England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
ADMINISTRATIVE

		Royal Courts of Justice Strand, London, WC2A 2LL
		15 February 2007

Mrs Justice Black :

1. The claimant in these judicial review proceedings is a 35 year old Albanian man who suffers from paranoid schizophrenia. After the unsuccessful conclusion of the proceedings in which he sought asylum/leave to remain in this country on human rights grounds, he made further representations to the Secretary of State focussing on his mental health and the risk that he may commit suicide if returned to Albania. The Secretary of State refused to accept his representations as a fresh claim. The claimant challenges that determination.

History of asylum and human rights claims

2. The claimant arrived in this country on 8 September 1999 and originally claimed asylum. The basis of his claim was that he had suffered persecution by the Albanian police because he was a member of an organisation which was intent on restoring the monarchy and that he was afraid he would be killed if he returned to Albania. The Secretary of State rejected his claim.
3. The claimant appealed to an adjudicator on the basis that he had a well founded fear of persecution and on human rights grounds. The appeal was dismissed in a decision promulgated on 2 July 2003.
4. The adjudicator accepted that the claimant had been an active supporter of the pro-monarchist PLL and, as a known troublemaker, had been arrested and detained several times and might have suffered a degree of bad treatment by beatings. He rejected the claimant's assertion that he had been tortured and did not believe that he was a high level activist within the party. He did not accept that the claimant would suffer any persecution if he returned to Albania and for that reason the asylum claim failed.
5. As to the human rights claim based on mental illness, the adjudicator accepted that the claimant had mental health difficulties but considered there was no reason to believe that appropriate facilities to handle his problem would be unavailable in Albania.
6. The claimant obtained permission to appeal the adjudicator's decision. The Immigration Appeal Tribunal (IAT) dismissed his appeal in a decision notified on 23 April 2004. It examined the evidence then available in relation to the question of the claimant's psychiatric condition in some detail and concluded:

"14. …Not only has the appellant failed to establish that there is no available treatment in Albania, but it is clear that the necessary supervision is available from a combination of his mother and the doctor in his home area. There is no evidence to suggest that there would be a breach of Article 3 ECHR by returning the appellant to Albania. This is true both in respect of problems similar to those in the past arising out of his support for the Monarchist Party and his psychiatric health.

15. A consideration of Article 8 also leads to the conclusion that there would not be a disproportionate breach of that Article if the appellant were returned. It is true that he has a private life in the United Kingdom to the extent that he is receiving medical treatment and support here. Arguably there would be a breach of that if he were to return. The evidence does not point to any significant deterioration in the level of support and treatment available. Indeed the level of support may well improve because his mother is clearly concerned about him, takes an interest and could look after him. He has not established there are no mental hospitals to treat him should there be a crisis. There is no evidence that he would not be able to obtain suitable treatment."

7. The claimant sought leave to appeal the decision of the IAT to the Court of Appeal. Following the IAT's dismissal of his appeal, his mental state had deteriorated and he sought permission to rely on further medical evidence about this from his treating psychiatrist, Dr Radovic. Permission to appeal was refused and the new evidence was rejected on the basis that it came into existence after the IAT's decision and could not properly be taken into account. The reasons for the refusal of permission to appeal include an indication that the more appropriate course would be to make a new application for the claimant to stay in the United Kingdom on the basis of the new medical evidence.
8. On 23 June 2004, the claimant was detained by the Immigration Service.
9. On 24 June 2004, new representations were made on the claimant's behalf in two letters to the Secretary of State. The first letter reads:

"We wish to make a fresh application for asylum on behalf of our client. This application is made on the basis that removal from the UK would constitute a serious risk of a breach of Articles 3 and 8 of the ECHR. This would arise due to the risk of suicide by our client. The dismissal of his tribunal application led to a serious decline in our client's mental state."

10. The claimant was released from detention on 25 June 2004. Further representations were made to the Secretary of State on his behalf in a letter of 24 December 2004.
11. Two medical reports were supplied to the Home Office as part of the renewed application. They were both from Dr Radovic and were dated 19 May 2004 and 9 November 2004.
12. On 18 February 2005, the London Borough of Enfield informed the claimant's legal representatives that the claim had been rejected by the Secretary of State on 15 January 2005. Neither the claimant nor his representatives had been informed of this directly. No copy of the decision letter was received by the legal representatives until 22 March 2005. By then, the claimant had been in detention for a week, having been detained on 15 March 2005. He was eventually granted bail on 13 April 2005. The Secretary of State has indicated, by a letter dated 13 December 2006 (following a further review of the papers, presumably in preparation for the hearing in front of me) that he:

"…accepts that the Claimant's detention between 13 March 2006 [sic] and 13 April 2006 [sic] may not have been in accordance with the Secretary of State's stated policy and is therefore prepared to concede the part of this claim which concerns the legality of that detention."

13. Further information about the claimant's situation has been provided to the Home Office as it has become available. In response, further letters have been sent to the claimant's representatives by the Home Office on 5 April 2005, 22 August 2005, 23 March 2006, 19 July 2006 and 13 December 2006 recording that renewed consideration has been given to the case and, on each occasion, the decision has been a refusal.

