QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE QUEEN ON THE APPLICATION OF RAZGAR||(CLAIMANT)|
|THE SECRETARY OF STATE FOR THE HOME DEPARTMENT||(DEFENDANT)|
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MR A UNDERWOOD QC AND MISS J ANDERSON (FOR JUDGMENT MISS C CALLAGHAN) (instructed by Treasury Solicitor) appeared on behalf of the DEFENDANT
Crown Copyright ©
There is a lengthy factual background which I need to summarise in order to place the present issue in context. The claimant left Iraq and arrived in Germany in 1997. He claimed asylum on arrival in Germany on the grounds that he was a Kurd and a member of the Iraqi Communist Party, had been arrested, detained and tortured by the Iraqi regime for two-and-a-half years as a result of his ethnic origin and/or political activities and would face persecution if returned. His claim was refused.
The first matter I have to consider is the test to be applied by the Secretary of State in certifying a claim as manifestly unfounded, and the test to be applied by the court in determining whether a certification was lawfully made.
"Before certifying as 'manifestly unfounded' an allegation that a person has acted in breach of the human rights of a proposed deportee the Home Secretary must carefully consider the allegation, the grounds on which it is made and any material relied on to support it. But his consideration does not involve a full-blown merits review. It is a screening process to decide whether the deportee should be sent to another country for a full review to be carried out there or whether there appear to be human rights arguments which merit full consideration in this country before any removal order is implemented. No matter what the volume of material submitted or the sophistication of the argument deployed to support the allegation, the Home Secretary is entitled to certify if, after reviewing this material, he is reasonably and conscientiously satisfied that the allegation must clearly fail."
At paragraphs 33 - 34 Lord Hope states:
"...Provision is made, in recognition of the obligations of the United Kingdom under the ECHR, for an appeal on human rights grounds. The purpose of the legislation would be frustrated if the asylum seeker could ensure that he remained in this country pending a full review on the merits of an allegation of a breach of his human rights which was clearly without substance.
It is for this reason that the process which is envisaged is best described as a screening process, as my noble and learned friend Lord Bingham of Cornhill has observed. Nevertheless the test which section 72(2)(a) of the 1999 Act has laid down recognises the level of scrutiny that is required. By adopting the language of the international instruments Parliament has made it clear that the issue as to whether the allegation is manifestly unfounded must be approached in a way that gives full weight to the United Kingdom's obligations under the ECHR. The question to which the Secretary of State has to address his mind under section 72(2)(a) is whether the allegation is so clearly without substance that the appeal would be bound to fail."
Lord Hope also dealt at paragraph 59 of his speech with the role of the court on judicial review, stating:
"The European Court has accepted that the process of judicial review, under which decisions of this kind are indeed given the most anxious scrutiny, is capable of providing an effective remedy: Vilvarajah v United Kingdom 14 ERHH 248, 292, para 126; TI v United Kingdom  INLR 211, 233. In my opinion the scrutiny which the courts below gave to the decisions which are under challenge in these appeals fully measures up to this standard, and I agree with them as to the result..."
At paragraph 72 Lord Hutton stated:
"... I am in agreement with the opinion of the Court of Appeal set out in paras 57 - 60 of its judgment that an allegation is manifestly unfounded if it is plain that there is nothing of substance in the allegation. I further agree with the reasons given by the Court of Appeal for rejecting the submission that the Secretary of State is only entitled to give a certificate if on an initial and cursory examination of the case it is plain that there is no substance in it. Whilst the process in which the Secretary of State engages in coming to his decision will not involve as detailed a consideration of the facts and issues as would be involved in a hearing by an adjudicator under section 65 or by a court, the extent of the consideration which the Secretary of State will give to the issue will depend on the nature and detail of the arguments and the factual background presented to him by the applicant. It is relevant to observe, as did laws LJ, that the European Court on occasions considers a case in considerable detail before holding that the applicant's complaint is manifestly ill founded, and this was the practice it followed in the case of TI v United Kingdom itself."
Lord Hutton went on to point out in paragraph 73, without disapproval, that amongst the matters taken into account by the Secretary of State was the detailed knowledge possessed by his officials.
"Where an applicant challenges in the High Court the issue of a certificate by the Secretary of State under section 72(2)(a) the question arises as to the degree of scrutiny to which the High Court should subject the decision of the Secretary of State. It is apparent that there is a degree of tension between the need to make use of an accelerated procedure to enable the arrangements under the Dublin Convention to operate effectively and the duty to recognise the human rights of a person who, once he is in the United Kingdom, is entitled to the protection given by the European Convention. In a well known passage in his judgment in R v Secretary of State for the Home Department ex parte Budgaycay  AC 514, 531 Lord Bridge of Harwich said that 'the court must, I think, be entitled to subject an administrative decision to the more rigorous examination, to ensure that it is in no way flawed, according to the gravity of the issue which the decision determines', and he then stated that where the administrative decision under challenge is one which may put the applicant's life at risk, the basis of the decision must call for 'the most anxious scrutiny.' I consider that in a case where there is a challenge to a certificate under section 72(2)(a) the court must subject the decision of the Secretary of State to a rigorous examination, but the examination must be on the basis and against the background that, as I have earlier stated, the extent of the consideration which the Secretary of State will have given to the issue will have depended on the nature and details of the argument and the factual background presented to him by the applicant."
