QUEENS BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| The Queen on the application of
|- and -
|The Secretary of State for the Home Department
Jennifer Richards (instructed by The Treasury Solicitor) for the Respondent
Hearing date: 18th November 2003
Crown Copyright ©
Mr Justice Goldring:
The Claimant's immigration history
The issues in this application
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…"
"Unless a certificate has been issued under section 72(2)(a) in relation to a person, he is not to be removed from the United Kingdom—
(a) if he has an appeal under section 65 against the decision to remove him in accordance with this section pending; or
(b) before the time for giving notice of such an appeal has expired."
"(1) Unless a certificate issued under section 11 or 12 has been set aside…the person in respect of whom the certificate was issued is not entitled to appeal under this Act as respects any matter arising before his removal from the United Kingdom.
(2) A person who has been, or is to be, sent to a Member State or to a country designated under section 12(1)(b) is not, while he is in the United Kingdom, entitled to appeal—
(a) under section 65 if the Secretary of State certifies that his allegation as a person acted in breach of his human rights….is manifestly unfounded…"
The evidence relied by the Claimant
"Ms. H describes her mood as low and anxious and says she worries considerably. She has problems sleeping, waking frequently during the night and in the early hours of the morning. Often she re experiences nightmares where she re-lives the rape. She often wakes screaming in the night. In addition to the nightmares of rape she also has nightmares where she sees blood and dead people. She experiences some suicidal thinking, particularly when she feels low and feels dirty. Then she thinks that nobody needs her and her children would be better off without her but generally it is the thought of her children which prevents her committing suicide…[She] has frequent intrusive thoughts of the rape every day, although she tries to avoid it…She tries to avoid thinking about the rape and avoids any films of violence or rape scenes…When asked about her feelings about the possibility of an enforced return to Kosovo [she] states she becomes very frightened and distressed…"
"Ms H fears that if she is to be returned to Kosovo [my emphasis] that because of her mixed origins she could be vulnerable to rape again. In addition, to this the sense of shame which public disclosure would engender makes her extremely fearful. On thinking about a possible return she still feels forced to contemplate suicide…It is my belief that were Ms H to be returned to Kosovo [my emphasis] that her mental health would deteriorate severely and that there would be a higher risk of self harm. It is my belief that she would benefit from specialist help to deal with the problems associated with rape and to my knowledge specialist services such as this are not freely available in Kosovo [my emphasis]…In addition, were Ms H to be returned to Germany [my emphasis] where she has previously resided with her husband, I feel that again her condition would [be] likely to deteriorate dramatically. She would feel isolated and entirely dependent on her husband. At present she has made a number of contacts in the UK and it is only these that are helping her to cope currently…In conclusion Ms H suffers from marked post-traumatic stress disorder and depression as a consequence of rape…She is fearful of return to Kosovo [my emphasis] and it my belief that an enforced return would cause her marked deterioration in her mental state and a substantial risk of self harm…In addition were she returned to Germany [my emphasis] where she has previously resided I believe that there would be a marked deterioration in her mental state also."
"…can only begin to recover from her traumatic experiences and rebuild her life if she can stay in a place she feels safe from violence…it is urgent for [her] to be allowed to remain in Britain so she can receive counselling and other support…"
The decision letters
"The Secretary of State has considered whether removing your client to Germany in her psychological condition would amount to inhuman and degrading treatment. The Secretary of State is aware that Germany has a modern and efficient health service with facilities at least equal to those in the United Kingdom. The German authorities are experienced in dealing with asylum seekers who suffer from post-traumatic stress disorder and other psychological problems. Before she is removed to Germany the authorities there will be made fully aware of your client's condition. The Secretary of State is satisfied that your client will be medically assessed in Germany and would receive any treatment considered necessary. The Secretary of State would not remove your client to Germany if he was not fully satisfied that appropriate facilities would be available there.
