England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
(Mr Justice Tucker)

		Royal Courts of Justice Strand London WC2 Friday 23 March 2001

Friday 23 March 2001

1. LORD JUSTICE MANCE: This is an application for permission to appeal against the refusal of Tucker J to grant permission to apply for judicial review in respect of the decision of the Secretary of State, first given on 22 March 1999 and maintained after further consideration on a number of subsequent occasions, particularly 24 and 28 March 2000 and 24 May 2000. It was a decision to issue a certificate under s 2 of the Asylum and Immigration Act 1996, authorising the removal of the applicant to Germany.
2. There has been made in respect of the applicant by the judge below an order that his identity be maintained confidential, and we continue that.
3. An extension of time for making this application is necessary but we are prepared to grant that in the light of the applicant's solicitor's sixth affidavit, sworn on 16 June 2000. It is only a short extension.
4. The applicant is a 31-year old Ethiopian. He arrived in Germany on 11 December 1994 and made an application for asylum which was finally refused by the Administrative Court on 28 August 1996, a refusal effective from 8 October 1996. While his application was being considered he was allowed to remain in Germany, being required (by administrative decision or Zuweisungsentscheidung) to reside in the community of Grefrath, in the district of Viersen and local government area of Düsseldorf. He was diagnosed as HIV positive in 1996. At some point he became ill. He also sought and was given further temporary permission to remain (Duldung), as evidenced by a decision dated 22 April 1997, on which document regular monthly extensions are noted, the last of which expired on 16 February 1998.
5. Under the German National Health System (in particular under paragraphs 37 and 99-100 of the Bundessozialgesetz) he had a statutory entitlement to medical attention (Krankenhilfe) which it was the duty of either the community or the district (which is not clear) to arrange - at its own expense, which in the case of a patient like the applicant could evidently become very expensive. Until 1998, however, there seems to be no doubt that he received medical attention not merely from a local doctor but from and at the Heinrich Heine University, Düsseldorf.
6. On 16 February 1998, no doubt in the absence of any further administrative extension, he sought and obtained interim injunctive relief from the Administrative Court in Düsseldorf, ordering the district administrator of Viersen to refrain from taking any steps to end, and to continue to tolerate (dulden), his stay. This may well link with the statement in paragraph 8 of the applicant's second statement of truth that in January 1998 the Head of the Local Immigration Office, a Mr Thewessen (or Tiwison), took steps in preparation for his deportation. On 22 April 1998, the Administrative Court ordered the district administrator to grant the applicant a Duldung for, in the first instance, six weeks, on the ground of medical evidence, particularly a certificate dated 3 March 1998 presented by the University. This was to the effect that his life expectancy would be materially affected if he did not continue to receive the "dual combination" therapy. It would in particular be reduced from a bracket of "2 to 7 years" to a bracket of "a few months to years". This decision was deliberately short-term, and further continuation of the Duldung was said to depend on evidence about the applicant's past and future treatment in Germany, and about the possibility that the same or equivalent treatment could be obtained in Ethiopia.
7. On 10 September 1998 the applicant arrived in the United Kingdom on the ferry "Searider" from the Hook of Holland. He claimed that the vessel had made a 32-day voyage with him on board, and sought asylum on the basis that his life was in danger in Ethiopia as an Etrirean, and in Etrirea as someone who had fought against the Etrirean People's Liberation Front. He disclosed that he was HIV positive. The Immigration and Nationality Directorate discovered his period of German residence and, by letter dated 16 March 1999, directed his return to Germany under s 2(2) of the 1996 Act. By a solicitor's letter dated 20 April 1999 the applicant asked the Secretary of State to allow him to remain for humanitarian and compassionate reasons, on the grounds that (i) if he was forced to return to Germany he would "almost certainly" face deportation to Ethiopia and (ii) he was "unable to get appropriate treatment by the health services in Germany in that he was repeatedly denied medications and was put under enormous pressure by the health services to leave the country", so that to force him to return to Germany "would therefore, mean a harsher treatment and a further deterioration in his health".
8. The application for judicial review was issued on 26 May 1999 repeating both grounds and verified by a short statement by the applicant. The application said that further evidence was being sought on them and would be supplied as soon as possible. It does not appear that any was in the short term.
9. The Secretary of State however did obtain evidence, albeit of a somewhat general nature, from the Administrative Director of Viersen, who recorded in a letter dated 17 August 1999 that the Grefrath Social Security Office had confirmed that the applicant "was regularly examined by and also admitted in the Düsseldorf University Hospital Clinic". On 29 February 2000 the Secretary of State reflected in a letter his belief that this was the position and also that the Aliens Authority for Viersen would permit the applicant to continue to reside in Germany on humanitarian grounds.
10. By a further, longer statement dated 14 March 2000 the applicant spoke of being harassed (following the Administrative Court decision of 22 April 1998) by the immigration and social services, by being forced to attend frequently, by being forced by lack of money to walk 10 km to attend, by being abused and threatened with deportation "whenever I attend at the Immigration Office". He said that his National Insurance Card had been withheld so that he could not obtain medical assistance and that he remained at home seriously ill from 5 June 1998 until 20 July 1998, that this was despite requests by his local doctors to the social services to allow them to treat him at the University and that he was only eventually treated at the University Clinic because Dr Petry of that Clinic "took the risk and treated me without the permission of the social services". He said that "Numerous letters and medical reports written by medical experts in support of my application were ignored" and that he became so depressed and anxious that he contemplated suicide. To what "application" he was referring is not clear and no letters or reports were produced.
11. A letter from the applicant's German lawyers, Messrs Hartkopf, Langenfeld & Partner GrR of Mönchengladbach, dated 9 March 2000, said that, after the Administrative Court decision of 22 April 1998, the Grefrath Immigration Office:

