England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		6th October 2005

Andrew Nicol QC :

1. The Claimant is a Turkish national. He and his family arrived in the UK in 1998. They have attempted to claim asylum without success first in Germany and then here. The Secretary of State wishes to remove them to Germany which has accepted responsibility for them under the Dublin Convention^[1]. They have claimed that their removal to Germany would violate their rights under Articles 3 and 8 of the European Convention on Human Rights. The Secretary of State has certified these claims as clearly unfounded. The Claimant's purpose in bringing this application for judicial review is to quash the certificate. While the certificate stands, the Claimant has no further right of appeal to the Asylum and Immigration Tribunal. If the certificate is quashed, the merits of his human rights claims will be investigated by the Tribunal.

The evidence

2. The Claimant and his wife (Maryem Tozlukya) appear to have entered Germany in 1996. It seems that they claimed asylum there but were refused. On 8^th June 1998 they and their daughter, Kader (born 2^nd February 1997), travelled to England where they claimed asylum. In October 1998 the Secretary of State asked Germany to accept responsibility for the family, which it did in January 1999. The Claimant made representations on the basis that there was a real risk that Germany would remove him and his family to Turkey notwithstanding that they would there be at risk of torture or inhuman or degrading treatment. The Secretary of State rejected these submissions and the Claimant launched his first judicial review proceedings in February 1999.
3. In June 2001 the Claimant's second daughter, Rodja, was born.
4. The Claimant's first judicial review was withdrawn in October 2001 when decisions of the appellate courts made it clear that his objection to the certificate was unsustainable. A further decision of the Secretary of State to reject the Claimant's human rights arguments was made in November 2001. These arguments were also certified, but by mistake an appeal form was sent to the Claimant. In consequence, the certificate was withdrawn, but the Claimant's appeals to an Adjudicator and the Immigration Appeal Tribunal were finally dismissed on 29^th October 2003.
5. In due course removal directions were set for the Claimant, his wife and their two daughters on 14^th June 2004. They were detained shortly before the removal was due to take place. By this stage Mrs Tozlukya (who had suffered a miscarriage in 2003) was pregnant again. At the airport she complained of abdominal pains. She and her family were taken off the plane, but they remained in detention.
6. A second attempt at removal was made three days later on 17^th June 2004. This, too, was aborted before the plane left the ground. The reason for this is not altogether clear. Dr Turner, a consultant psychiatrist (whose report I refer to below) reviewed all of Mrs Tozlukya's medical records. They include nursing records from Wishaw General Hospital. One of these recorded a history which said of this second attempted removal that Mrs Tozlukya had tried to 'hang herself whilst in toilet on board, family started screaming and again flight was cancelled.' It is fair to say that this attempted suicide is not referred to in any of the other medical reports on Mrs Tozlukya.
7. Again the family was detained. On 22^nd June 2004, Mrs Tozlukya was found with one end of a bed sheet around her neck and the other end over the door. Although there were no marks around her neck this was treated as a serious suicide attempt. Dr. Turner reports (from the medical records) that her husband was instructed to remain with her at all times and officers were to check her every 15 minutes. The following day she was described as being still very much suicidal.
8. Her mental health remained a source of concern. On 13^th July 2004 she was seen by a psychiatrist, Dr Aryiku. Mrs Tozlukya said that she wanted to be with her father who was calling on her (her father was dead). She said that she intended to end her own life. Dr Aryiku said that he would be sectioning Mrs Tozlukya under the Mental Health Act and he recommended constant observations within the health centre until a hospital bed was available. Dr Aryiku apparently recorded that Mrs Tozlukya 'is very morbidly depressed and suicidal. She believes that her dead father has been instructing her to kill herself and him. She has already made futile attempts [I note in passing, Dr. Aryiku's use of the plural] and she is desperate to finish herself.'
9. On 14^th July 2004 it was reported that the midwives could detect no foetal heart. It was determined that the baby had indeed died and subsequently on 18^th July 2004 she delivered the dead foetus.^[2]
10. Dr Keith, a consultant psychiatrist at the Wishaw General Hospital, saw Mrs Tozlukya first on 23^rd July 2004. Dr Keith found her understandably distressed by what had happened to her baby but did not think that Mrs Tozlukya showed signs of any significant depressive illness and considered that she was physically and mentally fit to co-operate with whatever further disposal should be arranged for her. She was discharged from Wishaw into Immigration detention on 28^th July 2004. On admission there she was believed to be at high risk of self harm or suicide and placed on constant observation and was to have an officer with her at all times.
11. Mrs Tozlukya appears to have refused to eat or drink for some days. She appeared not to be able to accept that her baby was dead and spoke to a rolled up blanket as though it was her child. She was diagnosed on 4^th August 2004 by Dr Pinto, a consultant psychiatrist, as suffering from a dissociative reaction in the context of a post natal depression and she was again admitted to hospital under the Mental Health Act. She was placed on 15 minute observation
12. On 7^th August 2004 Mrs Tozlukya was seen, at the request of the Claimant's solicitors, by Dr Hajioff, a consultant psychiatrist. His experience includes 15 years employment with the Home Office as a Visiting Psychiatrist to Pentonville Prison. He considered that she was suffering from depression and post-traumatic stress disorder. His report (dated 12^th August 2005) concluded,

'(41) She fears further persecution if she and her family go back to Turkey. I believe that if she does return she will become more depressed and the risk of suicide will increase.

(42) I have been asked to clarify my opinion of the suicide risk.

(43) Her depressed state and the risk of suicide is the result of her experiences in Turkey and also subsequent events. They include: having her asylum application in Germany refused, being in an uncertain situation in England, her unsuccessful appeal hearing in October 2003 and her two miscarriages.

(44) I think that the risk will be greatest when she feels that she has no hope of avoiding return even while she is still in this country. If she goes to Germany the risk will remain because she believes that she will not be allowed to stay there. In addition the uncertainty of her position will be prolonged and that will constitute a further stress. If she was made aware that her claim would be given substantive consideration it would give her a measure of hope and would reduce the suicide risk.

(45) I believe that there is a marked risk of suicide while she is in England and that will continue if she is removed to Germany.

(46) This opinion is based partly on what she told me but mainly on my observations of her behaviour and on the observations of nursing staff in the hospital where I carried out my assessment.'

13. Mrs Tozlukya remained in hospital until her discharge on 6^th September 2004. Just before then, on 3^rd September 2004, the consultant psychiatrist under whose care she was, Dr Pinto, wrote a letter to the Home Office. He thought that she had suffered from post-natal depression that manifested itself in a dissociative reaction. Dr Pinto did not differ greatly from Dr Hajioff's assessment of her mental state in the first week of August, but he thought that she had improved since then. By early September there were no significant signs of a post-natal depression and no psychotic symptoms. It was not inappropriate for her immigration detention to recommence.
14. Dr Hajioff elaborated on his opinion as to the risk of suicide in a letter dated 14^th September 2004. He said:

'I believe that there is a serious risk of suicide, which will be greatest when she sees no hope of remaining in England and the risk will continue throughout the process of removal.

