Akdag v. Secretary of State for the Home Department

AKDAG v SECRETARY OF STATE FOR THE HOME DEPARTMENT

Court of Appeal (Civil Division)

[1993] Imm AR 172

Hearing Date: 21 October 1991

21 October 1991

Index Terms:

Political asylum -- application by Turkish Kurd -- refused -- applicant became mentally disordered when attempts made to remove him from United Kingdom -- whether Secretary of State's decision then to maintain refusal unreasonable -- whether Secretary of State had obligation to pursue enquiries in Turkey to verify applicant's claims -- whether to remove the applicant to Turkey would lead to degrading and inhuman treatment -- whether the act of removal itself was degrading and inhuman treatment if it led to mental or physical disorder.

Held:

Renewed application for leave to move for judicial review, following refusal by Rose J (as he then was). The applicant was a Turkish Kurd. The Secretary of State had refused his application for asylum. When he was to be removed to Turkey, he refused to board the aeroplane: he was considered a suicide risk and went on hunger strike while detained. Subsequently he was considered to have recovered his mental stability. The Secretary of State was assured that the applicant was fit to travel, and maintained his refusal of asylum. On application for judicial review counsel submitted that the Secretary of State should have made enquiries in Turkey to verify the applicant's story. Relying on Soering and Brind she argued that it was unreasonable to remove the applicant to Turkey, in view of his mental condition. She also submitted that deportation was itself inhuman or degrading treatment, as identified in Soering, if it resulted, as it had in this case, in mental or physical disorder. Held 1.The Secretary of State had no obligation to make enquiries in Turkey: his duty was to consider the application and use his experience of similar applications and his knowledge of conditions in the country in doing so: he was entitled to rely on information from the Foreign and Commonwealth Office in that regard. 2.Brind has no relevance to the instant case. There was no evidence that the applicant would be subjected to inhuman and degrading treatment in Turkey: Soering had no application. 3.It could not be argued that deportation itself was inhuman or degrading treatment.

Cases referred to in the Judgment:

Soering v United Kingdom (1989) 11 EHRR 439. R v Secretary of State for the Home Department ex parte Brind [1991] 1 AC 696: [1991] 1 All ER 720. R v Secretary of State for the Home Department ex parte Sabri Akdag (unreported, QBD, 26 September 1991).

Counsel:

Miss F Webber for the applicant; N Pleming for the respondent PANEL: Parker, Farquharson, Scott LJJ

PARKER LJ:

Miss Webber, on behalf of Mr Akdag, renews an application for judicial review, ostensibly of a decision of the Secretary of State in July 1991 to refuse the applicant's application for asylum. The original application was refused on 26 September 1991 and in consequence time for a renewed application to this court expired on, I think, 2 October. The renewed application was not however made until 11 October, at which date removal directions, which had been reset on more than one occasion, were due to be implemented on the following day, namely, 12 October. Miss Webber therefore requires an extension of time. I would, for my part, have been disposed to grant such extension had I considered that this was an application which, apart from delay, was one for which leave ought to be given. The rules should be adhered to, but when one is considering an asylum application and a short delay such as there was in this case, it would in my view be wrong to refuse an extension if time was of substance in the main application. The position on the application itself may be very shortly stated. When the original removal instructions were sought to be carried out, the applicant refused to enter the aeroplane. He was then transferred, as a suicide risk, to Pentonville and put in what is known as a 'suicide cell', where precautions are taken to see that the inmate of that cell does not take his own life. Whilst in there he also refused nourishment and as a result lost a great deal of weight. It was perfectly plain that he exhibited signs of a fear of return to Turkey from which he had entered. He is of Kurdish ethnic origin. In his interviews he gave an account of a number of beatings and imprisonment over a long period of time starting from when he was at school. The Secretary of State, having considered the original information, came to the conclusion that he did not accept that the applicant had the necessary fear based on reasonable grounds to support the asylum application. Miss Webber accepts that that decision is really not open to challenge and the first part of her application depends on events which have occurred since 1 October when he was removed to Pentonville. There are medical reports with regard to his condition now, and we have further evidence than was available on the original application for leave. The end result is that the applicant is now fit; that is to say he is fit to travel and he is mentally stable. His hunger strike is apparently over and the latest medical evidence, we were told by Mr Pleming and I accept, is that he is fit to travel without an escort. There was a further medical report which was obtained on his behalf, dated as recently as 18 October, in which the doctor expresses his opinion thus:

"Sabri Akdag is a 38-year-old Kurdish man awaiting deportation to Turkey as an illegal immigrant. He is claiming political asylum as he fears torture if he returns. When I examined him on 17 October, he was not clinically dehydrated and this was confirmed by blood chemistry and urinanalysis. It is my opinion that he is physically fit to travel to Turkey at the moment.

With regard to his mental state I must first state that I find it difficult to assess via a translator and with different racial characteristics. He does not suffer from any psychotic illness. He has symptoms of a mixed anxiety/ depressive illness with insomnia, anergia, loss of appetite (he denied hunger throughout his self-imposed fast), suicidal thoughts and constipation. He appears genuinely fearful of returning to Turkey and I think that there is a real risk that he will make further attempts on his life either before or after returning to Turkey if he is deported."