The claimant's mental health

14. The claimant first sought psychiatric help in January 2001. At that time, he said he had felt unwell for the previous three years and that he had suicidal ideas and he mentioned a voice inside him telling him to kill himself. His paranoia had increased by the time he was next reviewed in March 2001 and he had some very bizarre delusional ideas, some with a touch of grandiosity.
15. When Dr Radovic saw him for the purposes of a report on 21 May 2003, he took the view that:

"Mr Kurtaj is suffering from psychotic depression the symptoms of which have now been largely in abeyance due to the fact that the patient has been compliant with his medication for more than two years and that he has been regularly followed-up in the outpatient clinic and given support by his community nurse. However in spite of this apparent improvement in his mental state he continues to present with various residuals of his illness as well as with some classical symptoms of Post Traumatic Stress Disorder. Among the latter are nightmares relating to his previous traumatic experiences, hyper vigilance as well as poor concentration. Among the residuals of depressive symptoms are still anhedonia and anergia and the loss of interest. The patient still continues to suffer from a high level of anxiety which is largely related to his unresolved immigration status. One of his main concerns is that he may be deported to his country of origin where he will probably be subjected to further imprisonment, torture and where, in his opinion, even his life would be in jeopardy. Mr Kurtaj is a very vulnerable individual whose current fragile equilibrium has been maintained partly due to the fact that he has been regularly taking anti-depressant and antipsychotic medication which has been very regularly monitored in the psychiatric outpatient clinic and partly due to the dedication of his community nurses who have helped him with various extential [sic] problems and actively encouraged him to pursue his studies through the link course. I am also of the opinion that if the patient were to return to his country of origin it would have a disastrous effect on his mental health since he would be deprived of adequate psychiatric treatment and support in the community."

16. Dr Radovic reviewed the claimant on 4 May 2004, following the refusal of his appeal by the IAT. He appeared very distressed and disturbed and was complaining of being physically unwell. Dr Radovic's letter says:

"On occasions he has had the thought of ending it all but on the other hand he tells me that he doesn't want to finish his life as he put it as he is still very young."

Dr Radovic said:

"I am of the opinion that Mr Kurtaj's current immigration status is not helping his recovery from depression and I am also of the opinion that the enforced removal would have a detrimental effect on Mr Kurtaj's mental state and even put his life in jeopardy since he has in the past expressed suicidal intent."

17. Following a further review of the claimant on 17 May 2004, Dr Radovic wrote:

"My main concern however having seen the patient with an interpreter was that Mr Kurtaj was expressing suicidal intent. He informed me that he would not go back to Albania alive in case an attempt was made to deport him there. The patient is very worried at the prospect of being returned to his country of origin and this related to Mr Kurtaj's political involvement in the past whilst he was still living in Albania. He was actively canvassing for the Monarchist part[y] and ran into difficulties both with the Socialist Party of Barisha as well as the Party of Fatos Mano. His life was threatened then and he believes in case he had to return to Albania his life would be in jeopardy again. He therefore believes that the only way out would be to end his life."

18. Having seen the claimant on 5 November 2004, Dr Radovic reported:

"Mr Kurtaj was quite categorical that in the case he was directly threatened with deportation, he will take a massive dose of the psychotropic medication he is currently taking. Indeed, I am of the opinion that the risk of Mr Kurtaj taking his own life is real and would be very high in the situation of being threatened with deportation. In this case, a close medical supervision of the patient would be required in order to prevent suicide."

He observed that the impasse with Home Office had led to a deterioration in the claimant's mental state and a recurrence of delusional ideas.

19. The claimant has also been examined by a further consultant psychiatrist, Dr McKee. She has seen him a number of times and prepared a number of reports. As later reports revert back to matters arising in earlier consultations that the doctor had with the claimant, I have collected together information on individual topics rather than dealing with each of her reports in turn.
20. When Dr McKee saw the claimant on 25 March 2005, he was detained in a detention centre. As Dr McKee later described it, he was "terrified, psychotic and suicidal". He spoke to her of killing himself by taking an overdose of medication if he was sent back to Albania and spoke of having tried to kill himself by eating coins when he was detained on a previous occasion. Dr McKee's view, set out in her report of 28 March 2005, was:

"The present risk of suicide in detention is linked with the prospect of return to Albania, and while Mr Kurtaj remains in the UK, is relatively low. There are however, two important qualifications to this, which could significantly increase the risk. These are the danger of further relapse, and the prospect that he develops or already has command hallucinations….

If he develops or already has such command hallucinations, whether he succeeds in killing himself will depend on the lethality of the method which he attempts.

Even with his current medication and medical supervision to ensure as far as possible that he takes it, there is a high risk of attempted suicide on removal to Albania due to a number of factors. These include his fragility, his potential for further relapse in times of stress, his concrete thought processes and his illogical reaction to his relationship with his mother.

I don't believe that it matters if in reality he is not subjected to further persecution, his mind can do quite a lot of that on its own if you read his records."

She concluded:

"This is a person who is very susceptible to stress even when taking appropriate medication under the supervision of mental health personnel. He is a challenging patient because of his fragility and his reluctance to take medication because of the side effects and the fact that he doesn't disclose his symptoms. Without suitable medication and medical personnel he is likely to remain psychotic and have a poor quality of life even if he doesn't succeed in killing himself but there is a high risk of this if he is returned."

