Apata, R (on the application of) v The Secretary of State for the Home Department [2015] EWHC 888 (Admin)

Case No CO/861/2013[2015] EWHC 888 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Wednesday 1 st April 2015
Before
JOHN BOWERS QC(Sitting as a Deputy High Court Judge)
Between
THE QUEEN (on the application of ADERONKE ADEJUMOKE APATA)ClaimantTHE SECRETARY OF STATE FORDefendantTHE HOME DEPARTMENTDefendant
(Transcript of the Handed Down Judgment ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Mr Abid Mahmood (instructed by Fountains) for ClaimantMr Andrew Bird (instructed by Treasury Solicitor) for DefendantHearing Hearing date: 3 March 2014
JudgmentJohn Bowers QC :
[1]The Claimant is a Nigerian national. She has a BSc in Microbiology and was a successful businesswoman in Nigeria. She has been married twice, in 1996 and 2011 and has had two children. She also made a further application to marry in 2008. She arrived in the United Kingdom in 2004 and says that she was forced to flee from Nigeria partly due to her sexuality. She entered the UK in 2004 by using a false Swaziland passport, and has lived in the UK unlawfully ever since. Once in the UK she procured a forged Nigerian passport with a forged ILR stamp and a false National Insurance Card. On a separate occasion she gained a forged UK driving licence. In 2008 she applied for an EEA residence card as a family member of a French national. On 29 January 2009 she was sentenced to 6 months imprisonment. She was imprisoned again on 23 June 2011 for 8months. The Claimant’s two applications for asylum were judicially dismissed, respectively in 2004 and 2012 and have not been renewed.[2]On 22 November 2011 the Secretary of State made a deportation order. There was a further order on 28 June 2012. The Claimant appealed against that order and the First Tier Tribunal (FTT) in rejecting the appeal stated in an excoriating judgment that “the Appellant’s character and conduct fully justify the decision to deport in this case” (para 117). I will consider that judgment in more detail.

The Claimant’s case

[3]This case was commenced on 24th January 2013 as a public law challenge to the merits of the decision of the Defendant served on 8th January 2013 to remove the Claimant from the United Kingdom. It now also takes the form of a Human Rights challenge against removal (and a claim to refugee status) although I will have to return to consider the exact scope of the allegations pleaded.[4]The Human Rights claim has two general bases: i) that she is a lesbian and is as such part of a particular social group so that she would suffer a breach of her Rights under Articles 2 (right to life), or 3 (inhuman or degrading treatment) if she were required to live in Nigeria, or in the alternative that she is perceived to be a lesbian with those consequences; and ii) that the state of her mental health is such that any removal to Nigeria would effect a breach of her Rights under Articles 2 (right to life), 3 (inhuman or degrading treatment) and 8 (family life). It is said that the laws and the societal attitude in Nigeria are such as to mean that the Claimant will be persecuted or face ill treatment contrary to Articles 2 and 3 of the European Convention on Human Rights.[5]In terms of the relief sought, the Claimant's case in more detail as put in recent written submissions is that i) the nature of the evidence was overwhelming and ought to have led to the Claimant's claim succeeding on Asylum/Article 3 ECHR grounds and that the deportation order ought thus be overturned. Further ii) the Article 8 ECHR human rights grounds relating to the Claimant's family and private life with her UK settled partner (the partner herself is a refugee from Nigeria) means that the Article 8 claim ought to succeed. Alternatively iii) the evidence since the Tribunal's determination was such as to amount to further material for the purposes of there being a fresh claim under the relevant Immigration Rule Paragraph 353. I have reservations as to whether this is clearly pleaded in the Updated Grounds which I will consider below.

