COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
Cooke J; Richards J; Stanley Burnton J;
London, WC2A 2LL
B e f o r e :
LORD JUSTICE DYSON
MR JUSTICE PUMFREY
| (1) SECRETARY OF STATE FOR THE HOME DEPARTMENT
|- and -
|THE QUEEN ON THE APPLICATION OF RAZGAR
|(2) THE QUEEN ON THE APPLICATION OF SOUMAHORO
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
|(3) THE QUEEN ON THE APPLICATION OF NADARAJAH
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr Nicholas Blake QC and Mr Tublu Mukherjee (instructed by Messrs Clore & Co) for Mr Razgar
Ms Frances Webber (instructed by Messrs Bindman and Partners) for Ms Soumahoro
Mr Raza Husain (instructed by Messrs Winstanley Burgess) for Mr Nadarajah
Crown Copyright ©
Lord Justice Dyson:
This is the judgment of the court.
The Statutory Framework
"(1) A person who alleges that an authority has, in taking any decision under the Immigration Acts relating to that person's entitlement to enter or remain in the United Kingdom, acted in breach of his human rights may appeal to an adjudicator against that decision
(2) For the purposes of this Part - (b) an authority acts in breach of a person's human rights if he acts, or fails to act, in relation to that other person in a way which is made unlawful by s.6(1) of the Human Rights Act 1998
(3) Subsections (4) and (5) apply if, in proceedings before an adjudicator or the Immigration Appeal Tribunal on an appeal, a question arises as to whether an authority has, in taking any decision under the Immigration Acts relating to the appellant's entitlement to enter or remain in the United Kingdom, … acted in breach of the appellant's human rights.
(5) If the … adjudicator, or the Tribunal, decides that the authority concerned-
(b) acted in breach of the appellant's human rights, the appeal may be allowed on that ground "
" (1) On an appeal to him under Part IV, an adjudicator must allow the appeal if he considers –
(a) that the decision or action against which the appeal is brought was not in accordance with the law or with any immigration rules applicable to the case;
(b) if the decision or action involved the exercise of a discretion by the Secretary of State or an officer, that the discretion should have been exercised differently,
but otherwise must dismiss the appeal.
(2) Sub-paragraph (1) is subject to paragraph 24 [appeals which must be dismissed] and to any restriction on the grounds of appeal.
(3) For the purposes of sub-paragraph (1), the adjudicator may review any determination of a question of fact on which the decision or action was based."
General legal principles
(a) Is the right engaged?
(b) Seriousness of harm
(c) Risk of harm
(a) Is the right engaged?
"62. Mr Blake accepted that the Strasbourg court has not gone this far. He submitted, however, that this court should take the lead in recognising that removal in the interests of immigration control can engage article 9. In our judgment there are compelling reasons why this court should not do so. The Refugee Convention and article 3 of the Human Rights Convention already cater for the more severe categories of ill-treatment on the ground of religion. The extension of grounds for asylum that Mr Blake and Mr Gill seek to establish would open the door to claims to enter this country by a potentially very large new category of asylum seeker. It is not for the court to take such a step. It is for the executive, or for Parliament, to decide whether to offer refuge in this country to persons who are not in a position to claim this under the Refugee Convention, or the Human Rights Convention as currently applied by the Strasbourg court. There may be strong humanitarian grounds for offering refuge in this country to individuals whose human rights are not respected in their own country, and it is open to the Secretary of State to grant exceptional leave to remain where he concludes that the facts justify this course. There are, however, practical and political considerations which weigh against any general extension of the grounds upon which refuge may be sought in this country. It is not for the courts to make that extension.
63. For these reasons we hold that a removal decision to a country that does not respect article 9 rights will not infringe the 1998 Act where the nature of the interference with the right to practice religion that is anticipated in the receiving state falls short of article 3 ill-treatment. It may be that this does not differ greatly, in effect, from holding that interference with the right to practice religion in such circumstances will not result in the engagement of the Convention unless the interference is "flagrant".
64. This appeal is concerned with article 9. Our reasoning has however, wider implications. Where the Convention is invoked on the sole ground of the treatment to which an alien, refused the right to enter or remain, is likely to be subjected by the receiving state, and that treatment is not sufficiently severe to engage article 3, the English court is not required to recognise that any other article of the Convention is, or may be, engaged. Where such treatment falls outside article 3, there may be cases which justify the grant of exceptional leave to remain on humanitarian grounds. The decision of the Secretary of State in such cases will be subject to the ordinary principles of judicial review but not to the constraints of the Convention (our emphasis)."
