QUEENS BENCH DIVISION
London, WC2A 2LL
B e f o r e :
| THE QUEEN ON THE APPLICATION OF MEHDI K
|- and -
|THE 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)
Ashley Underwood QC and Daniel Beard (instructed by the Treasury Solicitor) for the Defendant
Crown Copyright ©
Mr Justice Silber:
II The Factual Background
III Certificate under Section 93(2)(b) of the 2002 Act
(i) The duty of the Secretary of State in certifying a claim as "clearly unfounded"
(ii) The role of the Adjudicator in determining if a human rights claim will fail
"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, i.e. 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 (i.e. in the appellant's favour), he cannot substitute his preference for the decision in fact taken" .
(iii) The role of the Court in considering a certificate that a claim is clearly unfounded
"The test is an objective one; it depends not on the Home Secretary's view but upon a criterion which the court can readily re-apply once it has the materials which the Home Secretary had. A claim is either clearly unfounded or it is not" (ibid 1245 ).
IV The basis of the present claim
V The claim under Article 3
"No-one should be subjected to torture or to inhuman or degrading treatment or punishment".
VI The Medical Evidence
"In March 2001, Mrs. K attempted suicide by drinking bleach. When I heard this I asked her if her experience in Kosovo included her being raped. She stated it had, however she was unable to recall when, except to say it was at the time of the incident when her father was shot (as described in paragraph 24 above). She was stopped by a visitor coming to the door.
Despite this Mrs. K reports constant thoughts of death and wishing she could die. These thoughts have not extended to her planning suicide. However she sees no reason to live. Mrs. K states consistently that if she is required to leave the UK she would kill herself. Mrs. K's suicide attempt occurred when she was told she had to leave the country".
"He recognises she is under increasing pressure and stress as a result of her immigration status and threat of returning to a situation in which she was traumatised. He states she appears to be getting worse. He stated that Mr. K's anxieties have also increased due to more frequent nightmares and panic attacks, and his need to manage these. He also believes that as long as Mrs. K is in a perceived trauma situation, more intensive psychiatric treatment is inappropriate".
"These occur daily and possibly continue for most of the day. The flashbacks refer to the two life threatening incidents detailed above [as described in paragraphs 24 and 25 above]. In particular one flashback is seeing her hands covered in blood and her father's body in her hands. A second is seeing her nephew being massacred. The main trigger to her flashbacks is the presence of her son Albion who has a very strong resemblance to her nephew and is currently at the age at which her nephew was massacred. It was easier for Mrs. K to have a daughter than this son, since he is a constant reminder of the trauma. Though she states she loves him very much it makes it very difficult for her to relate to him and parent him. Other triggers for the flashbacks include mention of Kosovo, the word 'police' though she appreciates that from her experience in England the police are very helpful, and any television or news of war, trauma, death etc. The consequences of the flashbacks include panic attack symptoms, some aggression, Mr. K stated that 'she talks nonsense' and at times she will push Mr. K away. However Mr. K stated that she is very careful in the management of her children and much more careful with them than with him. The flashbacks commenced 2-3 weeks after the birth and seem to have been brought on by having a male child and suffering from postpartum depression".
"If Mrs. K was in the first instance aware of a decision that she would have to leave the country, she is highly likely to attempt to commit suicide unless she had very close medical supervision at all times. It would lead to an immediate worsening of the symptoms described above.
Mrs. K's subjective fear of removal from the UK including to Germany is exceptionally high. Mrs. K believes she is likely to be separated from her husband either by death or imprisonment, if they return to Germany. The impact of her perceived fears would probably cause a deterioration of her condition such that she would probably succeed in committing suicide whether prior to or after removal. Her previous suicide bid in similar circumstances is an extremely serious indicator of a future attempt and evidence shows that someone who has already made a suicide attempt is likely to be more successful in a subsequent attempt".