The Defendant’s contentions

[6]The Defendant’s primary contention in response is that even if she has had some same-sex relationships (which the Secretary of State accepts that she has), that is insufficient to bring her within the particular social group of “lesbians” which is entitled to protection under the Refugee Convention. The Defendant says expressly that these relationships have been manufactured or exaggerated for the purposes of her remaining in the UK; having tried and failed in other respects she uses this as the last role of the dice.[7]The Secretary of State emphasises that the FTT determination of fact (in 2012) that she was not protected as a member of a particular social group has not been appealed, and the Defendant submits that this is binding upon a Court of Judicial Review such as this.[8]By section 3(5)(a) of the Immigration Act 1971 the Claimant is liable to deportation if the Defendant deems her deportation to be conducive to the public good. The Secretary of State makes a positive case in this respect that the Claimant’s removal from the United Kingdom is i) in the public interest and says that the FTT agreed with this view and ii) in the interest of good administration of the Immigration and Asylum System.[9]The Secretary of State contends that the Claimant has for 10 years “played the system” by repeated and different applications, dishonestly made and that “She has …made false asylum claims. She has pursued an appeal claiming that she was in a subsisting relationship with an EEA national when she was not. She overstayed, worked illegally and studied illegally” as the FTT concluded at para 114. Paragraph 9 of Mr Bird’s Skeleton Argument sums up his case thus:
“The Defendant does not hold back from asserting that this Claimant is a person of proven dishonesty (2 convictions) who is not afraid to speak out and protest, who entered the UK unlawfully in 2004 with a false passport and has been successfully avoiding removal ever since, deploying a variety of reasons (including her heterosexual family life) in support of her cause. The conclusion of Dr McKay (para 317) is that, having reviewed the medical evidence available to him, and notwithstanding the apparent suicide attempt, “I would consider the Claimant’s psychiatric presentation to be a form of simulation.”
Dr McKay notes (para 258) that even in the incomplete material that he has seen, two other consultant psychiatrists had doubted the Claimant’s symptoms”.[10]The Secretary of State further contends that “the Claimant or her associates have been using her cause (and this case) as some kind of publicity stunt” and rightly emphasises that I should consider the evidence rather than the large amount of public support for the Claimant which is in my view very impressive but cannot amount to evidence in itself.

Risk of persecution

[11]It is necessary first to consider the terms of the Refugee Convention. Article 1A(2) provides in material parts that a refugee is a person who “owing to well founded fear of being persecuted for reasons of…membership of a particular social group is outside the country of his nationality and is unable or owing to such fear is unwilling to avail himself of the protection of that country…”[12]The Secretary of State raises no issue about the mistreatment of lesbians in Nigeria. The Nigerian legislature has brought in laws to criminalise gay and lesbian relationship with harsh imprisonment for those that are convicted. I have been shown material from several sources about this but two references from highly reputable organisations suffice: i) Amnesty International in the publication “Mapping anti-gay laws in Africa” states that “Nigeria already outlaws same-sex relationships. But the conditions of imprisonment have become wider and the punishment much harsher when Nigeria’s President passed amendments to existing laws in January [2014]”; ii) Human Rights Watch in a posting entitled “Nigeria: Anti LGBT Law Threatens Basic Rights” says “The law imposes a 14 year prison sentence on anyone who ‘enters into same sex marriage contract or civil union’” and goes on The new legislation could lead to imprisonment solely for a person’s actual or imputed sexual orientation. People could face charges for consensual sexual relations in private….the law is so vague that it is likely to lead to arbitrary arrest of gay people, while facilitating extortion and blackmail of vulnerable groups by members of Nigeria’s corrupt security services”.