"astute to recognise the right under international law of a state to control immigration into its territory. This right has been weighed against the degree of interference with the enjoyment of family life caused by the immigration restriction often, as we see it, not because this served a legitimate aim under article 8(2) but because it acted as a free-standing restriction on the article 8 right".
"46. 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 none the less breach article 8 in its private life aspect where there are sufficiently adverse effects on physical and moral integrity.
47. Private life is a broad term not susceptible to exhaustive definition. The court has already held that elements such as gender identification, name and sexual orientation and sexual life are important elements of the personal sphere protected by article 8. 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. The preservation of mental stability is in that context an indispensable precondition to effective enjoyment of the right to respect for private life.
48. Turning to the present case, the court recalls that it has found above that the risk of damage to the applicant's health from return to his country of origin was based on largely hypothetical factors and that it was not substantiated that he would suffer inhuman and degrading treatment. Nor in the circumstances has it been established that his moral integrity would be substantially affected to a degree falling within the scope of article 8 of the Convention. Even assuming that the dislocation caused to the applicant by removal from the United Kingdom where he has lived for the last 11 years was to be considered by itself as affecting his private life, in the context of the relationships and support framework which he enjoyed there, the court considers that such interference may be regarded as complying with the requirements of the second paragraph of article 8, namely as a measure 'in accordance with the law', pursuing the aims of the protection of the economic well-being of the country and the prevention of disorder and crime, as well as being 'necessary in a democratic society' for those aims."
"46. Part of the reasoning of the Strasbourg court suggests that the treatment that a deportee is at risk of experiencing in the receiving state might so severely interfere with his article 8 rights as to render his deportation contrary to the Convention. The more significant article 8 factor was, however, the disruption of private life within this country. There is a difference in principle between the situation where article 8 rights are engaged in whole or in part because of the effect of removal in disrupting an individual's established enjoyment of those rights within this jurisdiction and the situation where article 8 rights are alleged to be engaged solely on the ground of the treatment that the individual is likely to be subjected to in the receiving state. In Bensaid v United Kingdom the Strasbourg court considered that the right to control immigration constituted a valid ground under article 8(2) for derogating from the article 8 rights of the applicant in that case (our emphasis)..
47. We shall now set out our conclusions in relation to the Strasbourg jurisprudence that deals with the apprehended treatment of a deportee in the receiving state. The application of article 3 in expulsion cases is an extension of the scope of the Convention and one that is at odds with the principle of territoriality expressed in article 1. That extension has occurred because the Convention is a living instrument. The extension no doubt reflects the fact that it would affront the humanitarian principles that underlie the Convention and the Refugee Convention for a state to remove an individual to a country where he or she is foreseeably at real risk of being seriously ill-treated. To date, with the possible exception of Bensaid v United Kingdom, the application of this extension has been restricted to article 3 cases. To apply the principle to other articles where the apprehended treatment would fall short of that covered by article 3 would be likely to constitute a further extension. While the Strasbourg court has contemplated the possibility of such a step, it has not yet taken it. The obligations in sections 3 and 6 of the 1998 Act do not require this court to take that further step. We now turn to consider the approach that has been taken by the English courts."
(b) Seriousness of harm.
(c) Risk of harm
"46. The Court recalls that it is for the Contracting States to maintain public order, in particular by exercising their right, as a matter of well-established international law and subject to their treaty obligations, to control the entry and residence of aliens. To that end they have the power to deport aliens convicted of criminal offences. However, their decisions in this field must, in so far as they may interfere with a right protected under paragraph 1 of Article 8, be necessary in a democratic society, that is to say justified by a pressing social need and, in particular, proportionate to the legitimate aim pursued.
47. Accordingly, the Court's task consists in ascertaining whether the refusal to renew the applicant's residence permit in the circumstances struck a fair balance between the relevant interests, namely the applicant's right to respect for his family life, on the one hand, and the prevention of disorder and crime, on the other.
48. The Court has only to a limited extent decided cases where the main obstacle to expulsion is the difficulties for the spouses to stay together and in particular for a spouse and/or children to live in the other's country of origin. It is therefore called upon to establish guiding principles in order to examine whether the measure was necessary in a democratic society.
