England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		28/10/2005

Mr Justice Leveson :

1. This is an application for judicial review of a decision of the Secretary of State for the Home Department dated 30 September 2004 (subsequently maintained following further submissions and evidence) to certify as clearly unfounded the representations made by the claimants that to return them to Greece pursuant to the Dublin Regulations (Council Regulations EC No 34312003) would be in breach of their rights under Articles 3 and 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms ("ECHR"), their right to family reunion and the Article 8 rights of the first claimant's mother (who herself seeks asylum in this country) and his sister (who is married to a British citizen). The claimants are husband and wife and, for convenience, when referring to them individually, I shall do so by those titles.
2. It is abundantly clear that these cases are always fact sensitive and, in the circumstances, it is appropriate to set out the chronology and the present state of the evidence in a measure of detail. The story starts in 1997, when Hamidresa Djassebi (the husband but then 16 and unmarried), his mother Mahvash Farahani, and his sister, Sheyda Djassebi ("Sheyda"), moved to the U.K. His mother claimed- asylum naming her son as a dependant. In 1998, withdrawing the claim for asylum, mother and son returned to Iran although Sheyda remained in the UK at some stage marrying a British citizen; another daughter, Shima, married a Dutch citizen. In 2001, the mother returned to the U.K., this time alone, and again claimed asylum. On this occasion, the claim was dismissed by an adjudicator in September 2003, but on 23 March 2004, she made a further claim to remain in the U.K. on compassionate grounds. Moving ahead in the chronology, as recently as 5 October 2005, what is described as a fresh claim has been made relying on a deterioration in the mother's health and her dependency on her two daughters and her son, that is the husband by then back in the country.
3. That came about in this way. On 14 April 2004, the husband, now 24 and his wife, who is now 28, arrived at Prestwick Airport from Frankfurt and claimed asylum. The basis of the claim is that they were arrested and detained on 27 February 2004 in connection with the work of the wife's sister at an atomic project at Gouhardasht; thereafter, they were both tortured before being released on different dates in March. I say at once that available medical evidence provides support for this account. They went on to assert that they had left Iran three weeks earlier and travelled to Dubai from where they travelled to this country. Meanwhile, on the same day that they arrived in this country, the husband's sister, Shima, landed at Luton Airport carrying passports in the name of both claimants both of which contained Schengen visas issued by the Greek authorities on 4 April 2004. The claimants initially denied all knowledge of these passports, before blaming their agent and asserting that they were forgeries. As the Secretary of State submits, the way in which these passports were carried into this country indicates complicity on the part of the husband's sister.
4. On 20 May, that is 5 weeks after their arrival, the husband and wife were informed that the Greek authorities had been asked to accept responsibility for processing their asylum claims. On 15 June and 5 July 2004, respectively, the Greek authorities accepted that responsibility under the Dublin Regulations. Thus, on 16 July, the applications for asylum were certified on third country grounds pursuant to section 11(2)(a) of the Immigration and Asylum Act 1999; they were not immediately removed because of the Olympics. On 28 July, the claimants lodged representations alleging that their removal to Greece was in contravention of their rights under the ECHR. Additionally, it was said that was in breach of the Secretary of State's family ties policy which was introduced prior to the implementation of the ECHR and permits the Secretary of State to exercise discretion to permit an asylum seeker to remain where a family link is not one that would normally be considered sufficient but there is clear evidence of dependency on a relative in the UK. The basis of these claims is that both were suffering depression and anxiety, both were entirely dependant on the husband's sister, Sheyda, for practical and emotional support, and they would be separated from her and from his mother. The breach of ECHR rights of the mother and Sheyda was also alleged.
5. In August and September medical reports were disclosed but, as I have already made clear, on 30 September the Secretary of State rejected all the claims and certified that in his opinion the allegation that return of the claimants to Greece would breach their human rights was clearly unfounded. When removal directions for Greece were set, these proceedings were commenced. Permission was refused on paper by Hodge J but granted by Lightman J after an oral hearing.
6. The evidence of dependence can be summarised shortly. The only statement from the husband is dated 28 May 2004 and speaks only of his treatment in Iran, the fact that he has been receiving medical attention and that he cannot return to Iran. The statement from his wife is dated 18 June 3004 and follows the same pattern doing no more than asserting:

"We are both completely reliant on my sister in law and mother in law. I don't know what we would do without them. At the minute I cannot imagine what is going to happen to us. If they send us to Greece, that is the end of my hope. If they allow me to stay here I hope to get better little by little."

