Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DA/01137/2012

THE IMMIGRATION ACTS

Heard at Royal Courts of Justice
Decision & Reasons Promulgated
On 14 March 2016
And at Field House

On 15 December 2016
On 21April 2017

Before

UPPER TRIBUNAL JUDGE RINTOUL

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant

and

N G
(anonymity order made)
Claimant

Representation:

For the Respondent: Mr I Jarvis, Presenting Officer
For the Claimant : Mr D Chirico, instructed by Elder Rahimi solicitors

DECISION AND REASONS
1. The Secretary of State appeals with permission against the decision of First-tier Tribunal Judge Callow to allow NG’s appeal under the Nationality, Immigration and Asylum Act 2002(“the 2002 Act”) against the decision made on 11 September 2012 pursuant to section 32 (5) of the United Kingdom Borders Act 2007 (“UKBA 2007”) that he is a foreign criminal who must be deported. The appeal was allowed on the basis that the decision was not in accordance with the law and was unlawful under section 6 of the Human Rights Act 1998 as being incompatible with NG’s Convention rights.
2. For the sake of clarity, I refer to the Secretary of State as the respondent which she was below, and to NG as the claimant.
History and Background
3. Both parties are agreed that this is a highly unusual case, and, for reasons which will become clear in the analysis below, it is necessary to set out the claimant’s history and background in some detail; it is equally necessary to set out the procedural history of the appeal.
4. The claimant, who is 52 years old, is a citizen of Morocco who has been resident here since, it appears, 23 October 1973. He was granted Indefinite Leave to Remain on 4 April 1978. Although married in 1981, he is now divorced, and has three adult children with one of whom he has some contact. He is also in contact with a brother living in the United Kingdom who is in contact with a married sister with children living in Morocco.
5. On 9 October 1992, the claimant was convicted of a murder committed in October 1980. The tariff was eventually set at 8 years, but he remains in prison, maintaining his innocence, as he has done since his arrest in 1990.
6. The claimant did not, however, give evidence at the murder trial. That is because, in 1987, he was the victim of a violent robbery in the course of which he sustained lasting brain damage, such that he was left emotionally disturbed, with impaired powers of concentration and memory, and with low IQ scores putting him in the severely mentally impaired range.
7. The claimant’s case has been reviewed by the Parole Board on 6 occasions between 1997 and 2010, with a delayed review heard in November 2013, and a further review on 15 November 2015. The salient parts of that review are set out in the First-tier Tribunal’s decision at [6. (c)]. It is notable that that it appeared to the Parole Board that the only way in which the claimant might be rehabilitated after 25 years in custody was a transfer to a low-secure long-term specialist brain injury hospital, as suggested by the psychiatrists who had provided reports. The board also noted that the risks the claimant presents had not reduced to the level at which he could be released or safely managed in open conditions. The OASys assessment of 4 November 2015 assessed the claimant as presenting a high risk of serious harm to the public.
8. It was not until 2008 that the respondent began formally the process of seeking to deport the claimant, by issuing a liability for deportation letter, the claimant responding that his removal would be in breach of articles 3 and 8 of the Human Rights Convention. Further to that, in 2010, liability for automatic deportation letters were sent and later that year, further information was sought from the claimant. It was, however, not until 11 September 2012 that the deportation order was signed, the respondent having concluded that the claimant is a foreign criminal as defined, and that none of the exceptions set out in section 33 of the UKBA 2007 applied to him; and, that he did not meet the requirements of paragraphs 398-399A of the Immigration Rules.
9. The appeal against the decision was, however, not lodged until 29 November 2012, the claimant having been unable to access proper legal advice prior to then. By a decision of First-tier Tribunal Judge Colyer, time was extended to admit the appeal. The effect of the late appeal is that his leave was invalidated.
10. Subsequent to the lodging of the appeal, there were numerous case management hearings over the next two, nearly three years, on account of a need to obtain evidence of the claimant’s medical and psychiatric needs; sentencing reports; for the respondent to provide updates on progress in obtaining in 2013 and again in 2014; and, in respect of the most recent Parole Board report.
11. On several occasions, directions were issued. Of particular relevance are those made by First-tier Tribunal Judge Scott-Baker on 12 December 2014 directing the respondent to provide evidence of the policy relating to the deportation of foreign criminals who are in the course of completing their custodial sentenced in order that the Tribunal could be satisfied that removal is in accordance with the policy and thus the law. The judge also ordered that evidence must be provided if it is proposed to remove the claimant under the Tariff Expired Removal Scheme.
12. The appeal was finally heard by First-tier Tribunal Judge Callow on 16 December 2015, and Judge Callow’s decision promulgated on 7 January 2016.
The decision of the First-tier Tribunal
13. Having heard evidence from the claimant’s brother, and taking into account also the expert evidence provided and submissions from both parties, Judge Callow concluded that three issues fell to be considered:
(a) Was the respondent’s decision in accordance with the law?
(b) If yes, was the high Article 3 threshold met, and with what consequences?
(c) Did the claimant meet the requirements of the Immigration Rules, and if not, were there factors over and above those described in paragraphs 399 and 399A which amounted to very compelling circumstances?
14. Judge Callow considered first the lawfulness of the decision to deport [17], concluding that the claimant is a foreign criminal [18], and that the question which then fell to be asked is whether he fell within exception 3 as set out in section 33 of UKBA 2007.
15. Judge Callow then turned to section 32A and 32B of the Crime (Sentences) Act 1997 (“CSA 1997”) (as amended by section 119 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012), finding that:
(a) No evidence had been provided of any arrangement whereby the claimant would continue to serve his sentence in Morocco [22].
(b) the respondent had not exercised her power under s 32A CSA 1997 in respect of the claimant [26];
(c) the power under s.32 is discretionary, and must be exercised rationally and reasonably in accordance with an individual’s protected rights [28], the guidance being set out in a policy document valid from 20 June 2014 [28];
(d) in addition to the considerations set out in the policy, the respondent must have considered the purposes of the life sentenced imposed and the arrangements made for the continuation of the sentenced post-removal as that does not terminate the sentence [29];
(e) all of these factors are relevant to the lawfulness of making the deportation order which is predicated on the prospect of removal [30], a decision to make a deportation order predicated on the arbitrary or irrational exercise of the s 32A power being in itself arbitrary and unlawful both on public law grounds and for the purposes of article 8(2);
(f) a decision to make a deportation order against the claimant who is serving a life sentence without proper consideration of the reasonableness and lawfulness of the s. 32A power places the claimant in limbo;
(g) the discretion granted to the Secretary of State by section 34 (1) of UKBA 2007 as to the timing of making a deportation order must be exercised rationally and taking into account all material circumstances which had not been established in this case[30], given [33]: the failure to consider the delay of 20 years before it was exercised; the failure to consider the arrangements for the continuation of the sentence in Morocco; the failure, having delayed, to wait for a full, up to date Parole Board decision; and, the failure to take reasonable steps to review her decision in the light thereof;
(h) the respondent’s decision is not in accordance with the law and therefore breaches his article 8 rights without the need to consider proportionality [31], [35];
(i) the decision to deport the claimant is in itself unlawful, as it gives rise to the real risk that the claimant will be left in limbo (in prison without any status) in breach of his articles 3 and 8 rights [30], [34], removal of the claimant being in breach of article 3 given his long residence in the United Kingdom, his mental health and capacity, and the recommendation that he should be placed in a low-secure specialist brain injury hospital.
16. The respondent sought permission to appeal on the grounds (as amended) that:
(a) The judge had erred in not giving sufficient reasons for concluding that the respondent’s decision was irrational, it plainly being rational for her to decide to deport the claimant [5];
(b) The question of whether the claimant would be left in limbo is not material to the claimant’s article 3 or 8 rights, there being no prospect of the claimant being left without proper status; further, the judge had failed properly to explant what was meant by limbo in this contest, or how it is relevant to article 8; or, how, given that the claimant has been imprisoned for 25 years, article 8 is engaged in any event;
(c) The length of the claimant’s residence is not connected to the real risk of a breach of article 3; and, the judge had failed to give sufficient reasons for concluding that there would be a breach of article 3 and/or 8 in this case;
(d) That the judge had erred in conflating the powers and effects of two statutory regimes: ss32A and 32B of the CSA 2007; and, s 34 of the UK Borders Act 2007;
(e) The judge had erred in his assessment of unlawfulness in impermissibly relying on policy guidance which came into existence on 20 June 2014, well after the decision under appeal was made
17. On 29 January 2016, First-tier Tribunal Judge Fisher granted permission to appeal on all grounds.
The hearing on 14 March 2016 and subsequent submissions
18. Mr Jarvis sought leave to amend his grounds to incorporate the points raised in his skeleton argument; Mr Chirico did not object, and in all the circumstances, I was satisfied that, it was in the interests of justice to permit this.
19. Mr Jarvis submitted that the provisions of s 32A could not be read over into section 34 UKBA 2007, and that it was not permissible, in assessing unlawfulness, to have regard to a policy not in force at the time – see AG others (Policies; executive discretions; Tribunal's powers) Kosovo [2007] UKAIT 00082. He submitted also that the alleged failures on the part of the respondent to review matters post-decision could not constitute a basis for a finding that there had been an error of law.
20. Mr Jarvis also submitted that the judge misunderstood the nature of the power conferred by sections 32A and 32B of CSA 2007, failing to note also that Tariff-Expired Release Scheme (“TERS”) was introduced only in 2012 by the amendment of the CSA 1997, prior to which the respondent could not have removed a prisoner serving a life sentence. In this case the decision was taken within 4 months of the power being brought into force.
21. Mr Jarvis submitted further that the Secretary of State’s power pursuant to section 34 of the UK Borders Act 2007 is a separate power permitting her to make a deportation order to time chosen by her but prohibiting the making of an order and any conviction is still within the criminal appeal system.
22. Mr Jarvis submitted also that the decision was flawed by reliance on a Guidance document not placed before him. It was further submitted that the decision in respect of articles 3 and 8 was fundamentally flawed, there being insufficient reasoning to show how the claimant would be left in limbo.
23. Mr Chirico submitted that Judge Callow had not erred in conflating different provisions; the issue here was whether the Secretary of State’s timing, that is the exercise of her discretion, was irrational or not. It had been open to the judge to consider that the policies relating to the LASPO power were relevant to the lawfulness of the making of the deportation order.
24. Mr Chirico submitted that the two issues are first, whether the First-tier Tribunal had jurisdiction to consider the timing of the deportation decision, and, second, whether the factors relevant to the lawful operation of the LASPO release power are also relevant to the automatic deportation decision.
25. Mr Chirico further submitted that under sections 84 (1) (e) the First-tier Tribunal had jurisdiction to consider the rationality of the decision, and under 84 (1) (c) and (g) of the 2002 Act to have regard to determining whether the Secretary of State’s decision was unlawful and or arbitrary. He submitted that the power in s32A of CSA 1997 must be exercised rationally as it empowers the respondent to bypass the normal procedure before the Parole Board. The effect of SSHDs action in this case is an unrehabilitated and mentally ill man, with brain damaged, would in effect simply walk off the aeroplane in Morocco.
26. Mr Chirico submitted that Judge Callow had not erred in stopping consideration of article 8 at the third step in the Razgar analysis; he had been entitled to consider that the respondent’s decision was not in accordance with the law. The Secretary of state had decided to remove the claimant to Morocco without putting in place any prior arrangements, and thus the use of the s 32 CSA power was irrational. It was also submitted that the section 34 (1) discretion was reviewable, as to lawfulness, under section 84 (1) (e)
27. In response, Mr Jarvis submitted that, this appeal being an appeal against a decision that section 32 (5) applies, nothing in the statutory appeal scheme permits an appeal against the timing of the making of the Deportation Order itself; the power to raise at the date of hearing human rights grounds of appeal under section 84 (1) (c) and 84 (1) (g) does not alter the fact that this must relate to whether or not section 32 (5) UKBA 2007 applies, as show in R (George) v SSHD [2014] UKSC 28.
28. He submitted that the respondent is mandated to make an order if the section 33 exceptions are not met. He submitted that section 84 (1) (g) does not permit a limbo argument given that relates to consequences of removal, not consequence of remaining in prison without lawful leave to remain. There is nothing in policy or law which requires the respondent to use her CSA powers only where there is a proposed prison transfer, or the authorities are informed. S 32 does nothing more than permit the Secretary of State to remove a FNO from prison.
29. Mr Jarvis submitted that it cannot be argued that the claimant is in limbo, as his leave to remain is not invalidated while an appeal is pending given the effect of section 78 and 79 of the 2002 Act, given that the claimant is only in prison without leave once appeal is determined; and, even if lack of status was materially before the Tribunal, he could not succeed.
30. Mr Chirico, in response, accepted that s 34 (1) refers to the making of the deportation order, whereas the ground of appeal refers to the precedent decision, that the automatic provisions apply. This does not mean that the timing of the proposed deportation order is outwith the scope of section 84 (1)(e), SSHD’s practise being to make the order at the time of the s 32 decision, and thus the timing of the decision that s 32 (5) applies should be read as indicating when SSHD has “chosen” to make her deportation order for the purposes of section 34 (1).
The law
31. Under the legislation in force at the date of decision in this appeal, the decisions against which an appeal could be brought were set out in section 82 of the 2002 Act and, so far as is material, provided:
82 Right of appeal: general
(1) Where an immigration decision is made in respect of a person he may appeal to the Tribunal
(2) In this Part “immigration decision” means—
(a) refusal of leave to enter the United Kingdom,
…
(j) a decision to make a deportation order under section 5(1) of that Act, and
(k) refusal to revoke a deportation order under section 5(2) of that Act.