In assessing the relevant criteria in such a case, the Court will consider the nature and seriousness of the offence committed by the applicant; the length of the applicant's stay in the country from which he is going to be expelled; the time elapsed since the offence was committed as well as the applicant's conduct in that period; the nationalities of the various persons concerned; the applicant's family situation, such as the length of the marriage; and other factors expressing the effectiveness of a couple's family life; whether the spouse knew about the offence at the time when he or she entered into a family relationship; and whether there are children in the marriage, and if so, their age. Not least, the Court will also consider the seriousness of the difficulties which the spouse is likely to encounter in the country of origin, though the mere fact that a person might face certain difficulties in accompanying her or his spouse cannot in itself exclude an expulsion."
Certificate under section 72(2)(a) of the 1999 Act
The role of the Secretary of State
"13. What those passages make clear is that the Secretary of State is entitled to certify the case as manifestly unfounded if, but only if, he is satisfied on reviewing the material before him that the human rights allegation must clearly fail. Where the lawfulness of the Secretary of State's decision is challenged on judicial review, the court's role, as it seems to me, is to determine whether the decision was reasonably open to the Secretary of State applying, in effect, the Wednesbury test but exercising the anxious scrutiny called for in all cases of this kind.
14. In practice, however, I accept Mr Blake's submission that this comes down to much the same thing as determining whether, on the material before the Secretary of State, the claimant had an arguable case that removal would be in breach of his Convention rights. If the claimant does on proper analysis have an arguable case, then no reasonable Secretary of State could properly conclude that the case must clearly fail. For this purpose, the Secretary of State is entitled to look at all the material before him, including that produced by his own officials, as well as that submitted on behalf the claimant, but he is not engaged in a full determination on the merits; and where, for example, there has been a material factual dispute about the claimant's circumstances, or about the nature of the regime operating in the third country, the Secretary of State cannot simply rely on his own resolution of that dispute but must consider, for the purposes of certification, whether it is possible that the claimant might prevail on the point on an appeal before an Adjudicator. This accords with what Scott Baker J said in Ahmadi at paragraph 48:
"Where the Secretary of State is faced with conflicting evidence from reputable doctors and there is no obvious reason why the evidence of one should be preferred to the other, it seems to me that any decision that the human rights claim is manifestly unfounded can only proceed on the basis of the medical evidence most favourable to the claimant."
Of course, if there is an obvious reason why the claimant's material should be rejected, or if the evidence could not sustain the human rights claim, even if accepted, it will be open to the Secretary of State reasonably to conclude that the claim is clearly bound to fail. But if there is no obvious reason why the claimant's evidence should be rejected and, if on that evidence the claimant has an arguable case that removal would be in breach of his Convention rights, then the Secretary of State cannot reasonably certify the claim as manifestly unfounded."
"there are no elements concerning respect for family or private life which in this case outweigh the valid considerations relating to the proper enforcement of immigration controls. It concluded that the removal does not disclose a lack of respect for the applicants' rights to family life as guaranteed by Article 8(1) of the Convention".
"The second limb of Article 35(3) requires the court to declare inadmissible any application that is manifestly ill-founded. This has been interpreted as a test of prima facie arguability. In principle it applies to cases where the facts do not disclose an interference with a protected right, where the interference is plainly justified…." (emphasis added).
The role of the court
"44. It is the Convention itself and, in particular, the concept of proportionality which confers upon the decision maker a margin of discretion in deciding where the balance should be struck between the interests of an individual and the interests of the community. A decision-maker may fairly reach one of two opposite conclusions, one in favour of a claimant the other in favour of his removal. Of neither could it be said that the balance had been struck unfairly. In such circumstances, the mere fact that an alternative but favourable decision could reasonably have been reached will not lead to the conclusion that the decision maker has acted in breach of the claimant's human rights. Such a breach will only occur where the decision is outwith the range of reasonable responses to the question as to where a fair balance lies between the conflicting interests. Once it is accepted that the balance could be struck fairly either way, the Secretary of State cannot be regarded as having infringed the claimant's Article 8 rights by concluding that he should be removed.
45. So to conclude is not to categorise the adjudicator's appellate function as limited to review. It merely recognises that the decision of the Secretary of State in relation to Article 8 cannot be said to have infringed the claimant's rights merely because a different view as to where the balance should fairly be struck might have been reached."