7. Detail of that dependency is provided by Sheyda Djassebi in her statement of26 July 2004. She speaks of the condition of her brother (who "simply sits at home doing nothing, ... hardly speaks and is afraid to leave the house, ... and is now entirely reliant on the support he receives from his family") and sister in law ("a similar state ... afraid to sleep with her husband or by herself ... "). She says:

" I do everything for Hamidreza and his wife .... I take care of all their daily and practical needs. I try and give them hope . . . . When I have to go out, my husband takes care of them. Seyedeh especially cannot be left alone .... Without me they would not take [their medication] and their condition will deteriorate further."

8. Sheyda speaks of the relationship that her brother and sister in law have with her child and the effect of the pressure on her mother. In a letter to the court dated 29 March 2005, she reports that her brother had twice attempted suicide and scratched himself ten times (with some photographs of a number of small scratches on the back of both hands) and of her sister in law's condition (as described by the psychiatrist). She refers particularly to effect on her mother and also observes:

" [M]y brother and his wife are mentally ill and they need their family and support from us to survive. Without doubt, if they enterer Iran or Greece they will be imprisoned or torched and/or killed themselves are too ill to travel too." [sic]

9. I turn to deal with the medical evidence touching upon this application; I do so in its most up to date form. The husband was seen to have severe scars on his back which are reported as consistent with his history of torture and has been on anti-depressant medication since May 2004. At the time of the only full report on his condition (2 August 2004) the claimants were reluctant to go to Greece because of lack of family support but appreciated that it would be a better option than having to return to Iran; he wondered what point to continuing with life if he had to move to Greece.
10. The husband was believed by a psychiatrist to present a current suicide risk (although his GP was not aware that he had considered taking his own life) and the psychiatrist, Dr Mohiuddin, went on to express the beliefs that, if moved to Iran, his symptoms would "significantly deteriorate" and that a move to Greece "would have a detrimental effect on his mental state". He went on that "it is most likely that she would become increasingly depressed and suicidal" but did not make clear whether this was returning to Iran, going to Greece or being detained. The doctor observed that it was very important that the husband had as much psychological and social support from his family if his depressive disorder was to be lifted. What he did not do, however, was evaluate what support he was having.
11. At the end of August the husband superficially cut his arms with a knife and, in a letter from Dr Mohiuddin to the GP dated 27 August, was said to have "fleeting suicidal ideation but with no active plans"; he was then diagnosed as suffering from a moderate depressive disorder. No further mention was made of the support he was receiving save that he attended the medical consultation with his wife and sister who acted as his interpreter.
12. The wife was also the subject of a report from Dr Mohiuddin dated 1 November 2004. He obtained a history from her and again it was reported that she and her husband appreciated that a move to Greece would be a better option than having to return to Iran but that they were reluctant to go for want of family support. She had no active plans to harm herself but expressed feelings of hopelessness and, like her husband, is reported to have wondered what the point would be in continuing with life if they had to move to Greece. She was admitted to hospital in September for two weeks and in October was in a wheelchair without there being any organic pathology to explain her condition. Again, if returned to Iran, it was said that her symptoms would "significantly deteriorate" and a move to Greece would have "a detrimental effect on her mental condition as would be being placed in detention once again". She was prescribed anti depressants and other medication for stress related conditions. A similar comment was made about the importance of psychological and social support from the family in order to prevent further deterioration in her physical and mental states. He expressed the hope that medication should improve her situation in the months to come.
13. Although in relation to both claimants there is reference to regular follow up, the only further medical evidence dealing with their condition is a comparatively short letter dated 18 April 2005. Dr Mohiuddin reported that he had been treating both husband and wife for the past year and that both were suffering depressive disorders and were anxious about their fate. Further, the husband was said increasingly to be feeling hopeless and desperate "so much so that he is contemplating suicide". The psychiatrist comments that this was understandable as he was convinced that he would be killed if returned to Iran. He spoke of having increased the medication in the hope that it would have a beneficial effect.
14. No further medical evidence is available. In particular, there is no reference to the evidence of Sheyda in relation to suicide attempts (notwithstanding the fact that both claimants have apparently been the subject of regular psychiatric review), no clinical evaluation of the account given by Sheyda as to their dependency and there is simply no information of any sort as to what has happened over the last six months. Further, there is no clinical evaluation of the extent to which if Sheyda were not there available to shop, cook and translate for them, the claimants would be able to manage. In that regard, the fact that they cannot speak English and need Sheyda for that purpose does not advance their case under the policy or Article 8 and it has not been suggested that it does. There is only the very limited evidence to which I have referred.
15. To such extent as the evidence was then available, the Secretary of State responded to it and, on 30 September 2004, rejected the representations observing that the claimants were adults who could be expected to live independently of their relatives. The entirety of the evidence was again considered by the Secretary of State who, on 15 June 2005, concluded that he could not find sufficient grounds to alter the decision to certify the claim. He expressed the view that the claimants' problems were far from exceptional and that full and appropriate arrangements (including medical support) would be made for the care and safety of the claimants during the removal process to Greece. The extent of the support and assistance available for the claimants and the nature of the obligations accepted by the Greek authorities is clear from Article 15 of Council Directive 2003/9/EC of 27 January 2003 (to "ensure that applicants receive the necessary health care which shall include at least emergency care and essential treatment of illness" and "necessary medical or other assistance to applicants who have special needs"); there is no material to suggest that Greece will not meet this commitment and, indeed, the presumption of regularity, causes me to assume that it will.
16. I ought to deal with the evidence touching the husband's mother. On 29 April 2005, it was reported that she had been treated since 2003 for anxiety and depression, presenting as anxious with variable mood. In March 2005, she became more depressed and seriously suicidal. The psychiatrist reported that this was when her son had been told that he might be deported to Iran and there seemed no way of averting it notwithstanding that, in relation to this country, there is no question of removal to Iran. Since then, she had had minor heart attacks at least one of which that the psychiatrist related to stress. In September, it was reported that she continued to be suffering from stress and a report of 29 September 2005 speaks of severe depression and anxiety "for nearly two years now" exacerbated by issues relating to her son. She, of course, has her own asylum claim and it is not unimportant to note that nowhere does anyone explain that it has been made clear that the mother's concern about removal from this country to Iran is not based on what is proposed, that is to say removal to Greece.

