England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2
		5 May 2006

1. MR JUSTICE GIBBS: This is an application for judicial review of the Secretary of State's decision to certify the claimant's human rights claim as clearly unfounded under section 93(2)(b) of the Nationality, Immigration and Asylum Act 2002. The decision effectively under challenge is dated 22 April 2005 and consists of a lengthy and reasoned letter. This was the last of a number of similar decisions in response to representations on the claimant's behalf.
2. The issue which arises in the case is whether the Secretary of State was right to find on 22 April 2005 that the human rights claim was clearly unfounded. If he was entitled so to find, then the challenge must fail; if not, then the challenge succeeds.
3. The claimant is a national of the Democratic Republic of Congo. She was born on 25 March 1987 and is now therefore 19 years old. Her account of events in the Congo is as follows. She was born in Kinshasa. She has or had two brothers and a sister: the oldest of those was Loudy, who is now in his late 20s; Linda, who would be approximately 20 years of age; and Harri, who would be 15. She only knows the whereabouts of Loudy, who lives in London, and suspects that all her other family members may be dead.
4. She had a happy and stable life in early childhood, but difficulties started in 1998 when she was about 11. Her father had a job in the pharmaceutical industry in Bukavu. War started there in 1998. The claimant was of Tutsi origin, the war being between the Rwandans and the Tutsis. The claimant's father was required to deliver medicines on behalf of the government in the course of the war, but it appears from later information that he may have been delivering arms rather than medicines. Whatever the truth of that may be, the claimant's account is that government forces sent soldiers to the home of her family. They ransacked the property and attacked the claimant's mother and Loudy. Loudy was arrested or abducted on a false premise and imprisoned. Subsequently government forces again attacked the family. The claimant was blindfolded, tied up and gang-raped. She witnessed the rape of her sister by a number of men, and subsequently never saw her sister again. The claimant was injured but unable to seek medical assistance. Her mother carried her on her back as they fled. Assistance was given by a relative, and they were eventually hidden in a convent. A man visited the convent and offered them the opportunity to leave Africa. The claimant's mother refused to allow the family to leave with the man. But the claimant herself, young as she was, decided to take advantage of the opportunity.
5. She left her mother in October 2003 and was taken to France. Initially she was grateful to the man who had arranged to take her to France, and formed a relationship with him. Shortly after her arrival in France, she discovered that the man had a family himself, and he in fact left her with his friends. His friends, whilst she was in France, subjected her to rape and assault, took control of her, and subjected her to prostitution. She was detained by them and continually physically abused. She was made to give them all the money that she earned by way of prostitution.
6. As time passed she learned that her brother, Loudy, was living in London. After a number of distressing experiences which occurred when the claimant tried to escape to join her brother, she finally succeeded. She did so by acquiring false papers from some African women with whom she had been housed. Her description of her state of mind during the period in France is consistent with the opinion of a consultant psychiatrist and a consultant psychologist, respectively Dr Harris-Hendricks and Ms Desiree Saddik, both reputable experts in their field.
7. The claimant arrived in the United Kingdom on 25 August 2004. At her interview, on 27 August, she told the authorities that she had left the Democratic Republic of Congo on 9 August and that she had arrived in the United Kingdom on the 25th, flying to Belgium and then taking the train from Belgium to the United Kingdom. She told the interviewer that she had last seen her mother in 1998. She said that she had not previously claimed asylum in any other country, had not had her fingerprints taken anywhere else and that she had not been to any other country before coming to the United Kingdom. The account of her movements prior to arrival were thus, as it emerged, plainly untrue.
8. I come now to the evidence of the consultant psychiatrist, Dr Harris-Hendricks.
9. She conducted a psychiatric assessment of the claimant and found that she was suffering from two serious mental disorders: first, post traumatic stress disorder; and second, severe depression. She said this:

"It should be noted that the acute and persistent symptoms are clearly related to Miss Katshunga's period in France when she describes being forced into prostitution and both sets of symptoms are congruent with the history as recorded.

She speaks of having been threatened for her life were she to speak of her experiences in France and expresses fear of returning there. She relates her untruthfulness in the United Kingdom to her fear of being sent back to France...