".. and in the result conclude that, in cases like the present where the essential facts are not in doubt or dispute, the adjudicator's task on a human rights appeal under s65 is to determine whether the decision under appeal (ex hypothesi a decision unfavourable to the appellant) was properly one within the decision maker's discretion, ie was a decision which could reasonably be regarded as proportionate and as striking a fair balance between the competing interests in play. If it was, then the adjudicator cannot characterise it as a decision "not in accordance with the law" and so, even if he personally would have preferred the balance to have been struck differently (ie in the appellant's favour), he cannot substitute his preference for the decision in fact taken."
The Appeal of Mohammed Ali Razgar
"I respectfully recommend to Court that Mr Ali be permitted to stay in this country, as otherwise it would be detrimental to his mental and physical wellbeing. Incarceration and custody is likely to cause a relapse on the progress he has made so far. Given Mr Ali's subjective fear of ill-treatment in Germany, I feel that he would not make any progress there in rehabilitating from Post Traumatic Stress Disorder, or indeed from his depression. I am happy to continue with his psychiatric treatment if the Courts agree with my request."
"I feel incarceration has caused a setback from the progress Mr Ali has made so far, and this is detrimental to his mental health. One cannot rule out the possibility that he might carry out his threat to commit suicide. In my opinion Mr Ali should be allowed to continue with the treatment that I have provided".
"The Secretary of State accepts that both the prospect and the actual removal of your client to Germany may have a negative impact upon him. In view of your client's mental health problems the Secretary of State has carefully considered whether there are substantial grounds for believing that your client's proposed and/or actual removal to Germany would be a sufficiently compelling, compassionate factor such as to cause him to depart from his normal policy and practice. Although your client may be exposed to psychological stress as a result of his removal to Germany, the Secretary of State does not accept, on all the evidence submitted to him, that the risk to your client reaches that level of severity of physical or mental suffering as to warrant departing from his usual practice in this case. He takes the view that there are adequate, appropriate and equivalent psychiatric facilities in Germany which will be available to your client upon his return to that country."
"4. The Secretary of State has noted that Germany is a full signatory to the Geneva Convention of 1951 and to the ECHR. He routinely and closely monitors the practice and procedures of Member States, including Germany, in the implementation of the ECHR in order to satisfy himself that its obligations are fulfilled. He is satisfied that your client's human rights would be fully respected in Germany and that your client would not be subjected to inhuman or degrading treatment or punishment if removed there. He is also satisfied that your client will be able to raise any continuing protection concerns that he may have under the provisions of the ECHR with the authorities in Germany. In the circumstances, the Secretary of State does not accept that your client's removal to Germany would be in breach of his human rights. Indeed, he regards your continued assertion in this respect, particularly following the consideration already given to the matter which has been supported by the Court, to be merely a device to prevent further your client's proper return to Germany under the terms of the Dublin Convention.
5. In the light of the above, the Secretary of State hereby certifies the allegation of a breach of your client's human rights under the ECHR as being manifestly unfounded. Your client has a right of appeal against this decision under S.65 of the Immigration and Asylum Act, but under S.72(2)(a) of the Act this may only be exercised from abroad. Arrangements for your client's removal to Germany on 12 April 2001 therefore remain in place."
"Incarceration and custody is causing a relapse on the progress Mr Ali had made during treatment. He would be deprived of his support network from family [cousin and friends], when he is removed to Germany. He would not have access to medication or Cognitive Behaviour Therapy as he would only be given temporary immigration status by the authorities. His accommodation in a refugee camp will cause flashbacks of his incarceration in prison in Iraq and worsen his depressive mood and sense of despair. I feel that sending him back to Germany or even to Iraq would be very detrimental to his mental and physical well-being. I think he would make a serious attempt to kill himself."
"You claim in your letter that removal of your client to Germany would be dangerous to your client's mental state. The Secretary of State is however satisfied that there will be appropriate, adequate and at the least equivalent medical facilities available for your client to use on his return to Germany."
"Mr Razgar still suffers from Depressive Illness, Pain Disorder and Post Traumatic Stress Disorder. He finds himself to be safe living in this country and is afraid of being sent back to either Germany, or even Iraq where he had been harassed. He finds support from his friends who live with him. Whenever the Court case comes up in conversation his whole mood changes, he looks very anxious and quiet. He has decided that he would rather die than go back to Germany or Iraq. He is afraid of being put in detention again, which brings back memories and feelings of hopelessness. He has seen other young men kill themselves, and at times has suicidal ideation himself.
