ILR and the Importance of Medical Evidence

R (Gayle) v Secretary of State for the Home Department [2017] EWHC 3385 (Admin) (21 December 2017)

This is a case with a “tragic personal history”. Gayle and her son Gary entered the UK on a six-month visitor visa in 2000. However, they overstayed. More than one person abused her before she came to the UK. Her partner in the UK abused her further and was deported to Jamaica in 2006. Two of her male children died young. Her son who lived in the USA died and her son Gary Scott, who lived with her, was murdered in London in December 2015. In 2011, Gayle and her son Gary applied for leave to remain. In January 2013, they were both granted leave to remain for 30 months. There was an initial condition that she was to have no recourse to public funds, but later in July 2014 that limitation was removed. Subsequently, Gayle applied for ILR but was instead granted a further 30 months leave to remain outside the rules in November 2016. The duration of the grant was challenged on two grounds. First, that there was uncontested medical evidence that Gayle had long-standing mental health difficulties and that her perceived uncertainty about her long-term immigration status was significantly and deleteriously impacting on her treatment and possible recovery. The decision-maker failed to refer to or analyse the uncontested medical evidence properly and therefore failed to take it into account.

Second, since article 8 of the ECHR was engaged the failure to grant ILR breached Gayle’s Convention rights. Granting the application for judicial review, HHJ Wall QC held that the decision-maker had not properly considered the medical evidence in making the decision. Irrespective of whether or not a case falls within the Immigration Rules, under section 3(b) of the Immigration Act 1971 the Home Secretary has a discretion to grant anyone ILR. Three expert reports were submitted in the present case. Two were from a psychiatrist, Dr Maloney and the third had been produced by a mental-health psychologist, Dr Bulkeley. Gayle’s experts thought that it would be in her best interests if she were granted ILR because this would be a benefit to her psychological welfare. For example, Dr Bulkeley concluded that she had a severe, complex form of PTSD and a chronic major depressive disorder of a severe form. He opined that the negative effect of uncertainty as a consequence of her immigration status upon her mental health warranted a grant of ILR because it would be of significant benefit to her psychological welfare.

Dr Bulkeley predicted grave consequences for her if she was not granted ILR because her mental health would deteriorate significantly and would impede her chances of achieving a level of stability needed to possibly enable effective therapy. The uncertainty of her immigration status was having a negative effect on her mental health. Stabilising her situation was necessary before a specialist clinician would be able to start trauma-focused work. Dr Maloney thought that her uncertain immigration status exacerbated and maintained her disorder because of high anxiety triggered by a sense of insecurity and finances. His conclusions were similar to Dr Bulkeley’s and he stated that Gayle went into an “intense bereavement reaction” after her son Gary’s death.

The decision maker clearly set out the material used to make the decision and referred to Dr Bulkeley’s report and Dr Maloney’s second report of but not his first report. Pointing out that settlement in the UK is a privilege subject to a probationary period and not a right, the decision stated that Gayle had been granted access to public funds, was able to access any relevant services and/or care and it was thus and it is unclear how she would benefit any further from a change in her current immigration status. Any psychological unease caused by her immigration status was insufficiently compelling as to constitute an exceptional circumstance.

HHJ Wall QC observed that guidance is given on granting leave outside of the rules in Immigration Directorates’ Instructions Chapter 1 Section 14 and Appendix FM 1.0 Family Life and Private Life: 10 year routes. The first guidance states that ILR should only be granted when “reasons are particularly compelling” and consideration needs to be provided to whether sufficient evidence demonstrates that the claimant’s individual circumstances are not just unusual but are distinguishable to a high degree from other cases to the extent that departure was warranted from the standard grant of 30 months’ leave to remain.

The guidance required a careful consideration of all the evidence, including the medical evidence. Overall, the decision suffered from a series of flaws. First of all, Dr Maloney’s first report had not been considered. Secondly, consideration had been provided to Gayle’s mental-health problems through the prism of the fact that they first arose in Jamaica. Doing so was irrelevant because they cause of her problems was not important and the evidence tendered suggested that holding ILR would aid the treatment of her mental-health problems.

Thirdly, the decision focused on Gayle’s failure to seek help for her illness without giving thought to the reasons behind that which were fully explained in the reports. One such reason was that her uncertain immigration status at least partially explained why she had not availed the help potentially available to her. Fourthly, there had been a failure to consider whether Gayle would see the world differently if she had ILR and whether she would avail help that she was not currently taking because of her perceived uncertainty over her future. Fifthly, the decision failed to address both doctors’ firm and repeated conclusions that the uncertainty of Gayle’s immigration status was significantly impacting her mental health. Therefore, HHJ Wall QC held:

24. My conclusion is that the Defendant has failed properly to consider the evidence presented to her. She has not accurately summarised the significant factors set out in the reports and has not fully considered the conclusions of the medical expert witnesses. She has considered how an ordinary individual might react to being placed into the situation in which the Claimant finds herself and not how the Claimant actually reacted and how that will affect her into the future. The decision making process is flawed to the extent that the decision should not stand. I will quash it and it will have to be taken afresh.

This was so despite the SSHD’s submission based on Alladin [2014] EWCA Civ 1334 that the relief she sought should be denied because quashing the decision and ordering it to be re-made would produce the same decision. Despite being referred to the authority of Y v SSHD [2013] EWHC 2127 which suggested that the article 8 challenge might also succeed, the first ground of challenge succeeded and with that in mind HHJ Wall QC thought that the article 8 added nothing because it was a point that he did not need to decide.

This is an interesting decision and those familiar with immigration judges will know that like Home Office decision-makers they tend to disbelieve medical evidence in a wholesale manner. Apart from the culture of disbelief, judges also tend to assume the role of the medical expert when deciding cases. Shunning collaboration with medical professionals, or by finding clever ways around medical opinions, many judges think that “to get on with it” the scope of their power is wide enough to allow them to make expert findings about whether an appellant suffers from medicial problems.

On the other hand, discussing the use, abuse and boundaries of expert evidence Lord Hodge recently observed that even 464 years ago Saunders J held in Buckley v Rice-Thomas (1554) 1 Plowd 118, 124 that the mutually advantageous cooperation on expert evidence between judges, lawyers and professional bodies regulating experts is a “a commendable thing”. Several centuries later, Lord Hodge’s own thought were not very different:

In many cases, expert evidence is an essential component of the attempt by the courts to get to the truth and thus achieve justice. Such collaboration, particularly when it extends to keeping costs proportionate and delays to a minimum, makes an important contribution to our justice system.

About Asad Ali Khan, BA, MSc, MA, LL.B (Hons), LL.M

Senior Partner, Khan & Co, Barristers-at-Law
This entry was posted in Article 8, ECHR, Human Rights Act, Immigration Rules, Judges, Judicial Review and tagged , , , . Bookmark the permalink.

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