". . . obviously saw no other possibility to solve the problem [of the cost presented by having to treat a patient such as the applicant] . . . than setting him under pressure. They again and again told him that he will be deported and that he has to leave Germany. Because of this they prolonged his restdocuments allways for only one or two weeks allthough they had the possibility to prolong it for at least 6 months".

12. Messrs Hartkopf had been specifically asked whether they had ever heard or observed mistreatment of the applicant, but all they said on this was:

"As we know the immigration officers told [the applicant] again and again that he had to leave germany by himself, otherwise he was to be deported by force"

and:

" . . . the social services said to stop his social help if he doesn't leave Germany or cares for travel document. We believe that they only used this official argument to set him under pressure because it was clear that he had the right to stay here for at least several years in his situation regarding the decision of the court in Düsseldorf.

We made a lot of similar experiences with the immigration and social services in Germany, especially with the community of Grefrath and Viersen. As above said usually the immigration officers are set under pressure by the social services themselves to push out as many people out of Germany as possible."

13. Reading that letter, it does not appear that Messrs Hartkopf were speaking of matters in respect of which they have direct knowledge relating to this particular applicant.
14. Then they went on in their letter, in a passage to which counsel referred us this morning:

"We believe that we can help [the applicant] if he came back to Germany but for us it's not possible to do anything against all the mistreatments he has to care the time he's alone with immigration and social officers. We do believe that the mistreatments he will have to care, although they happen legally, will be mistreatments against his basic human rights because the German immigration and social officers do not care about his very special personal situation. [He] will surely feel like an abandoned criminal.

We do believe that his dignity will be mistreated, allthough this meaby will not reach a level as high that he can be helped by the German courts."

15. I interpose that it strikes me as a remarkable proposition that under German law mistreatment can occur legally which nonetheless offends a person's basic human rights. The German constitution itself, quite apart from the incorporation in Germany of the European Convention on Human Rights, cannot, I think, be consistent with that proposition.
16. The applicant also relies on the sworn statement dated 21 March 2000 of Frau Silvia Lohmann, a member of a voluntary church group working with refugees in Viersen. She recounts firstly the applicant's plight in 1997, and then a visit on which she accompanied the applicant to see Mr Thewessen, when the latter told the applicant in her presence that he had no right to stay and had to leave Germany, and telephoned the airport to ask for the time of the next plane to Ethiopia. That may well be (and seems, indeed, likely to be) once again the January 1998 episode referred to by the applicant in his second statement (see above), since Frau Lohmann recounts how this episode, concerning her visit with him to see Mr Thewessen, led her to accumulate the evidence on which the successful application to the Düsseldorf Administrative Court was based. Frau Lohmann, however, goes on to record that after the Administrative Court's decision the applicant:

" . . . felt safer . . . but had to appear at the immigration office to have his stamp renewed every three months."