The Secretary of State takes the view that your client's removal would not constitute inhuman or degrading treatment and would certainly not come anywhere near the threshold required for Article 3 of the ECHR to be breached.
[Bl]…has been assessed by a speech therapist and identified as having problems with his language development. As a child of an asylum seeker he will be entitled to an education and the Secretary of State is satisfied that any special needs will be catered for. Your client's son is 3 years old and the Secretary of State is confident that the upheaval of removal to Germany will be less disruptive at this age that it would be as he gets older.
The Secretary of State accepts that, on removal, treatment which does not reach the level of severity of Article 3 ill-treatment any nonetheless constitute an interference with the right of respect for private life under Article 8 of the ECHR. However, if such treatment is not attributed to the receiving state a breach will only occur if the person can establish that his or her moral integrity would be substantially affected. Even then the removing state may justify the interference under Article 8(2). The Secretary of State does not accept that the material before him shows an arguable case that removal would constitute such interference.
In any event…he takes the view that any interference…is plainly justified. He takes a serious view of his duty…to maintain a credible and effective immigration control…
He is satisfied they will be able to continue living together as a mutually supportive family unit after their removal."
"[The letter from the Kent Refugee Support Group] states that your client has experienced traumatising events, is at times nervous and anxious and has been receiving support from the asylum team of the social services. However, there is no evidence in this letter to suggest that a breach of your client's human rights would occur as a result of her removal to Germany in accordance with the law."
"…in any case, the Secretary of State, having fully considered the letter from Professor Ian Robbins dated 12 February 2002 and the letter from the Kent Refugee Support Group dated 22 January 2003, is not persuaded to alter his opinion that the removal of your client from the UK to Germany would not breach the UK's obligations under the ECHR. Equally, he does not consider that any adjudicator could reasonably reach a different conclusion."
"…neither does the Secretary of State consider that the letters establish that it is arguable that the effect on your client's private life and that of her son's could reach the threshold at which it could be argued that a breach of Article 8(1) might occur. This threshold is, of necessity, high...
The Secretary of State does not consider that an adjudicator would be persuaded that the evidence concerning the effect on your client of removal to Germany demonstrates a sufficiently serious effect on your client's psychological integrity. Professor Robbins stated in his first report dated 7 August 2002, that your client would feel isolated and entirely dependant on her husband if she were returned to Germany and that it is only her close contacts in the UK which are helping her to cope currently. The Secretary of State considers that there is no reason why your client would not be able to develop a support network in Germany. Furthermore, the Secretary of State is satisfied that your client will receive any medical or psychiatric care that is necessary to allow her to lead a normal life…
[He] acknowledges that Bl has benefited from the assistance that he has received from Parkside Community Primary School [and]…accepts that Bl may find it unsettling to be removed from the UK and his school. However, the Secretary of State takes the view that while the effect of removal may be detrimental to Bl, there is no evidence to suggest that it will have a sufficiently serious adverse impact on his physical and psychological integrity as to interfere with his Article 8 rights…
Even if it could be legitimately argued that Article 8(1) is engaged in this case, the Secretary of State is entitled to rely upon the provisions of Article 8(2) in pursuit of the maintenance of a credible and effective immigration control. Article 8(2) allows for lawful interference with the right to respect for private and family life "as is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others." If the Secretary of State was not permitted to invoke the qualifying provision of Article 8(2), the Dublin Convention would be inoperable…
In any case, the Secretary of State is satisfied that Bl will be entitled to an effective education in Germany and any disruption to Bl's schooling would therefore only be temporary."
"that Razgar establishes that…an Article 8(1) claim would is capable only of being engaged only if there are substantial grounds for believing that the claimant…would face a real risk…of serious harm to her mental health caused or materially contributed to by the difference in treatment and support that she is enjoying in the deporting country and that which would be available to her in the receiving country…that harm constituting a sufficiently adverse effect on physical and mental integrity, and merely health as to engage Article 8."