(3A) Subsection (2)(j) does not apply to a decision to make a deportation order which states that it is made in accordance with section 32(5) of the UK Borders Act 2007; but–
(a) a decision that section 32(5) applies is an immigration decision for the purposes of this Part, and
(b) a reference in this Part to an appeal against an automatic deportation order is a reference to an appeal against a decision of the Secretary of State that section 32(5) applies.
32. The grounds of appeal against immigration decision were, at the relevant time, set out in section 84 which provided:
84 Grounds of appeal
(1) An appeal under section 82(1) against an immigration decision must be brought on one or more of the following grounds—
(a) that the decision is not in accordance with immigration rules;
…
(c) that the decision is unlawful under section 6 of the Human Rights Act 1998 (c. 42) (public authority not to act contrary to Human Rights Convention) as being incompatible with the appellant's Convention rights;
…
(e) that the decision is otherwise not in accordance with the law;
…
(g) that removal of the appellant from the United Kingdom in consequence of the immigration decision would breach the United Kingdom's obligations under the Refugee Convention or would be unlawful under section 6 of the Human Rights Act 1998 as being incompatible with the appellant's Convention rights.
33. The Secretary of State’s powers to deport foreign national offenders are set out in Section 32 UKBA 2007. It is not disputed that the claimant is a foreign criminal as defined in that section. By operation of section 32 (5) UKBA, the Secretary of State must make a deportation order in respect of a foreign criminal unless she thinks that an exception in section 33 of the Act applies. That section provides, so far as is relevant, as follows:-
33 Exceptions
(1) Section 32(4) and (5)–
(a) do not apply where an exception in this section applies (subject to subsection (7) below), and
(b) are subject to sections 7 and 8 of the Immigration Act 1971 (Commonwealth citizens, Irish citizens, crew and other exemptions).
(2) Exception 1 is where removal of the foreign criminal in pursuance of the deportation order would breach–
(a) a person's Convention rights, or
(b) the United Kingdom's obligations under the Refugee Convention.
(3) Exception 2 is where the Secretary of State thinks that the foreign criminal was under the age of 18 on the date of conviction.
34. The timing of the making of the deportation order is governed by section 34 UKBA 2007:
34 Timing
(1) Section 32(5) requires a deportation order to be made at a time chosen by the Secretary of State.
(2) A deportation order may not be made under section 32(5) while an appeal or further appeal against the conviction or sentence by reference to which the order is to be made–
(a) has been instituted and neither withdrawn nor determined, or
(b) could be brought.
(3) For the purpose of subsection (2)(b)–
(a) the possibility of an appeal out of time with permission shall be disregarded, and
(b) a person who has informed the Secretary of State in writing that the person does not intend to appeal shall be treated as being no longer able to appeal.
(4) The Secretary of State may withdraw a decision that section 32(5) applies, or revoke a deportation order made in accordance with section 32(5), for the purpose of–
(a) taking action under the Immigration Acts or rules made under section 3 of the Immigration Act 1971 (c. 77) (immigration rules), and
(b) subsequently taking a new decision that section 32(5) applies and making a deportation order in accordance with section 32(5).
35. The Secretary of State cannot simply remove from prison an individual who is serving a criminal sentence; she must have the power under law so to do. Prior to the power conferred by section 32A of CSA 1997, the Secretary of State could not remove a foreign national offender serving a life sentence (or an indeterminate sentence) without authorisation by the Parole Board.
36. The mechanism by which the powers under section 32A CSA 1997 are exercised is known as the Tariff Expired Removal Scheme (“TERS”).
37. Section 32A of CSA 1997 provides:
32A Removal of prisoners liable to removal from United Kingdom
(1) Where P—
(a) is a life prisoner in respect of whom a minimum term order has been made, and
(b) is liable to removal from the United Kingdom,
the Secretary of State may remove P from prison under this section at any time after P has served the relevant part of the sentence (whether or not the Parole Board has directed P's release under section 28).
(2) But if P is serving two or more life sentences—
(a) this section does not apply to P unless a minimum term order has been made in respect of each of those sentences; and
(b) the Secretary of State may not remove P from prison under this section until P has served the relevant part of each of them.
(3) If P is removed from prison under this section—
(a) P is so removed only for the purpose of enabling the Secretary of State to remove P from the United Kingdom under powers conferred by—
(i) Schedule 2 or 3 to the Immigration Act 1971, or
(ii) section 10 of the Immigration and Asylum Act 1999, and
(b) so long as remaining in the United Kingdom, P remains liable to be detained in pursuance of the sentence.
(4) So long as P, having been removed from prison under this section, remains in the United Kingdom but has not been returned to prison, any duty or power of the Secretary of State under section 28 or 30 is exercisable in relation to P as if P were in prison.
(5) In this section—
“liable to removal from the United Kingdom” has the meaning given by section 259 of the Criminal Justice Act 20031;
“the relevant part” has the meaning given by section 28.
38. The mischief of this section is, on proper analysis, limited. It relates not to removal from the United Kingdom, but simply removal from prison. That is confirmed in the respondent’s guidance issued from 20 June 2014 provides at page 5:
TERS does not affect a prisoner’s appeal rights against deportation. Release for deportation can only take place where there are no outstanding appeals or other barriers to enforcing it, and there is a deportation order signed against the FNO.
39. It follows from this that the exercise of the power in section 32A would and could only be considered once the appeal process had been exhausted. It was thus a serious error on the part of Judge Callow to proceed [30] on the basis that the process outlined in the TERS guidance was to be carried out prior to the deportation order being made. The entirety of his analysis of why the decision was not in accordance with the law is predicated on that error as can be seen in the finding at [30] that the decision to make a deportation order was infected by the error.
40. Judge Callow made a further material error in considering the timing of the decision to make a deportation order [30]. The immigration decision in section 82 (3A) is clearly defined; there is no basis on which it can properly be argued that the timing of making of the deportation order itself (a different decision) comes within this or is an immigration decision as defined.
41. Even were Judge Callow entitled to consider the issue of timing, his conclusion that it was irrational is flawed. His first error at [30] is to reverse the burden of proof in considering whether the rationality of the timing had been established. It was for the claimant to show that it was irrational, and the judge shows no appreciation of the high threshold which the claimant had to overcome. There is no basis on which it could have been overcome, given that contrary to what Judge Callow concluded, the exercise of the section 32A CSA 1997 power occurs after the appeal process is concluded.
42. While Judge Callow did expand on his analysis of rationality at [33], there is no consideration of the fact that until the amendment of CSA 1997 in 2012, the respondent would not have been able to remove the claimant from prison. The findings at [33] are, in reality, not as to the timing of the decision but as to the making of the decision in itself.
43. There is no basis for the finding that a failure to wait for a Parole Board decision was irrational; decisions of the Parole Board are not relevant to the timing of making a deportation order or as to whether section 32 (5) applies. Further, Judge Callow erred in considering that the respondent was under any duty to consider decisions of the Parole Board made after the deportation order was signed [33].
