he required. His condition appeared to have been triggered by his intense fear of being returned to his homeland. The onset of PTSD was at that time considered to have been caused or significantly contributed to by his tragic experience in being present in the house at the time of the murder of his father and elder brother, in experiencing their murder at first hand and in coming across their dead bodies soon after they had been murdered.[11]Y described his symptoms and the effect of his PTSD in graphic terms in his written evidence to the FtT in which he stated:
“6. If I am under any stress like I am talking to a person for a while, I feel very stressed and I feel like beating him and leaving the place. My life that I live now is very bad and I feel that it is better to die than to live like that. I was very happy and content when my father and brother were alive and not it is like hell. It feels like I don’t know what is going to happen to me from moment to moment if I will fall down or my brain will stop functioning properly. 7. I have a lot of problems with my memory and I find it difficult to remember things. I forget things like my appointments with the hospital. My doctors advised me to take a friend with me when I go outside to protect me. I also find it difficult to remember details of events from the past such as what happened in Afghanistan. I can remember seeing the body of my dead father and brother, but I can’t remember exactly when it happened. 8. If I am forced to return to Afghanistan, there is no one to look after me and to take care of my medicine or take me to the hospital. I don’t think it would be possible for me to get treatment in Afghanistan like I receive now in the UK for my problems. I don’t think there is particularly proper psychiatric care for me. It would be very difficult for me to find that. The treatment I have been receiving here in the UK has helped me a lot and the medication I get is very important. Every week my key worker takes me to the hospital and to my doctor where my doctor spends time listening to me and I feel a lot better.”
[12]The FtT judge’s conclusion in deciding that this was one of the exceptional cases where the appellant’s mental health condition and his need for treatment in the UK which was not available in his home country outweighed the state’s legitimate aim of removing people from the UK whose leave to remain had expired was stated as follows: “35. I have weighed the following factors in favour of the appellant being granted discretionary leave on article 8 grounds:• The appellant is given to violent pseudo-seizures and has, on one occasion, assaulted a fellow hostel-dweller.• He is delusional and seriously forgetful.• His condition appears to have been brought on by uncertainty over his status and PTSD relating back to his father’s and brother’s murders. Given the manner in which his mental state manifests itself, I doubt that it would even be possible to get him on board a plane for removal.• In the UK the appellant meets monthly with his social worker and attends regularly at the Tavistock and Portman Clinic for therapeutic support and counselling. I am satisfied that this level of care, or indeed any such care, will be unavailable in Afghanistan.• Although there are apparently mental health centres in Kabul and Heart, there are none in Jalabad, the area in which the appellant’s family lives. Given his condition, it is vital that he be cared for by his family. His mother and brother cannot reasonably be expected to relocate to Kabul away from the protection of his uncle.• I am satisfied that the cessation of therapeutic support will result in a deterioration of the appellant’s condition.• The appellant is currently being treated with risperidone and citalopram once daily. These are not on the list of drugs names as currently being available in Afghanistan. It is likely that, without them, his condition will deteriorate. 36. For all the above reasons I am satisfied, on the balance of probabilities, that the reasons for not removing the appellant to Afghanistan outweigh the need to maintain a firm and effective immigration policy. His removal would therefore be disproportionate and I therefore allow his appeal.”• The appellant is given to violent pseudo-seizures and has, on one occasion, assaulted a fellow hostel-dweller.• He is delusional and seriously forgetful.• His condition appears to have been brought on by uncertainty over his status and PTSD relating back to his father’s and brother’s murders. Given the manner in which his mental state manifests itself, I doubt that it would even be possible to get him on board a plane for removal.• In the UK the appellant meets monthly with his social worker and attends regularly at the Tavistock and Portman Clinic for therapeutic support and counselling. I am satisfied that this level of care, or indeed any such care, will be unavailable in Afghanistan.• Although there are apparently mental health centres in Kabul and Heart, there are none in Jalabad, the area in which the appellant’s family lives. Given his condition, it is vital that he be cared for by his family. His mother and brother cannot reasonably be expected to relocate to Kabul away from the protection of his uncle.• I am satisfied that the cessation of therapeutic support will result in a deterioration of the appellant’s condition.• The appellant is currently being treated with risperidone and citalopram once daily. These are not on the list of drugs names as currently being available in Afghanistan. It is likely that, without them, his condition will deteriorate.[13]Around the time of his FtT hearing, Y’s GP, given the continuing view that Y’s violent pseudo-seizures were epileptic in nature, prescribed him anti-epileptic medication and referred him to both a consultant neurologist and a consultant cardiologist for tests and assessments. Following a battery of tests, the neurological consultant to whom Y had been referred concluded that Y’s fits appeared to be a response to extreme stress rather than being organic in cause and he was taken off his anti-epileptic medication in January 2011.[14]During 2011, Dr Ehntholt made no progress with her trauma-focused therapy and Y’s adverse symptoms and reactions intensified in both frequency and extent. August 2011 was particularly noted for this intensification. He was experiencing seizures at least once a week. On two occasions he attended for therapy with signs of injuries which he explained had occurred during seizures whilst in his own flat. Further, during two other sessions, he had particularly acute conversion seizures.[15]This worsening of his condition led to a severe further reduction in the quality of his life. He reported experiencing depressed moods during most of every day, he could not sleep at night and when he did get fitfully to sleep at about 4.00am, he was frequently awakened by distressing nightmares in which he re-experienced his father and brother’s murders. He was unable to think clearly or concentrate and felt exhausted most of the time. He had severe memory problems, frequently forgetting essential matters, a common feature of PTSD. His social and occupational functioning were severely impaired and he stopped attending college because he could never wake up early enough to attend class and stopped playing cricket, a sport he had previously greatly enjoyed. He engaged in frequent acts of self-harm. The frequency and intensity of his conversion seizures increased. It is of particular significance that the psychologist’s report makes it clear that sufferers from conversion seizure symptoms are not known to feign these symptoms in the way that malingerers do and that all their experiences are genuine. By the autumn of 2011, his psychologist described his mental health difficulties as severe and chronic.[16]The treatment being pursued, which is the only known treatment that is considered appropriate for Y, involves the individual processing their experiences by talking them through with the therapist in great detail. This treatment requires the patient to feel safe from threat whilst in his present environment since part of the work involves assisting the patient to recognise that there is no current threat to his safety. By September 2011, Y’s psychologist was of the view that the fact that he had been granted time-limited leave to remain rather than ILR was acting as a major impediment to his engagement in trauma-focused therapy which would only be overcome if he was granted ILR. Only then would he feel secure enough in the present to confront and reprocess his past traumatic memories in his treatment sessions. If this impediment of time-limited leave to remain was removed, the psychologist considered that his prognosis would be excellent. If it was not, he would make no progress which would be likely to give rise to an extremely negative impact on his overall mental health and prognosis.[17]Dr Ehntholt expressed her conclusions in this way in a report dated 16 September 2011 for submission with the application whose refusal is the subject of this challenge:
“9.0 Conclusions re my Professional Opinion re the impact that [Y']s uncertain immigration status is having on his mental health and progress of treatment 9.1 I believe that [Y’]s uncertain immigration status is having a negative impact on his already fragile mental health. [Y] has been attending our clinic for over ten months on a weekly basis, however there has been little improvement in his PTSD over that time. Based on the information obtained during my clinical assessments and documents read prior to completing this report, I believe that the high levels of anxiety which [Y] is experiencing due to the uncertainty of his migration status once his discretionary leave to remain expires, is directly responsible for maintaining his PTSD symptoms, anxiety, grief, suicidal ideation, acts of self-harm and conversion seizures. 9.2 Due to the high levels of distress caused by his uncertain immigration status, [Y] has not been able to benefit from the trauma-focused therapy which he continues to be offered at our clinic because [he] does not have an adequate sense of safety in his current life to discuss his traumatic past experiences in detail and process them emotionally. Trauma-focused treatment … is evidence-based and has been proven to effectively alleviate PTSD symptoms. However, trauma-focused treatment requires the client to feel safe from threat in their present environment, as part of the work involves assisting the person to recognise that there is no current threat to their safety. … 9.4 My professional opinion regarding the negative impact which [Y]’s uncertain immigration status is having on his mental health is also supported by research findings. Published research shows that granting temporary rather than indefinite leave to remain contributes to the risk of on-going PTSD, anxiety, depression and mental health-related disability Steel at al. (2006), Impact of immigration detention and temporary protection on the mental health of refugees, British Journal of Psychiatry, 188, 58-64; Momartin et al. (2006), A comparison of the mental health of refugees with temporary versus permanent protection visas, Medical Journal of Australia, 185, 357-361. in individuals seeking asylum. The explanation for these findings is that offering indefinite leave to remain gives previously traumatised individuals, such as [Y], the opportunity to plan their lives with a significant amount of security. On the other hand limited leave to remain is associated with fears of repatriation which have been shown to contribute to the persistence of psychiatric symptoms. 9.5 Another important issue to considered in relation to the impact of [Y]’s uncertain immigration status on his mental health is that research has shown that exposure to psychosocial stress and adversity increases the risk of psychotic disorders Cantor-Graae, E. (2007). The contribution of social factors to the development of schizophrenia: a review of recent findings. Canadian Journal of Psychiatry, 52, 277-286. 3. The high levels of stress which [Y] was subjected to when he last believed himself to be threatened with the possibility of detention and deportation appear to have resulted in conversion seizures, as well as mental confusion and suicidal ideation which required his admission into a psychiatric hospital for two months. As [Y]’s uncertain immigration status is a source of significant on-going stress for him, I am concerned that if [Y] is forced to live under this type of extreme stress for several more years, it is likely to result in the re-emergence of severe mental confusion, which could then lead on to the development of a full-blown psychotic episode and hospitalisation. 9.6 Therefore, based on my assessment of [Y]’s mental health, my clinical knowledge and the findings of academic research, I believe that offering [Y] only three years of leave to remain rather than indefinite leave to remain will undermine the sense of security which is essential for him to recover from his trauma-related psychiatric symptoms. I also believe that the high levels of anxiety which [Y] will suffer during the next few years as a consequence of his limited leave to remain and fear of repatriation is likely to cause a significant deterioration in his already fragile mental health, which would put him at risk of on-going conversion seizures, as well as possibly experiencing a psychotic episode and acting upon his suicidal ideation.”
[18]Over the next 17 months, Y’s condition remained untreated and his quality of life worsened significantly from the low state to which it had deteriorated when Dr Ehntholt had reported. In that time, Y and his solicitors unsuccessfully sought from the UKBA the discretionary grant of ILR. His state of health and his quality of life were described in considerable detail in two reports that were prepared for these judicial review proceedings, a psychology report prepared by the treating psychologist who had taken over from Dr Ehntholt, Dr Ken Carswell, dated 20 February 2013 and the London Borough of Camden Social Worker appointed to be Y’s personal adviser, Mr Ume, dated 31 January 2013.[19]Dr Carswell had taken over from Dr Ehntholt in December 2011 when she had taken maternity leave. He had therefore worked with Y for 14 months by the time he prepared his report. He had offered him 44 appointments in that period but Y had only attended 26 of them, having failed to attend 13 and having cancelled 5. These non-attendant sessions arose because of Y’s inability to remember them, his feeling depressed or as a result of the headaches brought on by conversion disorder. “6. In her report of September 2011 Dr Ehntholt diagnosed [Y] as suffering from Post-Traumatic Stress Disorder, Major Depressive Disorder and Conversion Disorder with Seizures. Are these still the diagnoses?6.1 [Y] continues to meet criteria for a diagnosis of Post-Traumatic Stress Disorder, Major Depressive Disorder and Conversion Disorder as outlined in Dr Ehntholt’s report. He continues to report the same set of symptoms to a similar level of severity as documented by Dr Ehntholt.6.2 I have witnessed on at least nine occasions [Y] experiencing a seizure-like episode in my office. These have usually been triggered when I have asked [Y] about his past or asked him about his emotions. They have occurred generally when [Y] has reported feeling anxious, depressed or experiencing symptoms of PTSD. Quite commonly he will complain of a headache when he arrives at the session prior to a seizure episode.6.3 Based on his report of symptoms and my observation of him in sessions, it is my opinion that he continues to meet the criteria for these diagnoses. When a diagnosis of epilepsy has not been fully excluded, for the reasons outlined in Dr Ehntholt’s report, the evidence thus far is suggestive of a presentation of Conversion Disorder. 7. If the diagnoses have changed, please explain how and why, i.e. explaining so far as possible the reasons for any improvement or worsening of [Y]’s condition (see also questions 13 and 14). 7.1 [Y] has shown no improvement in his mental state since my time working with him, nor has he shown much deterioration. The severity of his difficulties has fluctuated to an extent, but he has constantly reported and displayed severe symptoms since I have been working with him. His presentation remains similar to the presentation reported by Dr Ehntholt. He continues to be unable to discuss his traumatic past or think about his family without entering into a seizure like episode. On two occasions he has also become very angry when I have asked him about his past, on both occasions leading him to leaving the room on one occasion punching a window very hard. During these occasions he has appeared dissociated and has sat on the stairs with his head in his arms for up to 10 minutes, muttering in what I assume is Pashto. When he regains awareness he reports having no memory of his aggression or realising that he struck a window. … 8. Please describe the main, day-to-day symptoms of [Y]’s mental health conditions. … 8.2. With regards to symptoms of Major Depressive Disorder, he reports a depressed mood for most of the day on most days and a markedly reduced pleasure in all activities. When he is feeling very depressed he will isolate himself in his house and not answer his phone to his friends. [Y] has on a number of occasions reported suicidal ideation in that he would like to die in an accident on in a way that it is not his fault, but he does not want to kill himself as this is prohibited by his religion. He has reported self-harm in that he will bang his head against a wall when he is feeling particularly distressed. He has also reported smashing plates and other items in his flat. 11. What has been the aim or aims of your appointments with [Y]? 