However, if she has appropriate treatment and close supervision the risk may be controlled. The act of removal will disrupt such support and treatment and will increase her feelings of hopelessness and desperation so that she will then be more likely to act in a suicidal manner.

From what she told me she believes that she will not receive what she feels is appropriate consideration in Germany and that prospect will increase the risk further.'

15. Charles J. refused permission to apply for judicial review on the papers on 14^th September 2004.
16. Mrs Tozlukya was re-detained following her discharge from hospital. Dr Turner reports references in the subsequent medical records over the following four weeks to her being tearful, distressed and unable to sleep properly.
17. On 18^th October 2004 she was seen by Ms Emma Citron, a Chartered Consultant Clinical Psychologist. Ms Citron considered that Mrs Tozlukya suffered PTSD. She suffered flashbacks, nightmares, heard voices and felt that she was being followed. She met the criteria for suffering a depressive episode, severe type. Ms Citron conducted psychometric tests of two kinds: a Revised Impact of Events Scale (score = 70 – mean 42.1, standard deviation 16.7) and on the HAD scale Mrs Tozlukya scored the maximum for both anxiety and depression. Ms Citron concluded that Mrs Tozlukaya suffered from PTSD and depression after the detention and torture of her husband in 1996 and continued to suffer florid symptoms into the present. She was of the firm opinion that Mrs Tozlukaya's mental health would deteriorate even further were she to be removed to Germany and she would present as a severe and serious suicide risk. There would be a marked increase risk of suicide if she was to be returned to Germany.
18. On 23^rd October 2004 the Secretary of State reconsidered the matter in the light of the material which had been supplied to him, but he maintained his view that the human rights claims were clearly unfounded. He questioned Ms Citron's ability to express a view on Mrs Tozlukaya's mental health since her father's death (when she had been 4 years old) or her husband's detentions (some 8 years before Ms Citron saw Mrs Tozlukaya). The Secretary of State considered that the seriousness of the suicide attempt in July 2004 had been exaggerated and that, in the view of Drs Keith and Pinto, the depression which had followed the death of her baby had abated by the beginning of September 2004.
19. Forbes J. granted permission to apply for judicial review at an oral hearing on 25^th October 2004.
20. I have already mentioned Dr Turner's report of 15^th March 2005 (which followed an interview with Mrs Tozlukaya on 21^st February 2005). He had all the previous expert reports that I have mentioned and his report contains a detailed review of the other medical records as well. Dr Turner considered that Mrs Tozlukaya had a current Major Depressive Disorder which was moderate in intensity. He did not think that she suffered from PTSD. Following the death of the baby she manifested dissociative symptomatology of a severe nature associated with marked disturbance of behaviour. He considered whether she had fabricated her symptoms, but while he recognised that this was ultimately a judgment for the courts, he thought it unlikely. He thought that her problems went back over a substantial period of time and could not just be attributed to the loss of her pregnancy. Her mental health had deteriorated on two occasions following transfer from hospital to immigration detention. This strengthened Dr Turner's opinion that threat of removal was also an important factor in relation to the severity of her depression.
21. Dr Turner was asked specifically whether a future attempt to remove Mrs Tozlukaya and her family could trigger a suicide attempt. He responded –

'(233) My opinion is that an attempt to remove Mrs Tozlukaya from this country could indeed trigger a suicide attempt. There are a number of reasons for this, but probably three stand out.

(234) The first reason is that she has a Depressive Disorder. This increases the risk of self-harm and suicide.

(235) She appears to believe that deportation to Germany would simply trigger a return to Turkey. Similarly, she seems to believe that return to Turkey would place her and her family at risk. If this is what she believes (and here the objective facts about Germany and Turkey matter less than what she actually believes) then she will inevitably see removal as an act associated with substantial threats both to herself and to her family. In my view, the perception of threat of this type is likely to be associated with an increase in her suicide risk.

(236) The final mechanism to consider relates to the fact that she has been detained and that during detention she was able to avoid removal. Now, as I have already indicated, my opinion is that she was suffering from a Major Depressive Disorder. However, she had also had the experience of learning that her behaviour can affect the decisions made by the authorities concerning removal. My opinion is that this process of learning will make it more likely that she will act in a disturbed way if she were to face detention and removal again. Such actions would not necessarily be consciously determined (they may be associated with dissociation), but it is more likely that there would be disturbance following these experiences. I would not wish to underestimate the importance of this process either. Even if behaviour is apparently related to the possibility of gain, it may still be dangerous and may still lead to completed suicide.

(237) To that degree, therefore, my opinion is that the experience of detention probably has heightened her risk of completed suicide. I would say that if she faced a future attempt to remove her from this country then the risk of deliberate self-harm of some sort would be very high. With regard to the risk of completed suicide, I would described this as being at least a moderate risk. By this I mean that it would be substantially elevated over the general population. It would not be as high as if she had, for example, a psychotic depression with delusions. I am not sure how much further I can go in terms of offering quantification. She would certainly present a significant risk.'