VII The Soumahoro Appeal
(i) "It is necessary for this court to examine the material before the Secretary of State to see whether the claim being advanced on behalf of the appellant that if she were removed to France, there was a real risk that her Article 3 rights would be violated, was bound to fail" 
(ii) "There is uncontraverted evidence that if she is removed to France, there is a real risk that she will commit suicide and that this risk is likely to subsist until she realises that the French authorities do not intend to send her back to the Ivory Coast (assuming this to be the case)"  and
(iii) "We agree with the judge that the issue was the degree of risk that there would be an increased likelihood of suicide. If it was arguable on the evidence that there was a real risk of a significantly increased risk that, if she were removed to France, the appellant would commit suicide, then in our view her claim based on Article 3 could not be certified as manifestly unfounded" .
"He has balanced your client's representations against his duty to Parliament to maintain a credible and effective immigration policy, and his other public interest concerns, to which he of necessity attaches very great weight. The initial certification in your client's case was pursuant to provisions in the Immigration and Asylum Act 1999 which have been repealed or replaced (sections 65 and 72). He therefore maintains his decision that your client's allegation, that his return to Germany would breach his human rights, is clearly unfounded and accordingly he hereby certifies to that effect pursuant to Section 93(2)(b) of the Nationality, Immigration and Asylum Act 2002".
"5. The Secretary of State has carefully reviewed his position in the light of all the material that you have presented. The report of Ms. Desiree Saddik, in particular the stated suicide risk if Mrs. K is required to leave the United Kingdom, has been given particularly anxious consideration. In this regard, all reasonable steps will be taken to minimise that risk by providing medical and security escorts throughout her return to Germany. The German authorities will be informed of her medical and psychiatric condition well in advance of her return there so that they can make appropriate reception arrangements. I am entirely satisfied that Mrs. K will have immediate and free access to appropriate treatment in Germany and, prior to her removal, I will confirm with the German authorities that she will be met on arrival, assessed and provided with such treatment as she may require. She will not be removed until I have that reassurance. If you or Mrs. K's medical advisers wish to suggest other safeguards then I will be pleased to take those suggestions into account. For example it may be desirable to have one of her medical advisers on hand when she is served with removal directions, and I would welcome your views.
6. Having fully considered the information referred to above, the Secretary of State is satisfied that there is nothing in the evidence now available to him that demonstrates any possibility that a Special Adjudicator could find in your client's wife's favour on Articles 3 or 8 of the ECHR".
"There was no evidence as to what precautions would be taken to minimise the risk of suicide, and in particular what measures the French authorities would take and for how long; and how effective they would be. Without a clear understanding of what precautions would be likely to be deployed and how effective they would likely to be, we do not see how the Secretary of State could have been satisfied that this claim would be bound to fail" .
VIII The effect of the decisions in N and Djali on the decision in Soumahoro and on the present application
"the decision in D, then, on its face contemplates that Article 3 may oblige a State Party to the ECHR to give refuge to an immigrant so as to protect him from the happening of events in his own country which would not themselves give rise to a violation of the Article 3 standard; and this, despite the fact that as [the decision of the Court of Appeal in Ullah v. Special Adjudicator  1 WLR 770] makes plain, "extra-territorial" effect constitutes an exceptional extension of the Treaty obligations, even in a case where what may await the applicant if returned home would breach the Article 3 standard" .
""Extension of an extension" to the obligation owed under Article 3. Not only was the signatory State made liable, by a constrained exception to its immigration policy, to protect an immigrant from what might happen to him in violation of the Article 3 standard in another jurisdiction over which it had no control: so much was given by Soering [Soering v. UK (1989) 11 EHRR 439 was a case in which extradition to the United States was not allowed because the applicant feared a real risk of the death row phenomenon]. It was now made liable to do so also where, and only because, the humanity of the immigrants' treatment here stood in too great a contrast to what, without violation of the Article 3 standard, would befall him there" .