21. When Dr McKee saw the claimant on 20 April 2006, he was no longer actively suicidal. From his reply in answer to her questions about suicide, however, Dr McKee considered that whilst he did not want to kill himself and would try not to react to suicidal ideation because of his religion, he did not sound sure he would succeed.
22. Dr McKee's advice in her September 2006 report concerning the risks of suicide is that even with treatment, suicide risks for those suffering from schizophrenia are significant – research suggests about 10%. Without medication, the risk of suicide would rise to approximately 50%.
23. Dr McKee's reports make clear the problem that there is concerning the claimant's medication. On 20 April 2006, he was not complying reliably with it because he did not like the side effects and was not convinced he was ill. He had recently had hallucinations and delusions. If he were to take no medication at all, she considers it inevitable that he would relapse into a psychotic state with florid symptoms. His quality of life would be "appalling" and he would suffer frightening delusions and hallucinations. In these circumstances, he may find it difficult to cope in the community and may end up spending a lot of time in a mental hospital.
24. It is the claimant's case that appropriate medical treatment, and in particular medication, would not be available to him in Albania. Evidence about medical facilities in Albania is now available from a Californian doctor, Dr Schreier, from Adriatik Bicaku who is a social worker who is the director of an Albanian NGO offering mental health services in Albania, and from Dr Preci who is an Albanian neuro-psychiatrist working in a psychiatric hospital in Shkoder. The evidence is that most families have to buy medication for the patient as hospitals cannot afford to provide adequate medication. Outpatient support in the community (for example, to ensure that medication is taken or by way of day centres) is virtually non-existent, outpatient clinics are mostly only for neuro-psychiatric treatment and have to be paid for, and psychiatric inpatient care is seriously lacking with few available beds, insufficient staff and appalling conditions in the hospitals. Mr Bicaku is aware of 4 suicide attempts (3 of them successful) by people returned by the immigration services of foreign countries.
25. A pivotal element of the claimant's current treatment is risperidone. Risperidone is extremely expensive in Albania, well beyond the reach of any salary the claimant would be likely to receive even if he were to obtain employment, the prospect of which is in fact nil. He has no health insurance so no alternative means of funding the medication. The most likely substitute would be haloperidol and even that may not be entirely free of charge. It has many more side effects than risperidone and carries a grave risk of irreversible brain changes.
26. If neither risperidone nor haloperidol were available to the claimant in Albania, it is plain from Dr McKee's reports that his position would be extremely poor with a prospect of being confined to a mental hospital and a high risk of suicide. Even if haliperidol were to be available, Dr McKee does not believe that he would take it voluntarily, given its unpleasant side effects and his track record with the much less unpleasant risperidone and, in the light of the lack of outpatient and other support, there does not seem to be a reliable means available to ensure that he is made to do so. The net result would therefore be no better than if no drugs were available.
27. The only relative that the claimant is in contact with in Albania is his mother. She is 70 years old and has health problems. In June 2005 she came to the UK and spent some months with the claimant and Dr McKee says he "appears to have been supported by her". However, there is a report from a cardiologist dated 3 August 2006 which says that she has been receiving treatment for dilated cardiomyopathy from which she has suffered for several years and that her condition has worsened significantly "in the past month". It says that her health is not good and she needs close assistance from family members to take care of her needs. Dr Preci's view is that even if she were in good health, it is highly unlikely she would be able to care for the claimant at home if he were without medication.

The law

28. Paragraph 353 of the Immigration Rules provides:

Fresh claims

"When a human rights or an asylum claim has been refused and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim. The submissions will amount to a fresh claim if they are significantly different to the material that has been previously considered. The submissions will only be significantly different if the content:

(i) had not already been considered;

(ii) taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection.

This paragraph does not apply to claims made overseas."

29. The task of the Secretary of State under rule 353 has been considered by the Court of Appeal on a number of occasions, perhaps most recently in WM(DRC) v The Secretary of State for the Home Department [2006] EWCA Civ 1495. Lord Justice Buxton put it in this way:

"The task of the Secretary of State

There was broad agreement as to the Secretary of State's task under rule 353. He has to consider the new material together with the old and make two judgements. First, whether the new material is significantly different from that already submitted, on the basis of which the asylum claim has failed, that to be judged under rule 353(i) according to whether the content of the material has already been considered [sic]. If the material is not "significantly different" the Secretary of State has to go no further. Second, if the material is significantly different, the Secretary of State has to consider whether it, taken together with the material previously considered, creates a realistic prospect of success in a further asylum claim. That second judgement will involve not only judging the reliability of the new material, but also judging the outcome of tribunal proceedings based on that material. To set aside one point that was said to be a matter of some concern, the Secretary of State, in assessing the reliability of new material, can of course have in mind both how the material relates to other material already found by an adjudicator to be reliable, and also have in mind, where that is relevantly probative, any finding as to the honesty or reliability of the applicant that was made by the previous adjudicator. However, he must also bear in mind that the latter may be of little relevance when, as is alleged in both of the particular cases before us, the new material does not emanate from the applicant himself, and thus cannot be said to be automatically suspect because it comes from a tainted source.

The rule only imposes a somewhat modest test that the application has to meet before it becomes a fresh claim. First, the question is whether there is a realistic prospect of success in an application before an adjudicator, but not more than that. Second, as Mr Nicol QC pertinently pointed out, the adjudicator himself does not have to achieve certainty, but only to think that there is a real risk of the applicant being persecuted on return. Third, and importantly, since asylum is in issue the consideration of all the decision-makers, the Secretary of State, the adjudicator and the court, must be informed by the anxious scrutiny of the material that is axiomatic in decisions that if made incorrectly may lead to the applicant's exposure to persecution. If authority is needed for that proposition, see per Lord Bridge of Harwich in Bugdaycay v SSHD [1987] AC 514 at p 531F."