"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.
BENSAID V UNITED KINGDOM
The legal context in which the Secretary of State had to consider the claimant's human rights claim can be derived primarily from the judgment of the Strasbourg Court in Bensaid v United Kingdom  INLR 325, a case involving the application of Articles 3 and 8 to mental illness.
"The Court accepts the seriousness of the applicant's medical condition. Having regard however 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, the Court does not find that there is a sufficiently real risk that the applicant's removal in these circumstances would be contrary to the standards of Article 3. It does not disclose the exceptional circumstances of D v United Kingdom (1997) 24 EHRR 423 where the applicant was in the final stages of a terminal illness, AIDS, and had no prospect of medical care or family support on expulsion to St Kitts."
The court went on to deal with Article 8. Stating in paragraphs 46 to 47 as follows:
"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 (see Costello-Roberts v United Kingdom (1995) 19 EHRR 112...
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 identify and personal development, and the right to establish and develop relationships with other human beings and the outside world (see eg Burghartz v Switzerland Series A, No 280-B 24, at 47; Friedl v Austria (1996) 21 EHRR 83, at para 45). The preservation of mental stability is in that context an indispensable precondition to effective enjoyment of the right to respect for private life."
In paragraph 48 the court dealt with the circumstances of the individual case finding that the applicant's return to Algeria would not infringe Article 8. In particular it stated:
"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."
In looking at the evidence I bear in mind that the actual decision certifying the claim as manifestly unfounded was the decision contained in the Secretary of State's letter of 9th April 2001. The later letters maintain that decision but are not strictly fresh certification decisions. In deciding whether the decision was lawful the court should focus on the material before the Secretary of State at the time when the decision was made. That is the normal principle in judicial review, which is not affected for present purposes by section 77 of the 1999 Act, to which Mr Blake drew my attention at a late stage, and which makes provision concerning the evidence that may or may not be taken into account by the appellate authority in one stop appeals. On the other hand, the court is entitled to look at evidence post-dating a decision for a number of purposes, as where it casts light on earlier evidence (see paragraph 57 of Ahmadi), or where it is relevant to the exercise of discretion to grant or withhold relief; and, in practice, in immigration cases the court frequently looks at up-to-date evidence from both sides, no doubt in part because of the duty of anxious scrutiny in such cases.
"Mr Ali appears to be a hard working self-reliant young man, who is keen to be self-supportive. He suffers from Post Traumatic Stress Disorder based on the criterion of the Diagnostic and Statistical Manual of Mental Disorders ed.iv American Psychiatric Association 1994 - (DSM IV). He needs Pharmacotherapy as well as Cognitive Behaviour Therapy; he needs a happy and safe environment in which to do this. As his English improves it will be possible to arrange Cognitive Therapy. His is a young man with a bright future, who is extremely keen to find employment and not be considered as a parasite on society.
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."
The report refers to the claimant under the name of Mr Ali but that is immaterial for present purposes.
"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 ECHRR 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."
"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."
"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. [A reference to examination on 7th June 2001]."
"The Secretary of State refers to the prior detailed correspondence concerning your client's stated problems and does not propose to repeat the issues addressed therein. However, the Secretary of State notes for the avoidance of doubt that, although he accepts the report as a professional assessment based on the information provided to the psychiatrist, he does not accept as accurate certain information upon which the opinion appears to be based. In particular, it is not accepted that:
. if your client were returned to Germany he would be 'imprisoned as before' (Report of 24 September 2002, p6)
. your client would be denied medical treatment if it were needed in Germany (Report 7 June 2001, p6;
. your client 'was refused asylum 3 times in Germany and eventually they [the German Government] decided to send him back to Iraq' (report of 29 February 2000, penultimate paragraph p4, report 7 June 2001, penultimate paragraph p3)
The Secretary of State takes the view there is nothing in this latest report which requires him to alter his decision to remove your client in accordance with the applicable law. He remains satisfied that adequate and appropriate medical facilities exist in Germany which will be available to your client after his removal to that country should the need arise. The Secretary of State affirms that precautionary steps will be taken to obviate any attempt at self-harm during the removal process as necessary."
Mr Blake submits that in the light of the evidence as it was before the Secretary of State at the time of his original decision, there was a clearly arguable case to be determined on its facts by the Adjudicator, and that the subsequent evidence does not alter the position. There would appear to be no issue over the claimant's psychiatric condition but only as to whether appropriate medical assistance would be available to the claimant in Germany. As to that, the claimant's evidence is that assistance would be available only if his psychiatric condition, which would currently be regarded as a chronic condition, deteriorated into an acute condition. But there is a serious argument that to create a situation in which the claimant's condition would have to deteriorate in that way, indeed to the point where there was a real risk of suicide, before he could receive medical assistance would involve a breach of Article 3 and Article 8.
I can state my conclusions as follows.