LexisLibrary and LexisPSL
Sign up for a free trial today and get full access for a weekTrial
By failing to consider the Claimant's mental disability and immigration history, the Defendant had breached his Article 3 and 8 ECHR rights, and had unlawfully decided not to grant him indefinite leave to remain.
18 July 2013
(1) Y, a national of Afghanistan, challenged the Secretary of State's (‘the SSHD') decision dated 17 February 2012 to refuse to grant him indefinite leave to remain. The basis of his application was his exceptional mental health condition, which he contended made the refusal of his application a breach of his Article 3 and Article 8 ECHR rights.
(2) In November 2009, Y had been assaulted, and subsequently suffered from Conversion Disorder with Seizures. In an 8 week hospital stay in April 2010, the Claimant was diagnosed with Post Traumatic Stress Disorder (‘PTSD'). The Claimant contended that the failure of the Secretary of State to use her powers to grant indefinite leave to remain caused intensification of his suffering and significant ‘social degradation'.
(3) In December 2010, the First Tier Tribunal held that the Claimant's case was so exceptional as to justify leave to remain on Article 8 grounds. This was related to the treatment he was receiving for PTSD. However, that decision as restricted because it did not consider that there was a diagnosis in which it was identified that therapy was required because the Claimant had an ‘all-consuming' fear of being returned to Afghanistan which, untreated, would cause ‘untold mental disability'.
(4) The issues raised by the Claimant in this claim were:
(i) What was Y's case as to his mental and psychological health and the interference with his private life?
(ii) What were the possible bases of challenging the SSHD's decision dated 17 February 2012?
(iii) Was Y being subjected to inhuman or degrading treatment by the state?
(iv) Was the UK interfering with Y's right to respect for his private life?
(v) Was the SSHD's decision irrational and/or insufficiently reasoned?
(vi) What relief, if any, was Y entitled to?
(5) HELD: The Court noted that the Claimant had been subject to five rejections of applications for safety and security: these including rejections of appeals and the granting of time limited leave to remain. Further, there were two outstanding applications, only one of which might lead to a grant of indefinite leave to remain.
(6) The Court criticised the failure of the decision-makers to consider the Claimant's mental and social disabilities, despite having an extensive and compelling report from a specialist, Dr Ehntholt. The decision letter contained no analysis of the Claimant's mental disability or the prospect of treatment no longer being available for him. In light of these failings, the decision to refuse to waive the discretionary leave to remain policy and grant the Claimant indefinite leave to remain was contrary to Article 3 ECHR.
(7) The Court found that there had been clear breaches of the Claimant's right to respect for his a private life (Article 8 ECHR) by failing to properly and fully analyse the Claimant's mental health and reach appropriate conclusions about his situation and the impact of his lack of indefinite leave to remain.
(8) The interference could not be justified by the need to maintain the UKs immigration laws. The Defendant had acted in a rigid, inflexible and misdirected way in trying to uphold policies that could have been departed from. The Defendant's decision caused suffering the Claimant, depriving him of the opportunity of meaningful treatment, with the resultant impact on his social integrity. This all formed part of the Claimant's private life.
(9) The Court thus held that the Defendant's decision had been irrational, as it had failed to consider a medical report and the circumstances of the Claimant's mental health and social disabilities. The Claimant was thus entitled to the setting aside of the decision and a declaration that the decision had been unlawful. It was hoped that the Defendant would grant indefinite leave to remain in the near future.
 - Many rejections.
 - First tier tribunal decision.
 - Failure consider report.
 - Contrary Article 3.
 - Article 3 Conclusion.
 - Article 8.
 - Irrational.
 - Conclusion.
To read the full case summary and to view the case transcript, you must subscribe to Jordans Public Law Online (if you already subscribe click here to log in).
To request a free trial click here and select Jordans Public Law online from the drop down menu