44. It is established law that the ground set out in s 84 (1)(g) requires a Tribunal to assess what may happen in the future and permits new material or events to be taken into account by operation of section s 85 and 86 and for circumstances to be considered at the date of hearing. Whether the ground in section 84 (1) (c) permits consideration of whether a decision is in accordance with the law when viewed at the date of hearing, that is, whether the decision would not be in accordance with the law if implemented now, as Mr Chirico submits, is less clear. No authority for such a submission is provided. The use of the word “was” is strongly indicative of the contrary view, and JM (Liberia) [2006] EWCA 1402 relates to a different provision which is significantly different. While sections 85 and 86 of the 2002 Act apply, it is not arguable that new material is capable of answering what is primarily the public law question of whether a particular decision was lawful, given that the principles of public law would confine that exercise to consideration of material before the decision maker. Accordingly, Judge Callow’s decision at [33] that not taking into account later decisions of the Parole Board amounted to an error of law, is unsustainable.
45. Contrary to what Mr Chirico submitted, the timing of the making of the order, because it is normally made at the same time as the section 32 (5) decision, does not bring the issue of timing within the scope of the immigration decision.
46. Judge Callow’s analysis of the claimant’s article 3 and 8 rights is fundamentally flawed. There is no proper analysis at [30] of how the applicant is in limbo. There is no indication that he had directed himself to the relevant case law which is concerned with article 8 rather than article 3.
47. The starting point in the analysis of the limbo point is R (Khadir) v Secretary of State for the Home Department [2005] UKHL 39, [2006] 1 AC 207, per Lady Hale JSC at [4], that "There may come a time when the prospects of the person ever being able safely to return, whether voluntarily or compulsorily, are so remote that it would be irrational to deny him the status which would enable him to make a proper contribution to the community here …".
48. There is no indication that Judge Callow properly considered this issue. The claimant, is in prison serving a life sentence and thus would not undergo any change in his circumstances as a result of leave being withdrawn, nor is there any indication that this would be indefinite, or that there was no prospect of him ever being removed. The conclusion that the claimant’s article 3 or 8 rights would be engaged, let alone infringed simply because [34] he is in prison without status is irrational and unsupported by the evidence.
49. There is thus no basis for the conclusion that the decision to deport (not in fact the immigration decision under appeal) would breach articles 3 or 8 of the Human Rights Convention either within the United Kingdom, nor on removal. It is of particular note that Judge Callow did not at [34] consider the very high threshold that would apply, this being a foreign case.
50. Further, and in any event, Judge Callow erred in his assessment that in accordance with the law, the third step in the Razgar analysis, equates to the ground of appeal set out in section 84 (1) (e) of the 2002 Ac, that is, not in accordance with the law. That proposition was rejected in R (Munjaz) v Ashworth Hospital [2005] UKHL 58 at [34] per Lord Bingham:
34. Mr Gordon, on behalf of Mind, submits that the interference is not "in accordance with the law" because not prescribed by a binding general law. I cannot for my part accept this. The requirement that any interference with the right guaranteed by article 8(1) be in accordance with the law is important and salutary, but it is directed to substance and not form. It is intended to ensure that any interference is not random and arbitrary but governed by clear pre-existing rules, and that the circumstances and procedures adopted are predictable and foreseeable by those to whom they are applied. This could of course have been achieved by binding statutory provisions or binding ministerial regulations. But that was not the model Parliament adopted. It preferred to require the Secretary of State to give guidance and (in relation to seclusion) to call on hospitals to have clear written guidelines. Given the broad range of institutions in which patients may be treated for mental disorder, a matter on which Mr Gordon places special emphasis, it is readily understandable why a single set of rules, binding on all, was thought to be undesirable and perhaps impracticable. It is common ground that the power to seclude a patient within the hospital is implied from the power to detain as a "necessary ingredient flowing from a power of detention for treatment": see Auld LJ in R v Broadmoor Special Hospital Authority, Ex p S, H and D (5 February 1998, unreported) [ [1998] EWCA Civ 160 ] and the Court of Appeal judgment in the present case, para 40. The procedure adopted by the Trust does not permit arbitrary or random decision-making. The rules are accessible, foreseeable and predictable. It cannot be said, in my opinion that they are not in accordance with or prescribed by law.
51. There is no proper indication in his decision that Judge Callow had had regard to these factors in concluding [31] and [35] that the respondent’s decision was “not in accordance with law” nor that, properly directing himself, given the other errors identified above, that he could have reached such a conclusion. There is no basis on which it could be concluded that he could have
52. For these reasons, the decision of the First-tier Tribunal involved the making of an error of law and I set it aside.
Remaking the Decision
53. In reaching my decision I have taken into account the following which has been provided by the parties:-
(a) Respondent’s bundle.
(b) Respondent’s additional bundle containing witness statements by Mr B Higgs and Mr M Smith.
(c) Skeleton argument by Mr I Jarvis.
54. From the claimant I have received the following:-
(a) Initial bundle containing a chronology.
(b) Claimant’s supplementary bundle.
(c) Inspection report on HMP Elmley, Care Quality Commission.
(d) Extract of policies from Shropshire Community Health on medication and possession policy (prisons).
(e) US State Department Report on Morocco.
(f) Human Rights for 2015.
(g) Skeleton argument from Mr Chirico.
55. While the decision was being drafted, the ECtHR handed down its decision in Paposhvili v Belgium [2016] ECtHR 1113. I therefore invited the parties to make submissions on that decision which I have received and taken into account.
The law – Article 3
56. This case contains elements of a “health” case and raises issues of a breach due to destitution.
57. The starting point for consideration of the health aspect is N v SSHD [2005] UKHL 31 That decision is binding on the Upper Tribunal, as is GS (India) v SSHD [2015] EWCA Civ 40.
58. Laws LJ summarised the ratio in N in GS (India) at [65]:
65. With deference to the arguments advanced by counsel for the appellants it seems to me that the ratio decidendi of N in the House of Lords is entirely plain. I give the following citations:
"15. Is there, then, some other rationale [sc. other than the pressing nature of the humanitarian claim] underlying the decisions in the many immigration cases where the Strasbourg court has distinguished D's case? I believe there is. The essential distinction is not to be found in humanitarian differences. Rather it lies in recognising that article 3 does not require contracting states to undertake the obligation of providing aliens indefinitely with medical treatment lacking in their home countries. In the case of D and in later cases the Strasbourg court has constantly reiterated that in principle aliens subject to expulsion cannot claim any entitlement to remain in the territory of a contracting state in order to continue to benefit from medical, social and other forms of assistance provided by the expelling state. Article 3 imposes no such 'medical care' obligation on contracting states. This is so even where, in the absence of medical treatment, the life of the would-be immigrant will be significantly shortened. But in the case of D, unlike the later cases, there was no question of imposing any such obligation on the United Kingdom. D was dying, and beyond the reach of medical treatment then available." (per Lord Nicholls)

