Bensaid v. United Kingdom

Application No. 44599/98; (2001) 33 EHRR 10; [2001] ECHR 82; [2001] MHLR 287; [2001] INLR 325; 11 BHRC 297
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Bensaid brought an action against the United Kingdom as a result of a proposed deportation order to Algeria.

Bensaid was a schizophrenic suffering from a psychotic illness. He had arrived in the United Kingdom from Algeria in 1989 and had been granted indefinite leave to remain after marrying a United Kingdom citizen. This leave lapsed after he left the country to visit Algeria. On returning from his visit to Algeria he was refused leave to enter and was granted temporary admission pending further enquiries after suspicions were raised about his marriage. On the basis of these enquiries, the immigration authorities decided to refuse leave to enter, considering his marriage to have been a convenience and his leave to have been obtained by deception.

Bensaid sought to defer his expulsion on the grounds of his mental health issues. The Secretary of State for the Home Department (the Secretary) refused this deferral, and Bensaid applied for judicial review of the Secretary’s decision. The High Court refused to grant leave for judicial review, and Bensaid’s appeal of this decision to the Court of Appeal was also dismissed.

Bensaid argued that his proposed expulsion to Algeria placed him at risk of inhuman and degrading treatment contrary to article 3 of the ECHR. He submitted that his removal would place him at a real risk of relapse of his illness because he would not receive the degree of support and access to medical facilities that he relied upon in the United Kingdom. He also argued that his removal would violate article 8 of the ECHR. Removal was likely to have a severely damaging effect on his private life in the sense of his moral and physical integrity, as without treatment for his illness he would be deprived of his ability to interact with the community and establish or develop relationships with others. Finally, Bensaid argued that he had no effective remedy against his proposed expulsion, as required by article 13 of the ECHR, because judicial review did not allow for review of the merits of the Secretary’s decision.

The Court found that Bensaid had not met the high threshold required to show an article 3 violation. Although it accepted the seriousness of his medical condition, and the possibility that his reduced access to treatment and the greater instability in Algeria might increase his risk of relapse, it considered that the risk of his condition worsening were largely speculative, and that Bensaid would also face a risk of relapse if he remained in the United Kingdom. It was not enough in itself that the treatment available in Algeria was lesser than the treatment available in the United Kingdom.

The Court rejected the article 8 claims on similar grounds. Although it accepted that adverse effects on physical and moral integrity could constitute a violation of article 8 even if they were not severe enough to attract the applicability of article 3, and considered that preservation of mental stability was integral to the enjoyment of the right to respect for private life, it rejected Bensaid’s claim on the basis that the risks of damage to his mental health were largely hypothetical. It considered, however, that even if they were proved on the evidence, they would be justified under article 8(2) as being “in accordance with the law” and “necessary in a democratic society” for the legitimate ends of protecting the United Kingdom’s economic well-being and preventing disorder and crime.

The Court also rejected the article 13 claims, as it considered that domestic courts in the United Kingdom had carefully scrutinized the applicant’s claim, and had had the competence to award Bensaid the remedy he was seeking. The fact that it had chosen not to after this extensive consideration did not mean that Bensaid did not have a remedy available to him. The Court distinguished this case from Smith and Grady v. the United Kingdom, Application Nos. 33985/96 and 33986/96, where a general policy gave a great degree of discretion to the authorities that would then be beyond judicial review.

“While it is true that Article 3 has been more commonly applied by the Court in contexts in which the risk to the individual of being subjected to any of the proscribed forms of treatment emanates from intentionally inflicted acts of the public authorities or non-State bodies in the receiving country (see, for example, Ahmed, cited above, p. 2207, § 44), the Court has, in the light of the fundamental importance of Article 3, reserved to itself sufficient flexibility to address the application of that Article in other contexts which might arise. It is not, therefore, prevented from scrutinising an applicant's claim under Article 3 where the source of the risk of proscribed treatment in the receiving country stems from factors which cannot engage either directly or indirectly the responsibility of the public authorities of that country, or which, taken alone, do not in themselves infringe the standards of that Article. To limit the application of Article 3 in this manner would be to undermine the absolute character of its protection. In any such contexts, however, the Court must subject all the circumstances surrounding the case to rigorous scrutiny, especially the applicant's personal situation in the expelling State.” Para. 34.

“Not every act or measure which adversely affects moral or physical integrity will interfere with the right to respect to private life guaranteed by Article 8. However, the Court's case-law does not exclude that treatment which does not reach the severity of Article 3 treatment may nonetheless breach Article 8 in its private-life aspect where there are sufficiently adverse effects on physical and moral integrity” Para. 46.

“Mental health must also be regarded as a crucial part of private life associated with the aspect of moral integrity. Article 8 protects a right to identity and personal development, and the right to establish and develop relationships with other human beings and the outside world (see, for example, Burghartz, cited above, opinion of the Commission, p. 37, § 47, and Friedl v. Austria, judgment of 31 January 1995, Series A no. 305-B, p. 20, § 45). The preservation of mental stability is in that context an indispensable precondition to effective enjoyment of the right to respect for private life.” Para.47.

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