Superficially Mr Razgar presents in a friendly, good humoured manner, but when you talk to him in depth all his underlying unhappiness, sense of hopelessness and anxiety about the Court case become evident. Even though he has medication and had supportive psychotherapy at the Day Hospital, there was not enough time or access to Cognitive Behaviour Therapy, which is very necessary for his treatment. In my experience they have been able to arrange such treatment for refugees who have been given status to stay in this country, so that they didn't worry about their future and were able to respond to the therapy.
If Mr Razgar were returned to Germany where he was imprisoned as before, his mental state would drastically deteriorate back to the depth it was when I first assessed him in the Detention Centre at Gatwick Airport.
I would respectfully recommend to Court that Mr Razgar is allowed to stay in this country, so that he would have the support network from his family, cousin and friends. Once he is reassured about his status here it will be much easier and appropriate to arrange Cognitive Behaviour Therapy, which will help to improve him from his symptoms of Post Traumatic Stress Disorder. He is intelligent, was hard working and no doubt would become a useful and productive citizen in this country."
"…I accept Mr Blake's submission that the Secretary of State's evidence must be examined with particular caution given its extreme lateness and the fact that it even post-dated the claimant's original skeleton argument. In those circumstances, as it seems to me, a high degree of specificity is called for if it is to be relied on as rebutting the claimant's evidence. As it is, what Mr Pulham says in his witness statement on the basis of a conversation with a German official about the treatment that would be given to the claimant does not, in my view, engage sufficiently with the specifics in Mr Kessler's evidence about the lack of any right to such treatment unless and until the condition is acute, and about the risk that discretionary funding would not be available for the provision of treatment. So too what is said by Mr Pulham about the nature of the claimant's accommodation if returned does not accord with the picture painted by Mr Kessler on the basis of his experience and independent material, and again there is no real attempt to address the specifics in Mr Kessler's evidence head on. The fact that a similar position was adopted by the Secretary of State on the question of accommodation in Ahmadi, and was shown to be wrong on the facts, simply underlines one's concern. In any event, I am satisfied that on each of these matters there was and is a real factual issue that might be decided against the Secretary of State on appeal. So far as concerns Dr Sathananthan's recent report, that serves to underline the psychiatric concerns if the claimant were returned to Germany."
The Appeal of Tenin Soumahoro
"12. If the asylum-seeker were now to be returned to France without any attempt to explain to her that her case would properly be considered there, then it may well be that the risk of self-harm described by Dr Bell could be described as real, and not speculative: though it must be said that it could be minimized by detaining her from the moment when fresh removal directions were served, and keeping her under close observation till handed over to the French authorities, who could be advised to observe similar precautions. However, that way of dealing with the case would be a rather blunt instrument, and by no means the best. There is nothing to suggest that this asylum-seeker would not, in suitable circumstances, be capable of taking in what people tell her in her best interests: see the relationships she has established with her solicitor and voluntary agencies. Miss Cohen may have had difficulties getting through to her, through an interpreter, but there is nothing to show that she has tried to do so, on what we consider the crucial point, let alone enlisting suitable help. To say that removal to France would result in self-harm, and that the necessary trust for longer-term psychiatric treatment could not be established there, because of the fears the asylum-seeker has of onward return to the Ivory Coast, without dealing with the possibility of reassuring her against those fears while still here, is in our view to engage in speculation as to the result of not doing what clearly ought to be done. We do not think that represents a real risk of return to France resulting in "inhuman or degrading treatment" contrary to art.3."
"Ms Soumahoro is suffering from a psychiatric disorder, as described. This condition was clearly exacerbated by her numerous traumatic events in the Ivory Coast, but has improved since her arrival in the UK. It is clear that if she were deported to the Ivory Coast, her mental state would rapidly deteriorate and she would be at high risk of suicide. I gather that she may be deported to France and in her mind this would clearly mean that she would be returned to the Ivory Coast and be at serious risk of self-harm as her psychological state will rapidly deteriorate."
"The Secretary of State notes that Ms Huang in paragraph 14 of her report states that the subject is suffering from a "moderately severe depressive episode". In paragraph 16 Ms Huang again mentions that it is associated that return to France in the mind of your client equates to return to Ivory Coast. It again seems that no effort has been made to assuage these fears as suggested in the last paragraph of the Tribunal judgment."