"36. What was it then that made the case exceptional? It is to be found, I think, in the references to D's 'present medical condition' (para 50) and to that fact that he was terminally ill (paras 51: 'the advanced stages of a terminal and incurable illness'; para 52: 'a terminally ill man'; para 53: 'the critical stage now reached in the applicant's fatal illness'; Judge Pettiti: 'the final stages of an incurable illness'). It was the fact that he was already terminally ill while still present in the territory of the expelling state that made his case exceptional." (per Lord Hope)

"69. In my view, therefore, the test, in this sort of case, is whether the applicant's illness has reached such a critical stage (ie he is dying) that it would be inhuman treatment to deprive him of the care which he is currently receiving and send him home to an early death unless there is care available there to enable him to meet that fate with dignity." (per Lady Hale)
See also per Lord Brown at paragraphs 89 – 94.
59. Laws LJ also went on to hold [66] – [67]:
66. These citations demonstrate that in the view of the House of Lords the D exception is confined to deathbed cases. Miss Lieven submitted that the focus of their Lordships' reasoning (at least that of Lord Nicholls) was upon those with AIDS, a condition much more often suffered than ESKD; so that the strictures in N should not be taken to apply to the latter class of case. But that would be merely adventitious, and therefore unprincipled; and I can find nothing to support it in their Lordships' speeches.