Miss Katshunga realises that as a victim of alleged criminal behaviour in France she may have a duty to report this to the appropriate authorities. However, I consider it quite unrealistic to suggest that she may be able to do this in her present, highly disturbed, state. Were Miss Katshunga to be in a position to know that she could remain with her surviving relative and have treatment for her Post-Traumatic Stress Disorder and depression (I think the former must take priority), she could then consider doing her duty as a citizen and reporting alleged crimes so that it appropriately may be investigated. However, it would not be appropriate to require this of Miss Katshunga as an unaccompanied minor seeking asylum and in her present state of severe psychiatric illness [It should be pointed out that the psychiatrist had seen the claimant on 15 March 2005. She has now of course obtained maturity].

I think that Miss Katshunga's combined symptomatology is such that currently she may be at risk of suicide either in the United Kingdom while she remains under threat of deportation, or were she to be returned unaccompanied to France.

The risks will remain, whichever country she is in, while her legal future is unsettled and while she is untreated. On balance the risks, however, would be greater were she to be returned to France in her present state of psychiatric disorder.

I am asked by Miss Katshunga's solicitors if I am able to 'quantify' this risk and I am not able to do so on the history, other than to say that on the balance of probabilities it is more likely than not that she may self-harm."

10. Dr Harris-Hendricks, earlier in her report, speaks of the report of Desiree Saddik, the consultant clinical psychologist. She says this:

"My report should be read in conjunction with that of Desiree Saddik, a Consultant Clinical Psychologist specialising in Child & Adolescent Psychiatry, which is dated 6 January 2005 and is based on an interview which took place on 20 December 2004.

I consider this a valuable and detailed report, which should be taken very seriously."

11. In the report, Ms Saddik says as follows:

"Miss Katshunga is a 17 year-old adolescent who is clearly suffering from a severe depression obvious on observation and clinical interview. The depression is marked by suicidal ideation and suicidal intent, anxiety and agitation, feelings of helplessness, lack of energy and concentration, poor appetite, psychosomatic symptoms including stomach aches and headaches. The depression appears to have been present for many years, onset possibly being at the start of adolescence when her father disappeared. The depression appeared to increase significantly during the period spent in France and during her detention by the Home Office. She has clearly and repeatedly stated that she will commit suicide if she is separated from her brother and returned to France."

Miss Saddik comments that the depression remains untreated.

"Miss Katshunga is also suffering from post-traumatic stress disorder and fulfils all the criteria of the Diagnostic Statistical Manual IV. This is marked by severe intrusive and debilitating daily flashbacks to multiple accounts of rape, gang rape, multiple accounts of assault and threat at gunpoint and loss of family members. These images prevent her from sleeping and perpetrate her sleep and waking life. She attempts to block out these experiences by fighting sleep, playing loud music and staying with her brother as much as possible. Being with her brother does help her control her flashbacks. She also suffers from detachment evident on observation during the interview, a sense of foreshortened future, not knowing whether she will live or go on to have children of her own. She has persistent symptoms of increased over-arousal including difficulty falling and staying asleep, anger outbursts and difficulty concentrating. These symptoms have continued since the age of 13 years, when she witnessed her family being assaulted and since she was raped.

If the depression was treated, there may be an increase in these symptoms, including the flashbacks, which may be suppressed by the depressive symptoms. Unfortunately the behaviour of the Home Office, the detention and ongoing threat to separate her from what appears to be her only surviving immediate family member is experienced as previous trauma, including the force she endured in her time in France and the loss of family members. The behaviour of the Home Office triggers the flashbacks and related symptoms of lack of sleep, rage, anxiety and suicidal ideation.

Ms Katshunga's developmental stage is adolescence. Her experiences of violence, sexual and personal assault and loss of family members during earlier adolescence have resulted in serious interference with the completion of tasks of adolescence. The tasks of [adolescence] include negotiating family relationships, 'leaving home' and establishing oneself in one's own life, family and career. Psychosexual development and developing a peer group and possibly a relationship are also very important aspects of adolescence. This increases the need for Miss Katshunga to remain with whatever family members are left, to seek out psychological treatment to address the assaults that have occurred to her sense of self, her trust in others, her sense of sexual damage and damaged body, and for her to start to invest in her future. Being with her brother, continuing her studies towards her future plan of being a doctor, spending time and developing relationships with peers which she has begun to do would all help her start addressing the damage in her past and help her start completing the tasks of adolescence."