17. She also said:

"I usually accompanied him on these occasions to make sure the officers would not trouble [him] unnecessarily. By this time he had gone through a very bad time with stays and treatment in two different hospitals. The local social service had been quite helpful at the start of [his] suffering. Later they got more and more negative."

18. She explained that this was due to the cost of his treatment, and then said, without further detail:

"[He] got more and more under psychological pressure and at the same time his state of health got worse and worse."

19. She then recounts how, while she was on holiday in August 1998, the applicant simply disappeared, later phoning her to say that, when he had gone to the immigration office in her absence, they had told him they would send him back to his home country. Finally, she says that, in her experience, the immigration officers are clever enough not to offend against German law, but their policy is "to press on refugees psychologically to make life unbearable for them".
20. Frau Lohmann's account is of considerable interest and in some respects in sharp contrast with the applicant's own second statement: in particular, in her statement that the applicant felt safer after the April 1998 court decision; in the absence of any suggestion of harassment or threat on the occasions when she accompanied the applicant to the immigration office after that decision; in the absence of any suggestion of lack or inadequacy of medical attention; and in the absence of any reference to that as a reason for leaving England in the telephone conversation with the applicant that she recounts in or about September 1998.
21. There was also submitted to the Secretary of State:

(a) medical evidence from the applicant's general practitioner, Dr Cartledge, stating that:

"When in Germany he also had difficulty accessing health care for his HIV disease and has lost confidence in his capability to be cared for there."

(b) a psychologist's report from a Mr Oakes concluding, among other things, that the applicant's mental health could be seriously harmed and he could be a suicide risk if removed to "Germany or Ethiopia, where he would be subjected to isolation . . . and deprived of essential medical facilities". The bracketing of those two countries in this context is not perhaps one which one would usually expect, but in any event the validity of the whole conclusion obviously depends upon its premise, namely the information received from the applicant about his alleged treatment.

22. The Secretary of State responded to this new material with great speed, by letters dated 24 and 28 March 2000. In the first letter he referred to recent confirmation from the German authorities that the applicant would receive full access to medical treatment on his return. He did not accept that the "extraordinary" complaints about the immigration and social services in Grefrath had any substance, but had no doubt (on the basis, he said, of his frequent contact with the German authorities and knowledge of the German system) that, even if they did have substance, the applicant would, with the legal advice and charitable support clearly available to him, be able to have adequate redress by drawing such serious malpractice to the police and/or courts' attention. The Secretary of State did not therefore accept the premise upon which it was suggested that the applicant would be at medical and psychiatric risk. Nor did he accept that there was any risk of return to Ethiopia. In the second letter, the Secretary of State said that the German authorities had confirmed by telephone that morning that, if notified in advance of the applicant's specific medical condition, they would ensure that relevant treatment would be available to him on his return. Finally, the Secretary of State indicated that, balancing the relevant considerations, he did not consider that this was a case where he should re-determine the applicant's original claim to asylum, against which the German authorities and court had ruled.
23. In a third statement dated 17 April 2000 the applicant recounted, for the first time, a specific occasion, said to be about a week after the court order of 22 April 1998, when, he said, he had attended on Mr Thewessen with Frau Lohmann and Mr Thewessen, having insisted that Frau Lohmann leave the office, had then told him that he had already purchased his ticket for Ethiopia and that the next flight was on Monday or Tuesday. No such occasion was mentioned in his second statement and it is also conspicuously absent from - and indeed positively inconsistent with - Frau Lohmann's clear statement. On the other hand, it does contain clear echoes of the conversation which it appears did take place in January 1998 before the applicant was able to take successful court action to protect his position in Germany.
24. The applicant also recounts a general refusal by Frau Springer of the social services to authorise specialist treatment from 22 April 1998 onwards. This contrasts with the limited period (5 June to 20 July 1998) mentioned in his second statement, and again with the absence of any reference to this as a problem by Frau Lohmann. It is fair to add, however, that paragraph 5 of this third statement, although said to be referring to a time "soon after" the meeting with Mr Thewessen, is clearly referring to the same alleged experience that the second statement recounts as occurring in the period June-July 1998.
25. The applicant also produced an affidavit of Dr Brand, a German lawyer, sworn 17 April 2000, attesting to the German national health system, the rights under it of persons such as the applicant and the absence of any legal basis on which Federal Immigration authorities could bind local authorities with respect to the extent or performance of their duties to provide Krankenhilfe; and a short certificate dated 14 April 2000 from the applicant's general practitioner, Dr Cartledge, explaining that his comment dated 19 April 1999 about difficulty accessing care and loss of confidence "was a rewording of [the applicant's] own statement to me about his experience in Germany". One might comment therefore that this certificate does not suggest that the applicant was putting any objection to his German medical treatment very high to his own doctor in early 1999.
26. Asked whether he had any opinion as to the quality of care that had been received in Germany, Dr Cartledge said merely:

"I have some concern that he was only started on two antiretroviral drugs whereas triple therapy would be the standard of care. I cannot comment further on his care in Germany since I have received no communication about it."

27. Subsequently, there has been produced material derived from the case of ex parte Adan (now reported in the highest instance in [2001] 2 WLR 143, although the material here produced comes from or is referred to in the Court of Appeal in that case) which is said to throw light on the factual status and effect of Duldung under German law and practice. All this material was again considered by the Secretary of State, who on 24 May 2000 wrote as follows:

"The Secretary of State bears in mind the comments of the Court of Appeal in ex parte Adan to the effect of that the Secretary of State is not concerned with social welfare in a third country but rather with the 'safety' of that country. However, there may be instances where a person would be so utterly destitute that he would be effectively forced to leave that country. The Secretary of State is entirely satisfied that your client's case does not raise circumstances of this nature. Moreover, looking at matters in the round, the Secretary of State is also satisfied that your client would receive sufficient social assistance and that his return to Germany would not involve any risk of the United Kingdom breaching the provisions of the European Convention of Human Rights. Whilst the Secretary of State maintains his view that your client's account of the treatment received at the hands of the German officials lacks credibility, based on the Secretary of State's considerable experience of the German authorities and his contact with them he is satisfied that if your client was faced with hostile treatment the German authorities would take these concerns seriously and would investigate them and take the appropriate action.

The Secretary of State remains fully satisfied that there is no real risk of your client being required to leave Germany, and that he will continue to receive tolerated status in accordance with German law and Germany's international obligations."

28. He then referred to the affidavit of Dr Brand and said:

"The authorities in Germany had previously confirmed that your client whilst previously in Germany had received regular treatment both as an outpatient and inpatient, at the University Hospital in Dusseldorf.

On behalf of the Secretary of State officials at the Bundesamt in Germany have contacted the local government authority in Viersen. The authorities in Viersen have confirmed that when your client was previously there he was administered with a combination of antiretroviral treatment for his condition. This treatment will again be available to him on his return. It was also confirmed that an interpreter would be freely available to your client if required.

In view of the German authorities assurances, the Secretary of State is satisfied that your client would not be exposed to any risk of confusion in Germany over his medical condition and the appropriate treatment for it.

The Secretary of State can confirm that proper notice to your client and the German authorities will be given of your client's removal, and that sufficient time will be allowed to ensure that all relevant information about your client's medical condition and treatment is supplied to the German authorities in advance of his return."