22. Dr Turner also commented in response to a further request from the Claimant's solicitors that 'being strapped into an aeroplane in a setting probably perceived as humiliating and in the presence of her young children, is likely to lead to a deterioration in her mental health.'
23. Finally Dr Turner was surprised at the absence of discharge summaries, care plans or other plans for continuity of her medical care following her return to Germany. There appeared to have been no contact with medical services in Germany in order for them to prepare to assess her on arrival. To some extent, as I shall mention, those gaps have subsequently been filled.
24. Dr Hajioff saw Mrs Tozlukya for a second time in February 2005. He was also shown Dr Turner's report. In a further report dated 11^th April 2005 he adhered to his diagnosis of PTSD (as did Ms Citron in her letter of 6^th April 2005). Dr Hajioff also observed that while she had shown signs of improvement over the 6 month interval, she was still vulnerable. He said that he, Dr Turner and Ms Citron agreed that there was a serious risk of suicide if her present feeling of being in a secure place was interfered with.
25. Dr Turner had called for Mrs Tozlukaya's General Practitioner records. When these were produced, Dr Turner wrote a supplementary report dated 10^th May 2005. He observed that she had been diagnosed with depression in the context of PTSD in July 2003 and on various other occasions prior to the attempted removals in June 2004.
26. On 18^th May 2005, Ms Citron submitted another report. As well as repeating her opinion that Mr Tozlukaya would present as a serious suicide risk were she to be threatened with deportation, Ms Citron also commented on the two girls. She found that the eldest, Kader, was significantly depressed at the time of examination. The younger child, Rojda, was psychologically affected by the detentions and separation but was not currently presenting as significantly psychologically impaired although she continued to be more clingy with her mother and more anxious. Both children were fearful of the threat of deportation.
27. The Secretary of State served his evidence later in May 2005. This included a statement of Ian Taylor from the Home Office's Third Country Unit. He described the procedures which would be followed on the arrival of the Claimant and his family in Germany. A specialist in mental health would be in attendance and he would be provided with any medical information from the doctors in England if Mrs Tozlukaya gave her consent. She would have access to Germany's highly developed system of health care, including appropriate psychiatric facilities. Mr Taylor exhibited two other statements (from Ian Bennett and Michael Mahony) which had been prepared for J v Secretary of State for the Home Department (see [48] below). These additional statements set out the procedures which would be adopted on the initial detention and transportation of someone who was thought to be a suicide risk.
28. Dr Turner was shown these statements. In another report of 10^th June 2005 he acknowledged that they showed a serious approach to consider Mrs Tozlukaya's need in the circumstances of her removal, mainly through liaison with the German authorities. He thought that the precise training and supervision arrangements for escort officials remained unclear. It was still his opinion that the mere fact of being told that she faced removal could trigger a further episode of self-harm with a risk of completed suicide. She had a history of fluctuating depression, but while the possibility of deportation remained this would be a barrier to full recovery.
29. Dr Hajioff was shown Mr Taylor's statement and attachments. In his final report of 23^rd June 2005 he said that he thought that with the continuous attendance of a female escort, the risk of Mrs Tozlukaya actually harming herself would be low. However, forcible removal from the network of support that she had established in the UK would increase her sense of helplessness and lack of control of her life. Because of her perception that she would not be allowed to remain in Germany but would be returned to Turkey, she would be more anxious and depressed and in consequence there would be an increase in the risk of suicide. If she was given appropriate treatment and as she began to feel safe and secure there, the risk would gradually diminish, but it would take many months.
30. Ms Citron's final report of 23^rd June 2005 said that it was the fear of removal to Turkey which was destabilising. Mrs Tozlukaya was unable to cope with this fear and it was this which prompted suicidal behaviour. Ms Citron thought that any treatment in Germany would be unlikely to be sufficient to ensure that she did not pose a severe risk of suicide in future given the threat of removal to Turkey. Dr Turner's final report of 24^th June 2005 said that he thought that the risk of suicide following removal to Germany would be higher than it presently was. He, too, emphasised that what mattered was Mrs Tozlukaya's perception of risk if returned to Turkey. He said 'here from a psychiatric perspective, what matters is not the objective likelihood of return, or even the objective likelihood that return would be associated with harm. What matters is her subjective perceptions regarding these matters since it is her subjective sense which will affect her emotional state. In other words it is her own appraisal which will affect her mood.'
31. A little earlier, the Claimant's solicitors had made further representations to the Secretary of State that the family should be allowed to remain in the UK because one of the children had been in the country for more than 7 years. This was a reference to the policy announced on 24^th February 1999 (see [74] below). The concession had said that each case would be considered on its merits as the Secretary of State recalled in his reply of 20^th June 2005. He said that the family had been aware since the time that they were told in 1999 that Germany had accepted responsibility for them, that they had no claim to remain in the UK and had only managed to stay as a result of protracted legal challenges. Consequently, the Secretary of State was not prepared to exercise discretion in their favour.

The nature of the Claimant's human rights claims

32. The Claimant invokes Articles 3 and 8 of the ECHR.
33. Article 3 provides:

'No one shall be subjected to torture or to inhuman or degrading treatment of punishment.'

34. The Claimant alleges that removal of his wife to Germany would amount to inhuman or degrading treatment because of the adverse effect that it would have on her mental health and because of the risk that she would attempt again to commit suicide. The risk would arise in the UK at the time or after she had been notified of the decision to remove or to re-detain her, during transit to Germany or in Germany.
35. Initially, Mr Eicke on behalf of the Secretary of State, took the objection that the Claimant, Mr Tozlukaya, could not rely on an allegation that removal would amount to inhuman or degrading treatment of his wife. However, at the hearing he did not press this point. The Secretary of State wished to remove both husband and wife. Their cases stood or fell together. If (which the Secretary of State disputed) Mrs Tozlukaya had an arguable claim under Article 3, the removal of Mr Tozlukaya would also be deferred until that claim had been finally determined.
36. Alternatively, the Claimant relies on Article 8. This provides:

'(1) Everyone has the right to respect for his private and family life, his

home and his correspondence.

(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the preservation of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.'

37. There are two principal strands to the Article 8 claim. On the assumption that the Article 3 claim is unarguable (if it is arguable, the merit of the claim under Article 8 becomes superfluous), the Claimant says that removal would nonetheless interfere with his wife's mental integrity. This is an aspect of the 'private life' which Article 8 protects. Moreover the children have been disturbed by the process of detention and attempted removals and effect of these on their mother. In the case of Kader, there is evidence that she now suffers from depression. The adverse effect of a further attempt at removal (especially if their mother were to attempt to commit suicide again) would also constitute an interference with their private lives.
38. The second strand to the Article 8 claim is that the family has now lived in England for more than 7 years. They have established a network of relationships in that time. This will be so particularly for the children. The Secretary of State's policy recognises that after a child has spent more than 7 years in the UK (as Kader has) even without leave to enter or remain in the UK it may be right to regularise the status of them and their families.

The power to certify and its effect

39. The Claimant's human rights grounds in their present form were first put forward in the summer of 2004. Following refusal (effectively, refusal of leave to enter) by the Secretary of State, the Claimant would ordinarily have had a right of appeal to an adjudicator under s.82(2)(a) of the Nationality, Immigration and Asylum Act 2002 on the grounds that removal would be unlawful under s. 6 of the Human Rights Act 1998 (see s.84(1)(g) of the 2002 Act). However, this right of appeal is precluded when (as here) the Secretary of State has certified that the 'the human rights claim is clearly unfounded' (see s.93(2)(b) of the 2002 Act).
40. Since then the system of immigration appeals has been replaced by the Asylum and Immigration (Treatment of Claimants etc) Act 2004. However, neither party suggested that this has altered the necessary analysis save that, if the certificate of the Secretary of State is quashed, the Claimant's appeal will be to the Asylum and Immigration Tribunal.
41. The phrase 'clearly unfounded' in s.93(2)(b) of the 2002 Act was a replacement for the term 'manifestly unfounded' which had been used in s. 72(2)(a) of the Immigration and Asylum Act 1999 and which had given the Secretary of State a similar power to certify human rights claims and thereby prevent the claimant from appealing on those grounds. However, the courts have treated the two expressions as effectively synonymous with the consequence that judicial guidance in relation to 'manifestly unfounded' remains sound when considering its 2002 Act equivalent (see R (Bagdanavicius) v Secretary of State for the Home Department [2003] EWCA Civ 1605 [2004] 1 WLR 1207 at 1232 [58]). In that passage Auld LJ noted the following comments on these tests:

(1) In R(L) v Secretary of State for the Home Department [2003] EWCA Civ 25, [2003] 1 WLR 1230 at 1245-6 [57] – [58] Lord Phillips MR had said that the threshold was that if the claim 'cannot on any legitimate view succeed' it was clearly unfounded.

(2) In R (Yogathas) v Secretary of State for the Home Department [2002] UKHL 36, [2003] 1 AC 920 at 934 [34] Lord Hope had said that the manifestly unfounded test would be satisfied only if the claim was 'so clearly without substance that the appeal would be bound to fail.'