The Law

17. It is no part of my function to add to the already extensive jurisprudence on the proper approach to issues of this nature. I therefore, summarise the matter in the manner accepted as representing the law by the parties and Charles J in Regina on the application of Y v Secretary of State for the Home Department (2004) EWHC 3199 Admin and also accepted by counsel in this case in these terms (at paragraph 33):

"(a) A certificate can only be lawfully issued if the claim would be bound to fail in the sense that there is no prospect that an appeal would succeed. Bound to fail is not the same as likely to fail.

(b) The court is required to subject the decision of the Secretary of State to anxious scrutiny. That essentially requires the court to determine whether the claim is clearly unfounded.

(c) The court can consider all the evidence that has been submitted and not merely the evidence at the date of decision."

18. Because it is particularly apposite in this case, and bearing in mind that I am concerned with a proposed removal to Greece and not Iran, I add only the observations upon the duty of the Secretary of State (reflected in the duty placed upon the court reviewing that decision) of Lord Bingham in Thangarasa v Secretary of State for the Home Department [2002] UKHL 36 at paragraph 14:

" ... 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"

19. In that regard, I also proceed on the premise of any legitimate view of the facts (see ZL and VL v. Secretary of State for the Home Department [2003] EWCA Civ 25, [2003] 1 WLR 1230 at paragraph 60). Similarly, I take the medical evidence to be correct (see Regina v. Secretary of State for the Home Department ex parte Razgar [2004] UKHL 27 at paragraph 70 per Lord Carswell), bearing in mind that the court is not precluded from considering the nature and quality of the medical evidence and the precise grounds upon which any diagnosis was made: see Regina on the application of Linda Mehmeti v. Secretary of State for the Home Department [2004] EWHC 2999 Admin per Beatson J at paragraph 37.
20. Turning to Article 3 of the ECHR, I have been much assisted by the recent decision of the Court of Appeal in Regina on the application of J v. Secretary of State for the Home Department [2005] EWCA Civ 629 which distinguished between foreign cases that is to say those cases where it is not claimed that the state complained of (in this case, the U.K.) has violated the applicant's Convention rights within its own territory but where it is said that the act of removal will lead to violation and domestic cases where it is said that the state is said to have acted within its own territory in a way which infringes such rights. I do not deal with the analysis of domestic cases for the process of removal is not the subject of challenge in this case but, giving the judgment of the court, Dyson LJ dealt with the approach for foreign cases in these terms:

"26. First, the test requires an assessment to be made of the severity of the treatment which it is said that the applicant would suffer if removed. This must attain a minimum level of severity. The court has said on a number of· occasions that the assessment of its severity depends on all the circumstances of the case. But the ill-treatment must "necessarily be serious" such that it is "an affront to fundamental humanitarian principles to remove an individual to a country where he is at risk of serious ill-treatment": see Ullah paras [38-39].

27. Secondly, a causal link must be shown to exist between the act or threatened act of removal or expulsion and the inhuman treatment relied on as violating the applicant's article 3 rights.

28. Thirdly, in the context of a foreign case, the article 3 threshold is particularly high simply because it is a foreign case. And it is even higher where the alleged inhuman treatment is not the direct or indirect responsibility of the public authorities of the receiving state, but results from some naturally occurring illness, whether physical or mental.