11.1 The aim of my appointments with Mr [Y] have been to stabilise his symptoms of PTSD through the use of grounding techniques and other approached commonly used with clients who experience severe symptoms of PTSD and dissociation. The second aim was to engage him in trauma focused work once he was more stable. 12. How much progress has been made in respect of these aims?12.1 Unfortunately, hardly any progress has been made in respect to these aims. [Y] has been unable to remember and regularly use any form of grounding technique (e.g. using essential oils or smelling salts when he has a flashback). He has started using a diary and a message board to remind himself of his appointments and he will sometimes call friends when feeling upset. We have also had a small degree of success in identifying that he feels better when he keeps himself busy, but these have led to no overall noticeable improvement in his functioning or mental state. We have made no progress with respect to undertaking trauma work.12.2 Because of this lack of progress, in discussion with my manager, it was recently agreed that [Y] will be discharged from our service following a handover to the Complex Depression & Anxiety Team (CDAT) within our trust. This service is a multi-disciplinary team for individuals experiencing non-psychotic disorders who are unable to engage with psychological work, but who present with significant risk or impairment to require regular follow up at home. 13. If in your opinion, progress towards these aims and/or [Y]’s engagement with treatment has been hindered to any significant extent, what factors do you identify as having served to hinder progress and/or engagement with treatment? … 13.2 [Y]’s immigration status has impaired his ability to engage with treatment. This is because he feels anxious and worried about his future which is contributing to an exacerbation of his symptoms. Furthermore, the lack of progress of a perceived secure future in the UK makes it more difficult for him to engage with trauma work. 13.3 The severity of [Y]’s symptoms has impaired his ability to engage with treatment. This is because of almost on all occasions where we have attempted to discuss his traumatic past, he has experienced a seizure like dissociative episode and has been unresponsive for up to 30 minutes. This has impaired our ability to talk about anything or to do work which may in the longer term reduce his symptoms. His poor memory and forgetfulness have further impaired our work, as it means that [Y] has been unable to put into regular practice any of the skills we discuss in sessions. 13.4 Another possible impediment to his engagement has been my inability to provide him with home visits due to service constraints. This has meant that almost half of his appointments with me have been missed. Home visits may have provided the opportunity for [Y] to engage more readily in at least the stabilisation phase of our work which may have had a beneficial impact on his degree of dissociation and seizure-like episodes. 14. In respect of any impediments to progress/engagement, what difference should it make to [Y]’s diagnoses and symptoms if the impediments were to be removed?14.1 Were [Y] to be provided with ILR, it is likely that it would contribute to stabilising his mental state. This is because ILR would provide [Y] with certainty about his future and his safety in the UK. This would be likely to reduce his overall level of worry and anxiety and may have a further beneficial impact on the severity of his symptoms.14.2 [Y] will be seen by the CDAT who are in a position to offer home visits. It is possible that this may benefit hi as he may be more able to engage with therapeutic work. However, his symptoms are or such a level of severity that it will take many months before any form of improvement may be observed. Because the CDAT do not undertake trauma-focused work, the best that could be achieved would be stabilisation in his symptoms and perhaps greater engagement with activities and fewer episodes of social isolation. I wold suggest that it is unlikely that [Y] will be able to engage with trauma-focused work for the foreseeable future. …”[20]Mr Ume stated that he had supported Y quite intensively over the previous two years with the aim of trying to get him to a level where he was able to function independently without support or with only limited support. He reported that Y had a good grasp of spoken English but needed written communication explained to him since he often got confused. He was in receipt of Employment and Support Allowance due to his mental health disability and his inability to maintain employment. His main difficulties were his poor memory and consequent inability to keep important appointments. He had a very troubled sleep pattern due to the “thoughts in his head” and rarely woke up before 12pm. He was unable to complete the ESOL courses he had started at college on two occasions due to his missing lessons from illness, sleeping problems and forgetfulness. His self-care had suffered. He found eating difficult and frequently failed to undertake basic personal hygiene. He was extremely bad at looking after his personal finances and struggled with new environments, faces and situations all of which made him anxious. He was, at the time of the report, starting a gradual process of transition from hostel to his own accommodation and from his being supported by Mr Ume to losing that support. He would be referred for floating tenancy support when his involvement with the 16+ team came to an end when he ceased to be 21 on 31 December 2014.

The immigration application and judicial review processes

[21]The FtT’s decision allowing Y’s appeal against the SSHD’s refusal of his application for further leave to remain was promulgated on 6 December 2010. The FtT judge was not asked to exercise his discretion to direct that the SSHD should give effect to his direction by granting Y ILR and he did not consider making that direction of his own accord. The SSHD was required to give effect to the FtT’s direction and so she had to decide what discretionary grant should be made in order to give effect to the FtT judge’s order since leave to remain on article 8 grounds is not covered by the Immigration Rules. No application was made for her to consider exercising her discretion and depart from her published policy by granting Y ILR and she did not consider of her own accord whether she should depart from that policy in that way. The SSHD granted Y discretionary leave to remain, in accordance with her current policy for granting discretionary leave to remain on article 8 grounds, for 3 years until 12 December 2013 so that his time-limited leave to remain is still extant. It was made clear in these proceedings on behalf of Y that it was accepted that both the FtT’s order and the SSHD’s grant of a three-year period of leave to remain were lawful and that the SSHD’s grant was in compliance with her published policy.[22]Following the receipt of Dr Ehntholt’s report, solicitors on behalf of Y made an application to the SSHD for the grant of ILR in an application and detailed covering letter dated 7 October 2011. This application was made outside the Immigration Rules and it requested the SSHD to exercise her discretion to consider and grant the application on articles 3 and 8 grounds. The application therefore involved a request for the SSHD to depart in two separate ways from her policy which the policy stated it “would normally be appropriate” to apply. The application was for ILR even though Y had not yet been in the UK with discretionary leave for at least 6 years and it was being made over 2 years before his then current leave to remain expired rather than waiting to apply until “shortly before” his existing leave was due to expire. However, the SSHD was being asked to exercise her discretionary power to waive compliance with her published policy because a failure to do so would infringe Y’s articles 3 and 8 rights given his extreme circumstances created by his mental health and his consequent lack of a meaningful private life. The covering letter enclosed a copy of Dr Ehntholt’s report and summarised its main points and set out detailed submissions as to why it was contended that a failure to grant Y ILR would infringe his articles 3 and 8 rights.