12. Then the psychologist goes on to express the view that, if the claimant is returned to France, she is highly likely to attempt suicide.
13. Originally having left detention, the claimant went to the same address as her brother. But that was soon deemed unsuitable. Now she lives not far away and the two are in daily contact. She attends college and, as the psychologist remarked, has ambitions for a professional qualification. She regularly visits and has meals with her brother, and vice versa, and speaks to him on the telephone. Her psychological and psychiatric problems continue.
14. I shall now turn very briefly to the way in which the case is put on either side. That brevity is not to be interpreted as disrespect to either counsel. Both have canvassed facts and applicable legal principles with considerable care and skill, and I have given the closest attention to their submissions.
15. Ms Collier submits that the Secretary of State was fully entitled to certify both limbs of the human rights claim as clearly unfounded. The public interest in ensuring the lawful operation of immigration control must, she says, plainly prevail in this case. France has accepted responsibility for the claimant's asylum application under the relevant European Community Regulations, and there is no arguable human rights case for the claimant not to go there, or to be removed there, to pursue her claim in France. She submits that, whilst the risk of the claimant committing suicide is capable of engaging an Article 3 claim, it cannot do so in this case.
16. She relies on the concession by the claimant that this is not, in terms of the risk of suicide, a "foreign" case. It follows that the claimant must show that a breach of Article 3 would or may occur as a result either of notification of removal or the process of detention and removal. On the facts here and on the authorities, she submits, such a claim is doomed to failure.
17. As regards Article 8, Ms Collier makes submissions in support of the reasoning at paragraphs 24 to 27 of the decision letter. She submits that, insofar as the claim under Article 8 is, in substance, a mere repetition of the Article 3 claim, it too must fail. She says that if family life established here is such as to engage Article 8, that right is clearly outweighed by the matters set out in Article 8(2), especially the lawful exercise of immigration control. No exceptional circumstances exist to override the clear balance in favour of enforcing immigration control. There is no objective reason for the claimant to fear maltreatment on her return to France. The claimant is now an adult. Her own statement shows that she is capable of making a friend or friends other than her brother; and additionally, the court should give weight to the fact that she told lies on entry to the United Kingdom.
18. Finally, it was submitted that a scheme exists, albeit discretionary, whereby either the claimant or her brother could apply to have their refugee status transferred to England or France respectively, assuming the claimant's application in France were to succeed.
19. Ms Jegarajah submits that the evidence of a suicide risk is very real; it amounts to a probability. It is true that that risk only falls to be considered between the time of notification of the removal and including her detention and delivery to France, to the time that she is released in France. It is conceded that the Secretary of State has adduced evidence of safeguards to prevent suicide during that period. But it is submitted that there is very strong evidence showing serious flaws in the Secretary of State's procedures which could be canvassed before an immigration judge so as to persuade the judge that there was a real likelihood of an infringement of Article 3. Further, or alternatively, the family bond with the claimant's brother could very arguably engage Article 8 in the particular circumstances of this case. The importance of that bond, Ms Jegarajah argues, is underlined by the dreadful events in France, as well as in the Democratic Republic of Congo, the loss of the rest of the claimant's family, and the devastating effects of those matters on the mental health of the claimant.
20. The assertion that the claimant's situation in relation to family life is an exceptional one cannot be said to be clearly unfounded. Ms Jegarajah submits that, on the contrary, it is entirely realistic.
21. Having considered all matters with care, my conclusions are as follows. The decisions in question here are those of the defendant, commencing on 27 October 2004, subsequently reaffirmed, and finally confirmed in detail on 22 April 2005. This last decision letter has, with the agreement of both parties, been regarded as the Secretary of State's final statement of his position as regards this claimant.
22. The issues arising can briefly be stated:
23. (a) It is agreed that, on the face of it, an application by the claimant for asylum would normally be refused without substantive consideration because there is a safe third country, namely France, to which the claimant could be sent.