(3) Lord Justice Auld himself said that the 'The question is a narrow one and the threshold for certification is high.'

(4) He endorsed the views of Dyson LJ in R (Razgar) v Secretary of State for the Home Department [2003] EWCA Civ 840 [2003] Imm AR 529 at 569 [111] who had said 'The Secretary of State cannot lawfully issue such a certificate unless the claim is bound to fail before an adjudicator. It is not sufficient that he considers that the claim is likely to fail on appeal or even that it is very likely to fail.' [emphasis by Lord Justice Dyson].

42. The role of the court when considering an application for judicial review of a certificate by the Secretary of State has been considered on a number of occasions by the higher courts. The position is succinctly summed up by Lord Phillips MR in R (L) v Secretary of State for the Home Department [2003] EWCA Civ 25 [2003] 1 WLR 1230 at 1245 [56] 'The test is an objective one; it depends not on the Home Secretary's view but upon a criterion which a court can readily re-apply once it has the materials which the Home Secretary had. A claim is either unfounded or it is not.' I therefore have to consider whether the human rights claims are 'clearly unfounded'.
43. Mrs Tozlukaya's mental health was first mentioned to the Secretary of State in June 2004, notwithstanding that the medical professionals record her as having suffered problems for some years previously. Dr Keith in his letter of 27^th July 2004 did wonder whether Mrs Tozlukaya's mention of the presence of her dead father was a deliberate ploy to avoid questioning about her immigration status. However, Dr Turner's detailed review of her medical records led him to conclude that she was not fabricating her symptoms. These are not questions which can be resolved at the present stage and I am invited by the Secretary of State to consider the matter on the basis that the AIT might in due course accept unreservedly the credibility of Mrs Tozlukaya and find that the behaviour which she manifested in 2004 was genuine and not contrived.
44. However, Mr Eicke does contrast the state of the evidence of the present case with that in Razgar. When that case reached the House of Lords (R (Razgar) v Secretary of State for the Home Department [2004] UKHL 27 [2004] 2 AC 368), Lord Bingham at [13] and Lord Carswell at [70] observed that, in the absence of any other medical knowledge, the Secretary of State was obliged to proceed on the basis that the Claimant's expert evidence would be accepted. Here, Mr Eicke says, the Secretary of State had the evidence of Dr Keith and Dr Pinto as well as the reports of the professionals that had been submitted by the Claimant. Moreover, the Claimant's own experts disagreed to some extent as to whether the Claimant suffered from PTSD and as to the degree of risk of completed suicide if she was returned to Germany. I do not find this distinction persuasive. If the Defendant's experts' reports had demonstrably and clearly undermined the evidence put forward by the Claimant the position would be different. That is not the case. Dr Turner, Dr Hajioff and Ms Citron have given their views after seeing the reports of Dr Keith and Dr Pinto (and, in their later reports, having seen the evidence of Mr Taylor). There is a disagreement as to whether the Claimant suffers from PTSD, but Ms Citron and Dr Hajioff give their reasons as to why they think she does. I cannot at this stage say that the Tribunal would be bound to reject their views. Assessing the degree of risk of a completed suicide is necessarily a difficult matter. It is not surprising that there are (to some extent) differences of view as to the degree of risk (although all of the professionals who have prepared reports for the Claimant believe that the risk would be higher if renewed steps were taken to remove her to Germany). Ms Citron is an experienced psychologist. Again, I cannot say at this stage that a Tribunal would be bound to reject her assessment. Mr Eicke was right that the Secretary of State was entitled to consider the expert evidence in the round. However, the essential question remained whether a Tribunal would be bound to reject the human rights claims. In doing so both the Secretary of State and the Court are obliged to consider the case on the most favourable evidential basis that the Tribunal could reasonably accept. In my view this does not require the views of any of the experts in the present case to be set aside.

Article 3 and risk of suicide on removal

45. Mr Southey, for the Claimant, relied strongly on the decision of the Court of Appeal in R (Soumahoro) v Secretary of State for the Home Department [2003] EWCA Civ 840. This case was heard in the Court of Appeal at the same time as Razgar (see above) although, unlike Razgar, the Court of Appeal's decision in Soumahoro was not appealed to the House of Lords. Ms Soumahoro was an asylum-seeker from the Ivory Coast. The Secretary of State proposed to return her to France which had accepted responsibility for considering her claim under the Dublin Convention. She suffered from psychological problems and her representatives submitted evidence that there would be a real risk of suicide if she was returned to France. An adjudicator allowed her appeal on human rights grounds, but this was reversed by the Immigration Appeal Tribunal. However, before she could be removed, further psychiatric evidence was submitted to the Secretary of State and the Claimant took an overdose of the medication which had been prescribed for her depression. The Secretary of State rejected the claim that removal would breach Article 3 and certified the claim as manifestly unfounded. The application for judicial review was dismissed by Cooke J.
46. The Court of Appeal at [83] considered that the judge had fallen into the error of seeking 'actually to determine the issue of whether there would actually be a serious risk of self-harm or suicide if the appellant were removed to France, rather than whether the appellant's case that there would be such a risk would be bound to fail before an adjudicator.'
47. Lord Justice Dyson continued

'[85] This appellant is a person who is suffering from depression and has on two occasions taken overdoses of medication which have required her to be admitted to hospital. There is uncontroverted evidence that, if she is returned to France, there is a real risk that she may try to 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). 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 or 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.

[86] The evidence did not disclose that the appellant was a suicide risk except in the context of her possible removal to France. The main question, therefore, (as the judge recognised) was whether the possibility that the risk could be minimised by protective measures such as detention and warning the French authorities of her tendency was such as to render unarguable what would otherwise clearly be an arguable claim. The judge decided that, in view of the comparatively short-term nature of the enhanced risk of suicide and the effect of the precautionary measures that could and should be taken, the claim failed. If he had focussed on the question of whether the claim was arguable, he ought in our view to have decided that it was. 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.'

Accordingly Ms Soumahoro's appeal was allowed.