The FTT decision

[13]One important issue is whether the Claimant’s membership of a particular social group has been finally determined by the findings of the FTT. The FTT decision was promulgated on 10th October 2012. This followed a full hearing on 24th September 2012 at which the Claimant was represented by Counsel, gave evidence herself and called a number of witnesses. The FTT made important findings that:(a) “We have concluded that the [Claimant’s] change of image is entirely due to a false claim of lesbian sexuality…Despite claiming that she cannot bear to be in a relationship with a man, she has engaged in long term relationships with Mr Alima and Mr Bamidele and has declared her love and commitment to them openly in letters to the Respondent” (para 92)(b) “The [Claimant] has created layer upon layer of deceit and lies. She has attempted to obfuscate and distract from glaring inconsistencies” (para 95)(c) “We have concluded that she has engaged in same-sex relationships in detention in order to fabricate an asylum claim based on claimed lesbian sexuality.” (para 96)(d) “we do not accept that the appellant has ever engaged in a genuine lesbian relationship”(e) “She is not a lesbian and she will not be motivated [to] act in such a manner as to be perceived to be a lesbian” (para 96)(f) “This Appellant has a history of deception” (para 98)(g) “…instead of returning to Nigeria, the [Claimant] has engaged in a series of dishonest and deceitful applications and claims” (para 100)(h) “we do not accept that the Appellant has a genuine and subsisting relationship…” (Para 104)(i) “In addition to her criminal behaviour the [Claimant] has shown contempt for the immigration laws of the UK and has persistently and repeatedly abused those laws.” (para 112).[14]Although wide ranging, even these extracts do not do full justice to the range of findings adverse to the Claimant in this FTT Judgment. Doubt is also cast on her honesty in other respects at paragraphs 69, 70, 80, 82, 84 and 85 of the Decision. It must be also stressed that the FTT unlike myself was able to see the Claimant giving evidence and be cross examined. No application was made for cross examination before me.[15]The Claimant applied for permission to appeal to the Upper Tribunal (UT) against the FTT decision but withdrew her appeal on or about 22nd October 2012. She stated at that time that she wished to leave the UK.[16]Mr Bird for the Defendant submits that the factual findings of the FTT are binding on this Court, for the following reasons: i) The Administrative Court is a court of review, not of primary fact-finding; ii) It is an abuse of the judicial review process to use it to make a collateral challenge to a decision which had a statutory right of appeal which the Claimant has elected not to pursue; iii) The FTT is charged by Parliament with jurisdiction to make findings of fact, and is equipped to do so by means of the facility to hear oral evidence and cross-examination; iv) The FTT is Article 6-compliant and has the additional safeguard of an appellate procedure to the UT and Court of Appeal; v) The FTT heard evidence and cross-examination on the factual matters. vi) The FTT considered the appeal against the law as determined by the House of Lords in HJ (Iran) v SSHD which remains the leading case on Article 3 and attitudes to homosexuality.[17]I accept that the findings of the FTT are binding as to the position as to membership of a particular social group and other matters at the relevant time of that finding but I do have to consider the matter at the time of the hearing before me and in the light of the further evidence presented before me including DVDs of the Claimant engaging in lesbian sexual activity. Further, persecution of gay people in Nigeria has worsened over the period since the FTT. The more general findings as to genuineness of the Claimant made by the FTT which heard her give evidence are however matters to which I am entitled to refer and which I should rely on in the absence of new evidence to the contrary. (1). The public law challenge[18]I turn to the various challenges in the Claim Form and first consider the original public law challenge to the Secretary of State’s decision. The Secretary of State says that she made her decision to remove the Claimant from the United Kingdom after the Claimant’s withdrawal of her appeal to the UT and in the light of the FTT’s decision. The decision was served on the Claimant after the Defendant had received an up-to-date psychiatric assessment from Dr Owens dated 7th January 2013. The Secretary of State adds that she was entitled to follow the findings of the FTT in making her decision to remove the Claimant. The FTT had agreed that the “lesbian” claim was contrived, that the medical claim did not reach the high threshold required for Article 3 and that the Claimant had no valid Article 8 claim to remain in the UK. The FTT accepted that the Claimant’s character and conduct fully justified the decision to deport.[19]I agree with Mr Bird that there was nothing irrational, perverse or wrong in law in the Defendant’s decision given the findings of the FTT. (2). Human Rights challenge[20]The most difficult question before me is whether deportation now would breach the Claimant’s Article 2 and/or Article 3 rights because, as a lesbian, she would suffer death and/or inhuman and degrading treatment in Nigeria and associated with this whether deportation (now) would be in breach of the Refugee Convention. This primary issue is the position now as opposed to the past (NR (Jamaica) v SSHD [2009] EWCA Civ 856at para 24).[21]Mr Bird’s submissions on this point may be summarised as follows: i) The Secretary of State accepts that the Claimant has sometimes engaged in lesbian sex. ii) She also accepts that “genuine lesbians” who do not conduct their sexuality discreetly would generally have a well-founded fear of persecution in Nigeria, and pursuant to HJ (Iran) v SSHD[2011] 1 AC 596 they should not be required to conduct their sexuality discreetly. iii) whether any particular individual in fact has such a fear is a subjective matter of fact. iv) This Claimant is not genuinely lesbian in terms of sexual orientation, and would not be perceived as such, and so she personally in fact has no well-founded fear of persecution. v) Even if I were to find as a fact that she is and always was (contrary to the finding of the FTT), a lesbian, or that she was not formerly but is now a lesbian, then, subjectively, she does not in fact possess a well-founded fear of persecution as demonstrated by the her apparent willingness to go back to Nigeria not very long ago.[22]Mr Mahmood responds in respect of the Claimant’s willingness to return to Nigeria that i) this was at a time when there were mental health problems for the Claimant and there were suicide attemptsat around the time ; and ii) In any event the definition of a refugee includes a person who is 'unable' to avail himself of the protection of his country. Therefore the fact that the Claimant's own country persecutes lesbians means that she is 'unable' to avail herself of the protection of her country.[23]The Defendant’s detailed grounds also state at para 19 that, “The Claimant does not have membership of a particular social group whose sexual orientation is termed as lesbian She had heterosexual relationships, marriages to men, and two children. She had no same-sex relationships in the period 2004-2011. The fact that she may also have had same-sex relationships does not bring her within membership of the particular social group whose sexual orientation is lesbian….”