29. He went on to summarise his position as being that in those circumstances the applicant could be properly returned and that there was no ground for him to reconsider exercising his discretion in respect of the original application for asylum.
30. Nevertheless, the submission is now repeated, on this evidential basis and with some further additions of material which do not require specific mention (save to say that they most recently include a further medical report which, in my judgment, does not affect the present issues), that there is a properly arguable case that the Secretary of State erred, both in his approach to and in his evaluation of the evidence and, as a result, in his failure to accept the applicant as being at risk of injury - more particularly, degrading treatment - falling within either article 2 or article 3 of the European Convention on Human Rights, if he were returned to Germany.
31. Although reference has been made to the right to life under article 2, it is primarily on the provision of article 3, that no one should be subjected to torture or inhuman and/or degrading treatment or punishment, that counsel has focused his arguments.
32. In order to fall within the scope of article 3 mistreatment must attain a minimum level of severity, and treatment causing mental suffering also requires "a sufficient degree of intensity". I quote from the work on the European Convention on Human Rights by Lester and Pannick at paragraphs 4.3.4 to 5. Deportation to another country may be a breach of the Convention if there is a real risk that it will expose a person to such mistreatment: see para 4.3.19. Such a risk may exist whether it is of mistreatment by the state or in circumstances where the state cannot or will not provide appropriate protection: see paragraph 4.3.20.
33. I return to the Secretary of State's conclusion that there was and is here no such risk. The applicant submits (a) that the Secretary of State cannot have given the material submitted on behalf of the applicant proper consideration or investigation, in particular that submitted in March 2000, since the Secretary of State replied to it within a matter of days if not hours, (b) that the issue was not simply one of the applicant's credibility, since there was significant supporting evidence, and (c) that, at any rate on all the evidence available in May 2000 or now, the Secretary of State's decision is arguably perverse or arguably in conflict with article 2 or 3.
34. The applicant in these circumstances submits that the Court should grant permission to apply for judicial review in order itself to be able to give the material relied upon by each side "the most anxious scrutiny" in accordance with the principles indicated in, for example, Abdullah Turgut v Secretary of State [2000] IAR 306 in this court where my Lord, Lord Justice Simon Brown said at page 316:

"I therefore conclude that the domestic court's obligation on an irrationality challenge in an article 3 case is to subject the Secretary of State's decision to rigorous examination, and this it does by considering the underlying factual material for itself to see whether or not it compels a different conclusion from that arrived at by the Secretary of State. Only if it does will the challenge succeed.

All that said, however, this is not an area in which the court will pay any especial deference to the Secretary of State's conclusion on the facts. In the first place, the human right involved here - the right not to be exposed to a real risk of article 3 ill-treatment - is both absolute and fundamental: it is not a qualified right requiring a balance to be struck with some competing social need. Secondly, the court here is hardly less well placed than the Secretary of State himself to evaluate the risk once the relevant material is placed before it. Thirdly, whilst I would reject the applicant's contention that the Secretary of State has knowingly misrepresented the evidence or shut his eyes to the true position, we must, I think, recognise at least the possibility that he has (even if unconsciously) tended to depreciate the evidence of risk and, throughout the protracted decision-making process, may have tended also to rationalise the further material adduced so as to maintain his pre-existing stance rather than reassess the position with an open mind. In circumstances such as these, what has been called 'the discretionary area of judgment' - the area of judgment within which the court should defer to the Secretary of State as the person primarily entrusted with the decision on the applicant's removal (see Lord Hope of Craighead's speech in R v Director of DPP ex parte Kebilene [1999] 3 WLR 972 at 993-994 - is a decidedly narrow one."