48. Mr Eicke submits that Soumahoro must now be viewed in the light of the recent decision of the Court of Appeal in J v Secretary of State for the Home Department [2005] EWCA Civ 629. The Appellant in that case was a Sri Lankan whom the Secretary of State proposed to remove to Sri Lanka. He suffered from PTSD and depression and had attempted to commit suicide on a previous occasion when removal had been imminent. His claim that removal would violate Article 3 was rejected by the Secretary of State, by an adjudicator on appeal and by the Immigration Appeal Tribunal. The Court of Appeal decided that there was no error of law in the IAT's decision.
49. In that case, as in the present case, the risk of suicide could arise at a number of stages: when the person concerned was told of the intended removal, during transit, or after arrival in the country of destination. In Ullah v Secretary of State for the Home Department [2004] UKHL 26, [2004] 2 AC 323 at [7] and [9] Lord Bingham had divided allegations of human rights breaches in the context of immigration and removal into 'foreign' and 'domestic' cases. In J Dyson LJ considered that a risk of suicide in the UK or in transit came within the 'domestic' category. The possibility of suicide abroad was in the 'foreign' group.
50. In foreign cases, the relevant test was whether there are strong grounds for believing that the person, if returned, faces a real risk of torture, inhuman or degrading treatment or punishment. This test applied equally in cases of threatened suicide or self-harm – see J [25]. Dyson LJ elaborated on the test with the following six propositions:

'[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. Thus in Soering at para [91], the court said:

'In so far as any liability under the Convention is or may be incurred, it is liability incurred by the extraditing Contracting state by reason of its having taken action which has as a direct consequence the exposure of an individual to proscribed ill-treatment.' (emphasis added)

See also para [108] of Vilvarajah where the court said that the examination of the article 3 issue 'must focus on the foreseeable consequences of the removal of the applicants to Sri Lanka…'

[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. This is made clear in para [49] of D^[3] and para [40] of Bensaid^[4].

[29] Fourthly, an article 3 claim can in principle succeed in a suicide case (para [37] of Bensaid).

[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 article 3.

[31] Sixthly, a further question of considerable relevance is whether the removing and/or 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.'

51. Dyson LJ said that the third factor was not relevant in 'domestic cases', but the remainder were and that the sixth was of particular importance. 'Although someone who is sufficiently determined to do so can usually commit suicide, the fact that such mechanisms exist is an important, and often decisive, factor taken into account when assessing whether there is a real risk that a decision to remove an immigrant is in breach of article 3.' - J at [33].
52. The Court of Appeal rejected the Appellant's contention that Soumahoro required the Secretary of State or the appellate authorities to consider whether removal would increase the risk of suicide to the exclusion of whether removal would constitute a real risk of Article 3 ill-treatment. As the parties to the present application agreed, the increase of risk of suicide as a result of removal could show a causal link (see Dyson LJ's second proposition). It might therefore be a necessary stage in demonstrating that removal would be a violation of article 3, but, by itself, it was not sufficient. A similar point seems to have been made by the Tribunal in para 42 of its determination (quoted by the Court of Appeal at [39]). Lord Justice Dyson added at [40] 'At para [45] the IAT caution that Bensaid does not suggest that an increased risk of suicide is a breach of article 3, although in certain circumstances it is capable of being a breach. We agree.' At [42] Lord Justice Dyson said 'In our view, suicide cases should be approached in the manner that we have explained earlier. Cases concerning the risk of death resulting from the non-availability of treatment in a receiving state are not precisely analogous to those concerning the risk of suicide. The scope of article 3 in relation to the former has now been explained by the House of Lords in N(FC).'

The parties submissions in relation to Article 3

53. Mr Eicke submitted that the Secretary of State was entitled to certify the claim and to maintain the certificate despite the subsequent representations on the part of the Claimant and his family. He emphasised the high threshold which was set by the Strasbourg Court (in cases such as D v UK ) and the House of Lords (notably in N v Secretary of State for the Home Department [2005] UKHL 31, [2005] 2 WLR 1124 and Bagdanavicius v Secretary of State for the Home Department [2005] UKHL 38, [2005] 2 WLR 1359) before removal would constitute a breach of article 3, particularly where the risk did not emanate from the intentionally inflicted acts of the public authorities in the receiving state. He relied on the evidence as to steps which would be taken to safeguard the Claimant during transit, the liaison which would take place with the German authorities and the medical facilities which would be available to her there. Germany was required to provide medical care to asylum seekers under the Reception Standards Directive (2003/9/EC). It was not suggested on the Claimant's behalf that she would be ill-treated in Germany itself. She feared onward return to Turkey and the risk of ill-treatment there. However, it was incumbent on the UK courts to assume that the Claimant and his family would not be removed from Germany to Turkey if that would infringe their rights under either the Refugee Convention or the European Convention on Human Rights (see R (Thangarasa) v Secretary of State for the Home Department [2002] UKHL 36, [2003] 1 AC 920). Both Germany and the UK would have sophisticated measures available to reduce the possibility of Mrs Tozlukaya committing suicide and in addressing her underlying depression or other mental health problems.
54. He also noted that Mrs Tozlukaya's present condition appeared to have improved since the summer of 2004. Her condition had to be considered as at the present (or, perhaps, more accurately, as it would be at the point of removal from the UK). Her position could not be remotely compared with the predicament of D who had been terminally ill with AIDS. Further, Mrs Tozlukaya's anxiety was increased by the prospect of removal to Germany because she thought that this brought her removal to Turkey a stage nearer. But, Mr Eicke submitted, whether she was removed to Germany or stayed in the UK, she would be one stage nearer that point. Whether she was removed to Germany or stayed in the UK, her asylum and human rights claims not to be returned to Turkey would be considered. Both countries would apply the same tests. Both countries had in the past rejected these claims. If this would provoke depression and suicidal thoughts in Germany, it was also likely to do so in the UK.
55. In a post-hearing note, Mr Eicke drew attention to the only case in the IAT or the higher courts where a claim had succeeded substantively on Article 3 grounds because of the risk of suicide. This had been MC (Sri Lanka) [2005] UKIAT 00064 (9^th March 2005). The Tribunal had noted at [19] that the risk of suicide might be reduced by proper treatment and support but in that appeal the evidence as to this had been lacking. By contrast, Mr Eicke submitted, Mr Taylor had provided that evidence in the present case.
56. Thus, addressing the six propositions of Dyson LJ in J, Mr Eicke submitted:

(1) It could not be said that Mrs Tozlukaya's position was of such an exceptional nature that removal would amount to an affront to fundamental humanitarian principles.

(2) The measures which would be in place to protect her in Germany mean that there would not be a significantly increased risk of suicide there. Germany had sufficiently effective treatment and procedures to reduce the risk that she would commit suicide. Even Dr Hajioff accepted that the risk was manageable and controllable.

(3) While there may indeed be a risk that Germany would remove the Claimant and his family to Turkey, the Court should assume that it would not do so if this would violate the family's Article 3 rights. There was therefore no objective justification to the fears of ill-treatment.

57. Mr Southey submitted that, as in the case of Soumahoro, the Secretary of State's certificate should be quashed. J had not suggested that Soumahoro had been wrongly decided: on the contrary it acknowledged that in principle removal where there was a risk of suicide could in principle be a breach of Article 3. It was important to recall that J was not a certificate case, but an appeal on a point of law from a substantive consideration of the claim by an adjudicator and the IAT. Here there was medical evidence that there would be an increased risk of suicide if the Mrs Tozlukaya was removed to Germany. As Dr Turner had said, what mattered was her perception that this would bring her nearer to removal to Turkey and her perception that she or her family would be in danger in Turkey. The cases of naturally occurring illnesses (as in N) raised different issues in part because of the impact on the removing country's health care system that would be involved if removal constituted a breach of the Convention. J had acknowledged such a difference. Article 3 set a high threshold, but in principle it could be crossed by a risk of suicide. In the present case there was the added factor of the two children, one of whom had been diagnosed as suffering from depression and both of whom would be deeply affected if their mother's condition deteriorated and even more so if she did commit suicide. So far as the facilities in Germany were concerned, what mattered was whether they would be effective to reduce the risk of suicide and it was arguable on the evidence that this was not so. Mr Southey's post-hearing note made a similar point.