The law on particular social group

[24]Mr Bird’s most fundamental submission is that it is a requirement for membership of a “particular social group” for these purposes that the particular characteristic raised is one that is incapable of being changed. He relied on the words of Lord Hope in HJ (Iran) v SSHD [2011] 1 AC 596 @ para 11:
“The group is defined by the immutable characteristic of its members' sexual orientation or sexuality. This is a characteristic that may be revealed, to a greater or lesser degree, by the way the members of this group behave. In that sense, because it manifests itself in behaviour, it is less immediately visible than a person's race. But, unlike a person's religion or political opinion, it is incapable of being changed.”
There are further relevant passages in HJ: at Para 35 “I would regard this part of the test as having been satisfied if the applicant’s case is that he is at risk of persecution because he is suspected of being gay if his past history shows this to be the case” and at Para 36 that it is “necessary to concentrate on what is actually likely to happen to the applicant”.[25]It is apparent from the law report that the specific point taken by Mr Bird did not arise in that case and that there was no argument about a positive change of sexuality as in this case. I do not think their Lordships were there ruling out the possibility that a person might be heterosexual at some time of their life but a lesbian at another or indeed bisexual or stating that this meant that they could not be part of a particular social group. I do however accept that the extent of such homosexual experience will weigh in a determination as to whether a person is genuinely a member of a particular social group.