30. WM(DRC) v The Secretary of State for the Home Department was concerned with an asylum claim whereas the claimant here advances a human rights claim. However, there is no dispute that the principles set out in it apply to the present case.
31. The answer to the first of the questions that WM sets out for the Secretary of State to consider, namely whether the new material is significantly different from the old material, is not in doubt in this case. Counsel for the defendant conceded that it should be answered in the affirmative. This concession was inevitable. The evidence about the claimant's mental state that was available at the point at which the IAT dismissed his appeal in April 2004 comprised a report from each of Dr Lester and Dr Browne (both from 2002) and a report from Dr Radovic (from 2003). He had been diagnosed as suffering from psychotic depression and post traumatic stress disorder and he had been suffering from paranoia but the diagnosis of paranoid schizophrenia had not yet been made. Dr Lester and Dr Browne (whose evidence the adjudicator preferred to the more pessimistic picture from Dr Radovic) had been quite encouraging about his mental state, indicating that he was easily reassured and that medication was keeping his problems under control. This note of encouragement is conspicuously absent in the medical reports that have been prepared since April 2004 by Dr Radovic, who has continued to treat the claimant, and by the independent psychiatrist, Dr McKee. There is evidence upon which it could be concluded that the dismissal of the appeal in April 2004 had caused or contributed to a deterioration in his mental health. There are forceful references to the risk of suicide in these later reports which were absent from the earlier ones.
32. Furthermore, for the most part the Secretary of State does not impugn the new material as incapable of belief. Once again, this is unsurprising given that it is medical evidence from two consultant psychiatrists, one of whom has not even treated the claimant.
33. The second question for the Secretary of State is whether the new material, taken together with the material previously considered, creates a realistic prospect of success in a further asylum claim. It is around this question that the argument has revolved in front of me.
34. As Lord Justice Buxton pointed out, in line with earlier decisions, it is only a "somewhat modest test that the application has to meet before it becomes a fresh claim". The Master of the Rolls, in R v Secretary of State for the Home Department ex parte Onibiyo [1996] QB 768 had put it this way:

"The acid test must always be whether, comparing the new claim with that earlier rejected, and excluding material on which the claimant could reasonably have been expected to rely in the earlier claim, the new claim is sufficiently different from the earlier claim to admit of a realistic prospect that a favourable view could be taken of the new claim despite the unfavourable conclusion reached on the earlier claim."

35. It is important to bear in mind that the role of this court is confined to the realm of judicial review. This is not an appeal and I cannot substitute my own determination on the facts for that of the Secretary of State. The decision of the Secretary of State is only capable of being impugned on Wednesbury grounds. WM(DRC) v The Secretary of State for the Home Department set out, as follows, the matters that must be addressed when reviewing such a decision:

"11. First, has the Secretary of State asked himself the correct question? The question is not whether the Secretary of State himself thinks that the new claim is a good one or should succeed, but whether there is a realistic prospect of an adjudicator, applying the rule of anxious scrutiny, thinking that the applicant will be exposed to a real risk of persecution on return: see §7 above. The Secretary of State of course can, and no doubt logically should, treat his own view of the merits as a starting-point for that enquiry; but it is only a starting-point in the consideration of a question that is distinctly different from the exercise of the Secretary of State making up his own mind. Second, in addressing that question, both in respect of the evaluation of the facts and in respect of the legal conclusions to be drawn from those facts, has the Secretary of State satisfied the requirement of anxious scrutiny? If the court cannot be satisfied that the answer to both of those questions is in the affirmative it will have to grant an application for review of the Secretary of State's decision."

36. It was incumbent on the Secretary of State to make his decision in the light of the existing law concerning the impact of mental health considerations, including the risk of suicide, on human rights claims. The claimant's case is that removing him to Albania would be contrary to both Article 3 and Article 8 of the ECHR.
37. The allegation of a breach of Article 3 is based both on the risk of suicide in the event of removal and on the deterioration that a return to Albania is likely to provoke in the claimant's mental state. As presented before me, it depended on the situation once the claimant was back in Albania and is therefore properly classed as a "foreign" case for the purposes of my consideration of the authorities. In so far as a suicide risk were to arise at the earlier stages of removal (when the claimant was told that he was to be removed and during the removal and flight), the authorities here would be under a positive obligation to take reasonable measures to protect the claimant against the risk and there is no reason to suppose that they would breach that obligation.
38. I do not intend to attempt a comprehensive restatement of the law. It has been set out, much more expertly than I could set it out, in a number of decisions and, most recently, summarised by Lord Justice Hughes in AJ (Liberia) v Secretary of State for the Home Department [2006] EWCA 1736 in a decision given the day after I initially heard argument in this matter, causing me to invite the advocates to attend before me on a later date to address me about its implications.
39. The principles that Lord Justice Hughes distils in AJ derive from decisions such as J v SSHD [2005] EWCA 629 and Tozlukaya v SSHD [2006] EWCA 379. In J v SSHD, the Court of Appeal set out the relevant test in a foreign case i.e.

"whether there are strong grounds for believing that the person, if returned, faces a real risk of torture, inhuman or degrading treatment or punishment".

and in amplification of the test, they listed six considerations:

"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 and para [40] of Bensaid.

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 of article 3.

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

40. In Tozlukaya, the Court of Appeal endorsed the approach in J v SSHD and identified the sixth factor as being a factor "of considerable importance". Whilst there was evidence that there would be an increase in the risk of Mrs Tozlukaya committing suicide if the family were removed to Germany, appropriate measures would be taken by the German authorities and relevant medical facilities would be available in Germany with treatment at least as good as Mrs Tozlukaya would receive in this country. In the circumstances, the Court of Appeal said that the case did not come near the high Article 3 threshold, even if the risk was severe and likely to continue. Her claim under Article 3 was bound to fail.
41. In AJ (Liberia) the Court of Appeal underlined that the six factors set out in J are not intended to be exhaustive. Consideration of them is only part of the exercise that an immigration judge must carry out. As Hughes LJ emphasises, he has still to decide whether the high Article 3 threshold has been crossed and whilst an increased risk of suicide is capable of creating a breach, it will only do so in exceptional circumstances as Bensaid v UK (2001) 33 EHRR 10 shows.
42. The difficulty, it seems to me, is in knowing precisely what may constitute such exceptional circumstances. It appears that no mental health case considered by the European Court of Human Rights has been found to meet the threshold and the researches of counsel in AJ (Liberia) failed to uncover any English suicide or mental health case where either an Article 3 or an Article 8 claim succeeded.
43. The starting point for a consideration of what is required is Bensaid itself. Dismissing the applicant's claim, the European Court of Human Rights said:

"The Court accepts the seriousness of the applicant's medical condition. Having regard however to the high threshold set by Article 3, particularly where the case does not concern the direct responsibility of the Contracting 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 Article 3. It does not disclose the exceptional circumstances of the D case….where the applicant was in the final stage of a terminal illness, AIDS, and had no prospect of medical care or family support on expulsion to St Kitts." [my italics]

44. The D case to which reference was made was D v UK (1997) 24 EHRR 423 and it is apparent that it was a case of physical rather than mental illness and that the European Court in Bensaid was aligning physical and mental illness for the purposes of Article 3. In J, the Court of Appeal expressly rejected as not being in line with Strasbourg jurisprudence a submission that a different test was required in cases where the Article 3 breach relied on is a risk of suicide or other self-harm. In AJ (Liberia), the Court of Appeal (following Bensaid) reiterated that what must be shown "are exceptional circumstances comparable in impact to those of the terminal patient in D v UK".
45. In practice, this is not easy to apply. A suicide case is not precisely analogous to a fatal illness case, as Lord Justice Dyson pointed out in J v SSHD and the Court of Appeal acknowledged in AJ (Liberia). Lord Justice Richards observed in Tozlukaya that the similarities are more important than the differences, a view shared by Lord Justice Hughes in AJ (Liberia). This is of course true, in that in both fatal illness cases and suicide cases, the claimant commonly seeks not only to remain in this country but also to continue to receive treatment here and, in both types of case, relies on the fact that treatment will not be available in the country to which he would be sent. Furthermore, in both types of case, it is not exceptional for the consequence of a return to be foreseeable, and sometimes certain, relapse, which in some cases may be fatal. But what is the mental health/suicide equivalent of the final stages of a terminal illness which is beyond treatment? Or, in the words used in AJ (Liberia), what mental health circumstances are "comparable in impact"?
46. The difficulty in answering these questions was clear in argument before me and has not been resolved by my further study of the authorities afterwards, including the House of Lords authority of N v Secretary of State for the Home Department [2005] UKHL 31 in which the rationale of D v UK was considered.
47. N was a Ugandan citizen. She was receiving treatment in this country for AIDS. It is not entirely clear what treatment was available for her in Uganda. Lord Hope commented that the evidence was that the treatment she needed was available there, albeit at considerable cost, but the medical evidence cited by Lord Brown suggested that the precise anti-retroviral drugs she would require would simply not be available. He also comments later in his speech that the appellant would have the very greatest difficulty in accessing and paying for the necessary treatment there. What is clear however is that the House of Lords proceeded upon the basis that her prospects would dramatically deteriorate if she were returned to Uganda and she would be likely to face an early death, within a year or at most two. If she remained in the UK she could live for decades. Her Article 3 claim failed. The House of Lords held that Article 3 only covered very exceptional circumstances where the present state of health of the person concerned was such that, on compelling humanitarian grounds, he ought not to be expelled unless it could be shown that the medical and social facilities that he would need to prevent acute suffering while he was dying were actually available to him in the receiving state. N's circumstances were not sufficiently exceptional. She was fit to travel and she had not reached a terminal stage of her illness where she was beyond the reach of medical treatment.
48. Lord Nicholls suggested that the reason that the D case succeeded in Strasbourg where many other immigration cases have failed was that Article 3 does not require contracting states to undertake the obligation of providing aliens indefinitely with medical treatment lacking in their home countries, even where, in the absence of medical treatment, the life of the individual will be significantly shortened but, in D, no obligation to provide medical treatment was being imposed because D was dying and beyond the reach of medical treatment. The other speeches run along broadly similar lines. Their Lordships remarked upon the fact that the Strasbourg court has been at pains in its decisions to avoid further extensions of the exceptional category of case which the D case represents. Lord Hope says, for example:

"50. But it cannot be said that the court is unaware of the advances of medical science in this field. All the recent cases since SCC v Sweden have demonstrated this feature. The fact that the court appears to have been unmoved by them is due, I think, to its adherence to the principle that aliens who are subject to expulsion cannot claim any entitlement to remain in the territory of a contracting state in order to continue to benefit from medical, social or other forms of assistance provided by the expelling state. The way this principle was referred to and then applied in Amegnigan v The Netherlands ("the court recalls that in D v United Kingdom it emphasised [the principle]") is, in my opinion, highly significant. What the court is in effect saying is that the fact that the treatment may be beyond the reach of the applicant in the receiving state is not to be treated as an exceptional circumstance. It might be different if it could be said that it was not available there at all and that the applicant was exposed to an inevitable risk due to its complete absence. But that is increasingly unlikely to be the case in view of the amount of medical aid that is now reaching countries in the third world, especially those in Sub-Saharan Africa. For the circumstances to be, as it was put in Amegnigan v The Netherlands, "very exceptional" it would need to be shown that the applicant's medical condition had reached such a critical stage that there were compelling humanitarian grounds for not removing him to a place which lacked the medical and social services which he would need to prevent acute suffering while he is dying. This is, in effect, the same test as that which my noble and learned friend Baroness Hale of Richmond has identified."