"I am no less clear that D should be very strictly confined. I do not say that its confinement is to deathbed cases; that would be a coarse rule and an unwise one: there may be other instances which press with equal force. That said, in light of the considerations I have described I would hold that the application of Article 3 where the complaint in essence is of want of resources in the applicant's home country (in contrast to what has been available to him in the country from which he is to be removed) is only justified where the humanitarian appeal of the case is so powerful that it could not in reason be resisted by the authorities of a civilised State. This does not, I acknowledge, amount to a sharp legal test; there are no sharp legal tests in this area. I intend only to emphasise that an Article 3 case of this kind must be based on facts which are not only exceptional, but extreme; extreme, that is, judged in the context of cases all or many of which (like this one) demand one's sympathy on pressing grounds".
"The court did not explain why it was only in exceptional circumstance that Article 3 was engaged in a case "where the source of the risk of proscribed treatment in the receiving countries stems from factors which cannot engage either directly or indirectly the responsibility of the public authorities of that country, or which, taken alone, do not in themselves infringe the standards of that Article" (para 49). But in my judgment it is implicit in the approach of the court that it recognised that this was an extension of an extension to the Article 3 obligation as Laws LJ explains at paras 36 and 37 of his judgment. For this reason, it is only in a very exceptional case, where there are compelling humanitarian considerations in play, that the application of the extension to the extension is justified. It is clear that what was considered by the court to be very exceptional about the facts in D was that the applicant's fatal illness had reached a critical stage and that "the limited quality of life he now enjoys results from the availability of sophisticated treatment and medication in the United Kingdom and the care and kindness administered by a charitable organisation" … it was not the inequality of the medical treatment that made the removal a violation of Article 3. It was the fact that the applicant was to be deported in the final stages of an incurable disease" .
(a) Laws LJ said at the end of his judgment in N that "nothing I have said here is inconsistent with the court's reasoning in Razgar" ;
(b) Counsel for the Secretary of State in N did not submit that the decision in Razgar or more pertinently in Soumahoro was wrong. The Secretary of State has petitioned the House of Lords to obtain leave to appeal the decision in Razgar but not in Soumahoro;
(c) Dyson LJ who gave the judgment of the Court of Appeal four months earlier in the conjoined appeals in Razgar, was one of the majority in N and he agreed with Laws LJ whose approach I have explained in (a) above. In his judgment, Dyson LJ did not say anything to show that he had changed his mind or that he had reconsidered his view in Razgar;
(d) The doctrine of precedent would preclude the Court of Appeal in N from reversing its decision or abandoning its reasoning on the increased risk of suicide in Soumahoro (see Young v. Bristol Aeroplane Co.  QB 78), save in specified limited circumstances and it is not suggested that any of them apply in this case;
(e) In his judgment in Djali, Simon Brown LJ (with whom Laws and Arden LJJ agreed) said that he agreed with Laws LJ's comment in N "as to the possible need for further scrutiny beyond that in Razgar of the true position regarding Article 8" . It is important that nothing that was said about reconsidering the Soumahoro reasoning or the approach to Article 3 and
(f) Soumahoro was dealing with an issue of suicide risk, which is totally different from the subject-matter of N, which concerned the difference between medical treatment in this country and abroad.
(g) In any event, it is likely that an increased risk of suicide as in Soumahoro would constitute extreme and exceptional facts of the kind referred to by Laws LJ in N, which could or would justify a successful Article 3 claim.
I Cause of Action
6(1) "It is unlawful for a public authority to act in any way which is incompatible with a Convention right".
II Right of appeal to Adjudicator
82(1) "Where an immigration decision is made in respect of a person he may appeal to an adjudicator".
III Grounds of appeal to Adjudicator
84(1) "An appeal under section 82(1) against an immigration decision must be brought on one or more of the following grounds:-
(c) that the decision is unlawful under section 6 of the Human Rights Act 1998 (c 42) (public authority not to act contrary to Human Rights Convention) as being incompatible with the appellant's Convention rights".
IV Certifying of unfounded human rights claim
94(1) "This section applies to an appeal under section 82(1) where the appellant has made an asylum claim or a human rights claim (or both).
(2) A person may not bring an appeal to which this section applies in reliance on section 92(4) if the Secretary of State certifies that the claim or claims mentioned in subsection (1) is or are clearly unfounded".