29. Fourthly, an article 3 claim can in principle succeed in a suicide case.

30. Fifthly, in deciding whether there is a real risk of a breach of article 3 in a suicide case, a question of importance is whether the applicant's fear of ill-treatment in the receiving state upon which the risk. of suicide is said to be based is objectively well-founded. If the fear is not well-founded, that will tend to weigh against there being a real risk that the removal will be in breach of article 3.

31. Sixthly, a further question of considerable relevance is whether the removing and/or the receiving state has effective mechanisms to reduce the risk of suicide. If there are effective mechanisms, that too will weigh heavily against an applicant's claim that removal will violate his or her article 3 rights. "

21. The origin of the breach of the convention right was underlined by the House of Lords in Bagdanivicius v Secretary of State for the Home Department [2005] UKHL 38, where Lord Brown of Eaton-under-Heywood put the matter as follows (at paragraph 24):

"The plain fact is that the argument throughout has been bedevilled by a failure to grasp the distinction in non-state agent cases between on the one hand the risk of serious harm and on the other hand the risk of treatment contrary to article 3. In cases where the risk "emanates from intentionally inflicted acts of the public authorities in the receiving country" (the language of paragraph 49 of D v United Kingdom 24 EHRR 423, 447) one can use those terms interchangeably: the intentionally inflicted acts would without more constitute the proscribed treatment. Where, however, the risk emanates from non-state bodies, that is not so: any harm inflicted by non-state agents will not constitute article 3 ill-treatment unless in addition the state has failed to provide reasonable protection. If someone is beaten up and seriously injured by a criminal gang, the member state will not be in breach of article 3 unless it has failed in its positive duty to provide reasonable protection against such criminal acts. This provides the answer to Mr Nicol's reliance on the UK's obligation under article 3 being a negative obligation and thus absolute. The argument begs the vital question as to what particular risk engages the obligation. Is it the risk merely of harm or is it the risk of proscribed treatment? In my judgment it is the latter."

22. As for Article 8, in Razgar v. Secretary of State for the Home Department [2004] UKHL 27, the House of Lords considered the approach to be adopted in reviewing decisions to certify as clearly unfounded claims involving allegations of potential self harm triggered by removal from the UK accepting that the provision could be engaged if the facts were sufficiently strong.
23. Lord Bingham of Cornhill dealt with the matter at some length in these terms:

"9. This judgment (Bensaid) establishes, in my opinion quite clearly, that reliance may in principle be placed on article 8 to resist an expulsion decision, even where the main emphasis is not on the severance of family and social ties which the applicant has enjoyed in the expelling country but on the consequences for his mental health of removal to the receiving country. The threshold of successful reliance is high, but if the facts are strong enough article 8 may in principle be invoked. It is plain that "private life" is a broad term, and the Court has wisely eschewed any attempt to define it comprehensively. It is relevant for present purposes that the Court saw mental stability as an indispensable precondition to effective enjoyment of the right to respect for private life. In Pretty v United Kingdom (2002) 35 EHRR 1, paragraph 61, the Court held the expression to cover "the physical and psychological integrity of a person" and went on to observe that

"Article 8 also protects a right to personal development, and the right to establish and develop relationships with other human beings and the outside world."