Reliance on Convention rights

[26]Before concluding on the evidence in this case, I now consider the general approach in a case where Convention Rights are said to prevent the right of a state to expel those who are not its citizens. The leading cases are the decision of the ECtHR in Bensaid v UK (2001) 33 EHRR 10 and two decisions of the House of Lords which were handed down by the same constitution on the same day, in R (Ullah) v Special Adjudicator [2004] 2 AC 323 and R (Razgar) v SSHD [2004] 2 AC 368.[27]In Bensaid v UK the Court said at para 32:
“The Court recalls at the outset that Contracting States have the right, as a matter of well-established international law and subject to their treaty obligations including the Convention, to control the entry, residence and expulsion of aliens. However in exercising their right to expel such aliens Contracting States must have regard to Article 3 of the Convention which enshrines one of the fundamental values of democratic societies.”
[28]In Ullah the House recognised that other Convention Rights could be relied upon in a case where the breach would in fact occur only in the foreign state, but the House was clear that a stringent degree of proof was required of a person in the position of the Claimant, per Lord Bingham at para 24:
“While the Strasbourg jurisprudence does not preclude reliance on articles other than article 3 as a ground for resisting extradition or expulsion, it makes it quite clear that successful reliance demands presentation of a very strong case. In relation to article 3, it is necessary to show strong grounds for believing that the person, if returned, faces a real risk of being subjected to torture or to inhuman or degrading treatment or punishment” [Strasbourg cases cited]. … “…the removing state will always have what will usually be strong grounds for justifying its own conduct: the great importance of operating firm and orderly immigration control in an expulsion case…;”
(emphasis supplied)[29]The Claimant relies upon J v SSHD as requiring the Court to consider the 3 separate stages(i) decision to deport;(ii) physical removal (in this case by air);(iii) what happens in the foreign receiving state) but it is not suggested that at stages (i) and (ii) there would be any persecution by reason of sexuality. This part of the claim is therefore I accept a “foreign” case, and a high threshold needs to be reached before the Claimant can succeed. (2.1). Reviewing the evidence: Is the Claimant a lesbian or perceived as such?[30]I now turn to consider the evidence which is in effect common to the refugee and Convention issues. The evidence is somewhat equivocal and I would have benefitted from hearing the Claimant being cross examined. In assessing it in particular I bear these features in mind: i) The FTT noted at para 17 that there was “no account of engaging in same sex relationships between 2004 and 2011”; but ii) a letter from Mr Peter Tatchell of the Peter Tatchell Foundation dated 2nd April 2014 states “I can confirm that she is a lesbian and is involved in lesbian, gay, bisexual and transgender (LGBT) human rights campaigning” and there are several from other people. iii) There are also petitions signed by thousands of people but I do not think that can amount to evidence as opposed to opinion and support (although that support is very impressive). iv) there has been very extensive media interest in the Claimant’s case and it is said that a minor search for the Claimant shows that she is a lesbian and thereby the Claimant alleges that this would place her at risk in Nigeria. Media coverage includes coverage by Channel 4 News and “The Voice” with specific mention of the Claimant and her photograph.[31]It was submitted by Mr Bird that the Claimant could not be a member of the particular social group of lesbians because she had had children or heterosexual relationships. I do not accept this. Sexuality (or consciousness of sexuality) may alter over time and persons may realise that sexuality at different times. This Claimant says in her appeal from the FTT that “it took me several years to identify with my sexuality as a gay woman”. I accept that she has had same sex relationships but I do not accept that this in itself renders her a member of a particular social group.[32]Indeed I find it difficult to disagree with the conclusions of the FTT that “she has engaged in same-sex relationships in detention in order to fabricate an asylum claim based on claimed lesbian sexuality.” (para 96). I believe that this fabrication has continued outside of detention. I also accept the associated submission made by Mr Bird that she has in effect adjusted her conduct so as to adopt other customs, dress and mores of a particular social group purely as a way of gaining refugee status. This appears to accord with the findings of the FTT set out above at paragraph 13.

Fear of persecution in this case

[33]If I am wrong and she is to be treated as a member of a particular social group, I still do not accept that she has a well founded fear of persecution if returned given her willingness to return at a time when she was she said a lesbian.[34]I accept that this demonstrates that any fear of persecution expressed by the Claimant is not in fact well-founded. I also believe that if she returned to Nigeria she would not have lesbian relationships nor be perceived as a lesbian given the FTT findings set out at paragraph 13 above.[35]I thus dismiss the claims set out in paragraph 4i) above and turn to consider 4ii.

Campaigning work)

[36]The Claimant put an alternative case orally that she was so well known for her campaigning work that she would suffer persecution if returned to Nigeria. She has indeed been engaged in several demonstrations. It is also notable that the Claimant has been the recipient of several awards and invitations from governmental bodies including the Ministry of Justice. I do not however think that this point is pleaded in the Updated Grounds and in any event do not think that if it were there is evidence to the necessary high standard that she would suffer persecution on that ground. (2.2). Does the Claimant’s medical condition mean that any deportation would effect a breach of her rights under Article 2, 3 or 8?[37]The Claimant has had a long history of mental health problems. She was diagnosed with PTSD in 2005 and she suffers from depression. The Secretary of State accepts that the Claimant did, while in custody at HMP Styal on 27th October 2012 attempt to commit suicide by suspending herself from a ligature in her cell but says that there is no independent or medical evidence of any other genuine suicide attempt.[38]Mr Bird seeks in effect to contextualise this attempt because the suicide attempt took place shortly after she had lost her asylum case in the FTT, and the FTT had made findings (para 102) to the effect that her medical condition was not sufficient to reach the high threshold for Article 3. It was her second night at HMP Styal after she had been moved from Yarl’s Wood IRC following disruptive behaviour and protest.