[23]The application was refused in a letter dated 17 February 2012 in reliance on Bensaid v UK [2001] ECHR 82. and KH (Afghanistan) v SSHD [2009] EWCA Civ 1354, CA. . It was said that these authorities showed that Y’s case was not so exceptional that his moral or physical integrity would otherwise be unlawfully interfered unless the SSHD’s policies were circumvented, particularly the policy that extension applications should only be made when a current leave was shortly to expire.[24]The claimant’s solicitors then sent a Pre-Action Protocol letter to the SSHD dated 23 April 2012 which referred to the submissions that had previously been made and briefly sought to refute the SSHD’s reasons for refusing the application. This was responded to in the SSHD’s detailed letter dated 3 May 2012. This rejected Y’s article 3 claim on the basis that Y’s case did not involve the state in the deliberate infliction of pain or suffering or the infliction of ‘inhuman or degrading treatment’ and its alleged shortcomings did not reach the high threshold required to engage article 3. It refuted his article 8 claimon the basis that his mental health condition did not reach the very high threshold required before the UK could be compelled to disregard its compelling justification for upholding its immigration control policies.[25]The claimant then filed and served a claim for judicial review on 11 May 2012 which was coupled with an application to extend time for filing since the claim was at least 14 days out of time. This application was supported by detailed reasons set out in a witness statement served by Y’s solicitor. It was also coupled with an application for expedition of both the application for permission and of the substantive hearing. The SSHD served an acknowledgement of service and summary grounds on 27 June 2012 and permission was refused by Dobbs J on 17 August 2012 on the short ground that, for the reasons set out in the acknowledgement of service, the claim was not arguable. A renewed application for permission was served on 23 August 2012 and an application to expedite the oral hearing of that application was served on 13 September 2012. On 15 October 2012, Stadlen J ordered that the SSHD was to respond to the application for expedition which should then be placed before a judge to deal with on the papers. The SSHD did not respond and, on 31 October 2012, Males J ordered that since an oral hearing had now been fixed for 19 December 2012, no further order for an earlier hearing was appropriate.[26]At the hearing on 19 December 2012, Mr Purchas QC granted permission to proceed with the claim. At the request of the SSHD, the judge gave detailed directions for the service by the SSHD of an expert medical report if she indicated a wish to serve one, directed an expedited hearing and gave other consequential directions.[27]The SSHD was directed to indicate whether she wished to commission her own medical report, which in the context of this claim must be taken to be a report from a clinical psychologist, by 18 January 2013. In anticipation that the SSHD wanted to instruct, and would be instructing, an independent psychologist to report, Y’s solicitors informed the Treasury Solicitor on 16 January 2013 that Yconsented to being examined by an expert instructed by the SSHD and that a Pashtu interpreter would be required and the solicitor also provided the name and contact details of a suitable interpreter. Y’s solicitors, meanwhile, had commissioned further updating reports from Y’s current treating psychologist Dr Carswell and Mr Ume, the social worker who the London Borough of Camden had appointed to be Y’s Personal Adviser pursuant to its duties towards a child formerly in its care, and sent these to the Treasury Solicitor on 22 February 2013 to be passed on to the expert to be instructed by the SSHD. The SSHD’s solicitors then informed the claimant’s solicitors by a letter dated 4 March 2013 that she did not intend to instruct an expert witness. It was agreed between the parties’ solicitors that it would be appropriate for the two recently obtained reports from Y’s treating psychologist and Personal adviser should be made available to the court. Y’s solicitors then applied to the court on 19 March 2013 for permission to file these reports, for an expedited hearing date and for directions for the service by the SSHD of detailed grounds of defence. This order was made on 27 March 2013 and it directed a hearing as soon after 8 May 2013 as possible and also made the other directions sought. Detailed grounds of defence dated 28 March 2013 were then served. The hearing was fixed for 14 June 2013.[28]The claimant’s case is developed at great length in the application for ILR, the PAP letter, the statement of facts and grounds document, the grounds for renewing the application for permission document and in Mr Mackenzie’s skeleton and the SSHD’s case is equally fully developed in the refusal decision, the response to the PAP letter, the summary and detailed grounds documents and in the skeleton of the SSHD’s counsel, Mr Mathew Gullick. I have, with the assistance of these documents, been able to crystallise the issues that arise in this case into six difficult issues that may be succinctly stated. These are:(1) What is Y’s case as to his mental and psychological health and the interference with his private life?(2) What are the possible bases of challenging the SSHD’s decision dated 17 February 2012?(3) Is Y being subjected to inhuman or degrading treatment by the state?(4) Is the UK interfering with Y’s right to respect for his private life?(5) Is the SSHD’s decision irrational and/or insufficiently reasoned?(6) What relief, if any, is Y entitled to? Issue 1 - Y’s case as to his mental and psychological health and the interference with his private life 1. History of Y’s mental and social breakdown[29]Y’s mental disorder, its assessment and its attempted treatment has undergone three distinct phases which can be summarised in this way.[30]The first phase. The first phase of Y’s disorder and treatment lasted from the first onset or trigger of his disorder in November 2009 until the elimination of epilepsy as a potential causative factor of his symptoms in January 2011. Initially, Y was provided with psychiatric intervention, particularly whilst he was a voluntary patient in hospital between April and June 2010. This psychiatric intervention culminated with a diagnosis of PTSD in June 2010 and his referral to the TSC in October 2010 for psychological assessment and therapeutic treatment for PTSD and for any other related mental disorders that the TSC might diagnose. This referral was immediately followed by Y’s FtT hearing in October 2010, the promulgation of the decision allowing his appeal on article 8 grounds in December 2010 and the elimination of epilepsy as a causative factor in January 2011.[31]Thus, the FtT judge considered Y’s article 8 claim at the end of this first phase of Y’s disorder and before any psychological assessment or treatment had started. Y’s disorder appeared at that time to be largely psychiatric in nature and its treatment was planned to be predominantly undertaken with the medication that had been prescribed by his psychiatrist whilst he was in hospital in June 2010. It was anticipated that that treatment would be successful although psychological therapy and the completion of his epilepsy tests and assessments were also outstanding. The FtT judge allowed Y’s appeal on the basis of the submissions made on his behalf that there was a real chance that he would get better in the UK but that his condition would significantly worsen if he was returned to Afghanistan at that stage.[32]Y’s case was considered to be one of the very rare cases that engaged article 8 because of the interference with his physical and moral integrity that would occur if he was removed from the UK. In short, it was considered by the FtT judge that there was a realistic possibility that Y’s PTSD could be treated (or as it had been submitted “get better”) but only if he was allowed to remain for an appropriate length of time in the UK whereas, if he was required to return to Afghanistan, his condition would worsen. Y’s Major Depressive Disorder (MDD) and CDS had not been diagnosed at that stage, and his PTSD condition was therefore considered to be one of the rare and extreme cases that enabled an immigrant to avoid removal in reliance on article 8 because of the need for him to continue with mental health treatment in the UK.