Elusive though the concept is, I think one must understand "private life" in article 8 as extending to those features which are integral to a person's identity or ability to function socially as a person. Professor Feldman, writing in 1997 before the most recent decisions, helpfully observed ("The Developing Scope of Article 8 of the European Convention on Human Rights", [1997] EHRLR 265, 270):

"Moral integrity in this sense demands that we treat the person holistically as morally worthy of respect, organising the state and society in ways which respect people's moral worth by taking account of their need for security." 10. I would answer the question of principle in paragraph 1 above by holding that the rights protected by article 8 can be engaged by the foreseeable consequences for health of removal from the United Kingdom pursuant to an immigration decision, even where such removal does not violate article 3, if the facts relied on by the applicant are sufficiently strong. In so answering I make no reference to "welfare", a matter to which no argument was directed. It would seem plain that, as with medical treatment so with welfare, an applicant could never hope to resist an expulsion decision without showing something very much more extreme than relative disadvantage as compared with the expelling state.

24 .... If, however, his phobia of returning to Germany were found to be genuine (whether well-founded or not), and if his account of his previous experience (including his account of the severe brutality he claims to have suffered) were found to be true, I do not think one can rule out in limine the possibility of a finding, properly made, that return to Germany would violate Mr Razgar's rights under article 8. It follows that in my opinion, agreeing with both the judge and all three members of the Court of Appeal, the Secretary of State could not properly certify this claim to be manifestly unfounded."

24. Lord Carswell made the point emphatically at paragraph 72:

"In order to bring himself within such an exceptional engagement of Article 8 the applicant has to establish a very grave state of affairs, amounting to a flagrant or fundamental breach of the article, which in effect constitutes a complete denial of his rights."

25. It is also clear from the decision that the task of the court is to apply careful scrutiny in deciding how an appeal would be likely to fare before an adjudicator (paragraph 17) and that the court should not interfere with the certificate if satisfied that an Adjudicator should find that removal either does not interfere sufficiently with a claimant's private or family life to engage Article 8 or alternatively, if engaged, is proportionate to the legitimate public aim of immigration control (paragraphs 18-20). On the question of proportionality, Lord Bingham gave guidance at paragraph 20:

"[A]lthough the [Convention] rights may be engaged, legitimate immigration control will almost certainly mean that derogation from the rights will be proper and will not be disproportionate"

In the present case, the Court of Appeal had no doubt (paragraph 26 of its judgement) that this overstated the position. I respectfully consider the element of overstatement to be small. Decisions taken in pursuit to the lawful operation of immigration control will be proportionate in all save for a small minority of exceptional cases, identifiable only on a case by case basis."

26. I ought to add references to two further cases. The first concerns the concept of family life in cases were all involved are adults. This was the subject of relevant elaboration in Kugathas v SSHD (2003) EWCA Civ 31 by Arden LJ in these terms (at paragraph 25):

"Because there is no presumption of family life, in my judgment a family life is not established between an adult child and his surviving parent or other siblings unless something more exists than normal emotional ties: see S v United Kingdom (1984) 40 DR 196 and Abdulaziz, Cabales and Balkandali v United Kingdom [1985] 7 EHRR 471. Such ties might exist if the appellant were dependent on his family or vice versa."

27. Finally, I should mention that the approach in relation to Article 8(2) was further elucidated in Huang v Secretary of State for the Home Department [2005] EWCA Civ 105 at paragraph 56 in these terms:

"The [Immigration] Rules state the detail of immigration policy, and in so doing prescribe in effect which classes of aliens will, in the ordinary way be allowed to enter the UK and which will not .. .In our judgement his [the adjudicator's] duty, when faced with an Article 8 case where the would be immigrant has no claim under the Rules, is and is only to see whether an exceptional case has been made out such that the requirement of proportionality requires a departure from the relevant Rules in the particular circumstances."