The law in relation to medical condition

[39]The fact that the Claimant’s circumstances in Nigeria would be less favourable than those she has enjoyed in the UK does not itself amount to a breach of Article 3: Bensaid v United Kingdom (2001) 33 EHRR 10. The issue of her treatment in Nigeria is a “foreign” matter (see J v SSHD [2005] EWCA Civ 629) which sets out that there are three aspects to the suicide risk. It was said by the Court of Appeal:
“16. In our judgment, Mr Beal is right to submit that it is necessary to draw a clear distinction between "foreign cases" and "domestic cases". These are the labels which, for convenience, Lord Bingham used in Ullah v Secretary of State for the Home Department [2004] UKHL 26, [2004] 2 AC 323 paras [7] and [9]. By "foreign cases" he meant those cases where it is not claimed that the state complained of has violated the applicant's ECHR rights within its own territory, but where it is said that the conduct of the state in removing a person from its territory to another territory will lead to a violation of the person's ECHR rights in that other territory. By "domestic cases" he meant cases concerning claims based on the ECHR where a state is said to have acted within its own territory in a way which infringes the enjoyment of an ECHR right within that territory. 17. This has been recognised as an important distinction both in Strasbourg and in our own jurisprudence. In cases such as the present case the risk of a violation of article 3 or 8 must be considered in relation to three stages. By reference to the claim made in this case, these are: (i) when the appellant is informed that a final decision has been made to remove him to Sri Lanka; (ii) when he is physically removed by airplane to Sri Lanka; and (iii) after he has arrived in Sri Lanka. In relation to stage (i), the case is plainly a domestic case. In relation to stage (iii), it is equally clearly a foreign case. The classification of the case in relation to stage (ii) is less easy. Since in practice arrangements are made by the Secretary of State in suicide cases for an escort it is safer to treat this as a domestic case.”
[40]In Razgar (supra) it was held that Article 8 rights could exceptionally be engaged by the foreseeable consequences for health of removal pursuant to an immigration decision, where a claimant could demonstrate grave interference such as would amount to a flagrant denial of the right; but that removal could not be resisted merely because medical treatment or facilities in the removing country were better or more accessible than in the receiving country.[41]Article 3 does not impose an obligation on a contracting state to provide aliens indefinitely with medical treatment which was unavailable in their home countries, even if the absence of such treatment would significantly shorten their lives: N v SSHD [2005] 2 AC 296;N v United Kingdom (2008) 47 EHRR 39, especially at paras 42-45.[42]Of most direct relevance is the recent decision in GS (India) v SSHD [2015] EWCA Civ 40. The appellants were on the facts were in a far worse state of health than the instant Claimant. At paragraph 39ff the Court set out the core instance, or paradigm case in relation to Articles 3 and 8. For Article 3 this arises where the receiving state intentionally imposes inhuman or degrading treatment, not simply the effects of a naturally-occurring illness. For Article 8 the paradigm is the right to identity and personal developments, and to establish and develop relationships with others – the quality of life, not the continuance of life (see para 45). At para 66 Laws LJ stated the effect of the decisions in N v SSHD and N v UK [2008] INLR 335 as being that “the D exception is confined to deathbed cases”.[43]At para 86 Laws LJ addressed Article 8, cited and followed the judgment of Moses LJ in MM (Zimbabwe) v SSHD [2012] EWCA Civ 279 to the effect that a specific case needed to be made to succeed under Article 8. Moses LJ had held as follows (@ para 23):
“The only cases I can foresee where the absence of adequate medical treatment in the country to which a person is to be deported will be relevant to Article 8 , is where it is an additional factor to be weighed in the balance, with other factors which by themselves engage Article 8 . Suppose, in this case, the appellant had established firm family ties in this country, then the availability of continuing medical treatment here, coupled with his dependence on the family here for support, together establish ‘private life’ under Article 8 . That conclusion would not involve a comparison between medical facilities here and those in Zimbabwe. Such a finding would not offend the principle expressed above that the United Kingdom is under no Convention obligation to provide medical treatment here when it is not available in the country to which the appellant is to be deported.”
[44]Underhill LJ at paras 108 to 111 considered the “mental health cases” in the context of Article 8 objections to deportation, and concluded, following Moses LJ and Lady Hale in @ para 59 of Razgar that “A fair balance must be struck under article 8(2). In striking that balance, only the most compelling humanitarian considerations care likely to prevail over the legitimate aims of immigration control or public safety...it is not easy to think of a foreign health care case which would fail under Article 3 but succeed under Article 8 ”[45]Underhill LJ said at para 111 “First, the absence or inadequacy of medical treatment, even life-preserving treatment, in the country of return, cannot be relied on at all as a factor engaging article 8 : if that is all there is, the claim must fail. Secondly, where article 8 is engaged by other factors, the fact that the claimant is receiving medical treatment in this country which may not be available in the country of return may be a factor in the proportionality exercise; but that factor cannot be treated as by itself giving rise to a breach since that would contravene the “no obligation to treat” principle.”[46]There is thus a very high test for the Claimant to satisfy.

