Information Note on the Court’s case-law No. 27
February 2001
Bensaid v. the United Kingdom - 44599/98
Judgment 6.2.2001 [Section III]
Article 3
Expulsion
Expulsion of a schizophrenic and alleged risk of deterioration due to lack of adequate care in the country of destination: no violation
Article 8
Article 8-1
Respect for private life
Expulsion of a schizophrenic and alleged risk of deterioration due to lack of adequate care in the country of destination: no violation
Article 13
Effective remedy
Judicial review of expulsion: no violation
Facts: The applicant, an Algerian national, is schizophrenic. He arrived in the United Kingdom as a visitor in 1989 and was granted leave to remain for studies. Further leave was refused in 1992, but the applicant married a British national in 1993 and was granted leave to remain as a foreign spouse. However, after he returned from a visit to Algeria in 1996, he was refused leave to enter (having been granted temporary admission), as the authorities considered that his marriage was a marriage of convenience. He was served with notice of intention to remove him. He was refused leave to apply for judicial review but appealed to the Court of Appeal, submitting medical reports in support of his contention that his removal would entail a high risk of psychotic symptoms returning. The Government maintained that appropriate care was available at a psychiatric hospital around 80 km from the applicant's village and that the journey to the hospital presented no danger. The applicant's appeal was dismissed on that basis.
Law: Article 3 – The medication which the applicant currently takes would be available to him if he was admitted as an inpatient in Algeria and would potentially be available on payment as an outpatient; moreover, other medication is likely to be available. The suffering associated with a deterioration in his mental illness, possibly with hallucinations and psychotic delusions involving harm to self and others, as well as restrictions in social functioning, could in principle fall within the scope of Article 3. However, there is a risk of relapse even if he remains in the United Kingdom and, while the differences in available personal support and accessibility of treatment which removal would entail will arguably increase the risk, the fact that his circumstances would be less favourable than those he enjoys in the United Kingdom is not decisive. The risk of deterioration and the alleged lack of adequate support or care is to a large extent speculative: the information provided does not indicate that travel to the hospital is effectively prevented by the situation in the region and the applicant is not himself a likely target of terrorist activity. Having regard to the high threshold set by Article 3, particularly where the case does not concern the direct responsibility of the Contracting State for the infliction of harm, there is not a sufficiently real risk that the applicant’s removal would be contrary to the standards of Article 3.
Conclusion: no violation (unanimously).
Article 8 – Treatment which does not reach the severity of Article 3 treatment may nonetheless breach the right to respect for private life when there are sufficiently adverse effects on physical and moral integrity and mental health must be regarded as a crucial part of private life associated with the aspect of moral integrity; the preservation of mental stability is an indispensable precondition to effective enjoyment of the right to respect for private life. In the present case, in view of the finding that the risk of damage to the applicant’s health is based on largely hypothetical factors and that it is not substantiated that he would suffer inhuman and degrading treatment, it has not been established that his moral integrity would be substantially affected to a degree falling within the scope of Article 8. Even assuming the dislocation caused by removal from the United Kingdom, where he has lived since 1989, would affect his private life, in the context of his relationships and support framework, such an interference may be regarded as “necessary in a democratic society” for the protection of the economic well-being of the country and the prevention of disorder and crime.
Conclusion: no violation (unanimously).
Article 13 – The domestic courts give careful and detailed scrutiny to claims that expulsion would expose an individual to a risk of inhuman and degrading treatment and the Court of Appeal did so in this case. The fact that this scrutiny takes place against the background of the criteria applied in judicial review of administrative decisions, namely rationality and perverseness, does not deprive the procedure of its effectiveness. The substance of the applicant’s complaint was examined by the Court of Appeal, which had power to afford him the relief he sought. The fact that it did not do so is not a material consideration, since the effectiveness of a remedy for the purposes of Article 13 does not depend on a favourable outcome.
Conclusion: no violation (unanimously).
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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