THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 44599/98 by Abdel Kader BENSAID against the United Kingdom

The European Court of Human Rights ( Third Section ) sitting on 25 January 2000 as a Chamber composed of

Mr J.-P. Costa, President , Sir Nicolas Bratza, Mr L. Loucaides, Mr P. KÅ«ris, Mr W. Fuhrmann, Mrs H.S. Greve, Mr K. Traja, judges ,

and Mrs S. Dollé, Section Registrar ;

Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 18 November 1998 by Abdel Kader Bensaid against the United Kingdom and registered on 19 November 1998 under file no. 44599/98;

Having regard to the reports provided for in Rule 49 of the Rules of Court;

Having regard to the observations submitted by the respondent Government on 28 May 1999 and the observations in reply submitted by the applicant on 2 November 1999;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is an Algerian citizen, born in 1963 and resident in London. He is represented before the Court by Ms S. Ghelani of the North Islington Law Centre, London.

A. Particular circumstances of the case

The applicant is a schizophrenic suffering from a psychotic illness. He appears first to have experienced symptoms in 1994-1995. He requires continuous monitoring and treatment by specialist mental health services and daily medication to prevent relapse into a psychotic state. When he first came to the attention of the Mental Health Services, his condition was so severe that consideration was given to detaining him compulsorily in a psychiatric hospital. However, this was not required since he responded sufficiently to treatment and his illness has been successfully managed. At the end of 1997, he was admitted to hospital for a few days following a minor relapse which his psychiatrist attributed in part to side effects from his previous medication. His anti-psychotic medication was changed from sulpiride to olanzapine.

The applicant arrived in the United Kingdom as a visitor on 2 May 1989 and was granted six months' leave to remain, which was extended until 11 February 1992 because he was undertaking studies. In June 1992, an out-of-time application for a further extension was refused and in October 1992 he was requested to leave.

On 8 April 1993, the applicant married J, a United Kingdom citizen. On 5 May 1993, he applied for leave to remain on account of his marriage. He was granted leave to remain on this basis until 29 June 1994. On 20 June 1994, he applied for indefinite leave to remain as a foreign spouse. This was refused on 9 January 1995. On 24 March 1995 the applicant made further representations and on 12 May 1995 he was granted indefinite leave to remain as a foreign spouse.

On 10 August 1996, the applicant left the United Kingdom to visit Algeria. As a result, his indefinite leave to remain lapsed. He returned to the United Kingdom on 17 September 1996 and sought leave to enter as a returning resident. The immigration officer, whose suspicions were aroused about the subsistence of the marriage on which leave to remain had been obtained, granted him temporary admission pending further enquiries. On 24 March 1997, the immigration authorities decided to refuse leave to enter on the ground that indefinite leave to remain had been obtained by deception (namely, that the marriage had been one of convenience). He was given notice of intention to remove him from the United Kingdom. He was only entitled to appeal against the basis of this decision after he left the United Kingdom. The applicant sought deferral of the removal conditions on the basis of his medical condition. The Secretary of State refused to defer the directions.

On 7 April 1997, the applicant applied for judicial review of the proposed expulsion on the grounds that it would cause him a full relapse in his mental health and would amount to inhuman and degrading treatment, contrary to Article 3 of the Convention. By letter of 7 May 1997, the Secretary of State gave detailed reasons for his decision.

On 8 May 1997, the High Court refused the applicant leave to apply for judicial review. The applicant renewed his application before the Court of Appeal.

The applicant made further representations about his medical condition, which were considered by the Secretary of State and rejected in letters dated 16 and 18 July 1997 and 22 January, 17 July, 1 October and 4 November 1998.

On 21 July 1997, the Court of Appeal adjourned the application to enable the Government to reconsider its position in the light of further material submitted by the applicant. It suggested that the Government might wish to obtain its own medical examination of the applicant.

Six months later, the Government indicated that it did not wish to have the applicant medically examined. It submitted that there was a hospital in Algeria which provided treatment “not solely to those who have committed crimes” and which could admit the applicant and administer the medication which the Government understood the applicant to be receiving. The hospital was situated at Blida, 75-80 km from the applicant's village of Rouina.