The rival medical evidence

[47]The Claimant has been the subject of substantial psychiatric examinations by Prof Katona and Dr McKay. Prof Katona’s view in 2014 was that the Claimant was already at high risk of suicide in the UK. He states, “In my clinical opinion there is a very high risk that she would attempt suicide (with potentially fatal consequences) if she lost hope of being allowed to remain in the UK…..In view of her delusional beliefs and the severity of her PTSD she would not in my opinion be able to ‘take stock’ if offered objective reassurance regarding her safety in Nigeria”.[48]In a brief report Dr Andrew Barker of Greater Manchester West NHS stated “My opinion is that Ms Apata has significant mental health needs and that she will require ongoing mental health support and that without this there would be considerable risk of a relapse with associated increase in suicide risk”[49]A letter from GP Dr Rebecca Farrington dated 7th April 2014 stated “The high level of stress she has endured in her dealings with the Home Office and in waiting for a decision on her claim for asylum has undoubtedly contributed to her ill health and relapse of her psychotic symptoms”.[50]Dr McKay’s conclusions are based upon a much more recent examination/interview with the Claimant, and on concrete extracts from her medical history and a variety of medical practitioners. Unlike Prof Katona, Dr McKay examines critically the proposition that she may or may not have a recognised mental illness.[51]Dr McKay draws attention to the observations that she was deliberately not taking her anti-psychotic medication. He discusses whether this is a consequence of mental illness or typical of simulation where the desire is to feign an illness, and he prefers the latter explanation (para 230). He points out that two consultant psychiatrists (Dr Kamaath on 16 December 2011 and Dr Nadim on 19 July 2013) have doubted the Claimant’s psychotic symptoms (para 258). He points to several internal inconsistencies in her interview (para 233) and “consider[s] the claimant’s psychiatric presentation to be a form of simulation” (para 259, 317).[52]Dr McKay looked for symptoms of some recognised psychiatric illness, but did not find them. He considered that what mental health problems there are may be linked to the stress of the immigration proceedings (para 287, 290).[53]There is no substantial evidence before me that the availability of medicines, or lack of healthcare or mental health services in Nigeria would bring about a breach of Article 3. Dr McKay states that the medication is widely available (paras 311, 322).[54]I agree with the Defendant that the Claimant’s case does not establish a prospective breach of the core paradigms identified in the relevant cases set out above. The Claimant’s life will be no shorter in the event of removal to Nigeria. Dr McKay says “If as I believe the Claimant’s suicide attempt was related to the unique situation at the time then deportation to Nigeria in different circumstances would not predictably increase that risk” (para 305). Even if it would be, this case is far removed from a deathbed case.[55]The Claimant takes the point (paras 61 and 62 of her skeleton argument) that the process of physical removal by air would be a “domestic case” for which the higher threshold required by N would not need to be met. However there is no evidence that the Claimant’s psychiatric condition would make it dangerous for her to fly and it did at a later stage, arrangements could be made and appropriate risk assessments will be carried out. The suggestion to Dr Mackay that Ms Agboro would accompany her would suggest that it is unlikely that the actual flight would cause any danger to her or to others, and would not expose her to treatment by the UK authorities or those in charge of the arrangements that would contravene Article 3.