Statement of changes in Immigration Rules (HC 395), paragraph 345;

Immigration Act 1971, Schedule 2, paragraph 8(1)(c);

European Communities (Council Regulations (EC) No 343/2003);

Immigration and Asylum Act 1999, section 11(1).

24. (b) Because that is the position in relation to the claimant, the Secretary of State certified that the conditions mentioned in section 11(2) of the 1999 Act were satisfied so that the claimant might properly be removed to France.
25. (c) Representations were made on behalf of the claimant that removal to France would be an infringement of her human rights, in particular under Articles 3 and 8 of the European Convention on Human Rights.
26. (d) The Secretary of State then certified that the human rights claims put forward by the claimant were "clearly unfounded", pursuant to the Immigration and Asylum Act 2002, section 93(2)(b).
27. The question therefore for this court is whether the certificate is justified in this case. I approach the matter as recommended in ZL and DL v SSHD [2003] 1 WLR 1230 at paragraphs 57 to 60.

(1) I consider the factual substance and detail of each claim (Articles 3 and 8).

(2) I consider how it stands with the known background data.

(3) I consider whether, in the round, it is capable of belief.

(4) If not, I consider whether some part of it is capable of belief.

(5) I consider whether, if believed, it is capable of coming within the Convention.

28. If the answers are such that the claim cannot on any legitimate view succeed, then it is clearly unfounded. If not, not. It is clear from the court's approach in that and other cases that I must go through an essentially similar process to that of the decision-maker and make up my mind on those matters.
29. There is an important aspect, however, to note in relation to the present claim. The Secretary of State has his doubts about the claimant's credibility. But for the purposes of this claim, he is prepared to accept that the claim as a whole is capable of belief, and that, in assessing the justification for the certificate, the claim should be taken as, in substance, true.
30. The first part of the 22 April decision letter is concerned with setting out the reasons for attacking or doubting the claimant's credibility. Therefore, save in one respect, I need not refer to those passages. By way of exception, I am invited to attach weight to the claimant's admitted lies upon entry into the United Kingdom. I shall return to that point.
31. Subject to that point, it is agreed between the claimant and the defendant that the issue here is whether or not, taken at its highest, the claim can properly be described as clearly unfounded, or whether the issues raised are fit to go for decision at a hearing by an immigration judge.
32. With those matters in mind, I turn first to Article 3.