Article 3: conclusions

58. In my judgment the Secretary of State could not lawfully conclude that the Article 3 claim was 'clearly unfounded'. Whatever difficulties it may face before the Tribunal, the claim is not bound to fail.
59. The Court of Appeal in J emphasised that the threshold of severity of treatment for the purposes of Article 3 is high, particularly so far as the claim is a 'foreign' one. But, it accepted that in principle a suicide case could come within the scope of the provision. I note that the Tribunal in J had said that it was applying the principles in an earlier Tribunal determination, SP (Yugoslavia) v Secretary of State for the Home Department [2003] UKIAT 00017 where the Tribunal had said at [17]

'Although suicide is a form of self-harm and is to be distinguished from harm inflicted by others, if the real risk of it is a foreseeable consequence of a removal decision, then that may well be enough to establish serious harm under both Conventions. Under the Human Rights Convention we would accept in principle that if the evidence in a case establishes that a removal decision will expose a person to a real risk upon return of committing suicide, then a decision requiring him to return would give rise to a violation of Article 3 and 8.'

This passage is quoted by the Court of Appeal in J at para 12 and I do not think that anything in that judgment disagrees with that opinion.

60. If the Tribunal was correct in SP, it might be unnecessary to dwell further on whether there were different degrees of severity in the prospect of a successful suicide. I would find such an exercise difficult to conduct. I appreciate that in N v Secretary of State for the Home Department the House of Lords did emphasise in the context of a naturally occurring illness that difficult distinctions did have to be drawn between cases all of which were likely to inspire sympathy, but in J the Court of Appeal at [39] – [42] resisted a tendency in the Tribunal to treat suicide and naturally occurring illnesses as virtually indistinguishable.
61. In any case, the position of Kader and Rojda has to be taken into account. The effect on these two girls of the family's removal, of the predicted deterioration in their mother's mental health and of her possible suicide cannot be ignored. Even if it is necessary to go beyond the scenario envisaged in SJ, I do not think that it is unarguable that removal of the family in these circumstances and taken with their mother's risk of suicide would be an affront to fundamental humanitarian principles.
62. Mr Eicke relied on the recent admissibility decision in Ovdienko v Finland Application No 1383/04, decision of 31^st May 2005. Two Ukrainians, a mother and her son (who was 17 or 18 at the time of the decision), argued that their removal from Finland to the Ukraine would infringe Article 3 because of the adverse effect which this would have on the son's mental health. There was evidence that the son suffered from PTSD and depression and was a severe suicide risk. He had alleged that while in Ukraine he had been kidnapped and raped and that this was the cause of his mental ill-health. The claim was declared inadmissible because it had not been established that he would be unable to receive adequate health care in the Ukraine. The Court acknowledged that, 'the removal decision may have caused the second applicant mental stress. Having regard, however, to the high threshold set by Article 3, particularly where the case does not concern the direct responsibility of the receiving 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 Article3. The case does not disclose the exceptional circumstances of D v UK 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.'
63. The Court accepted that the second applicant had a serious medical condition, but he appears to have been a troubled individual who had had mental health difficulties before his departure from Ukraine (and which had been treated with some success in the Ukraine). The Court did not accept that his present condition was due to ill treatment in the Ukraine and it was plainly sceptical as to the late stage that this allegation had been made in Finland. The Court also found 'unsubstantiated the applicants' arguments that it is in the second applicant's best interest to continue a stable life and psychiatric treatment in Finland.' This case does not so plainly stand in the way of the Claimant and his family as to make their Article 3 claim unarguable.
64. Mrs Tozlukaya has attempted to commit suicide at least once before. That took place a few days after the last attempt to remove her, but at a time (it seems) when she was in a very disturbed state and when she was being held in immigration detention no doubt pending a further removal attempt. Again, as I have mentioned, there is some evidence that she made an earlier attempt to commit suicide while on the aircraft on 17^th June. The evidence as to this is indirect, but it is a matter which could be explored further at an appeal hearing.
65. Drs Keith and Pinto thought that Mrs Tozlukaya's condition had improved by September 2004. However, I have summarised above the views of the various other professionals who have considered the risk of her trying to commit suicide if there was another attempt to remove her. Dr Turner thought an attempt to remove could indeed trigger a suicide attempt, the risk of an attempt at self-harm would be very high and there was a moderate risk of a completed suicide. Dr Hajioff's report of 14^th September 2004 considered that there was a serious risk of suicide which would be greatest when she saw no hope of remaining in England. Ms Citron thought that she would present as a severe and serious suicide risk if she was to be removed to Germany.
66. I accept, as Mr Eicke submits, that I must proceed on the assumption that Germany would not return her or her family to Turkey in breach of either the Refugee Convention or the European Convention on Human Rights. I also accept, as he submits, that as a matter of objective reality, the risk of her and her family being returned to Turkey moves one step forward whether her claim not to be sent to Turkey is considered in Germany or the UK. Nonetheless, as he also accepted, the objective reality is only one factor to be considered. The Claimant's experts reports generally, and Dr Turner's reports in particular, emphasise that so far as the risk of suicide is concerned, what matters is Mrs Tozlukaya's perception (see for instance para 235 of his report of 15^th March 2005 quoted above at [21]).
67. I have, of course, considered Mr Taylor's evidence as to the steps which will be taken to safeguard Mrs Tozlukaya, both during the process of removal and on her arrival in Germany. Plainly these are relevant to Dyson LJ's 6^th proposition in J 'whether the removing state and/or the receiving state has effective mechanisms to reduce the risk of suicide.' Dr Hajioff, Dr Turner and Ms Citron were all shown his evidence.

(1) Dr Hajioff considered that the during transit with such close care as the Secretary of State's evidence described 'the risk of her actually harming herself will be low.' He thought that with appropriate treatment in Germany, the risk of suicide would gradually diminish. However, it was a further condition of this improvement that she began to feel safe and secure in Germany. In my view there must be very real doubt as to whether that condition would be fulfilled. Germany has once rejected the family's claim for asylum and, although it has said that it will look at the application again, there must be a real prospect that the same decision will be made.

(2) Dr Turner's report of 10^th June 2005 likewise thought that the possibility of deportation would be a barrier to recovery. He also thought that, while there was evidence of a serious approach to consider her needs in the circumstances of her removal, the actual procedures were still insufficiently detailed for him to give an opinion as to its appropriateness. Notwithstanding the material from the Home Office which he had seen earlier, his report on 24^th June 2005 said that the risk of suicide following removal to Germany would be higher than at present.

(3) Ms Citron's letter of 23^rd June 2005 expressed a similar view, namely that any treatment in Germany was unlikely to be sufficient to ensure that Mrs Tozlukaya did not pose a severe risk of suicide in future given the threat of removal to Turkey.