The applicant obtained opinions from his psychiatrist as to the likely effect of removal to Algeria. In a letter dated 24 March 1998, Dr Johnson stated that there was a high risk that the applicant would suffer a relapse of psychotic symptoms on returning. The requirement regularly to undertake an arduous journey through a troubled region would make the risk still higher. She pointed out that when individuals with psychotic illnesses relapse, they commonly have great difficulty in being sufficiently organised to seek help for themselves or to travel. For this reason, it was necessary for the management of such illnesses to be local and readily accessible. It was therefore very unlikely in these circumstances that any relapse of the applicant would be effectively treated. In a supplementary report of 7 July 1998, Dr Johnson stated that any suffering which might accompany a relapse would be likely to be substantial. When the applicant's illness had been severe, he had lost all insight into the fact that he was ill and believed the persecutory delusions and abuse which he experienced, including voices telling him to harm other people. He had previously felt sufficiently depressed and hopeless that he contemplated suicide.

The applicant also obtained opinions from Mr Joffé, Deputy Director of the Royal Institute of International Affairs as to conditions in Algeria. In a letter of 3 March 1998, Mr Joffé stated that the area in which Rouina and Blida were situated had been a focus of terrorist violence and terrorist action since 1994 until the present.

Following further adjournments requested by the Government, the matter came before the Court of Appeal on 17 July 1998. The Court dismissed the applicant's appeal. In giving his judgment with which the two other judges concurred, Lord Justice Hutchison referred to the evidence from the Government relating to the possibilities of treatment and to their view that there was no particular danger in travelling along the main road between Rouina and Blida by day. He referred also to the evidence from the applicant with respect to the risk of relapse, the inadequacy of the alleged facilities and to the state of disorder and violence which was alleged severely to compromise his ability to travel for regular treatment. He concluded however that matters of that sort were for the judgment of the Secretary of State:

“It is not for this Court to take the decision as to whether the applicant should in all the circumstances be removed to Algeria. It is for this Court to review in appropriate cases the decision of the Secretary of State on well-known grounds and the limitations imposed on the Courts are well-established. , of course, is submitting that the facts as disclosed in the evidence filed on behalf of the applicant show that the decision is unreasonable in a Wednesbury sense and/or constitutes a breach of Article 3. However, it has to be said that the letters from the Chief Immigration Officer answer, it seems to me, with particularity each of the points which is made on behalf of the applicant. It is not for us to judge where the truth lies, for example, between the account of Mr Joffé on the one hand and the account on which the Secretary of State has based his view on the other as to the situation obtaining in the area between Rouina and Blida. What would have to be established if this application were to stand any chance of success would be that the decision of the Secretary of State in the light of the information available was so unreasonable that no reasonable Secretary of State could have come to it. ...while this is a case which must have occasioned the Secretary of State considerable thought and which poses difficult decisions, he has taken decisions on the basis of information available to him and given a full and detailed explanation of his reasons. I see no prospect whatever of the Court being persuaded that his decision is in the circumstances so unreasonable that no reasonable Secretary of State could have reached it.”

Removal directions were set for 20 November 1998.

The applicant's home village is Rouina. His parents live there, as do five of his brothers and a sister. His father is retired and lives on his pension. He has a two bedroom house. None of the family have a car. The nearest hospital with facilities for treating mental illness is the Frantz-Fanon Hospital in Blida, 75-80 km away. The Government have provided a letter dated 28 July 1999 from Professor Ridouh, a senior psychiatrist at that hospital, indicating that the hospital contains 160 beds catering for persons committed in the context of criminal acts and 80 beds for persons referred administratively. He stated that the drug olanzapine was available in Algeria and could be prescribed in hospital pharmacies. Medical treatment, including drugs, was provided free to persons treated at the hospital.

In a further opinion dated 20 May 1999 sought by the Immigration Service with the applicant's consent, Dr Johnson reported that, when seen in February 1999, the applicant showed some signs of deterioration, with his auditory hallucinations having become more intrusive and with thoughts about harming himself and voices telling him to harm himself (“positive symptoms”). He had been unable to sleep because of this. His olanzapine had been increased and he had responded to this. However, he continued to have considerable difficulties with motivation and social withdrawal (“negative symptoms”). The applicant's mental illness was likely to be a long term one. She would expect that he would continue to have positive symptoms, which would persist and could worsen, though controlled to a substantial degree by olanzapine. At times, he might require urgent help with these symptoms. There had been a significant deterioration in his level of social functioning likely to be attributable to negative symptoms and which was likely to be significantly handicapping in the coming years. With continuing medication and support from the mental health services, however, he would be likely to remain at the same level and not require very long periods of institutionalisation. Nor was he at a very serious risk of suicide. If however the applicant was returned to Algeria, she stated that she would be more uncertain of the prognosis. She thought it was

“highly likely that stressful life events such as deportation together with the more stressful environment he would be likely to encounter in Algeria would trigger exacerbation of his symptoms as occurred on his last visit to Algeria. ...his fearfulness when unwell and also the motivational difficulties and flatness of affect makes it very difficult for him to seek appropriate help when he does become unwell. ... If he were unable to obtain appropriate help, if he began to relapse I think that there would be a great risk that his deterioration would be very great and he would be at risk of acting in obedience to the hallucinations telling himself to harm himself or others... . Thus I do think that there is a substantial likelihood that forcible repatriation would result in significant and lasting adverse effect.”

