White v Secretary of State for the Home Department

On a removal appeal involving mental illness and self-harm risk, Article 3 requires treatment reaching a minimum level of severity, assessed in all the circumstances. The threshold is particularly high where the risk does not result from deliberate ill-treatment by the receiving state. Article 8 may be engaged by sufficiently adverse effects on physical and moral integrity even where Article 3 is not. The tribunal must assess the medical evidence and the competing public interest in immigration control. Removal may be proportionate where treatment and support are available and the evidence does not establish an Article 3 breach or a sufficiently serious Article 8 interference. A further appeal from the Immigration Appeal Tribunal is confined to questions of law for which permission has been granted.

David White, a Jamaican national who had overstayed as a visitor, appealed against the Immigration Appeal Tribunal’s dismissal of his appeal. The Tribunal had upheld an adjudicator’s dismissal of his challenge to the Secretary of State’s decision that removal to Jamaica would not breach Articles 3 or 8 of the European Convention on Human Rights.

The appeal concerned the effect of unchallenged psychiatric evidence. That evidence identified depression, post-traumatic stress disorder and an increased risk of self-harm on return. The central issues were whether the Tribunal had irrationally assessed that evidence, and whether removal would disproportionately interfere with the appellant’s family life, private life or physical and moral integrity.

1. Permission to appeal. Paragraph 23 of Schedule 4 to the Immigration and Asylum Act 1999 permits a further appeal to the appropriate appeal court only on a question of law for which leave has been granted. The appellant could not pursue a third ground refused by the Immigration Appeal Tribunal without permission from this court.
2. Article 3. Applying the approach in Kudla v Poland 30201/96, ill-treatment must attain a minimum level of severity, assessed relatively by reference to all the circumstances. The suffering must go beyond the inevitable suffering connected with legitimate treatment or punishment. Bensaid v United Kingdom [2001] INLR 325 confirms that Article 3 is not confined to risks deliberately inflicted by the receiving state, but requires rigorous scrutiny, particularly where the risk arises from the applicant’s own medical condition.
3. The Immigration Appeal Tribunal was entitled to assess the psychiatric evidence in the context of the appellant’s circumstances in the United Kingdom. It could take account of the risk of self-harm both in the United Kingdom and Jamaica, the absence of clear evidence of effective treatment in the United Kingdom, and the availability of assistance in Jamaica. Its conclusion that removal came nowhere near the Article 3 threshold was rationally open to it.
4. Article 8. Treatment falling below the Article 3 threshold may nevertheless breach Article 8 where it has sufficiently adverse effects on physical and moral integrity. Mental health forms a crucial part of private life. Article 8 is qualified, however, and requires a proportionality assessment balancing the interference with private and family life against the State’s legitimate interest in controlling immigration.
5. Although removal would interfere with the appellant’s established family life with his mother and affect his private life, the Tribunal was entitled to regard removal as proportionate. The appellant had no continuing right to remain, psychiatric care was available in Jamaica, and the evidence did not establish an interference of sufficient seriousness. The appeal was dismissed with costs. Lord Justice Jonathan Parker and Lord Justice Schiemann agreed with Lord Justice Brooke.

1. Court of Appeal (Civil Division): dismissed the appeal against the Immigration Appeal Tribunal’s determination and ordered costs.
2. Immigration Appeal Tribunal: on 6 September 2002, dismissed the appeal against the adjudicator’s determination.
3. Adjudicator: on 20 January 2002, dismissed the appeal against the Secretary of State’s decision of 12 February 2001.