67. This result is all of a piece with the repeated statements in the Strasbourg court that "[a]liens who are subject to expulsion cannot in principle claim any entitlement to remain in the territory of a Contracting State in order to continue to benefit from medical, social or other forms of assistance and services provided by the expelling State" (N v UK paragraph 42; cf paragraph 44, and paragraph 54 in D v UK).
60. The European Court of Human Rights set out the relevant principles in Paposhvili at [181] – [192]. Of relevance here is what was stated at [188] – [192]:
188.  As the Court has observed above (see paragraph 173), what is in issue here is the negative obligation not to expose persons to a risk of ill-treatment proscribed by Article 3. It follows that the impact of removal on the person concerned must be assessed by comparing his or her state of health prior to removal and how it would evolve after transfer to the receiving State.
189.  As regards the factors to be taken into consideration, the authorities in the returning State must verify on a case-by-case basis whether the care generally available in the receiving State is sufficient and appropriate in practice for the treatment of the applicant’s illness so as to prevent him or her being exposed to treatment contrary to Article 3 (see paragraph 183 above). The benchmark is not the level of care existing in the returning State; it is not a question of ascertaining whether the care in the receiving State would be equivalent or inferior to that provided by the health-care system in the returning State. Nor is it possible to derive from Article 3 a right to receive specific treatment in the receiving State which is not available to the rest of the population.
190.  The authorities must also consider the extent to which the individual in question will actually have access to this care and these facilities in the receiving State. The Court observes in that regard that it has previously questioned the accessibility of care (see Aswat, cited above, § 55, and Tatar, cited above, §§ 47-49) and referred to the need to consider the cost of medication and treatment, the existence of a social and family network, and the distance to be travelled in order to have access to the required care (see Karagoz v. France (dec.), no. 47531/99, 15 November 2001; N. v. the United Kingdom, cited above, §§ 34-41, and the references cited therein; and E.O. v. Italy (dec.), cited above).
191.  Where, after the relevant information has been examined, serious doubts persist regarding the impact of removal on the persons concerned - on account of the general situation in the receiving country and/or their individual situation - the returning State must obtain individual and sufficient assurances from the receiving State, as a precondition for removal, that appropriate treatment will be available and accessible to the persons concerned so that they do not find themselves in a situation contrary to Article 3 (on the subject of individual assurances, see Tarakhel, cited above, § 120).
192.  The Court emphasises that, in cases concerning the removal of seriously ill persons, the event which triggers the inhuman and degrading treatment, and which engages the responsibility of the returning State under Article 3, is not the lack of medical infrastructure in the receiving State. Likewise, the issue is not one of any obligation for the returning State to alleviate the disparities between its health-care system and the level of treatment existing in the receiving State through the provision of free and unlimited health care to all aliens without a right to stay within its jurisdiction. The responsibility that is engaged under the Convention in cases of this type is that of the returning State, on account of an act - in this instance, expulsion - which would result in an individual being exposed to a risk of treatment prohibited by Article 3.
61. It is, I consider, arguable that as Mr Chirico submits, the Strasbourg Court has at [gone beyond its earlier jurisprudence. Much of what is additionally required appears to be procedural, but nonetheless, I my view goes beyond the binding authority of GS (India).
Naturally Occurring Illness
62. The reference to “naturally occurring illness” is, properly understood, not an indication but an unnaturally occurring illness would somehow be an exception to the principles set out in N v UK, but rather it is an example which is contrasted with the situation where the alleged future harm emanates not from the intentional acts where omission for public authorities or non-state bodies. There is no reason in principle why in this case (unlike those cases of people who have suffered torture in Sri Lanka and as a result have mental illnesses) cannot be returned to a state which bears no responsibility for their current ill-health. Further, the authority of N v UK [2005] UKHL 31 and the decision in GS (India) are both binding precedent on me as noted above.
63. There has been no basis for the assertion that the concept of “treatment” would encompass the consequences of removal.
64. The claimant’s case is in brief that his deportation to Morocco would be in breach of the United Kingdom’s obligations under Article 3 of the Human Rights Convention, either as a consequence of him being imprisoned in Morocco; or, on account of the impact on him, both in terms of his physical and mental health on return, given, it is said, the lack of appropriate facilities in support. It is submitted that Article 3 would be breached either separately or cumulatively on this ground.
65. It is also argued that it would be a breach of Article 8 of the Human Rights Convention to return the applicant to Morocco.
66. The respondent’s case is, in brief, that there is in reality no risk of the claimant being imprisoned in Morocco, such a fear being speculative; or, that if imprisoned, that would amount to a breach of Article 3. It is further submitted that there would be sufficient support, both in terms of accommodation and treatment available to him, such that the very high threshold to engage Article 3 would not be met.
67. I turn first to the medical evidence in this case
The basis on which the claimant will be returned
68. It is at this point appropriate to consider the basis on which it is said the claimant will be returned to Morocco; that is the point at which any article 3 violation would be triggered. The respondent states that the claimant would be escorted from prison to the airport; that he would be accompanied by escorts on the flight to Morocco and that if necessary a medical escort would be used. The claimant would also be given sufficient medication to last two to four weeks and, once escorted to Morocco, there would be no further arrangements put in place by the authorities. It is expressly stated that there has been no data sharing with the Moroccan authorities.
69. The witness statement of Mr Higgs explains that the claimant is currently in possession of his medication and that he is able to self-administer. This information, it is said, has been provided by the service provider at Integrated Care Ltd, HMP Elmley. The list of drugs is not disputed, but Mr Chirico submits that the evidence is not reliable given that it is best second-hand, and that is unclear what is meant by self-administration. He submits that it raises the question as to whether the applicant is given a daily dose which he takes in his cell, or whether he is allowed to retain the medication in his cell. He submits based on the CQC report that there should be a paper trail available and that on the basis of a policy from Shropshire Community Health which appears to show standard prison operating procedure that certain drugs such as Carbamazepine which is prescribed as an anti-epileptic are suitable for possession requires monitoring of compliance in the form of cell checks given the moderate risk of overdose.
70. It is submitted that the lack of evidence regarding whether the claimant is capable of administering and taking the appropriate dosage of drugs prescribed to him for a period of up to 28 days raises questions as to the efficacy of the respondent’s proposal to give him 28 days supply. Mr Jarvis submits that there is no real risk of the applicant not being able to administer the drugs given to him and that the evidence appears to be that the claimant does have possession of the drugs, consistent both with him being a category C prisoner and notwithstanding his medical conditions it was submitted the evidence points to him being trusted to take his medication.
71. Whilst I accept that there is some criticism of Elmley Prison in the CQC report, it appears from the follow-up visit which took place on 23 March that the situation had improved, and that there are systems and processes in place ensuring that medicine administration was safe and well-managed. It was noted also that the inspection team found risk assessments for patients who had their medicines in possession.
72. Whilst the phrase “self-administration” is not defined precisely, in the context of where it is said that the person in question has the drugs in their possession, I consider that it is sufficiently clear to indicate that the prisoner in question has those drugs in his cell. That is, I consider, in contrast to a situation where, for example, drugs are brought by a nurse or an orderly to the prisoner in the cell for him to take either immediately or during that day. There is, I consider, nothing in the other medical evidence to suggest that the claimant is incapable of taking his medication or that he is not trusted to have it in his possession. It is not a matter on which the three extensive medical reports in the bundle touch.