[33]The second phase. The second phase of Y’s disorder and treatment occurred between January and September 2011 whilst he was being treated by Dr Ehntholt in the TSC. This phase consisted of the first stage of Y’s psychological intervention and Dr Ehntholt spent most of this period completing her diagnosis of Y’s complex and inter-related trio of mental disorders and in attempting to prepare Y for trauma-focused therapy by working on the reduction of his perceived threat of being returned to Afghanistan and his perceived threat to his safety created by his perceived insecure status in the UK. This phase ended when Dr Ehntholt completed her report dated 16 September 2011 just before she ceased working with Y to start her maternity leave.[34]There was an undoubted and significant change for the worse in Y’s circumstances in 2011. The full extent of his mental disability was diagnosed to include both MDD and CDS in addition to PTSD. Y’s disability intensified so that he ended up suffering from sleep loss and deprivation, seizures and their accompanying physical harm, stress, self-harm, significant depression, potential suicidal ideation, feelings of worthlessness and loneliness and physical self-neglect on a regular and continuous basis. Furthermore, the extent and overarching stranglehold of his fear generated by his perceived insecurity in the UK was also diagnosed and its consequence of preventing him embarking on the only available treatment available to him in the form of trauma-focused therapy became fully apparent. There was also a marked and possibly long-term impairment of his private life. He was unable to study or improve his English. He was unable to socialise or spend any significant amount of time outside his hostel. He found it difficult if not impossible to look after himself in relation to the management of his finances, feeding himself and his personal hygiene. He suffered from chronic sleep deprivation. He became almost wholly dependent on his Personal Adviser, hostel staff and the goodwill of the few friends he had made from amongst his fellow hostel inmates. He found himself unable to concentrate, to read anything to any effect or to follow his interests such as playing and following cricket. In short, the quality of his life was reduced to an almost insufferable extent. Dr Ehntholt advised that he was not feigning or exaggerating any of his many mental disability symptoms, that his mental health difficulties were severe and chronic and that the impediment to his embarking on trauma-focused therapy could only be overcome if he was to be granted ILR. Without that status, there would remain an apparently insuperable obstacle to his obtaining the necessary sense of safety and security to enable him to repossess his past traumatic memories within treatment sessions.[35]The third phase. The third phase of Y’s disorder and treatment has covered the period from September 2011 until February 2013 and is on-going. In this period, Dr Carswell took over as Y’s psychological therapist from Dr Ehntholt and he arranged 44 appointments with Y of which he only attended 26. The other 18 sessions were missed due to Y’s chronic lack of sleep, drive, energy or social engagement. So little progress was made in the sessions Y attended, and so many of these were punctuated or aborted by chronic CDS attacks, depressive bouts and other manifestations of his disability that Dr Carswell reluctantly decided that no progress was possible whilst Y’s perceived uncertain status remained and he terminated the therapy. A factor, albeit only one factor, in this decision was the inability of Dr Carswell to visit Y in his only place of perceived safety, his hostel room. This was because of service constraints imposed on the publicly funded TSC by state-sector funding cuts. Instead, and as a significantly reduced alternative, being the only help that Dr Carswell could conceive for Y, he was referred to the Complex Depression & Anxiety Team which offers support for individuals who are experiencing non-psychotic disorders who are unable to engage with psychological work but who present with significant risk or impairment so as to require regular follow-up support at home.[36]Dr Carswell’s assessment in February 2013 confirmed the entirety of Dr Ehntholt’s assessment in September 2011. If anything, Y’s overall condition appeared to have worsened further in the extent and nature of his attacks, in the further reduction in the overall quality of his life and in the ever-increasing risk to his overall long-term mental and physical health and his ability to enjoy a private life. This last aspect of Y’s condition was confirmed by his Personal Adviser who added a significant warning to the effect that Y’s support and hostel placement would cease on 1 January 2015 on his 22nd birthday. These are currently provided to Y as a former child in local authority care. Although Mr Ume is already beginning to assist Y in making the significant transition that these changes will entail, it is clear that Y will be very significantly and adversely affected by them unless ways can be found to assist him in alleviating the effects of his disabilities. It must be a possibility that Y will have to move away from the Camden & Islington area, given the cut-backs on benefit and welfare payments, and in doing so he would lose the support of the CDAT team and might also lose the opportunity to return to the TSC once his insecurities have been overcome.[37]Dr Carswell confirmed that if Y was to be provided with ILR, it is likely that that would contribute to his stabilising his mental state and that his risk is currently only being managed by his Personal Adviser and the CDAT team. The current future prospects for Y are, therefore, potentially very bleak. 2. Analysis of Y’s mental disability and private life interference[38]Dr Ehntholt explained the nature of Y’s disability by reference to the relevant DSM diagnostic criteria The Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV), International Version, American Psychiatric Association (1995), a recognised source for symptoms of different recognised mental disorders. . In summary, the relevant criteria are as follows:(1) PTSD. Y had been exposed to a traumatic event in which he had experienced, witnessed or been confronted with the death of others which involved intense fear, helplessness or horror. The traumatic event was persistently re-experienced in recurrent, intrusive and distressing recollections of the events he had experienced, there was persistent avoidance of stimuli associated with the trauma and persistent symptoms of increased arousal such as difficulty in falling asleep or concentrating. The duration of the disturbance had been for more than one month and it caused clinically significant distress or impairment in social, occupational or other important areas of functioning.(2) MDD. Five or more of the following defined symptoms had been present for at least a two-week period and represented a change from previous functioning. In Y’s case, at least five of these symptoms were present. They included: (i) Depressed mood most of the day; (ii) Markedly diminished interest or pleasure in all or almost all activities most of the day; (iii) Insomnia or hypersomnia nearly every day; (iv) Psychomotor agitation nearly every day; (v) Fatigue or loss of energy nearly every day; (vi) Diminished ability to think or concentrate. These symptoms caused clinically significant distress or impairment.(3) CDS. The following relevant diagnostic features were present:a. A. One or more symptoms or deficits affecting voluntary motor or sensory function that suggested a neurological or other general medical condition;b. B. Psychological factors were judged to be associated with the symptom or deficit;c. C. The symptom or deficit was not intentionally produced or feigned;d. D. The symptom or deficit could not, after appropriate investigation, be fully explained by a general medical condition;e. E. The symptom or deficit caused clinically significant distress or impairment in social, occupational or other important areas of functioning;f. F. The symptom or deficit was not better accounted for by another mental disorder.[39]Between April 2008 when Y arrived as a 16-year old asylum seeker and November 2009 when he suffered his first pseudo-seizure, Y was not suffering from a mental disability and his private life was not unduly restricted by any such disability. In other words, any symptoms of PTSD or stress were ones that he had been able to cope with without the need for professional intervention or support. Y is now displaying chronic and currently untreatable symptoms of PTSD, MDD and CDS and a major component of that disorder is his entrenched fear of being forced to return to Afghanistan which is reinforced by his intense feelings of insecurity that have been fed by the immigration process in which he has had a series of knock-backs culminating in limited LR being granted until December 2013. He is now convinced that he cannot achieve any safety or peace of mind until he is granted ILR.