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

33. As it seems to me, the threshold required to be reached in establishing that a suicide risk and failure to deal with it will constitute a breach of Article 3 is, on the authorities, a high one: see J v Secretary of State for the Home Department [2005] EWCA Civ 62. In that case, Dyson LJ referred to the need to establish a real risk of treatment which infringed Article 3, and amplified the test by setting out six principles to be followed in determining whether the threshold was reached. It should be said that it is conceded on the claimant's behalf, as I have already indicated, that this is not a "foreign" case. Therefore, principle 3 in the case of J does not apply. The result is that the Article 3 claim cannot arise in relation to any treatment that the claimant would receive in France if she were removed to that country. It is recognised that the Secretary of State is right to contend that the facilities for treatment of psychiatric or other mental disorders in France are more than adequate. A further consequence of the claimant's concession on principle 3 is that the highest threshold demanded in foreign cases does not apply here. But it also means that, if the contention that there is a risk of degrading or inhuman treatment is to succeed, it must be based on the effect of notification of removal and/or the process of detention and removal itself.
34. The fourth principle in J makes it clear that an Article 3 claim can, in principle, succeed in a suicide case. Nevertheless, in the present case, in my judgment, there really is no prospect of establishing such a claim on that basis on appeal before an immigration judge. The authorities in which the issue has been considered make it plain that even where the risk of suicide is severe, and is increased by removal, an Article 3 claim will not be established: see Tozlukaya v Secretary of State for the Home Department [2006] EWCA Civ, 11 April 2006, per Richards LJ, paragraph 68 to 72; see also Bensaid v United Kingdom 2001 33 EHRR 10, a European case.
35. If one considers the first of these cases, and the present claim in the light of it, it becomes plain that (subject to one matter) the proposition that an Article 3 claim can be sustained on the basis of the effects of notification of removal, or the process of detention and removal, cannot sensibly be sustained.
36. The one matter to which this is subject is Ms Jegarajah's argument based upon the serious deficiencies revealed in the defendant's system of caring for detained and removed asylum seekers. In that context I have carefully considered a very substantial quantity of material relating to this issue. The material includes reports by Her Majesty's Inspector of Prisons, by Médecins Sans Frontières and other respectable non-governmental organisations. In those documents, trenchant criticisms are made of failures by the defendant in individual cases and in the systems which should be in place to prevent suicide and self-harm. I have also read statements from senior members of staff of the defendant, including Ian Bennett and Michael Mahony, with documents attached. There is a substantial body of material on both sides. But, in my judgment, whilst in appropriate circumstances a claimant would be entitled to canvass such material before a judge, it is clear that it could not lead to the required threshold for the breach of Article 3 to be established. This is not simply because Richards LJ, in Tozlukaya at paragraph 69, said that there was no reason to believe that the Secretary of State would be in breach of his obligations in removing the claimant in that case; it is also because, objectively, the likelihood of this claimant succeeding in committing suicide if removed is, in my judgment, small.
37. The Secretary of State has said that the reason for detaining her, if the present challenge fails, is expressly to safeguard against suicide. That at least I see no reason to doubt. In addition, there is credible evidence that the Secretary of State has taken pains to address and remedy the deficiencies drawn to his attention in the system of safeguards. Ms Collier is right to say that there is no way in which an absolute guarantee against suicide can be expected or devised. I accept that what is required is a system which seeks to put in place reasonable and practical safeguards against such an event. I accept that the Secretary of State has tried and is trying to do that. I cannot accept that this claim could succeed on the basis that the system as a whole is so flawed that anyone detained or removed who bears a risk of suicide or self-harm could successfully claim an infringement of Article 3.
38. In relation to this particular claimant, a risk of suicide, whilst undoubtedly present and to be taken seriously, is one which the Secretary of State is well aware of, and has said that he will take steps to guard against. For those reasons, the challenge to certification on the Article 3 point must, in my judgment, fail.
39. I now turn to Article 8. That 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 prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

40. The claimant relies, at least in part, on her mental state as being relevant to her Article 8 claim. It would seem to me, however, that it is not right simply to resurrect the failed Article 3 claim and say that the facts supporting it, whilst insufficient for a successful Article 3 claim, nevertheless can be used to sustain an Article 8 claim, whether on the basis of interference with private or family life.
41. On the other hand, facts relevant for the purposes of Article 3 may, in my judgment, be relevant depending on the circumstances to a claim under Article 8: see Bensaid para 46:

"Not every act or measure which adversely affects moral or physical integrity will interfere with the right to respect to private life guaranteed by Article 8. However, the court's case-law does not exclude that treatment which does not reach the severity of Article 3 treatment may nonetheless breach Article 8 in its private-life aspect where there are sufficiently adverse effects on physical and moral integrity (see Costello-Roberts v United Kingdom, judgment of 25 March 1993, Series A no 247-C, pp 60-61, para 36)."

42. Bearing that in mind, I come to the appropriate test in judging Article 8 claims and the circumstances in which they may succeed where they arise in a claim which would otherwise fail if decided under the Immigration Rules. A useful and authoritative statement of principle is contained in the case of Huang v Secretary of State for the Home Department [2005] EWCA Civ 105, in particular in the judgment of Laws LJ, paras 59 and 60:

"59. It might be said that the Immigration Rules constitute for all cases the balance to be struck between private right and public interest, and this is conclusive for any judgment in an Article 8 case as to whether removal or deportation is proportionate and so justified under Article 8(2). But the Secretary of State rightly does not so contend. If that were the law, our municipal statute need do no more than confer a right of appeal to allow the immigrant to contend that on the true facts he has a good claim under the Rules. However, whatever else may be said about the relation between s.65(1) and paragraph 21(1) of Schedule 4 to the 1999 Act, it is surely plain that the legislature contemplated appeals on Convention grounds, including Article 8, which might succeed even though the appellant had no good claim under the Rules. The true position in our judgment is that the HRA and s.65(1) require the adjudicator to allow an appeal against removal or deportation brought on Article 8 grounds if, but only if, he concludes that the case is so exceptional on its particular facts that the imperative of proportionality demands an outcome in the appellant's favour notwithstanding that he cannot succeed under the Rules.