35. As to the evidence, in the present case for my part I would accept that it might have been preferable if the Secretary of State had indicated more specifically on what basis he rejected as "extraordinary" all the complaints made in the evidence produced in and by March 2000 - and in particular whether and to what extent (if any) he had, in the short time available, made specific enquiries about that. That said, however, it seems to me reasonably clear that the Secretary of State cannot have made specific enquiries into the detail of the allegations. He must have relied for his factual conclusions upon his frequent contact with and general knowledge of the German situation and upon the previous enquiries that had been made in 1999 and prior to his letter dated 29 February 2000. This seems to me understandable. It was hardly to be envisaged that the public officers whose conduct had been impugned would do other than deny misconduct. There may have been some scope for investigating further the applicant's medical history and treatment, with a view to determining definitively when, by whom and in what circumstances he was treated, in particular in the months June/July 1998. But, even on the applicant's own account, he did in the event receive hospital treatment during those months, so that it is not clear that any objective material helpful either way would be forthcoming. Any attempt at detailed investigation would in these circumstances not only have involved difficulty and time, it would also have been doubtful whether it would achieve anything. It seems to me understandable that the Secretary of State should have approached the material before him by considering in the first instance whether it presented a credible case, bearing in mind what he knew about the German authorities and system, in which latter context it seems to me that the Secretary of State was and is better placed than this court. For my part, on the material which is available I consider that his evident scepticism in relation to the applicant's case was clearly justified.
36. First, the applicant had, on arriving in the United Kingdom, put forward no such account as he later sought to advance. He had told an entirely different and lying account about persecution in Ethiopia and indeed given a false name. Then, when he did advance an account along the present lines, he did so in a way which is not supported by and is in some respects positively inconsistent with the other evidence he produced, particularly Frau Lohmann's account. I have identified some of the inconsistencies earlier in this judgment.
37. Secondly, it is very noticeable that the applicant did not take up with either Frau Lohmann or the German lawyers who had won him his case in April 1998 what are now said to have been the critical problems, that is, threats to force him to leave and withholding of proper medical assistance. The brief suggestion in his second statement that "numerous letters and medical reports written by medical experts in support of my application were ignored" was and is unsupported by any detail or documentation. He took no formal steps at all, so far as is known, to obtain any redress; he gave no opportunity to the German courts or other German authorities to consider or address the serious misconduct which he now says he had experienced; this despite his prior court success and the statutory legal rights to which Dr Brand attests that persons such as the applicant possess.
38. Counsel before us, Mr Fripp, submits that this might be understood in view of his vulnerability and the great harm he might receive even while pursuing remedies; but that was no hindrance to his obtaining the assistance of Frau Lohmann and Messrs Hartkopf and taking the successful court action in Germany which he did take in spring 1998; and, on his case, if it were plausible, he would have had plenty of opportunity between April 1998 and September 1998 in which to complain further to Frau Lohmann and Messrs Hartkopf and seek their legal assistance.
39. It is said that the very fact that the applicant came to England in early September 1998 shows that he must have been desperate. That self-assisting argument, if good, would have a wide-ranging effect. There are many reasons why people may prefer to live in England (or, indeed, in any particular country). They may extend to a belief that the National Health Service offers a better or more accessible or preferable system than any equivalent operated abroad. But that cannot come near establishing that the equivalent health system of another major European state offers, either generally or in relation to failed asylum seekers or other immigrants whose residence is tolerated there, treatment which is inadequate to the point of being degrading.
40. The evidence of Frau Lohmann, of Messrs Hartkopf and of the FIAN report (which is a document which has now been put before us) shows, at its highest, that officers in the social, medical and immigration services in Germany may in the past have acted and do on occasions act inappropriately. Regrettably, no doubt that is perhaps the case in many countries. The pressures of costs imposed on local communities responsible for looking after asylum seekers or immigrants are also no doubt substantial in any country. It is impossible to deduce from this, however, either that there was in summer 1998 in Grefrath improper conduct amounting to degrading treatment within article 3, or (what is obviously critical) that there would be a real risk of such conduct now if the applicant were to return. No conduct to which Frau Lohmann and Messrs Hartkopf attest by itself crosses that threshold. I have also already pointed out that they fail to give the applicant real support even on factual points where he specifically suggests that they could do so. The FIAN report identifies some, certainly troubling, incidents but they cannot form any basis for concluding that the German system as a whole or that system as it would be applied in Grefrath to the applicant present a real risk of degrading treatment to someone like the applicant requiring serious medical attention.