"My impression is that she has suffered a relapse of her depressive episode as a result of the imminent deportation date. Ms Soumahoro is fixated on the idea that removal to France means that she will be returned to the Ivory Coast. Dr Kinloch and I have tried to reassure her that her case will be fairly considered in France and she should not fear removal to France on the basis that she will be returned to the Ivory Coast. Despite numerous reassurances Ms Soumahoro has an irrational fear of removal that cannot be assuaged. This compulsive fixation is leading to deterioration of her mental health. Thus I have no doubt in concluding that on receipt of Removal Directions to France, her irrationality is likely to lead to a suicide attempt".
"The Secretary of State again notes the expressed fear that Ms Soumahoro may attempt suicide should removal to France be attempted, but remains of the view that attempted suicide does not concern the direct responsibility of the Secretary of State for the infliction of harm and that the high threshold set by Article 3 ECHR is not engaged. The Secretary of State again notes that in it(s) judgement the Tribunal has stated that any real or speculative risk of suicide from your client's alleged tendencies could be minimised by placing her in detention once removal became imminent and notifying the French authorities of this alleged tendency. He further notes that Ms Soumahoro is currently only being prescribed small amounts of medication to minimise this risk.
The Secretary of State again notes that your enquiries of various organisations in France have revealed that your client would be entitled to medical treatment regarding her HIV status as soon as she arrives in France and that, although difficult (your phrase), she could obtain access to psychiatric services. The Secretary of State remains satisfied that your client would be accommodated and not left destitute, and you have now stated that her first month's accommodation will in all likelihood be met by a charity. Although the accommodation may not be what your client would like, it cannot be said that there would be no accommodation available, nor that the accommodation would be so poor as to seriously jeopardise your client's health or to be construed as inflicting inhuman and degrading treatment upon your client.
The Secretary of State is satisfied that all issues pertaining to his legal obligations under the Human Rights Act 1998 and the European Convention on Human Rights have been fully examined both by the Tribunal and the Secretary of State in his later correspondence, and that there is no new issue regarding a breach of your client's human rights should she be returned to France.
The Secretary of State remains of the view that the proper course of action in the case of your client is to remove her to France, where, whatever your client may claim to believe, her application for asylum will be considered in accordance with France's international obligations, as would any claim that her human rights would be breached by returning her to Ivory Coast."
"My own view is that the threat of sending her to France will increase her risk of suicide and episodes of self-harm. If she did actually move to France the risk of suicide attempts would remain high although there is a prospect that her mental state would improve if she realises she is not going to be deported to the Ivory Coast. If the Home Office were to make a decision that she could remain in the United Kingdom I believe the risk of suicide would be reduced almost immediately".
"29.The point where the risk is highest, to judge from past attempts of self-harm or suicide, is the point at which the fear of removal is most acute, either before any decision is made, or in the time after the decision is made before removal. The risk will continue during removal and, it appears, will continue when first in France. Once, however, the Claimant settles into a waiting period in France of the duration to be expected as an asylum applicant, which is no doubt little different from the waiting period here of which the Claimant has some two and a half years' experience, Dr Lloyd recognises the prospect of improvement in her mental state. Evaluating the expert evidence and bringing to bear on it the other evidence of what has actually occurred, and dealing with the matter on the basis, also, of common sense, in my judgment there is a real risk of self-harm for only a limited period, and even that risk may not be a genuine risk of suicide. The fact that the Claimant has taken steps to avoid the effects of overdosing is, in my judgment, highly significant, on the two occasions when she has indeed overdosed.
30. The period in question between an order for removal and the removal itself need only be one of three days. The flight itself to France is only one hour. With accommodation available for this first month regardless, as now appears to be the case, within that period it will become apparent even to someone whose current irrationality prevents her now accepting the reality of the position, that the reality in France is that there will be no immediate deportation to the Ivory Coast. That, it seems to me, cannot but impinge itself upon her consciousness over a period in France of that kind.
31. Precautions can and indeed should be taken to supervise the Claimant from the moment she is notified of this decision and the order to remove her, so that the risk of any self-harm or attempted suicide can be minimised. Likewise for the duration of the flight and by notification to the French authorities, so that when she arrives there, adequate steps are taken to safeguard her position. Given the comparatively short-term nature of the higher element of risk which, as I say, is by no means established as a high risk of suicide, on the psychiatric evidence, I do not consider that the expulsion of the Claimant can be considered as inhuman treatment and there is, therefore, no basis for quashing the decisions made by the Secretary of State.