68. In view of these reports, I cannot conclude that the Claimant and his wife would be bound to fail in showing that removal to Germany, notwithstanding the measures proposed by the Home Office in carrying out the removal or the treatment available to Mrs Tozlukaya in Germany, would lead to a real risk of her attempting and successfully attempting to commit suicide and that that risk would be significantly greater than if there was no attempt to remove her. There is an arguable case that there is a real risk of this happening either in the UK when further measures are taken to remove her, in transit or after her arrival in Germany.
69. I have sought to apply the principles set out by Dyson LJ in J but Mr Southey was right to recall that the procedural history of that case was very different. The task of the Court of Appeal was to consider whether the Tribunal had erred in law in its decision. My task is to consider whether the human rights claim of Mr or Mrs Tozlukaya would be arguable. I also note that the Tribunal in J had alluded to this same distinction. It said at para 27 of its determination (quoted in [49] of the Court of Appeal's judgment).

'In reaching our conclusions we have to take careful account of Mr Cox's submissions based on Kurtoli and Soumahoro. However, not only were these cases concerned essentially with arguability of a claim as opposed to its merits, but both decisions were fact-specific and fact-sensitive.'

I have already referred to Soumahoro. R (Kurtoli) v Secretary of State for the Home Department [2003] EWHC 2744 (Admin) was a case where Silber J. had quashed a certificate in relation to a Serb from Kosovo whom the Secretary of State proposed to return to Germany in circumstances which would have greatly increased the possibility of her committing suicide.

The parties' submissions in relation to Article 8

70. I have mentioned the two strands of the Claimant's case: the impact of removal on the mental health of Mrs Tozlukaya and her daughters and the family's long residence in the UK.
71. Mr Southey relied on Bensaid v UK for the proposition that 'private life' includes a person's mental and physical integrity. Razgar had been a case where this was raised. The Claimant, an Iraqi Kurd, was to be removed to Germany under the Dublin Convention. He alleged that he had been racially harassed in Germany, that he suffered from PTSD as a result and that he would commit suicide if he was returned to Germany. The Secretary of State had certified his claim. He took the view that the case did not even arguably come within Article 8(1) (The Claimant did not rely on Article 3). Richards J. quashed the certificate. The Court of Appeal upheld the decision and the House of Lords dismissed the Secretary of State's appeal. The case differed from the present in the sense that the Claimant had fears for his safety in Germany (from racist attacks) as well as in his country of origin. However, the House of Lords considered that it was arguable that Article 8(1) was engaged whether or not the fears for what might happen in Germany were rationally justified (see Lord Bingham at p.390 [24] and Lord Carswell at p.404 [76]). The Secretary of State's decision had not dealt with possible justification under Article 8(2), but nonetheless a majority of the House considered that it was arguable that removal in these circumstances would be disproportionate.
72. The potentially damaging effect of removal on the children was remarked on by Ms Citron in her report of 18^th May 2005. As with the Article 3 claim, Mr Southey submitted, this was a factor to be taken into account in deciding whether removal would infringe Article 8 of the Convention.
73. Mr Southey recognised that the leading authority on Article 8(2) (so far as the violation concerned interference with private or family life in the UK) was Huang v Secretary of State for the Home Department [2005] EWCA Civ 105 1^st March 2005. The Court of Appeal decided that whether or not the Secretary of State had considered Article 8(2) and whether or not the facts as found by the adjudicator were the same as those on which the Secretary of State had reached his decision, the Adjudicator was obliged to decide for himself whether removal was proportionate for the purposes of Article 8(2) – see [38] – [40]. That did not mean a full merits review. Where the adjudicator was required to pass upon any aspect of government policy, the approach was more akin to a review, albeit with the greater intensity that was called for because of the human rights context see [52] – [54]. Cases where government policy was not in contest were in an altogether different category. At [55] Laws LJ said, 'The principle by which a margin of discretion is to be accorded to the primary decision maker out of respect for the democratic claims of elected government has no application. In these appeals, the adjudicators were not called on to decide whether any policy was proportionate to its legitimate purpose, nor, therefore, to pass judgment on government policy at all. Accordingly, they were not required to enter into any field which distinctly lies within the constitutional responsibility of government. On the contrary their duty was to see to the protection of individual fundamental rights, which is the particular territory of the courts (here the adjudicator), while policy is the particular territory of the elected powers of the state.' In Huang the Rules stated the detail of policy. The adjudicator did not have to pass judgment on them. The Rules themselves struck the balance between individual rights and the public interest which Article 8 called for (see [56]). This did not mean that an Article 8 case could not succeed where the decision was in accordance with the Rules, but it would have to be 'truly exceptional' (see [60]).
74. Mr Southey argued that the present case was different. Although the Claimant had no right to enter or remain in the UK under the Immigration Rules, he could invoke the policy in relation to children with long residence. This policy was expressed in a Parliamentary answer by Mr Mike O'Brien on 24^th February 1999. Mr O'Brien said,

'For a number of years, it has been the practice of the Immigration and Nationality Directorate not to pursue the enforcement action against people who have children under 18 living with them who have spent 10 years or more in this country save in very exceptional circumstances.

We have concluded that 10 years is too long a period. Children who have been in this country for several years will be reasonably settled here and may, therefore, find it difficult to adjust to life abroad. In future, the enforced removal or deportation will not normally be appropriate where thee are minor dependent children in the family who have been living in the UK continuously for 7 or more years. In most cases the ties established by children over this period will outweigh other considerations and it is right and fair that the family should be allowed stay here. However each case will be considered on its individual merits.'

75. In various policy documents, the Home Office has listed the kinds of factors which will be taken into account. These include the length of the parents' residence without leave; whether removal has been delayed through protracted (and often repetitive) representations; the age of the children; whether the children were conceived at a time when either of their parents had a leave to remain; whether return to the parents' country of origin would cause extreme hardship for the children or put their health seriously at risk; whether either of the parents has a history of criminal behaviour or deception.
76. In June 2005, the Claimant, his wife and Kader had been in the UK for more than 7 years. The Home Office rejected an application based on this concession in its letter of 20^th June 2005, noting that their claims for asylum had been rejected in 1999 on third country grounds, the claimant's family had been aware since then that they had no right to remain in the UK and they had only managed to stay by pursuing protracted legal challenges. But, Mr Southey argued, an adjudicator might take a different view. Since the concession acknowledged that a balance had to be struck (and, while each case was to be decided on its own merits, the balance would normally be struck in favour of allowing leave to remain), this was not the type of case which Huang would require to be truly exceptional before an adjudicator could allow the appeal.
77. Mr Eicke submitted that the strand of the Article 8 claim which relied on Mrs Tozlukaya's mental ill health and suicide threat should be dismissed as unarguable. He noted that in Bensaid both the Article 3 and the Article 8 claims had been dismissed as speculative. Kader's depression and the interrelationship of the children and mother's predicament was not sufficient to make the case truly exceptional. He submitted that Huang still applied to the long residence strand of the Article 8 argument. The legislation and Rules anticipated that where a Dublin country accepted responsibility, the asylum-seeker would be removed. Besides, the policy gave no absolute right to be allowed to leave to remain where a child had been here for 7 years. An adjudicator was bound to come to the same conclusion as the Secretary of State. He relied on R (Sopa) v Secretary of State for the Home Department [2004] EWHC 904 Admin and R (Mehmeti) v Secretary of State for the Home Department [2004] EWHC 2999 Admin