28. In that regard, it is important that considerations of the Secretary of State and, thus, the Court are made in the context of all the facts of the case, including not only the detailed family arrangements and the evidence both of private and family life (including medical evidence) but also, in order to reach a balanced judgment on the issue of proportionality. By way of example only, these include the circumstances in which the claimants came to be in the UK and the knowledge of the parties at all material times as to immigration status.
29. I turn to deal finally with the Home Office Policy on the exercise of discretion in third country cases where there are family ties upon which Ms Chapman also relies. This policy was introduced before the ECHR was directly binding but Mr Payne tells me (and I have no reason not to accept) that it was intended to reflect Article 8 rights. It is in these terms:

" ... where ties to the United Kingdom are claimed in potential third country cases would normally have their asylum claim considered substantively in this country where:

(a) an applicant's spouse is in the United Kingdom;

(b) the applicant is an unmarried minor and a parent in the United Kingdom;

(c) the applicant has an unmarried minor child m the United Kingdom.

The policy in (a) would not be applied in cases where a marriage was contracted after the applicant's arrival 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 to this country as an asylum seeker prior to an initial decision. on their application.

Discretion may be exercised according to the merits of the case where:

(a) a married minor was involved but the criteria in (b) or (c) above were otherwise fulfilled (we would be less likely to consider cases under (c) than (b ) under these circumstances);

(b) the applicant was an elderly or otherwise dependent parent;

(c) the family link was not one which would normally be considered but there was clear evidence that the applicant was wholly or mainly dependent on the relative in the United Kingdom and that there was an absence of similar support elsewhere. "

30. I suggested to Ms Chapman that this policy did no more than was now reflected in Article 8 and added nothing to that claim. Whereas she accepted that exercising the discretion in the policy the Secretary of State would be entitled to have regard to all the same considerations that would otherwise fall within the decision under Article 8, she argued that it could be possible for the Immigration Judge to decide that the Secretary of State had not had proper regard to the policy and that although he might reach the same decision, the case should be remitted for him to do so. In my judgment, given the way in which Arden LJ articulated the position in Kugathas, if the Secretary of State was entitled to reach the conclusion that he did that the Article 8 claim was clearly unfounded, it is inconceivable that exactly the same result would not have been inevitable in relation to the policy. If, on the other hand, the Secretary of State was wrong in relation to the Article 8 decision, the policy takes the matter no further. In the circumstances, I do not consider that the policy takes this case any further and I focus on the Article 8 decision although I shall return to the policy having done so.
31. Before leaving this part of my judgment, there is one other point that I wish to make. By way of elaboration and said to be of relevance because of the way in which the principles were applied, the arguments referred to a series of first instance decisions in this area. Thus, the claimants have relied on Regina on the application of Tozlukaya v. Secretary of State for the Home Department (CO/3084/20040) which is a decision of Andrew Nichol QC sitting as a deputy High Court Judge and put before me in draft form in which a certification was quashed in circumstances where it was asserted that there was a very serious risk of suicide by a Turkish asylum seeker if he was removed to Germany. The Secretary of State pointed to two decisions. These are Mehmeti (supra) in which Beatson J held lawful the certification of a removal to Greece of a claimant suffering from depression with a real risk of suicide if removed to Kosovo and Regina (on the application of Sopa v Secretary of State for the Home Department [2004] EWHC 904 Admin in which Sullivan J took a similar view in similar circumstances.
32. I am afraid that I do not find detailed analysis of the facts of these cases helpful. Each is seeking to apply identical general principles of law to highly fact specific circumstances. Inevitably, they summarise those principles in slightly different ways directed always to the facts being considered. To try to rationalise every nuance is neither illuminating nor helpful: on the contrary, it causes the proliferation of yet more analysis and greater complexity whereas what is necessary is a return to the principles that have been authoritatively decided and the application of those principles to the facts under consideration. The availability of all judgments electronically is by no means a universal blessing.