She further advised that any change of medication from olanzapine to sulpiride would risk a deterioration in his negative symptoms and diminish the control of the positive symptoms.

COMPLAINTS

The applicant complains under Article 3 of the Convention that expulsion to Algeria, which is racked by disorder and violence and which would result in the withdrawal of the treatment on which he is currently surviving, would expose him to an immediate and very substantial risk of severe damage to his mental and physical health, as well as the most severe suffering, which would constitute inhuman and degrading treatment within the meaning of that provision.

The applicant also invokes Article 8 of the Convention in this regard and submits that there is no effective remedy available to him in respect of his complaints as required by Article 13 of the Convention.

PROCEDURE

The application was introduced on 18 November 1998 and registered on 19 November 1998. On the latter date, the President requested, pursuant to Rule 39 of the Rules of Court, that the measure of expulsion against the applicant be suspended pending the Court's examination of the case.

On 24 November 1998, the Court decided to communicate the application to the respondent Government. It confirmed the application of Rule 39 pending its examination of the case.

The Government's written observations were submitted on 28 May 1999, after extensions of the time-limit fixed for that purpose. They provided further clarifications on 1 July and 10 August 1999. The applicant replied on 2 November 1999, also after extensions of the time-limit.

On 27 August 1999, the Court granted the applicant legal aid.

THE LAW

The applicant complains that the authorities have taken the decision to remove him to Algeria. He invokes Articles 3, 8 and 13 of the Convention, which provide as relevant:

Article 3

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

Article 8

“1. Everyone has the right to respect for his private and family life...

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

Article 13

“Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

The Government submit that the applicant suffers from a mental illness, the effects of which are likely to be long term whether he is in the United Kingdom or Algeria. They dispute that the applicant's village is in an area of Algeria which would place him at particular risk from terrorists, and are satisfied that he could safely travel by day to the hospital at Blida. They rely on the letter of Professor Ridouh from the Frantz-Fanon Hospital that the drug olanzapine taken currently by the applicant is available in the hospital pharmacy. In these circumstances the Government argue that there are no substantial grounds for believing that if deported he would face a real risk of being subjected to treatment contrary to Article 3 of the Convention.

As regards the applicant's complaints under Article 8 of the Convention, the Government point out that he did not complain in the judicial review proceedings of any unjustified interference with his family life. They submit that as his marriage to his wife has broken down and there are no children, there is no family life in the United Kingdom which would be affected by his removal to Algeria. Concerning the applicant's complaints under Article 13, the Government submit that judicial review furnishes an effective remedy and refer to previous findings of the Court to that effect in expulsion cases (see eg. Vilvarajah v. the United Kingdom judgment of 30 October 1991, Series A no. 215, and D. v. the United Kingdom judgment of 2 May 1997, Reports 1997-III, p. 777).

The applicant submits, invoking Article 3 of the Convention, that his removal to Algeria, where he would not receive the degree of support and access to medical facilities which he currently relies on in the United Kingdom, would place him at real risk of a relapse in his illness, which includes hallucinations and suggestions of self-harm and harm to others. He relies on information indicating that the GIA opposition group is active in the area of his village which would render travel dangerous and add to the strains on his precarious mental balance. He disputes that he would have any reliable access to the drug olanzapine necessary for controlling his symptoms. He points out that the hospital is 75-80 km from his village and, as his family do not have a car, they would urge him to rely on faith rather than medicine; they would have considerable practical and motivational problems in obtaining treatment at the hospital.

The applicant argues under Article 8 that the removal will have a severely damaging effect on his private life in the sense of his moral and physical integrity. He admits that his marriage in the United Kingdom has broken down. Finally, he submits under Article 13 that judicial review does not furnish an effective remedy for his complaints as the courts will not examine the issues of fact regarding the actual consequences of his removal.

The Court finds that serious issues of fact and law arise under the Convention which should be examined on the merits. The application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and no other grounds for declaring it inadmissible have been established.

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION ADMISSIBLE , without prejudging the merits of the case.

S. Dollé J.-P. Costa Registrar President