Conclusions on Article 8

78. My conclusion in relation to Article 3 means that it is not strictly necessary for me to consider the arguablity of the Article 8 claim: the certificate stands to be quashed if at least one of the Claimant's human rights claims is arguable. In particular, it would be rather artificial for me to consider the strand of the Article 8 argument in relation to Mrs Tozlukaya's mental health and risk of suicide. In relation to this strand I would only make one point. If the Tribunal does reject the Article 3 claim, it will not necessarily mean that the Article 8 claim falls as well. In Bensaid the European Court considered that the two claims fell for the common reason that the risk of acute suffering was too speculative. However, if, for instance, the Tribunal was to find that the predicament of Mrs Tozlukaya would not cross the Article 3 threshold, it is still possible that removal would so impinge on her mental integrity that Article 8 was engaged. The Tribunal would then have to go on and consider whether the interference was disproportionate under Article 8(2).
79. All of these cases are intensely sensitive to their particular facts. I did not find the Sopa case particularly helpful. The young girl in that case suffered from depression which was manifesting itself in behavioural difficulties and suicidal thoughts. However, there was no evidence that she had tried to commit suicide or that there was a real (or any) risk that she would attempt to do so if removed to Germany. There was no evidence that the German medical service would not be able to provide appropriate treatment for her underlying depression.
80. The strand of the Article 8 claim concerning long residence is somewhat distinct (although if it is necessary for the Tribunal to investigate the Article 8 claim, they will wish to look at all the circumstances of the case).
81. In Mehmeti at [31] Beatson J. said,

'the fact that this claimant has been in this country for a long time is not of assistance. Her asylum application was refused on third country ground seven years ago and, as in R (Sopa) v Secretary of State for the Home Department [2004] EWHC 904 Admin para 17, the Secretary of State was entitled to take into account the fact that since then she has been well aware that he was of the view that she had no right to be in the UK and that she would be returned to Greece as soon as it was legally possible to do so.'

82. It is not at all clear whether the Claimant in Mehmeti had relied on, or raised, the 7 year policy. There is no mention of him having done so in the judgment and Sopa, to which the judge alluded, was a case in which the policy would have had no application since the Claimant there had only been in the UK for 6 years. In Mehmeti the Claimant had arrived in the UK 7 years and barely one month before the judgment was given and it is not possible to tell when argument on the judicial review application was heard. In all these circumstances I do not think that the judgment compels me to conclude that the Tribunal would be bound to say that removal was proportionate notwithstanding the 7 year policy.
83. In my view, it is at least arguable that the 7 year policy puts the Claimant's case in a different category such that an adjudicator might decide that removal now is disproportionate.

(1) Mr Eicke is correct that the Rules and legislation envisage that where another EC country accepts responsibility under the Dublin Convention (or, now, the Dublin II Regulation) the person concerned will normally be removed to that country. However, both the Convention and the Regulation recognise that on humanitarian or other grounds a state to which an asylum application had been made could consider it substantively even though it was not required to do so in accordance with the hierarchy of criteria in the Convention or Regulation – see articles 9 and 3(4) of the Convention and articles 15 and 3(2) of the Regulation.

(2) That alone would not be sufficient to make a difference, but whereas the executive's policy in Huang was to be found exclusively in the Immigration Rules and the claimants in that case could only invoke the Secretary of State's residual discretion to give leave to enter or remain, here the executive has grafted on to the rules a published policy. The policy does not give a right (or even something akin to a right) to leave to enter or remain if certain conditions are fulfilled, but it does recognise that 'in most cases the ties established by children over [the period of 7 years] will outweigh other considerations and it is right and fair that the family should be allowed stay here.'

(3) The 'ties established by children' over a lengthy period of years is one aspect of their 'private lives' to which Article 8(1) refers and, in view of the policy, it would certainly be arguable that the Tribunal could conclude that the children did have 'private lives' in the UK which would be disrupted by removal.

(4) Whether or not it would be correct to analyse the policy in terms of a formal presumption in favour of a grant of leave, it is a fair to observe that, once there has been 7 years residence, the policy tilts in favour of the grant of leave. After that time 'removal will not normally be appropriate.' Indeed, the purpose of Mr O'Brien's statement seems to have been to reduce the qualifying period under the previous policy. Formerly, once that qualifying period had passed, leave would be granted 'save in very exceptional circumstances'. It is not obvious that there was intended to be any change in that regard.

(5) In this case, the Secretary of State was entitled to refer to the fact that he had taken an early decision to remove the Claimant and his wife under the Dublin Convention and that there have been proceedings to challenge this decision which in total have occupied a lengthy period of time. However, of that time some 22 months passed waiting for the resolution of an important general point in other lead cases, about 2 years were spent on appeals which the Claimant was entitled to pursue and the present application for judicial review was launched over a year ago. Although the Tribunal might need to investigate why Mrs Tozlukaya's mental health difficulties were not raised earlier than June 2004, this is not a procedural history of such manifest abuse that the family was bound to be excluded from the benefit of the policy.

(6) The policy is not part of the Immigration Rules and the Tribunal cannot therefore (as such) allow the appeal because it would have exercised the discretion under the policy differently, but in my judgment when it comes to deciding whether removal would be disproportionate under Article 8, the Tribunal will be entitled to take account of the Secretary of State's policy and that it calls for an individualised decision with something of a bias in favour of the claimant. This is a very different situation from Huang or Razgar. It was because the claimants in those cases could find no succour in the Rules or any comparable policy that Lord Justice Laws considered that their cases would have to be truly exceptional for removal to be disproportionate.

84. I say that I consider these matters to be arguable. It is not appropriate to express a final view on them where the underlying facts have yet to be investigated by the Tribunal and where the whole Article 8 issue may be moot if the Article 3 claims are upheld.

Overall conclusion

85. In the circumstances the Secretary of State's certificate will be quashed.

Note 1   The Convention Determining the State Responsible for Examining Applications for Asylum Lodged with One of the Member States of the EC - Dublin 15th June 1990. Since 1st September 2003 the Convention has been replaced by Council Regulation 343/2003/EC (‘Dublin II Regulation’) although for applications, such as those submitted in this case, before that date the responsible member state is still determined by the criteria in the Convention – see Dublin II Regulation Article 29    [Back]

Note 2   I take this date from Dr Turner’s review of the nursing records. Dr Keith gives the date as 23rd July.     [Back]

Note 3   i.e. D v UK (1997) 24 EHRR 423    [Back]

Note 4   i.e. Bensaid v UK (2001) 33 EHRR 10    [Back]