[40]It follows thatthe present grant of limited LR and his consequent fear that without ILR he will be removed, particularly when coupled with the more recent refusal to convert his limited LR into a grant of ILR, have played a significant part in triggering his mental disability, in its rapid worsening as a result of the growing intensity of his pseudo-seizures, depression, stress and feelings of helplessness, in his lack of response to any treatment aimed at providing him with feelings of security and in his consequent inability to start on the necessary treatment involving trauma-focused therapy. This fear that he has a desperate need for ILR is one which it has proved impossible to shift with treatment, therapy and professional support since he is in such a state that he cannot understand, comprehend or respond to the repeated attempts to persuade him that he is safe and secure in the UK without ILR.[41]Thus, in these exceptional and unusual circumstances, the refusal to grant LR in February 2009 coupled with the grant of only a 3-year LR following his successful appeal and the subsequent refusal to grant him ILR are:(1) a cause of his mental disability;(2) a factor in its development into its current chronic state and(3) a significant if not the sole reason why his essential trauma-focused treatment cannot start. The professional advice of both Dr Ehntholt and Dr Carswell suggests that there is no realistic prospect of trauma-focused therapy starting and, if started, of being successfully completed until Y acquires the necessary feelings of security and that have no realistic prospect of occurring unless and until Y is granted ILR.[3]SSHD’s approach to Y’s mental disabilities and interference with his private life.[42]The SSHD has never fully addressed let alone analysed or challenged the extent and range of Y’s mental disability or the consequent extreme interference with his private life that the evidence shows has occurred. Y has permission to rely on the reports of Dr Caswell and Mr Ume as well as that of Dr Ehntholt in this challenge to the SSHD’s decision of 17 February 2012 and it is agreed to be a challenge that may be made on the basis of the contents of all of these reports. The SSHD had the opportunity of instructing a separate independent psychologist to report on Y’s mental disability and the consequent impairment of his private life and a considered decision was taken, in the light of all three reports submitted on behalf of Y, that no further report would be commissioned and that all three reports could be placed before the court. In those circumstances, the professional opinions and expressed factual bases of those reports can only be disregarded if they can be seen to be perverse.[43]The SSHD’s conclusions as to Y’s state of mental health and social circumstances are based on the SSHD’s letter rejecting Y’s claim and its responses to the Pre-Action Protocol letter, the contents of its summary and detailed grounds of defence and counsel’s written and oral submissions on its behalf. In summary, the SSHD concluded that Y’s symptoms of what these documents usually and inaccurately refer to as his psychiatric illness were caused by his experiencing the murder of his father and brother in Afghanistan in 2005, long before Y arrived in the UK. He has received psychiatric treatment for this disability for many years which has been unsuccessful. The SSHD does not distinguish between his completed psychiatric treatment comprising on-going stress-relief medication and his intended but not started psychological trauma-focused therapy. The SSHD also contends that Y’s disabilities are not exceptionally severe when compared to mental health illness suffered by other immigrants living in the UK and their cause, continuation and attempted treatment has not been influenced or affected by the non-grant of ILR. In any event, the treating psychiatrists (an erroneous reference to the treating psychologists) are unable to show a clear causal link between this non-grant and the perpetuation of and the failure to treat these disabilities. Furthermore, the failure of the treatment must have been caused by some much more fundamental reasons than this non-grant. Finally, Y’s disabilities have not interfered with Y’s private life which he is still able to enjoy. 4. Discussion and conclusion[44]The SSHD’s conclusions are not justified by the detailed, apparently objective and balanced opinions contained in the three reports of Y’s two treating psychologist therapists and his Personal Adviser. They are erroneously premised on Y’s disabilities having been solely caused by his tragic experiences in Afghanistan, on their having been treated without success for several years and on the SSHD’s assumption that the non-grant of ILR cannot have caused or contributed to Y’s on-going lack of response to treatment.[45]Y’s disabilities are in fact non-organic, they only have a minor psychiatric treatment component and they need to be treated by trauma-focused therapy and other related cognitive-based work with psychologists. His symptoms may have origins in his trauma suffered in 2005 but these only intensified to the point of becoming a disability in late 2009 when his first two conversion seizures were triggered by, in particular, Y’s fear of being returned to Afghanistan and by his not achieving the security of permanent residence in the UK. It was only at that point that Y first required treatment. Initially, Y’s treatment was psychiatrically-based and it relied on the use of prescribed medication. Although that medication continues to be used as a mood stabiliser, Y has since been diagnosed as suffering from a wider range of symptoms which can only be satisfactorily treated with trauma-focused therapy. This therapy has never started since it needs to be preceded by the patient attaining a sense of security. The treating psychologists have attempted to help him create that sense but this has proved impossible because of Y’s apparently fixed view that he remains at risk of removal and it seems he will continue to have that unshakeable perception until he obtains ILR. The treating psychologists advise that Y’s view cannot be shifted unless and until Y is granted ILR. Such a grant cannot guarantee that the necessary feelings of security will arise but both psychologists who have treated Y consider that it is the only way that progress might be achieved. Issue 2 – What are the possible bases of challenging the SSHD’s decision dated 17 February 2012?[46]On behalf of Y, it is contended that the SSHD is required to consider waiving the strict terms of her discretionary policy setting out the criteria for the granting of discretionary leave and to grant ILR if a failure to do so gives rise to a breach of articles 3 and/or 8. In addition, the decision refusing to waive those terms and to refuse to vary Y’s DLR may be challenged on conventional Wednesbury grounds. On behalf of the SSHD it is contended that the policy may only be waived in exceptional circumstances which were not present in this case.[47]The starting point for determining the grounds upon which the SSHD’s decision in question may be challenged is to determine what if any criteria, whether expressed or implied, exist to govern the circumstances when an applicant may apply for ILR whilst he is still the subject of an existing leave to remain which is not shortly about to expire. There is no expressed policy but it is pertinent to take account of the normal policy whereby an applicant entitled to the benefit of article 8 must normally be granted discretionary leave to remain for 3 years. If an applicant is a failed asylum seeker, the grant should be until he is 17.5 years old or for 3 years whichever is the shorter period. A person is not eligible for consideration for settlement until he has completed 6 years of discretionary leave but may, within that 6-year period, apply for a second 3-year extension in what is called ‘an active review’. If necessary, a second ‘active review’ must be applied for if the 6-year period has not been completed when the second period is shortly to end. In Y’s case, he was initially granted a 13-month period until 1 July 2009 when he attained the age of 17.6. He was then granted a 3-year extension expiring on 12 December 2013 so that, in the normal course of events, he will first have to obtain further LR until 10 June 2014 before applying shortly before that date for ILR. At each of these two reviews, he will have to establish afresh an entitlement to further LR.