60. In such a case the adjudicator is not ignoring or overriding the Rules. On the contrary it is a signal feature of his task that he is bound to respect the balance between public interest and private right struck by the Rules with Parliament's approval. That is why he is only entitled on Article 8 grounds to favour an appellant outside the Rules where the case is truly exceptional. This, not Wednesbury or any revision of Wednesbury, represents the real restriction which the law imposes on the scope of judgment allowed to the adjudicator. It is not a question of his deferring to the Secretary of State's judgment of proportionality in the individual case. The adjudicator's decision of the question whether the case is truly exceptional is entirely his own. He does defer to the Rules; for this approach recognises that the balance struck by the Rules will generally dispose of proportionality issues arising under Article 8; but they are not exhaustive of all cases. There will be a residue of truly exceptional instances. In our respectful view such an approach is also reflected in Lord Bingham's words in Razgar, which we have already cited:

'Decisions taken pursuant to the lawful operation of immigration control will be proportionate in all save a small minority of exceptional cases, identifiable only on a case by case basis'."

It is clear from the case of Huang that decisions on exceptionality are case sensitive.

43. I have been referred helpfully to a number of decisions on individual claims, many of them referred to me by Miss Collier. They include: Tozlukaya (already cited); Mosari v SSHD [2005] EWHC 1343 Admin; Djassebi v SSHD [2005] EWHC 2298; Ahmadis v SSHD [2005] EWCA Civ 1721 (a Court of Appeal decision); Yussuf v SSHD [2005] EWHC 2847. These decisions are useful in giving a feeling for the sort of rare case in which it may successfully be argued before an immigration judge that there are truly exceptional matters. At the same time each decision, including the one in the present case, must turn on its own particular facts. I make it clear that it is not my role to judge whether the claimant's case is in fact exceptional. What I have to decide is whether or not the Secretary of State was correct and entitled to decide that a claim to that effect is clearly unfounded. This is a screening process to decide whether or not such a claim could not on any legitimate view succeed.
44. After careful consideration I do not think that the Secretary of State was entitled or right to decide that the claim was clearly unfounded. My reasons are as follows.
45. 1. There is nothing fanciful about the assertion that the claimant has an extremely close bond of dependency on her brother. The bond is, on the evidence, both strong and important to the claimant.
46. 2. The Secretary of State's policy on these matters allows a discretion in favour of a claimant in third country cases where family ties to the United Kingdom are claimed. The claimant might potentially qualify under category (f), albeit that the policy makes it plain that category (f) cases will be rare. The relevant extract from the policy is as follows:

"(f) 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. I would expect cases falling into this latter category (f) to be rare."