49. A fundamental feature of D, incorporated into the test formulated by the House of Lords in N, was that the claimant was dying and would die whether or not he remained in this country because he was beyond the help of medicine. By virtue of this fact he was not placing anything other than short term demands on the medical, social or other assistance available here. N, in contrast, would be placing demands on the resources of this country, in terms of medical treatment at least, potentially for decades. Looking for an equivalent to the D case in the mental health field, one might therefore postulate a situation in which the patient could not be helped by drugs and would rapidly commit suicide even if he remained in this country. Whilst superficially similar, however, such a situation does not withstand more detailed analysis well. If a claimant would commit suicide whether kept in this country or returned to his country of origin, he would fail to establish a causative link between the act of removal and the suicide and his Article 3 claim would have failed for that reason, obviating any necessity for a consideration of whether the circumstances were comparable in impact to those of the patient in D. Furthermore, the postulated situation should in fact be confined to the realms of theory because the mental health facilities in this country are such that it is certainly to be hoped that, where a patient was known to be at such serious risk of immediate suicide, effective steps would be possible to prevent him from succeeding, even though this may be at the price of detention in a hospital, thereby placing long term demands on the resources of this country.
50. An alternative approach in the search for circumstances which are comparable in impact would be to lay emphasis on the extremity of the risk so that the more parlous the claimant's situation in the country to which he would be sent, the more likely he would be to succeed in establishing an Article 3 claim. This approach might be considered flawed in that it moves away from the considerations which appear to have been fundamental in D, perhaps bearing more relationship to the approach in asylum cases. Nevertheless, to test its application in suicide cases, in oral argument I asked counsel for the Secretary of State to consider whether it would be sufficient if suicide was a certainty in the event that the claimant were to be returned to Albania but not if he remained here. I do not think he conceded that even this would necessarily establish an Article 3 claim. When it came to suggesting what would, I think he was in as much difficulty as I was.
51. Whilst appreciating that each case must ultimately turn on its own facts, in view of the difficulty in establishing how the general principles in relation to Article 3 work in suicide cases, I have examined the facts of prominent decided cases to see whether they elucidate the ambit of the class of exceptional cases where the risk is suicide rather than death from a physical illness.
52. In Bensaid, the applicant was an Algerian national who was a schizophrenic suffering from a psychotic illness. He had been in the United Kingdom since 1989 and had been receiving treatment for his medical condition since 1994-5. He submitted that his removal to Algeria would place him at real risk of a relapse in his illness.
53. The following facts can be gleaned from the report. The applicant had produced evidence from his psychiatrist that a relapse would be the likely effect of his removal to Algeria. The applicant had previously felt sufficiently depressed and hopeless that he had contemplated suicide. He had parents and siblings living in Algeria but none of the family had a car and the nearest hospital with facilities for treating mental illness was 75-80km away from the place where the family lived. The drug olanzipine (with which the applicant was being treated) was available in Algeria and could be prescribed in hospital pharmacies; medical treatment including drugs was provided free to people treated at hospital. If a patient were to be treated as an outpatient, the cost of treatment could be reimbursed if he was enrolled in a social insurance fund. However, the applicant's psychiatrist said that if he had to make an arduous journey through a troubled region (which he submitted would be required in order to travel to the hospital although the Government disputed that there was particular risk in that area) that would make the risk of a relapse still higher. She pointed out that when psychotic individuals relapse, they commonly have great difficulty in being sufficiently organised to seek help or to travel so he needed local help in managing his illness. She said that if the applicant relapsed, he would be likely to suffer substantially from his symptoms.
54. The court's views are expressed at paragraph 36-40:

"36. In the present case, the applicant is suffering from a long-term mental illness, schizophrenia. He is currently receiving medication, olanzapine, which assists him in managing his symptoms. If he returns to Algeria, this drug will no longer be available to him free as an outpatient. He is not enrolled in any social insurance fund and cannot claim any reimbursement. It is however the case that the drug would be available to him if he was admitted as an inpatient and that it would be potentially available on payment as an outpatient. It is also the case that other medication, used in the management of mental illness, is likely to be available. The nearest hospital for providing treatment is at Blida, some 75-80 km from the village where his family live.

37. The difficulties in obtaining medication and the stresses inherent in returning to this part of Algeria, where there is violence and active terrorism, are alleged to endanger seriously his health. Deterioration in the applicant's already existing mental illness could involve relapse into hallucinations and psychotic delusions involving self-harm and harm to others, as well as restrictions in social functioning (e.g. withdrawal and lack of motivation). The Court considers that the suffering associated with such a relapse could, in principle, fall within the scope of Article 3.

38. The Court observes, however, that the applicant faces the risk of relapse even if he stays in the United Kingdom as his illness is long term and requires constant management. Removal will arguably increase the risk, as will the differences in available personal support and accessibility of treatment. The applicant has argued, in particular, that other drugs are less likely to be of benefit to his condition, and also that the option of becoming an inpatient should be a last resort. Nonetheless medial treatment is available to the applicant in Algeria. The fact that the applicant's circumstances in Algeria would be less favourable than those enjoyed by him in the United Kingdom is not decisive from the point of view of Article 3 of the Convention.

39. The Court finds that the risk that the applicant will suffer a deterioration in his condition if he is returned to Algeria and that, if he did, he would not receive adequate support or care is to a large extent speculative. The arguments concerning the attitude of his family as devout Muslims, the difficulties of travel to Blida and the effects on his health of these factors are also speculative. The information provided by the parties does not indicate that travel to the hospital is effectively prevented by the situation in the region. The applicant is not himself a likely target of terrorist activity. Even if his family does not have a car, this does not exclude the possibility of other arrangements being made.