[48]On ordinary principles of fairness, it is clear that Y should be permitted to apply for LR whilst between reviews and/or on a more generous basis than permitted by the policy where there has been a fundamental change in the basis upon which the existing grant had been made. Equally, Y should be able to apply for ILR even if he has not spent 6 years in the UK with discretionary LR if he can exceptionally show that such a grant is reasonable or where it is necessary in order to give effect to his articles 3 and 8 rights.[49]Two additional procedural grounds of challenge are open to Y, firstly on Wednesbury grounds if he can show that matters were not taken into account which should have been or were taken into account which should not have been or if the decision is perverse or unlawful. A challenge could also be made if the refusal decision was not accompanied by adequate reasons. Issue 3 - Is Y being subjected to inhuman or degrading treatment by the state? 1. The Law[50]Article 3 provides that: No one shall be subjected to torture or to inhuman or degrading treatment or punishment.[51]The starting point as to whether the state’s treatment is such as to engage article 3 is to be found in the statement of principle of Lord Hope in R(Limbuela) v Home Secretary [2006] 1 AC 396, HL(E), paragraph 54. incorporating the statement of principle of the ECHR in Pretty v UK (2002) 35 EHRR 1, paragraph 52. : “54. But the European Court has all along recognised that ill-treatment must attain a minimum level of severity if it is to fall within the scope of the expression "inhuman or degrading treatment or punishment": Ireland v United Kingdom (1978) 2 EHRR 25, 80, para 167; A v United Kingdom (1998) 27 EHRR 611, 629, para 20; V United Kingdom (1999) 30 EHRR 121, para 71. In Pretty v United Kingdom 35 EHRR 1, 33, para 52, the court said: "As regards the types of 'treatment' which fall within the scope of article 3 of the Convention, the court's case law refers to 'ill-treatment' that attains a minimum level of severity and involves actual bodily injury or intense physical or mental suffering. Where treatment humiliates or debases an individual showing a lack of respect for, or diminishing, his or her human dignity or arouses feelings of fear, anguish or inferiority capable of breaking an individual's moral and physical resistance, it may be characterised as degrading and also fall within the prohibition of article 3. The suffering which flows from naturally occurring illness, physical or mental, may be covered by article 3, where it is, or risks being, exacerbated by treatment, whether flowing from conditions of detention, expulsion or other measures, for which the authorities can be held responsible." It has also said that the assessment of this minimum is relative, as it depends on all the circumstances of the case such as the nature and context of the treatment or punishment that is in issue. The fact is that it is impossible by a simple definition to embrace all human conditions that will engage article 3.” "As regards the types of 'treatment' which fall within the scope of article 3 of the Convention, the court's case law refers to 'ill-treatment' that attains a minimum level of severity and involves actual bodily injury or intense physical or mental suffering. Where treatment humiliates or debases an individual showing a lack of respect for, or diminishing, his or her human dignity or arouses feelings of fear, anguish or inferiority capable of breaking an individual's moral and physical resistance, it may be characterised as degrading and also fall within the prohibition of article 3. The suffering which flows from naturally occurring illness, physical or mental, may be covered by article 3, where it is, or risks being, exacerbated by treatment, whether flowing from conditions of detention, expulsion or other measures, for which the authorities can be held responsible."[52]Suffering associated with deterioration in an individual’s already existing mental illness and restrictions in social functioning can, in principle fall within the scope of article 3 Bensaid v UK (2001) 32 EHRR 10, paragraph 37. . 2. Parties’ contentions[53]On behalf of Y it was contended that the grant of time-limited LR and the confirmation that his existing leave to remain should remain as a time-limited LR is ‘treatment’ for the purposes of article 3. The SSHD is the only person who can grant LR of any kind and that grant and its length is a discretionary exercise and the exercise of that discretion infringed article 3 on the particular facts of this case. This ‘treatment’ has caused or given rise:(1) to very great suffering by triggering the onset of mental disability,(2) to ensuring that that suffering has been perpetuated,(3) the intensification of its physical and social effects as a result of Y’s inability to engage in and respond to the only known way of treating that disability and(4) to a situation whereby the only likely long-term consequence is that Y’s disabilities will further intensify.[54]On behalf of the SSHD it was contended that article 3 imposes a negative duty to avoid the administration of treatment of the prohibited kind. The SSHD has not undertaken or administered ‘treatment’ in refusing to extend Y’s LR since that refusal does not amount to positive action directed at Y and Y’s condition is not one for which the SSHD can be said to have been responsible. The refusal decision was no more than ‘passive action’ or a decision not to make a premature extension of Y’s LR. That decision was made at his request. In any event, the treatment – if it be treatment of a kind provided for in article 3 – was not ‘inhuman or degrading’. The SSHD was not responsible for Y’s current condition which is a naturally occurring illness which is not the SSHD’s fault. Furthermore, the treatment complained of did not violate Y’s fundamental human dignity and it was not imposed with the deliberate intention to cause Y’s suffering. 3. Discussion[55]The ‘treatment’ that article 3 is directed to includes any state action which leads to or gives rise to mental suffering and/or consequences of sufficient gravity that an individual’s health, human dignity or social functioning are very significantly impaired. It is usually not helpful to attempt to distinguish between the ‘negative duty’ to avoid imposing harm and the ‘positive duty’ of preventing harm since, in most situations, a state party’s action can readily also be phrased so as to appear to amount to inaction and vice versa. What is required, particularly in this case, is a careful analysis of why it is contended that the SSHD has infringed article 3. That contention is that her use or non-use of her powers to grant or withhold ILR gave rise to the existence, intensification and non-amelioration of Y’s severe suffering and significant social degradation.[56]The SSHD’s use of her discretionary powers to refuse Y’s application for ILR must be seen in the specific context of that particular decision. That context is the history of Y’s immigration status in the UK. He arrived as a 16-year old asylum seeker in the UK in 2008 having been sent here for his own safety and protection by his surviving family after the tragic murders of his father and elder brother. His asylum application was rejected and rejected again on appeal. He was granted time-limited LR for 18 months until he attained the age of 17.6. He was taken into care and provided with what, in that context, was temporary accommodation and security in the UK. He applied again for LR 14 months after his arrival in the UK and 8 months after his asylum appeal was dismissed. He was then approaching his 18th birthday and he had to wait 8 months before learning that his application had been dismissed. He appealed and had to wait 8 months for his appeal hearing. He “won” his appeal only to learn that he had been granted LR for 3 years expiring in December 2013. He applied for the security of ILR in November 2011 and this was rejected. He now faces, if the SSHD’s policy is maintained, a further application for time-limited LR in December 2013 and, finally, an application for ILR in June 2014. However, he cannot at present be sure that either application will be successful and, if either was to be rejected, the consequence is likely to be that he would be returned to Afghanistan.[57]On this analysis, from his perspective, his application for safety and security has already been rejected on five occasions, namely(1) soon after arrival in 2008 when his asylum claim was rejected,(2) on being granted time-limited LR in June 2008,(3) when his asylum claim was rejected on appeal in October 2008,(4) on being granted time-limited LR in February 2010 and(5) on being refused ILR in February 2012. Furthermore, he faces continuing uncertainty with at least two further applications, namely one in December 2013 which can at best extend his time until June 2014 and a second in June 2014 which might, at long last, lead to a grant of ILR.