73. With regard to the evidence of Mr Smith that the Home Office has not passed on information about the claimant’s convictions to the Moroccan authorities and would not do so as there was no data sharing agreement with Morocco, this is of little assistance. As Mr Chirico submitted, information regarding the claimant’s conviction is in the public domain and it is notable that there are no copies of any correspondence or documents submitted to the Moroccan authorities in respect of obtaining an emergency travel document. He submitted that there is a real risk that the Moroccan authorities will know of the claimant’s crime and sentence, and second, that he is still serving a sentence. He accepted that there was insufficient evidence to show that the Moroccan authorities would imprison him, there being no evidence of any law in Morocco which would permit the state to imprison somebody as a continuation or of a punishment imposed by another state, in this case United Kingdom.
74. There is, as Mr Chirico submitted, a lacuna in the evidence as to what happens when a travel document is obtained and it is unclear what information is requested from the claimant. There is no suggestion that this information would be covered by any data sharing agreement if, for example, the material was obtained directly by the Moroccan authorities.
75. I do not, however, consider that anything turns on this and while Professor Toufiq indicates in his most recent comments that there may be difficulties in the Moroccan authorities accepting the claimant back, this is speculative and there appears to be no evidence on which this conclusion this based. Professor Toufiq is not an expert on this area.
76. The evaluation of the consequences to the claimant of deportation must therefore include an evaluation of the evidence of his current condition.
The claimant’s current condition – medical evidence
77. There are in the material before me, three detailed medical reports produced in connection with the most recent parole board hearing. The reports are as follows: -
a. Psychiatric report of Dr Bashir, 24 October 2013.
b. Neuropsychiatric report of Dr Campbell, 3 February 2015.
c. Neuropsychiatric report of Professor Yorston, 5 February 2015.
78. No issue is taken as to the standing of any of these experts. It is of note that both Dr Campbell and Professor Yorston have read Dr Bashir’s report, although they have not read each other’s. They all appear to have had access to previous medical records, albeit that Professor Yorston does note with some concern that he had not had access to medical reports from St Andrew’s Hospital where the claimant had been detained between 2003 and mid-2005 under an order made pursuant to Sections 47/49 of the Mental Health Act 1983. I note also that all three reports were placed before the parole board who took them into account in making their decision of 15 November 2015.
79. Dr Bashir is a Consultant Psychiatrist who undertook an examination of the claimant on the basis that following the parole board hearing in 2011, the judge had indicated that a further assessment be undertaken by a brain injury specialist to consider the applicant’s risks “as the prison service had expressed to be at a loss with regards to assessment of his risk factors if he was to leave the prison”. [1.3] It is of note that the claimant stated he was being bullied in prison remains unsettled but was willing to co-operate with assessments and treatment required as a condition to leave. It is also of note [1.6] that the claimant continues to assert he was not involved in the indexed offence of which he had been convicted.
80. Dr Bashir notes [3.2] that the claimant had suffered two significant head injuries in 1975 and 1987, both of which resulted in a loss of consciousness and a period of post-traumatic amnesia. The incident in 1987 was more severe, resulting in a skull fracture and damage to both frontal lobes. There is clear evidence it appears of a change in personality subsequent to that and that the areas of the brain which were injured [3.3] are those concerned with information processing, organisational skills, judgement processing, complex social information and it was within the structured and controlled environment of a prison he has maintained his conduct with occasional altercations with others, and that he continues to entertain suspicions, feels fearful, scared, it is also recorded that there were incidents of aggression and violence whilst he was in St Andrew’s Hospital. Though the doctor also observes [3.10] that the claimant is an articulate man who has a good enough insight into the consequences of his brain injury and can discuss them in relation to risks which impinges progress from the prison to resettlement and less restrictive conditions. He believes his risks should be further evaluated within a rehabilitation unit or similar setting. It was also recorded [3.17] that the claimant has got partial insight into his condition and life situation, but it is noted [3.17] that the claimant does not appear to have the intellectual capacity, motivation or emotional stability to premeditate, plan and execute an offence against others in a similar way or repeat the index offence, he is however predisposed to showing impulsive outburst of anger, periods of irritability, entertains suspicion and acts on the spur of the moment. It is recorded at [3.27] and [3.30] that the claimant does have some distant relatives in Morocco and meets his brother from time to time, but that it upsets him to talk about this. It also appeared that he has problems with recall of more recent events [3.30].
81. Of particular relevance in this case are the conclusions set out in Dr Bashir’s opinions. The doctor notes that the claimant suffers from clinical depression, the state maintaining his stage of apprehension or anxiety which exacerbates the cognitive and emotional consequences of the severe brain injury. He states:-
“He would remain at risk of recurrent episodes of depression, spells of poor frustration and tolerance escalating to anger outbursts and severe irritability increasing his risk of verbal and physical aggression towards others. It is unlikely that in his current custodial placement any further changes could be achieved, either in his cognitive abilities or in his dysexecutive disorder ... his emotional and cognitive health will remain static or show a slow decline over a period of time.
82. It is noted also [4.3] and [4.4]
4.3 What kind of care and support/medical treatment does he need on leaving prison, in the community for both physical and mental needs, how long might he be expected to need this for.
Mr [NG] is functionally competent with regard to his self care, personal hygiene and maintenance of basic day-to-day functions. He however needs considerable support in monitoring his behaviour, poor frustration tolerance, anxiety and irritability and management of his suspicious way of thinking. He needs supervision/guidance, therapy to reframe his thinking and medical treatment to keep him available for the above mentioned interventions. As stated above he is prone to suffer from secondary complications of the emotional and cognitive consequences of his brain injury which included paranoid states. For the treatment of the above he needs to continue treatment, supervision and monitoring. The role of his medical treatment would be to treat depression, reduce hypervigilance due to paranoia and rigidity in his thinking so that he is more able to consider solutions for a safe resettlement in the community. His medical treatment would have two stages on leaving prison; a ) an acute phase in which the above-mentioned symptoms would be managed/treated actively with both therapy and medical treatments followed by a follow-up phase which is likely to continue for the rest of his life.
If he is not put through an active phase of treatment with a possible goal of resettlement safely into the communities is likely that he would be maintained for an indefinite period of his current treatment. He is becoming physically fragile, suffers from high lipid levels and is likely to remain on cholesterol-lowering drugs and wood stabilisers for the rest of his life
4.4 How would his prognosis and behaviour (in both physical and mental terms) be likely to change were he to be returned to Morocco and have a) no State and/or family care and support; or b) very limited care and support
I have no doubt that if he has no State or family care and support or very limited care and support he will deteriorate. With the emotional and mental disorders as stated above, mental state deterioration could have severe consequences for his prognosis in the future as it would not only increase the risk of harm to himself but also significantly towards others. His physical health is also likely to deteriorate if he did not look after his mental health. Self neglect would also increase the risk of cardiovascular disease as well as diabetes.
Due to his dysexecutive syndrome NG is prone to periods of poor motivation and inertia to look after his physical and mental health. With limited support from family and limited finances he would almost certainly not access appropriate treatment. It is unlikely that NG with no support would be able to adhere to his treatment,
83. In his report, Dr Campbell, who is also a Consultant Psychiatrist and who interviewed the claimant concluded:-
“3.1 Based on the documentary evidence and my own personal assessment of the claimant, I consider that he currently exhibits the classical tirade of traumatic brain injury affecting the frontal lobes, specifically an impaired attention span, cognitive inefficiency and a disexecutive syndrome. This amounts to an organic personality disorder [item F07.0 in the International Classification of Diseases, 10th edition]. For convenience, the definition of an organic personality disorder is exhibited at Appendix 2. In the claimant’s case the most prominent features are altered emotional behaviour (b), cognitive disturbances, particularly suspiciousness (d) and a marked alteration in the rate and flow of language production (e). As this condition is now so long standard, I consider that little future change can be anticipated.”
84. It is noted also [3.2] that attempts at brain injury rehabilitation at St Andrew’s Hospital had proved unsuccessful, perhaps not surprisingly given the severity of his brain injury. It is also said:-