47. The suffering of the claimant on her account of events, both in the Democratic Republic of Congo and in France, has been both appalling and extreme. She has lost every other member of her family apart from her brother in England. She does not know whether the others are alive or dead. She saw her house ransacked and her mother and brother attacked. Later she was blindfolded, tied up and raped by a number of men. She witnessed her sister being raped by the same gang and never saw her again. After further traumatic events in Congo, she was assisted to go to France. There, however, she was delivered into prostitution by associates of the man who had "assisted her", and again subjected to rape and assault.
48. 4. The effects of those events have been to cause the serious illnesses diagnosed by the consultant psychiatrist, Dr Harris-Hendricks, in association with the consultant psychiatrist, namely post-traumatic distress disorder and severe depression. These events were all suffered when she was still under 18 and began when she was around 16, if not earlier.
49. 5. The mental illnesses in themselves, serious though they are as I have found, do not sustain an Article 3 claim in connection with her removal on the basis of suicide risk. However, those illnesses, and the appalling events which caused them, could at least arguably be relevant to the nature and depth of the bond with and reliance on her brother and remaining relative by the claimant. The contention that they caused the bond to be of exceptional significance is not clearly unfounded. That contention could quite properly and credibly be advanced before an immigration judge, and is capable of succeeding if the underlying facts are accepted as truthful. The set of circumstances disclosed by this claim are, at the very least, extremely unusual and unfortunate.
50. 6. Other relevant circumstances supporting the contention include the fact that the brother is the sole remaining relative with whom the claimant has any realistic possibility of contact; the fact that she was a minor on entry to the United Kingdom, though she was detained and not accepted or treated as a minor by the defendant; the fact that her brother is here in the United Kingdom having successfully sought asylum, by inference as a result of maltreatment similar to that suffered by the claimant; the evidence about the effect that separation from him would have on the claimant; and finally the fact that the third country here, namely France, is the very country in which the claimant was tricked into prostitution and raped, even though it is objectively not asserted that there would be a likelihood of repetition in return, that is an additional exacerbating factor, which subjectively on the evidence has a detrimental effect on the claimant, and underlines the importance of the bond with her brother.
51. 7. I have considered the admitted lies told by the claimant and the point made that it would be wrong to favour a person who has been untruthful to the authorities where others with claims for asylum tell the truth. But the weight to be attached to that factor in the case of a girl of just 17, who is fleeing maltreatment of the kind described, is arguably very limited. Reliance is also placed by the defendant on the evidence which suggests that the claimant is capable of making good friends, or at least one good friend as well as her brother. Plainly that would be a factor to consider, but it is not one which destroys the potential validity of her claim under Article 8.
52. 8. I have also considered the possibility of the transfer of refugee status between the two relevant countries and the evidence filed in connection with that. It suffices to say that the prospect of such transfer would arise some long time in the future, and at its best is speculative and uncertain. It does not here, in my judgment, render a realistic and arguable claim untenable in the sense of being clearly unfounded.
53. For all those reasons, the claim succeeds so far as it relates to Article 8 and the Secretary of State's decision in that regard is quashed.
54. Are there any further applications?
55. MS COLLIER: My Lord, I do have an application to make. I do not know if my Lord wishes to hear me on the application for permission to appeal before turning to the claimant's counsel, as to whether she has any application.
56. MR JUSTICE GIBBS: Do you have any application?
57. MS BAYATI: My Lord, my application is limited to the issue of costs.
58. MR JUSTICE GIBBS: Can you resist costs?
59. MS COLLIER: -- which we do not resist, my Lord.
60. MR JUSTICE GIBBS: The claimant will have their costs. Thank you.
61. MS COLLIER: My Lord, as I have indicated, I wish to make an application for permission to appeal to the Court of Appeal on the grounds that, in finding that the treatment alleged by the claimant could breach the threshold to found a claim for breach of Article 8 of the Convention, and therefore that the claim could succeed before an immigration judge, and therefore consequently that certification should be quashed, my Lord's judgment respectfully erred in concluding that the combination of factors put forward by the claimant could in fact reach that threshold.
62. MR JUSTICE GIBBS: Yes.
63. MS COLLIER: My Lord, having only just heard the judgment, I do not know whether it would be of any great assistance to address you further on that. But the summary of the proposition is that we say, as we said in the hearing --
64. MR JUSTICE GIBBS: You say that your submissions on that topic were right.
65. MS COLLIER: My Lord, indeed.
66. MR JUSTICE GIBBS: And I have considered that very carefully and I find, as I say, it is a fact-sensitive matter and it is capable of being exceptional for the reasons stated. I think I can say no more than that, and I think therefore, unless you wish to elaborate the matter further, any application would really have to be renewed to the Court of Appeal.
67. MS COLLIER: My Lord, one further point, if I may. My Lord indicated that the case is fact sensitive and therefore must be decided on that basis, nevertheless we would say it is possible to set out guiding principles as a matter of law, and that it may indeed be of assistance both to the Secretary of State and to claimants if the Court of Appeal were to have an opportunity to consider this particular matter in this combination of circumstances and perhaps give some more general guidance.
68. MR JUSTICE GIBBS: Yes, there may be something in that in the sense that at the moment the authorities do tend to say that a situation has to be truly exceptional and one must look at the facts of it in every case to make up one's own mind whether that is so. But although there may be something in that, I am not inclined in this case to give permission to appeal on the basis that it is interesting enough to do so. But I am obliged to you for the way you put it.
69. MS COLLIER: Those were my submissions.
70. MR JUSTICE GIBBS: Thank you.