41. The fact that the circumstances of this case have been so exhaustively considered in this country is also in my view relevant. It must make it even less likely that any German authority would now seek to discriminate against or mistreat the applicant on his return. Further, the German federal authorities have now given to the United Kingdom Immigration Service specific assurances, recorded in the Secretary of State's letters dated 28 March and 24 May 2000, relating to this particular applicant and his treatment if he were returned to Germany. If there were after such a return any hint or threat of such ill-treatment one would also expect Frau Lohmann and Messrs Hartkopf to be ready and able to render positive assistance. I quite accept, on the basis of Dr Brand's evidence, that the technical legal position appears to be that the German immigration authorities cannot bind the community of Grefrath, but the community of Grefrath is itself on his evidence clearly bound by statute to provide anyone in the applicant's position with an appropriate standard of medical care.
42. It is now said that the standard of medical care received in Germany was (and would be) inadequate, because it only involved (and, it is presumably suggested, would only in future involve) dual combination not triple combination therapy. In his oral submission this morning I understood Mr Fripp to suggest, or at least to hint, that this was something which had affected the applicant after the April 1998 court decision, but it was in fact the case that prior to that decision this was the medical treatment being received in Germany by the applicant, and at that stage no criticism was being made of it. This whole argument appears to me to be a construct of the legal advisers to the applicant, first mentioned in their skeleton dated 28 July 2000. It is not suggested in any of the applicant's statements. In part, the argument has been supported by a mistranslation of the relevant German text of a letter from the Düsseldorf University clinic dated 2 February 1998. In part, it is based on the general practitioner Dr Cartledge's certificate dated 18 April 2000. It is not supported by any specialist advice. There is to my mind a wholly inadequate basis for the fundamental criticism that the German specialists who treated the applicant at the University Hospital before the decision in April 1998 (and under whose treatment he successfully sought to continue in court in April 1998) prescribed an inadequate combination - thereby subjecting him to "degrading treatment". Dr Cartledge had - as he said - no knowledge of any of the detail of the applicant's condition or treatment in Germany. One may note that the applicant's condition has in fact also become more complicated in England. There is no reason to suppose that the German medical authorities will withhold proper treatment in Germany for whatever is the applicant's condition when he returns. From the most recent medical report it appears to be serious. For a point such as this to have any force, it would have itself to be properly founded on an examination of and comparison between the applicant's medical position, needs and treatment, together with informed specialist advice.
43. The applicant no longer really urges that there is any risk that he will be forced to return to Ethiopia while his medical needs continue. He is right not to do so. The German courts have shown their ability to protect him in this respect. The applicant does however refer to certain general observations in this court in Adan about the possibility that a claimant might in a third country be faced with so destitute an existence as to be driven to return to another country. That was emphatically rejected by the Secretary of State in his letter dated 24 May 2000, that I have read. If the applicant is suggesting that he might face such dire conditions in Germany as to be compelled to return to Ethiopia, there is in my view also no evidential basis for or reality whatever in that suggestion.
44. It follows that, for my part, I see no prospect of a successful challenge to the Secretary of State's reasoning or conclusions on the essential points; no prospect of establishing that he erred in law or acted irrationally, and this despite bearing in mind that his decision would be one subject to the most anxious scrutiny in accordance with the principles in Turgut. I would therefore dismiss this application.
45. LORD JUSTICE SIMON BROWN: I agree with all that my Lord has said. I would add only that I for my part regret that it was thought appropriate to pursue this matter as continuously and strenuously as it has been pursued.
46. The Secretary of State's letters of 24 and 28 March 2000, taken together, to my mind constituted an unassailable decision that the applicant should be removed to Germany. The prospects thereafter of a successful challenge under articles 2 and 3 of ECHR, based essentially upon the applicant establishing a real risk that the proper treatment for his condition would be unavailable or withheld in Germany, were negligible. Even assuming (which I doubt) that this legal challenge should ever have been launched in the first place, I certainly question whether, after permission had been refused below, it should have been carried as far as this court. Still more do I question whether, after this court's initial refusal on the documents, the application should then have been renewed orally. It is refused.
ORDER: Application refused. Copies of the judgment to be sent to both parties at public expense. Detailed assessment of the applicant's costs. (Order not part of approved judgment)