“I consider the claimant is now in need of a low secure or locked long-term specialist brain injury unit where there would be no necessary expectation for change but which could still provide slow stream rehabilitation to the extent that remains possible. As a minimum, this would provide for adequate risk management to allow for the possibility of risk reduction over time with a view to eventual community resettlement. I cannot predict the likelihood of change or the like and timescale for change.”
85. Professor Yorston’s assessment opinion notes that the claimant is functioning at the lower end of the normal range of IQ, although his cultural and educational background may have resulted in this being an under-estimate of his true intelligence, but [91] his IQ may have been lower than average prior to the head injury. It says also that he concludes that the claimant’s emotional liability and irritability are indeed a consequence of the brain injury; that he has a mild organic personality disorder ICD10F.07.0 and that the brain injury may have resulted in him being irritable and sexually disinhibited, and that whilst there is little disagreement about the diagnosis of the organic personality disorder, it is less certain whether this may be treated [94]. The Professor was, however, unable to access the records from St Andrew’s and concluded that without those it was not possible to form an opinion as to whether he might benefit from a further period of rehabilitation in hospital.
86. In its report of 15 November 2015 the parole board noted that psychiatric and psychological reports prepared at the time of the claimant’s trial five years after the assault showed that he had as a result of the head injury low IQ scores putting him in the severely mentally impaired range, poor memory and concentration, instability of mood and difficulty in controlling emotions. It is noted also that the effects of the head injury have caused erratic and unpredictable behaviour and angry, aggressive irrational outbursts and attitudes of non-co-operation, and due to the instability he had not been able to complete any formal risk reduction work. There is a history it appears of mood swings and outburst of aggression, his conduct causing difficulties to staff. Whilst there may have been nine adjudications in the past, there appears to have been only one adjudication in 2011 and none since then. It is of note that the panel sitting in 2013 agreed with Dr Bashir’s view but required further information from Professor Yorston and Dr Campbell. It concluded as follows:-
“None of the professional witnesses supports a move to open prison or release; and, as has been explained at the beginning of this decision, you do not seek either. Professor Yorston and Dr Campbell are agreed that you need to be transferred to a low-secure long-term specialist brain injury hospital unit, where some progress through appropriate therapeutic treatment might lead to risk reduction and, eventually, to the ability to be reintegrated into the community. The parole board cannot direct or order such transfer; nor can it formally recommend it: but it is clear that route provides what appears to be the only way in which he might be rehabilitated after 25 years in custody; and it may be perceived by those who consider your case it is only right that it should be tried. It is clear that that route is supported by both the Consultant Psychiatrists who have considered your case in recent times. At present, however, your risks cannot be said to have been reduced either to the point at which release can be considered or to the point at which they can be safely managed in open conditions.”
87. In addition to the above material there is also a report produced by Professor Jallal Toufiq, Professor of Psychiatry at the Rabat Faculty of Medicine, Rabat, Morocco. He is also a Director of a psychiatric hospital. The report is directed towards an assessment of what mental facility and to health facilities and programmes would be available for the claimant in Morocco. In producing his report he had access to the reports from Professor Yorston, Dr Campbell and Dr Bashir; he also consulted colleagues from various departments in the Ministry of Health in Morocco as well as with colleagues in the Moroccan Society of Neurology and the Moroccan Association of Neurosurgery. He opines [5.1] that there are scarce rehabilitation programmes for head injury, some of those being in the private sector, mainly very expensive, the only long-term facility being the Nour Rehabilitation Centre near Casablanca, offering indiscriminate rehabilitation programmes to all motor deficiencies and is an open day care centre. He states also that there is no specific secure facility for head injury, almost all secured facilities in the country being for psychiatric disorders per se [5.1.8], the sole secured facility for non-mental ill patients being not being meant for agitated patients [5.1.9] and that organic personalities are usually taken care of in psychiatric facilities.
88. Professor Toufiq also agrees with Dr Bashir’s opinions as set out above noting that:-
“5.2.2 Displacing the claimant from the UK to Morocco could have tremendous consequences both on his physical as well as psychiatric condition. Based on Dr Bashir’s diagnosis, it is very likely that the claimant would experience serious cognitive impairment and behavioural disturbances following his deportation to Morocco. The huge gap between the medical services and the quality of care, in the public sector, between the two countries could aggravate his condition to a significant level.
5.2.3 Dr Bashir’s report mentions depression and anxiety. These two conditions would worsen if the claimant were to return to Morocco without a clear progressive continuous and specific quality-care plan.
5.2.4 The claimant suffers from co-morbid psychiatric and physical conditions. Returning to Morocco would require a comprehensive care plan within an adequate facility. This needs a great deal of quality medical care, along with solid insurance coverage. All these conditions are absent for the time being in Morocco.”
89. Professor Toufiq also notes that all the medication is available, the concern being rather about monitoring compliance.
90. Asked to comment on the degree to which the claimant would be able to integrate into society in Morocco and the availability of appropriate community and/or state support and likely socio-economic position, said:-
“5.6.1 The state of Morocco offers needy people a specific insurance package called Ramed. If the claimant is to return to Morocco he can apply for Ramed which would allow him to benefit from basic healthcare services with limited access to other costly services. He may be forced into changing his medicines to low cost ones (generics). Neither could he, under Ramed regime, have access to sophisticated brain investigations. It is stated also that there are state-funded programmes for homeless persons living in poor conditions and that there are very active NGOs providing shelters to the needy, but then again there are no specific suicide prevention or management programmes. It is also noted that there is almost no major stigma in areas to those with mental disorders and/or against convicted criminals. The final conclusion is that the claimant’s reintegration into the community in Morocco is likely to prove very difficult.”
91. Professor Toufiq has added to his comments in a further statement dated 7 November 2016. It is said that to benefit from the programmes in respect of head injuries he would need to live in either Rabat or Casablanca for the day care centres and that he would need to have health insurance. It is not clear if this would be covered by Ramed. He said that there is a long-term care facility in Casablanca, the Nour Centre, but that there is a long waiting list, taking sometimes months. With regard to the NGOs providing shelter to the needy, it is noted that a serious neurological illness could:-
“definitely refrain NGOs from accepting him as they run with very limited human and material resources. The health condition would be the main barrier to get registered to one of these shelters, more than his legal record.
Personally, my main fear is the reaction from the Moroccan authorities once served by the UK authorities with the request that they take back a convicted murderer with neurological problems who has lived in the United Kingdom for 40 years. They reluctantly reject the request, which is very likely, they will at least pose a number of pre-conditions for that to happen. The most obvious one is for the claimant to have a family in Morocco willing to fully take care of him and constantly look after him”.
92. Asked to address the Home Office’s evidence with regard to medical facilities Professor Toufiq states that the public health system is in general problematic, the public mental health system being very poor.
Evidence of the Claimant’s Brother
93. Although the claimant’s brother did not give evidence at the hearing, he did give evidence before the First-tier Tribunal. No reason has been advanced as to why that evidence or the conclusions reached about his credibility by Judge Callow should not stand. I accept on that basis that the claimant’s parents are deceased, that he has a sister in Morocco who is married, and accept that she would not be able to accommodate people and that the sister is not fully aware of the claimant’s situation. I do not, however, accept his opinion evidence that there would be no healthcare for the claimant and that health insurance would not be available and would not cover the claimant’s needs. On his own evidence the claimant’s brother has limited contact with Morocco and I prefer on this issue the expert evidence of Professor Toufiq who is in a better position to give evidence on this. Similarly, the references to prejudice towards the mentally ill at [14] must be viewed through the expert evidence of Professor Toufiq whose evidence is that there is less stigma.
94. Further, although the brother says that he would not be able to fund the care that the claimant would need if deported [15] and the other brothers are either retired or unable to pay money, he does not appear to give much evidence about those costs. Much of what he says is predicated on the unavailability of state aid.