32. It is, of course, the case that prior to removal, the Claimant must be ascertained to be in a fit state to be transported; that goes without saying. But the Secretary of State will, of course, have to take the necessary steps for ascertainment and safeguarding the Claimant as soon as this decision is published, as soon as any order is made, and from then on until handover to the French authorities, who must be fully appraised of the position so that any risk is indeed minimised to the maximum possible extent."
The Appeal of Kalaichelvan Nadarajah
"In this case the obvious precipitating factors were his maltreatment during his detention in Sri Lanka but the perpetuating factors include his current uncertainty regarding his legal status in the UK and his fears for his family's safety who remain in the troubled area of northern Sri Lanka".
"We wish to stress that it is our primary contention that Mr Nadarajah should not be returned to Germany because of the experiences that flowed from that country's consideration of his refugee status".
"Our client's wife has joined him in the United Kingdom and made an asylum claim. We do not act for our client's wife, who is represented by Messrs M.K. Sri & Co. We understand that our client's wife is under refusal. However she has appealed and as yet no hearing date has been set. We would submit that this would further affect any decision on whether or not our client should be removed to Germany. If he is removed to Germany then it may be, notwithstanding our client's fears and the trauma of such return, that our client would not be removed from Germany. Of course it remains our primary contention that our client should not be removed to Germany at all. However whether or not our client might remain for any length of time in that country, this would necessarily separate him from his wife, which in turn raises Article 8 issues.
We should stress that if the Secretary of State refuses to substantively consider our client's asylum claim then it would be our client's intention to lodge an appeal under S.65. If the Secretary of State determines to certify as manifestly unfounded the claim that removal would breach our client's ECHR rights, then that certification would be the subject of a further judicial review.
We would be most grateful if as a matter of urgency you would confirm receipt of this letter and its enclosure. Please also confirm that either the appointment on 27 February is deferred or alternatively advise us what the purpose of that interview will be, given the representations now made."
"9. You allege that your client's removal to Germany would be in breach of Article 8 of the ECHR as his wife also an asylum seeker has now joined him in the United Kingdom. You have provided no information regarding your client's wife such as when she arrived in this country or even her name.
10. The Secretary of State would normally consider the substance of a potential third country case where: the applicant's spouse is in the United Kingdom; the applicant is an unmarried minor and a parent is in the United Kingdom, or when the applicant has an unmarried minor child in the United Kingdom. In all cases "in the United Kingdom" is to be taken as meaning with leave to enter or remain or on temporary admission as an asylum seeker. (Emphasis added in original).
11. The Secretary of State is satisfied that your client's case falls outside of his above stated policy. Your client's wife is not present in this country as an asylum seeker; indeed, her asylum application has been refused outright and she is appealing against that decision. Neither your client nor his wife has been granted refugee status in the UK nor has either of them been granted leave to enter or remain in the UK within the meaning of such terms under the Immigration Act 1971. Furthermore, your client has been aware since his arrest as a clandestine illegal entrant on 22 August 1998 that his immigration position in this country was, at best, extremely precarious, depending as it does on the outcome of his judicial review application.
12. The Secretary of State is confident that his above stated policy is compliant with the UK's obligations under Article 8 of the ECHR. The Secretary of State has considered all the evidence and representations made on behalf of your client. The question for the Secretary of State is whether the undoubted interference with your client's right to respect for his family life, if he were to be returned to Germany, would be proportionate and commensurate when balanced against his legitimate concerns in the public interest to maintain a credible and effective immigration control to the United Kingdom, and to deter abuse of the asylum system.
13. The Secretary of State notes that your client arrived in the United Kingdom travelling alone on 22 August 1998 having prior to this lived in Germany since 1995. The Secretary of State does not know when your client's wife arrived here but he is satisfied that your client and his wife had been separated due to their own actions for some considerable period of time before either of them arrived in the United Kingdom. The Secretary of State is satisfied in this particular case that the need to maintain the effectiveness of the control of entry to this country for settlement outweighs the interference with your client's Article 8 rights.
14. In all the circumstances and having given the most careful consideration to all the matters raised on behalf of your client, the Secretary of State concluded that the allegation that your client's return to Germany would breach his human rights is manifestly unfounded. He accordingly certifies to that effect pursuant to Section 72(2)(a) of the Immigration and Asylum Act 1999."