Analysis

33. In relation to Article 3, Ms Chapman for the claimants accepts that the test is that set out in J. No suggestion has been pursued that the act of removal would constitute a breach of Article 3 and the extent of her submission was that in respect of the sixth factor, it is simply unknown whether Greece has effective mechanisms to reduce the risk of suicide. Greece, of course, is both a member state of the European Community and a signatory to the Convention and I repeat Directive 2003/9/EC which required member states by 6 February 2005 to lay down minimum standards of reception of asylum seekers and paragraph 12 which sets out the obligation to make available medical or other assistance to applicants who have special needs. Although there is no direct evidence from Greece, I see no reason for not proceeding on the premise that these obligations will be met appropriately.
34. Turning to the other factors set out in J, it is clear that the medical evidence establishes no more than that removal to Greece (as opposed to removal .to Iran) would have "a detrimental effect" on the mental condition of both claimants. Accepting as I do for the purposes of this case the account given by both of their treatment in Iran, it is, of course, wholly understandable that the mental health of both should have been adversely affected and that their condition would have been aggravated by the uncertainty surrounding their claims both to asylum and in relation to where that claim should be assessed. I have equally no doubt that they would very much prefer to remain in this country where they can be near their close relatives. The fear of the unknown is an undeniable stressor.
35. In my judgment, although deserving the greatest sympathy, the evidence in this case does not come close to overcoming the particularly high threshold that is constituted by requiring what is "an affront to fundamental humanitarian principles". There are also very real, if not insuperable, difficulties standing in the way of causation (namely that the act of removal itself will violate Article 3) and no basis for arguing that proper assistance will not be provided during the transfer to Greece or that Greece will not comply with its international obligations in connection with the processing of the claim for asylum or for providing assistance and treatment in connection with their mental health. To be fair, in the light of the paucity of the medical evidence, Ms Chapman did not press this submission.
36. At the centre of this case (and identified in her skeleton argument as "the issues to be decided") are the claims relating to Article 8 which Ms Chapman rests on three limbs, namely the health of the husband who presents a current suicide risk, the extent of the dependence of both claimants on Sheyda and the impact on the private life of the husband's mother (and, in particular, the threat to her health) of the removal of the claimants to Greece. She acknowledged that each on its own would probably not be sufficient to defeat the decision of the Secretary of State that the claim was clearly unfounded but argued that, taken together, it could not possibly be said that there was no prospect that the appeal would succeed (following the way in which the matter was put in Y). Freestanding Article 3 and 8 rights of Sheyda and the mother were not the subject of argument although, whatever the merits of the argument that the claimants cannot rely upon them, I find it difficult to see how they could achieve a resolution of the claims in favour of the claimants if the human rights of the claimants are not themselves sufficient to do so.
37. Mr Payne dealt with each of these three features separately. As to the health of the husband, he argues that the medical evidence is not of sufficient strength even to engage Article 8 having regard to the test laid down by the authorities. Thus, at its highest, the diagnosis is of moderate depression with removal to Greece having an unquantified "detrimental effect on mental condition" (as is the case with his wife). This is not the same as the serious risk of suicide (Razgar) or at a level which represented an affront to fundamental humanitarian principles. On the basis that Greece will fulfil its international obligations (which I accept is the proper basis on which to proceed), he will have access to appropriate medical and other assistance appropriate to his special needs.
38. Given the paucity of the medical evidence, I agree with this submission. Assuming as I do the factual basis of the husband's case, it must be commonplace for those seeking to escape persecution in their own countries to suffer depressive and other illness when displaced to another land, suffering the consequences of their persecution, unable to speak the language and uncertain of their future. This point was made by the Secretary of State in his letter of 15 June 2005 who described the problems as "far from exceptional". If that was sufficient without more to engage Article 8 rights such as to defeat the Dublin Regulations, the international agreements relating to the processing of asylum seekers would remain of little effect. I anticipate that the husband continues to require psychiatric treatment (although, as I have said,- the last evidence that I have is six months old) but I have no doubt that to such extent as he needs it, Greece will be able to make the necessary provision for him. In my judgment, this aspect of the claim does not start to reach the required threshold.