There was an exchange of correspondence on 16 and 17 October between those acting for Mr Akdag, the Hackney Law Centre, and the Secretary of State. On 16 October the Law Centre wrote to the Home Office as follows:

"We would ask you, in the course of such review [that is a reference to keeping the case under review] to consider the effect of an intended removal of Mr Akdag on his physical condition and on his mental health, in the light of your concern that treatment of persons in Mr Akdag's position under domestic law does not fall short of the standards established by human rights conventions, inter alia the European Convention on Human Rights. In the case of Soering the European Court of Human Rights affirmed that the health of the person concerned is a relevant factor with respect to the assessment of 'inhuman and degrading treatment under Article 3 of the Convention'.

Whilst we would of course not seek to argue that the Convention forms part of domestic law, nevertheless court judgments have made it clear that a reasonable Secretary of State would bear in mind that domestic law will not fall short of the relevant international standards except for compelling reasons.

We would request that you re-assess this case in the light of the above considerations and in the exercise of your humanitarian discretion.

If you maintain your refusal we shall seek on Monday to amend our grounds to introduce this matter before the Court of Appeal."

To that there was a reply from the Home Office as follows:

"Thank you for your letter of 16 October in which you ask us to consider whether Mr Akdag's removal to Turkey would constitute a breach of Article 3 of the European Convention on Human Rights.

We do not accept that Mr Akdag will suffer inhuman or degrading treatment in Turkey. Neither do we accept that he will suffer mentally as a result of being returned to Turkey beyond that which is inevitable in returning someone to a country to which he does not wish to be returned. So far as his physical state is concerned, he will not be returned to Turkey if he is not fit to travel."

The Secretary of State, at the request of the court, has lodged a further affidavit by Mr John Usher, which I need not read save for paragraph 13:

"The Secretary of State has reconsidered his earlier decisions in the light of the matters referred to above and in particular the information as to the Applicant's mental state and his hunger striking. In particular he has considered whether or not that information should cause him to change his earlier decisions. He has decided that it does not."

The earlier matters that are referred to in paragraph 13 are that the Secretary of State accepts that the applicant is mentally stable and also that he may pose a suicide risk. Miss Webber's submission is that in the light of that information the Secretary of State, notwithstanding his reconsideration, should make further investigations in the country from which Mr Akdag has fled with a view to seeing whether he can find any record in support of or against the applicant's story. This court has previously indicated, in a case which no one presently can run to earth[1]1, that it is no part of the Secretary of State's duty to pursue investigations in the country from which an applicant has fled. But quite apart from any such previous decision, in my judgment, it can be no part of the Secretary of State's duty to pursue investigations actually in the country from which the applicant has fled. His duty is to consider the application and to use his experience of similar applications and conditions in the country, which he will obtain from the Foreign and Commonwealth Office, as he did in this case in one particular respect, but the suggestion that he should now embark on a further investigation in Turkey is, in my view, not arguable. Accordingly the first limb of Miss Webber's application fails. With regard to the second limb of the application, this was introduced, as it had been indicated that it would be, in the correspondence which I have read, by an amended application dated 17 October 1991. That reads as follows:

"4. Further, the Secretary of State has erred in persisting with the decision to remove the Applicant in the light of his medical condition, and such a decision is manifestly unreasonable.

(i)The decision to remove the Applicant has endangered his physical well- being and mental health and caused mental anguish.

(ii)Such treatment amounts to an interference with a fundamental human right, namely the right not to be subjected to inhuman or degrading treatment: (Soering v UK 1/1989/161/217)

(iii)The English courts are entitled, in looking at the exercise of an administrative discretion, to start from the premise that any interference with a fundamental human right requires to be justified and that nothing less than an important competing public interest will be sufficient to justify it: Brind [1991] 2 WLR 588 at 592, per Bridge LJ."

Miss Webber referred us to the reports of both cases mentioned in the amended application. As to Brind, I have nothing to say, save that it appears to me not to have anything particular to do with this application. As to Soering, the question there arose as to whether a man should be extradited to America and the court came to the conclusion that the extradition could not stand because there was a real risk of the person concerned being subjected to inhuman or degrading treatment on arrival in America. In my judgment it is clear that the mere removal of an applicant from this country cannot of itself amount to inhuman treatment and, since the first part of the application fails, the ground upon which Soering was decided is not available to Miss Webber. It is submitted, however, that the deportation itself may amount to inhuman or degrading treatment if the result of it is that the applicant suffers from any mental or physical disorder. That submission cannot, in my judgment, possibly stand. If it were right, it would mean that every time anybody had a decision by a proper authority made against him about which he felt to strongly that he was exposed to some form of mental anguish or physical illness, the decision would have to be withdrawn or overturned. That is, in my judgment, an untenable position. I would therefore dismiss this application under both heads.

FARQUHARSON LJ:

I agree.

SCOTT LJ:

I also agree.

DISPOSITION:

Application refused

SOLICITORS:

Hackney Law Centre; Treasury Solicitor
 

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[1] [Ed] Untraced: but see the later case of Abdulla (8 May 1992) [1992] Imm AR 438 where the Court of Appeal heald that by considering inter alia reports from the Foreign and Commonwealth Office the Secretary of State had done all that "was reasonable and necessary to dischrage his duties". The Court may have had in mind the case of Dursun reported p. 169 above.