"Since Mr Nararajah's symptoms are closely related to an intense fear of return to Germany, it is likely that deportation to Germany would cause a sudden and intense deterioration in his condition. He states that "Going to Germany is the equivalent of dying" and that if he felt all hope had been lost, then he would rather make an attempt on his life than face the chances that he would be returned to Sri Lanka from Germany.
In terms of his treatment, he appears to have set up a network of support in the UK from his GP, Social Services and recent counselling and I would recommend that these should be continued. Although all of these above services would be available in Germany, it is highly unlikely that Mr Nadarajah would be able to make use of them due to his heightened anxieties of deportation to Sri Lanka which would significantly impair his response to treatment.
In summary if Mr Nadarajah is allowed to stay in this country he has some prospects of his chronic PTSD improving over time. However if he were separated from his pregnant wife, or if he were returned to Germany, it is highly likely that his condition would rapidly deteriorate. In my opinion, the sense of hopelessness that this would precipitate would increase the risk of self-harm, as it is known that hopelessness is a key indicator for completed suicide."
"In paragraph 13 of his letter of 25 February 2002, the Secretary of State gave a further justification for his proposed separation of the Claimant and his wife, namely that he was satisfied that they had been separated for some considerable period of time previously by their own actions. Whether their separation was voluntary is disputed by the Claimant. However, in my judgment it is clear that the Secretary of State had substantial grounds for believing that the Claimant had never left Germany, as he asserted, but remained in Germany for the whole of the period between 1995 and his entry into the United Kingdom on 21 August 1998. The grounds for that belief are set out in paragraphs 6 to 8 of Mr Taylor's witness statement of 2 July 2002. The matters referred to there must be considered in the light of the fact that, as a result of the Claimant's deliberate concealment of his asylum claim in Germany, the Secretary of State reasonably regarded him as a person whose statements could not necessarily be given credibility. In my judgment, in these circumstances the Secretary of State might reasonably have concluded that his normal policy should not apply; and that the need to maintain the effectiveness of control of entry into this country outweighed the interference with the Claimant's Article 8 rights."
"In considering the certification of a claim for the purposes of section 72(2)(a) of the 1999 Act, the Home Secretary must take into account that the power is to be exercised only in clear cases. It is not sufficient for the Home Secretary to believe that the facts asserted by an asylum seeker are false: he must reasonably consider the assertion to be manifestly unfounded."
"38. In my judgment, in the present case the Home Secretary was entitled to consider that there was no arguable claim that the removal of the Claimant to Germany would unlawfully interfere with his right to respect for his family life under Article 8.1. The interest of the State in maintaining effective immigration control is recognised as justifying interference with rights under Article 8.1 : see R (Mahmood) v Secretary of State for the Home Department  1 WLR 840. As Dyson LJ said in Samaroo and Sezek v the Secretary of State for the Home Department  UKHRR 1150 CA at paragraph 36:
"The right to respect for family life is not regarded as a right which requires a high degree of constitutional protection."
The evidence and considerations that led the Home Secretary to conclude that the Claimant and his wife had been apart as a result of their own actions were sufficiently strong for him reasonably to consider that there was no good argument to the contrary. The other matters taken into account as set out in the decision letter (including the Claimant's lack of credibility) were considerations that the Home Secretary was entitled to take into account. Overall, the Home Secretary could reasonably have concluded that the argument that the interference with the Claimant's family life was not justified under Article 8.2 was manifestly unfounded.
39. Mr Husain took issue with the Home Secretary's assumptions that the Claimant's separation from his wife might be only temporary. However, the Home Secretary was correct to assume that if the Claimant's wife's asylum application is ultimately successful, he would normally be permitted to join her here. So far as Germany is concerned, Mr Taylor stated no more than that if the Claimant's application for asylum there is successful, his wife can apply to join him there. Mr Husain complained that no material had been put before the Court to make good this statement. However, the Claimant's evidence in reply did not take issue with it, and in those circumstances I accept Mr Taylor's evidence."
" As we shall explain, an issue of credibility arose in this case in relation to ZL. The Secretary of State gave her the benefit of the doubt and his decision did not turn on credibility. Where an applicant's case does turn on an issue of credibility, the fact that the interviewer does not believe the applicant will not, of itself, justify a finding that the claim is clearly unfounded. In many immigration cases findings on credibility have been reversed on appeal. Only where the interviewing officer is satisfied that nobody could believe the applicant's story will it be appropriate to certify the claim as clearly unfounded on the ground of lack of credibility alone."