[56]Mr Mahmood also says that the Claimant will not be able to access the medical treatment she requires in Nigeria. That is not just because of cost and availability, but also because of discriminatory denial of medical treatment to those that are lesbian or perceived to be so. I do not have evidence on which to draw that inference. (2.3). Reliance on Article 8[57]Reliance on Article 8 arises only tangentially in the Claimant’s pleaded case and it was not at the forefront of the oral argument. The Claimant has only lived in the UK since 2004, and she has not had permission to be in the UK during that time. Her only surviving child (daughter Elizabeth, born 1997) was in the UK from 2007 until around 2012 (probably smuggled in by the Claimant, according to the FTT) but has since returned to Nigeria.[58]The finding of the FTT was that the Claimant had no family life with any other individual in the UK (para 113). To bring matters up to date, the Claimant says that Ms Ogboro would go with the Claimant to Nigeria, and so family life could be enjoyed in Nigeria.[59]I do not believe that this case falls within Article 8: the Claimant would not be isolated in Nigeria, where she lived until the age of 37 (in 2004), was educated and established her business.[60]Further the Claimant stated to Dr McKay that her same-sex partner Happiness Ogboro would accompany her to Nigeria (paras 141, 143, 304 of the report). Ms Ogboro was present when this was said, and did not appear to challenge it. The Claimant sought to explain this in a further statement dated 2 March 2015 when she said that “Happiness has expressed that because she knows the risk that I would face is [sic] enormous including death if forcibly removed which she cannot let me face alone as partners and she has no option but to go with me and we face it together as she would have to be deported too along”.[61]This is at odds with the statement in para 12 of Ms Ogboro’s witness statement to the effect that she would not see her again if the Claimant were deported to Nigeria. I do not consider the Article 8 claim to be made out. (3). Fresh claim[62]Finally I need to address the suggestion that this claim should be considered as relying on para 353 of the Immigration Rules. This states “When a human rights or asylum claim has been refused or withdrawn or treated as withdrawn under paragraph 333C of these Rules and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim. The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content:(i) had not already been considered; and(ii) taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection.”[63]The Updated Grounds do not refer specifically to para 353 nor does the relief sought (although there is a mention of fresh representations). Indeed the paragraph was not referred to in oral submissions. The “fresh representations” point made in those Grounds, in the Claimant’s Skeleton and orally at the hearing was to the effect that it would (now) be a breach of the Secretary of State’s international obligations were the Court (now) to decline to quash that decision – ie the fresh claim was based solely on Refugee Convention rights and ECHR Rights, not on the grounds that there was a change of factual circumstances which meant that there was a fresh domestic law claim as envisaged by Immigration Rule 353. It only became focussed in written submissions after the oral hearing. In any event I believe the substance of the material has already been considered by the Secretary of State and “taken together with the previously considered material” has not “created a realistic prospect of success”.[64]In conclusion, I respectfully echo the words used by Lady Hale in Razgar @ para 65:
“… this is a field in which harsh decisions sometimes have to be made. People have to be returned to situations which we would find appalling. The United Kingdom is not required to keep people here who have no right to be here unless to expel them would be a breach of its international obligations. It does the cause of human rights no favours to stretch those obligations further than they can properly go.”
[65]In the circumstances I dismiss the application.

Cited in 1 later judgment