[58]This pattern of LR applications must also be seen in the context of his successful appeal to the FtT in December 2010. The FtT judge decided that his case was exceptional enough to entitle him to LR on article 8 grounds so as to enable him to complete in the UK what at that time was thought to be a time-limited course of medication and counselling. This view was based on his then current diagnosis that was confined to PTSD. Clearly the SSHD had to pay respect to that decision and did so with the grant of a 3-year LR. However, it is now known that there was no way in which that decision could be respected since it was based on what has since emerged to have been an erroneous and unduly restricted diagnosis by the treating professionals of Y’s mental disability and necessary treatment. This diagnosis was unduly restricted because it was confined to PTSD and did not include a treatment need for long-term trauma-focused therapy and it also did not contain a diagnosis that his fear of being returned to Afghanistan was all-consuming and had caused, and would continue to cause, untold mental disability.[59]It follows that the context of the SSHD’s decision in February 2012 was that ILR was being considered as part of, from Y’s perspective, a history of rejections including the grant of limited LR even though his case was exceptional. It was also being considered after it had been established that there had been a significant change of circumstances since his FtT hearing so that it was now known that his case was very much more exceptional. It was also being considered in the context of the clearly established link between his previous time-limited status in the UK and the breakdown of his mental health. It was also being considered in the context of the additional potential link between further deterioration of his mental health and social integrity due to his being unable to embark on necessary therapy engendered by his unquenchable insecurity arising from continued time-limited LR. A final piece of this complex jigsaw is the fact that the request for ILR, when considered in February 2012 was, in all likelihood, no more than a request to accelerate and bring forward the grant of ILR from June 2014 to February 2012.[60]What is particularly unfortunate is that the decision-makers concerned with Y’s application and with the rejection decision taken in February 2012, never analysed his mental and social disabilities in any detail despite being furnished with the extensive, balanced and compelling evidence in Dr Ehntholt report which had been made available to the SSHD in October 2011 and in the two further reports which had been available to the SSHD in February 2013. Throughout, the SSHD has regarded Y’s disability as being of long-standing – that is as going back to 2005 - as being confined to the effects of his witnessing his family tragedies in 2005, as being psychiatric in origin, as being one that should be treated predominantly by organic means and as having no link to his perceived uncertain status in the UK. The decision letter contains no analysis of his mental disability and even now there has been no significant analysis of the breakdown of his social and moral integrity or of the proposed need for trauma-focused treatment and of why that treatment has not so far been possible. Moreover, there has been no analysis of the potentially grimmer future that Y faces since he lost the opportunity of home visits by his therapist due to state funding cut backs and will soon lose, in 18 months’ time, the support of his Personal Adviser and his state-provided hostel with no current possibility of long-term treatment or care and support plans being produced for him.[61]When viewed in that holistic manner, the decision of 17 February 2012 to refuse to waive the discretionary leave to remain policy by granting Y ILR at that stage was contrary to article 3. This was because of the direct link between that decision and the breakdown of Y’s mental health and social well-being, the risk of the intensification of that breakdown and Y’s inability or likely inability to embark upon essential treatment therapy which, if embarked upon would have a significant likelihood of assisting in real and substantial improvements to his mental health and social well-being. 4. Conclusion[62]The decision dated 17 February 2012 to refuse Y’s application for ILR infringed article 3. Issue 4 - Is the UK interfering with Y’s right to respect for Y’s private life?[63]Article 8 provides that:
“1. Everyone has the right to respect for his private and family life, … 2. There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
[64]In the light of the discussion leading to the conclusion that article 3 was engaged by the SSHD’s refusal to grant Y ILR, it requires little further discussion to conclude that article 8 was also engaged by that decision. Y’s disability gives rise to clear breaches of his right to a private life for these reasons:(1) The SSHD is obliged to pay respect for Y’s private life. Given the direct effects on his mental health and on all aspects of his private life that the refusal of ILR had and could be predicted as continuing to have, the SSHD did not pay respect to Y’s private life. She failed properly and fully to analyse Y’s mental health and social reports and to investigate and reach appropriate conclusions about his situation and about the link between his lack of ILR and his feelings of insecurity and his inability to be treated and, in consequence, she failed to appreciate that a refusal of ILR in February 2011 would have a direct and potentially lasting impact on his continued suffering and on the future further degradation of his private life.(2) The interference with Y’s private life could, by no stretch of imagination, be outweighed by the need to maintain the UK’s immigration laws or any other countervailing interest of the state provided for in Article 8(2). Y had already been held to be entitled to article 8 protection and the application in issue was clearly made because the circumstances that had led to that limited decision had changed for the worse and were even more unusual and gave rise to even greater infringements of Y’s private life. Furthermore, the departures from the SSHD’s published discretionary leave policies entailed by allowing his application were no more than nominal. Indeed, the rigid, inflexible and misdirected attempts to justify upholding those policies in the subsequent decision letter and other documents highlight how marginal those countervailing interests were in this particular case.(3) The SSHD’s reliance on Sisojeva v Latvia Application 60654/00, Grand Chamber judgment 15th January 2007. is misplaced. In that case, the grant of a limited right of temporary residence rather than permanent residence was held not to infringe article 8. This was because the applicant was fully able to enjoy a private life and the immigration status decision therefore paid full respect to his protected article 8 rights. In this case, the decision in question has given rise to, and will continue to give rise to, a very significant failure to respect Y’s private life. As a result of the SSHD’s decision, and contrary to the submissions advanced on behalf of the SSHD, Y has been caused suffering by, and still suffers from, serious and debilitating mental disability and is deprived of the opportunity of meaningful treatment with the consequent breakdown of all aspects of his social integrity, all of which are aspects of his private life.[65]It follows that the decision dated 17 February 2012 to refuse Y’s application for ILR infringed article 8.

Issue 5 - Is the SSHD’s decision irrational and/or insufficiently reasoned?

[66]There is no need to consider these further potential grounds for seeking relief. Had it been necessary to do so, it is clear that the SSHD’s decision was irrational in a Wednesbury sense in being unlawful and in failing to take proper and full account of Dr Ehntholt’s report and the other relevant circumstances of Y’s immigration history and mental health and social disabilities set out in this judgment.

Issue 6 - What relief, if any, is Y entitled to?

[67]Y is entitled to an order setting aside the SSHD’s decision of 17 February 2012 and to a declaration that that decision was unlawful as a result of articles 3 and 8 of the ECHR. It is to be hoped that the SSHD will give effect to this decision by an appropriate grant of ILR in the near future. HH Anthony Thornton QC

Cited in 2 later judgments