39. Turning to the question of family life, I agree with Mr Payne that it is appropriate to consider the claim in context. Prior to April 2004, the husband had been separate from his mother for at least three years and his sister for the best part of six years. Given that the Schengen visas have been accepted by the Greek authorities as requiring Greece to deal with the asylum claim, it is legitimate to infer that the claimants have lied about the circumstances of their arrival in this country. Further, within six weeks, all knew of the intention to return the claimants to Greece and within three months, the Greek authorities had accepted their responsibilities: the time that has passed, in which such dependency as there is has arisen, comes solely from the delay consequent on this application. There is no evidence of special dependency between the husband and his mother (whose concern appears to be based on the risk of his being returned to Iran and who, in any event, has no right to be in the U.K.). As for the Sheyda, as a British citizen, she is free to travel to Greece.
40. I accept that Sheyda has clearly provided considerable support for the claimants not only with the language and engaging the services of health and legal professionals but also in relation to their health although, as I have said, there is no medical evidence evaluating the extent to which it has been necessary for her to do that given the nature of the diagnosed illness or providing the up to date position. In the circumstances, I accept that Article 8 rights are engaged and thus necessary to consider proportionality (to which I return after considering the third limb of this claim).
41. I have already observed that according to the evidence, the stress suffered by the husband's mother is consequent at least in part upon her belief that the claimants will be removed to Iran; I am not prepared to make an assumption (as Ms Chapman invited me to) that the true position has been explained to her and that the medical reports represent a misunderstanding on the part of the reporting doctor. The most recent evidence is that her suicidal ideation is "reasonably controlled" and it is clear that she is receiving continued treatment and support. In any event, an important part of her most recent application for asylum that she needs continued treatment in the UK. In the circumstances, I do not accept that her condition creates any free standing Article 8 rights in the claimants particularly given that there is no suggestion that she is dependent on them although I accept that her general condition is part of the circumstances that must be brought into the balance when considering the impact on the claimants' Article 8 rights and proportionality.
42. I therefore turn to the issue of proportionality. There is no question but that the decisions taken by the Secretary of State were in pursuit of the lawful operation of immigration control and I recognise that any interference with family life in returning a person to another member state is (save for truly exceptional circumstances) inevitably going to be proportionate. After all, even assuming that an application to the Greek authorities to request the authorities in this country to assume responsibility for the claim (pursuant to Article 15 of the Dublin Regulations) fails, the effect of returning the claimants to Greece will be limited to requiring the Greek authorities to determine their claim to asylum (and will include an analysis of the position under the ECHR). If the claim is found to be made out, the claimants will be able to remain in Greece or move to this country. If it is not, there is no reason to consider that it would have fared better in this country.
43. I repeat that I have sympathy for the position of the claimants and recognise the assistance that Sheyda has provided to them. Nevertheless, I am afraid that I am clear that the evidence in this case does not start to meet the criteria of exceptional circumstance sufficient to defeat the legitimate operation of immigration control. Indeed, I do not think that it is exceptional at all: as the Secretary of State said in his letter of 15 June and I have observed, the condition of the claimants is far from exceptional and is commonplace in those seeking asylum in this country in circumstances such as theirs. All those who claim asylum with family members in this country prepared to look after them through this most difficult time in their lives will be in a similar position. A contrary claim is, in my judgment, bound to fail and the Secretary of State was therefore entitled to conclude that the claims were clearly unfounded. For the sake of completeness, I add that even if I am wrong on the extent to which the discretion under the policy mirrors the balancing exercise required in Article 8, when read as a whole, I do not accept that the complaint of failure properly to consider the discretion in the policy is made out or could ever have led to a different outcome.

Conclusion

44. In the circumstances, this application for judicial review of the decision of the Secretary of State fails. Nevertheless, it is important that the effect of this decision is not misunderstood by the claimants, their family or their medical advisers. This is not the first step on the road of return to Iran. However it might have been thought (and the wife spoke of Greece as being "the end of my hope") it is restricted to a decision that, pursuant to the Dublin Regulations, their claim to asylum should be adjudicated upon in Greece. There is no reason to believe that the approach of the Greek authorities will be any less favourable to their claim than might have been the approach in this country and the claimants will remain with the protection that the ECHR provides for them.