95. Similarly, it is difficult to attach much weight to the claimant’s brother evidence as to the prognosis on return. Again, I consider that in the circumstances I prefer the expert evidence of psychiatrists as to the claimant’s vulnerability, particularly with regards to what is said at [18] to self-harm. That is not to say that any damage is done to the brother’s credibility. I accept that in the case of relatives it is understandable for people to stress their fears.
96. I do, however, note that whilst discussing private health insurance the brother does not engage with Professor Toufiq’s opinion that Ramed would be available to assist the claimant.
97. What, then, is likely to happen to the claimant on return?
98. I have no doubt, in light of the medical evidence, that returning the claimant to Morocco will be a profound shock on him. He has, after all, spent the last 26 years in prison, almost all of it at HMP Elmley. I take note of the evidence that those who have been serving life sentences are, generally, prepared for release into the outside world through a gradual relaxation of the strictness of the relevant prison regime, such as transfer to open prisons or lower security establishments and a gradual reintroduction to the outside world. I consider also that the shock and effect of removal on the claimant will be stronger given that he will be returned to a country where he has not lived for over 40 years and which he has visited only infrequently.
99. I am satisfied that there will be some provision for his health problems, and that medication will be available for him. There is insufficient evidence that he, with family assistance, could not be covered by the state Ramed system. I accept that it may be difficult for him to get accommodation, and employment, given his age and health, but I am not satisfied that his brother would be unable to send him some money.
100. I accept that it is wholly unlikely that any family members in Morocco would provide him with accommodation. After all, he is a convicted murderer with significant mental health problems, and who has been assessed as presenting a high risk to member of the public.
101. Nonetheless, viewing the evidence as a whole, I am not satisfied that there is a real risk that the claimant would be left destitute or without medication. That will be provided to him on return, and there is insufficient evidence to show he is not able to administer it, or that he cannot access appropriate medication under the Ramed scheme. I am not therefore satisfied that he is at risk of the consequences of carmebazine withdrawal
102. While I note Mr Chirico’s submissions with respect to Sufi and Elmi and MSS v Belgium and Greece, I am not satisfied that properly applied to the facts found in this case, that these assist the claimant.
Risk of Committing Further Criminal Offences
103. It is submitted that one of the results of the likely deterioration in the claimant’s mental health is that he will go on to commit criminal offences which will result in his imprisonment in conditions which would breach Article 3 of the Human Rights Convention. Mr Jarvis submits first that this is speculative, second, that the United Kingdom cannot be held responsible for the applicant’s actions and, in any event, that there is insufficient evidence to show that detention in Morocco would engage Article 3.
104. There is limited evidence of the applicant now being aggressive or violent although he is still classed as being of high risk to the public. The adjudications which are on his record are now of some years’ vintage. That may be because the applicant is now in a stable environment.
105. There is, I accept, a difference, albeit a nuanced one, between the more recent medical reports and the earlier report of Dr Bashir. Dr Bashir was more optimistic about the chances of rehabilitation; Professor Yorston and Dr Campbell were less optimistic. Whether that is a difference of opinion or because, as may be the case, owing to the claimant’s deterioration over time the slim chance of rehabilitation identified by Dr Bashir has now all but vanished.
106. There are I consider too many variables to be considered in assessing whether the applicant is likely to commit an offence of violence or any other offence of such severity which is likely to result in his imprisonment. Further, as Mr Chirico to an extent accepted in submissions, there is insufficient evidence to show that the conditions of detention in Morocco are such as to breach Article 3. The evidence set out in the US State Department report is of limited detail. It comes nowhere near the evidential basis that would be required to make an assessment on the basis of the now quite detailed case law of the European Court of Human Rights on Article 3 and detention rights. – see the recent Grand Chamber decision in Mursic v Croatia [2016] ECHR 927.
107. In conclusion, and drawing these strands together, I conclude that it would not be in breach of article 3 to deport the claimant to Morocco, albeit that he faces, as did the claimant in Bensaid face very serious problems and difficulties on return to Morocco. Taking together the lack of much family support in Morocco, the limited nature of medical help and absence of the type of accommodation which would be best form him given the nature of his disabilities, it is by a narrow margin that the claimant has not succeeded on this issue.
Article 8
108. It is not submitted that the applicant has any family life in the United Kingdom. I accept that he has a private life and that that includes his moral and physical integrity. His private life is, given that he has now been imprisoned for some 26 years, of necessity limited. It would, however, I accept include his right to continue to treatment, to be cared for in a manner such that his dignity is maintained. I am satisfied that on the facts of this case, given the length of time the applicant has spent in the United Kingdom and his mental and physical disabilities, that his deportation to Morocco would engage Article 8 of the Human Rights Convention. I am satisfied also that any harm is sufficiently serious to be an interference and, given that it is in order to carry out a deportation order, that it is in accordance with law. Dealing with the remaining question as set out in Razgar, that is the issue of proportionality, I must bear in mind the strong public interest in removing foreign criminals.
109. There is no doubt that the applicant is a foreign criminal as defined in Section 117D of the 2002 Act. I am therefore bound to consider the matter as set out in Section 117C which provides as follows:-
“117C Article 8: additional considerations in cases involving foreign criminals
(1) The deportation of foreign criminals is in the public interest.
(2) The more serious the offence committed by a foreign criminal, the greater is the public interest in deportation of the criminal.
(3) In the case of a foreign criminal (“C”) who has not been sentenced to a period of imprisonment of four years or more, the public interest requires C’s deportation unless Exception 1 or Exception 2 applies.
(4) Exception 1 applies where—
(a) C has been lawfully resident in the United Kingdom for most of C’s life,
(b) C is socially and culturally integrated in the United Kingdom, and
(c) there would be very significant obstacles to C’s integration into the country to which C is proposed to be deported.
(5) Exception 2 applies where C has a genuine and subsisting relationship with a qualifying partner, or a genuine and subsisting parental relationship with a qualifying child, and the effect of C’s deportation on the partner or child would be unduly harsh.
(6) In the case of a foreign criminal who has been sentenced to a period of imprisonment of at least four years, the public interest requires deportation unless there are very compelling circumstances, over and above those described in Exceptions 1 and 2.
(7) The considerations in subsections (1) to (6) are to be taken into account where a court or tribunal is considering a decision to deport a foreign criminal only to the extent that the reason for the decision was the offence or offences for which the criminal has been convicted.”
110. The applicant has committed murder. The murder was violent, involving several knife wounds. The claimant’s crime is very clearly at the most serious end. While his tariff has long expired, the claimant does not accept that he committed the crime and it is concluded by the parole board that he continues to be a danger to others.
111. Given the quite clearly overwhelming public interest in deporting an unrepentant murderer, I am not satisfied on the facts of this case that the interference with the right would be sufficient to shift the balance in the claimant’s favour.
Anonymity
112. I have anonymised the claimant, given that much of the evidence relates to his medical condition and arises from Parole Board reports and decisions.

Conclusions
113. For the reasons set out above, I remake the appeal by dismissing it on all grounds.
114. Given the unique circumstances of this case, I would strongly recommend the respondent to start a dialogue with the Moroccan authorities to ensure, so far as is possible appropriate reception arrangements are made so that there will be a continuity of care.

SUMMARY OF CONCLUSIONS
1. The decision of the First-tier Tribunal involved the making of an error of law and I set it aside.
2. I remake the decision by dismissing it on all grounds.

3. Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/269) I make an anonymity order. Unless the Upper Tribunal or a Court directs otherwise, no report of these proceedings or any form of publication thereof shall directly or indirectly identify the original appellant. This direction applies to, amongst others, all parties. Any failure to comply with this direction could give rise to contempt of court proceedings. I do so as the claimant is a vulnerable person and given that much of the evidence relates to his medical condition and arises from Parole Board reports and decisions

Signed Date: 18 April 2017

Upper Tribunal Judge Rintoul