40. The Court accepts the seriousness of the applicant's medical condition. Having regard however to the high threshold set by Article 3, particularly where the case does not concern the direct responsibility of the Contracting 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 Article 3. It does not disclose the exceptional circumstances of the D case (cited above) where the applicant was in the final stage of a terminal illness, AIDS, and had no prospect of medical care or family support on expulsion to St. Kitts.

41. The Court finds, therefore, that the implementation of the decision to remove the applicant to Algeria would not violate Article 3 of the Convention."

55. It appears to have been important to the decision that medical treatment was available to the applicant in Algeria and that the Court considered a number of features only "speculative", notably the risk of him suffering a deterioration if he returned, the risk of him not receiving adequate support or care if he did deteriorate, the supposed unhelpful attitude of his family, the difficulties of travel to the hospital and the effects on his health of these factors. It is not entirely clear whether it was merely the fact that these features were only speculative that led to the rejection of the Article 3 claim or whether the view of the Court was that even if they (or some of them) had been established, the claim would not have succeeded although the use of the D case as an example leaves open the possibility that the outcome would have been the same even if each of the speculative features had been more firmly established.
56. In J, the appellant alleged that he would commit suicide if he were to be returned to Sri Lanka. The adjudicator had accepted that he suffered from PTSD and depression but rejected the evidence that he had attempted suicide. The IAT granted permission to appeal and reviewed the evidence on the subject of the appellant's mental illness. This evidence included medical views that he continued to present a risk of suicide which would be aggravated if he had to return to Sri Lanka, even to the point of it being described as "likely", a "high" risk and a "grave danger". The IAT held there was no real risk of suicide in response to removal to Sri Lanka. The Court of Appeal held this was a finding open to the IAT. In relation to the risk in Sri Lanka, the adjudicator had found that such fears as the appellant might have on his return were not objectively justified, and the IAT had made the tenable finding that he would have family support there and he would have access to medical treatment there which it was conceded was adequate.
57. Tozlukaya concerned a family of Turkish nationals who originally claimed asylum in Germany. Following the unsuccessful determination by the IAT of their claim to remain in this country, further representations were made on the basis of Mrs Tozlukaya's mental health. The material submitted to the Secretary of State included psychiatric and psychological evidence that she was suffering from depression and post-traumatic stress disorder and there was a serious risk that she would commit suicide if removed to Germany. He certified the claim as clearly unfounded. Further information about Mrs Tozlukaya's mental state was available by the time of the judicial review hearing to the effect that if she faced a future attempt to remove her from this country, the risk of deliberate self-harm would be very high and the risk of completed suicide was at least moderate (by which was meant that it would be substantially elevated over the general population) or alternatively could even be described as "severe". The Court of Appeal considered that appropriate measures would be taken by the German authorities to protect against the risk of suicide and that relevant medical facilities would be available there with treatment for Mrs Tozlukaya which would be at least as good as the treatment she would receive here. In the circumstances, an increase in the risk of suicide as a result of removal was not sufficient to bring the case near the high Article 3 threshold and the claim was bound to fail and therefore the Secretary of State was entitled to certify it as clearly unfounded.
58. In AJ (Liberia) it was accepted that the appellant had a traumatic time as a child in Liberia where his parents had been killed and he had been made to serve as a child soldier. Having got away, he went to live rough on the streets of Monrovia for approximately 3 years before he came to the UK. It was not accepted that he had been targeted in Monrovia as a former child soldier.
59. Before the original adjudicator, asylum and Article 3 claims were advanced on the basis of a risk of persecution/ill-treatment. The appellant was said to have many symptoms of PTSD, to be in need of counselling and to have had some thoughts of killing himself but the case was not presented in reliance on the suicide risk. The adjudicator disbelieved the appellant. The IAT quashed that conclusion and remitted the case to a fresh adjudicator, by now an immigration judge. In the hearing before him, the risk of suicide was advanced as a distinct ground upon which it was argued a return to Liberia would constitute a breach of Article 3 and/or Article 8. Disbelieving the claim that the appellant had been targeted in Monrovia, the immigration judge dismissed his asylum claim and that was not pursued further. He also rejected the case based on suicide, describing the risk as speculative.
60. The AIT ordered a full reconsideration which took place before 3 immigration judges. Psychological evidence was received from the appellant's treating psychologist who had diagnosed that he was suffering from PTSD and an adjustment disorder. He had responded well to treatment. The stressor was regarded as a fear of return to Liberia and suffering violence if that occurred and he also had a sense of shame or guilt at what he had done or witnessed in Liberia as a child soldier. His prognosis was good if he remained in the UK. He had not needed medication for some time but required counselling. He had not attempted suicide at any point but his anxiety had increased since the likelihood of his return increased. At some stage he had cut himself deliberately. If he were returned to Liberia the psychologist considered that there was a significant risk of deterioration. He would lack counselling and there would be external cues which triggered painful memories. He might develop psychosis and there was a significant risk of suicide. Even if his subjective fears about the situation in Liberia were not actually well founded (his account of being targeted as a former child soldier was rejected), they were real to him and, together with the sense of guilt, created the suicide risk. At the time the psychologist gave evidence to the AIT, he put the risk at very high.
61. The AIT accepted the psychologist's evidence but rejected the appellant's claims as failing to meet the high threshold for Article 3 and Article 8 breaches in foreign cases. They made a number of findings in arriving at this determination. Whilst accepting that the appellant would experience intrusive flashbacks and suicidal thoughts which would be triggered by returning, they did not think these would result in a real risk of committing suicide or of undergoing severe psychological deterioration or severe mental illness. They accepted that the appellant was not likely to have access to mental health services, at least unless he became severely ill and that that might well mean he could not continue counselling or therapy. They found, however, that it was reasonably likely that the appellant could obtain medication in Monrovia, by one means or another.
62. He appealed to the Court of Appeal. His appeal succeeded in relation to the finding as to the availability of medication. It seems that the evidence must have been that this would have to be paid for. Lord Justice Hughes said:

"30. …. There is certainly authority for saying that the mere fact that medical attention or medication will have to be paid for in the destination State, whereas it would be free in the sending State, does not mean that there is a breach of either Article 3 or Article 8 in ordering return to the former. Bensaid itself made that clear, as do other decisions of the European Court of Human Rights. Indeed the contrary could scarcely be argued; it is only in a minority of countries that free medicine is available. But that does not mean that a Tribunal which is considering the sixth factor in J v SSHD does not have to consider the availability to the claimant of whatever mechanisms or facilities exist in the destination country. For my part I accept the Secretary of State's argument that it is not to be assumed that the appellant would remain destitute indefinitely on the streets of Monrovia. But initially at any rate he will have no money, no home and no support, and the medical infrastructure is exiguous at best. I am unable to see where lay the evidence to support the conclusion reached by the Tribunal that he would obtain the necessary medication in Liberia on return. The difficulty is compounded by the Tribunal's finding that the appellant could take a supply of medication with him. That was a finding which appears to be supported by no evidence at all. It was not, we understand, a possibility ventilated in the course of the hearing at all. It seems to be a consideration which occurred to the Tribunal in formulating its reasons, but the result of that is that no party had the opportunity to deal with it. The proposition stated may or may not be correct, but it begs the question whether the appellant could be prescribed here a supply of medication for use into the future, and if so for how long into the future, as well as the length of time for which he might need it, as to which there was also no evidence.

31. Since it seems from a reading of the Tribunal's decision that these last two findings may have contributed to the conclusion that the appellant would not have been at real risk of committing suicide or undergoing severe psychological deterioration or severe mental illness, it may be that they also contributed to the conclusion that the Article 3 threshold of exceptional circumstance comparable to D v UK and/or the Article 8 test of truly exceptional circumstance had not been passed. The assessment of those latter questions is particularly for the AIT and not for this court. It follows that it seems to me that the Tribunal's reasoning in relation to the availability of medicine was not properly based upon evidence and was thus flawed in law, and that that means that the order made must be set aside. The proper order is that the case be remitted to the AIT to continue its reconsideration in accordance with the judgment of this court. Whether the Tribunal considers that it should hear further evidence must be for it to decide. And whether on all the evidence which it has the proper conclusion is that either the Article 3 threshold is passed or the Article 8 test is met are matters on which this court should express no opinion."

63. Finally, I turn to R (Razgar) v SSHD [2004] UKHL 27 in which the House of Lords considered an Article 8 claim which had been certified as manifestly unfounded by the Secretary of State. I will return to the legal principles set out in this authority when I consider the claimant's Article 8 arguments. For the moment, I want to concentrate on the factual situation with regard to the mental health of the appellant. He was an Iraqi of Kurdish origin. He relied upon evidence from a consultant psychiatrist who had been treating him since 1999 for post traumatic stress disorder and depression and who considered that if the appellant (who had already made two attempts to kill himself) were returned to Germany from where he had entered the United Kingdom, he would make a serious attempt to kill himself and upon evidence that appropriate treatment would not be made available to him there unless he became a suicide risk. He also complained of the circumstances in which he would have to live if he were returned to Germany (loss of his support network in the UK, fear of racist attacks, restriction on movement, benefits and residence etc). The conclusion of all courts from the Administrative Court to the House of Lords was that the appellant's Article 8 claim could not be certified as manifestly unfounded. Lord Bingham, with whom Lord Steyn agreed, said:

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

Lord Carswell said:

"77. On the facts which were before your Lordships - which I would emphasise are far from up to date - I am compelled to conclude that an adjudicator might arguably hold that a sufficiently fundamental breach of the respondent's article 8 right to the preservation of his mental stability had been established to engage that article. The adjudicator would then have to consider the effect of article 8(2), which will require the striking of a fair balance, in the manner referred to by Lord Bingham of Cornhill in paragraph 20 of his opinion. This has not received consideration by the Secretary of State or the judge. The factors which would have to be assessed on the application of article 8(2) are potent indicators in favour of upholding the operation of immigration control and affirming decisions to refuse entry to persons such as the respondent. I could not be fully satisfied, however, that the case is so clear in favour of upholding the decision to remove the respondent that no reasonable adjudicator could hold otherwise.

78.  I accordingly conclude, not without very considerable hesitation, that for the reasons which I have given the decision of the Secretary of State must be set aside. In so holding, however, I have to emphasise that the decision of the House goes no further than to determine the question of law submitted to it whether the Secretary of State was justified in ruling out an appeal in limine on the ground that the respondent's allegation was manifestly unfounded. We cannot attempt to say how the case will appear before an adjudicator who has full information of the current state of the respondent's mental health and the facilities which will be available to him in Germany and is in a position to test the evidence of the respondent and the reliability of any medical opinions adduced. Still less can we give any indication how we think the adjudicator is likely to decide the substantive issue if an appeal is brought from the decision to remove the respondent."

64. I bear in mind that Lord Walker and Baroness Hale differed and would have allowed the Secretary of State's appeal. Lord Walker thought that the case was simply not exceptional in the way that the Strasbourg court had in mind in Bensaid and Henao v The Netherlands 2003 (a very similar case to D v UK but where there was no breach because the humanitarian considerations were less strong). Baroness Hale commented:

"64. ….If there were substantial grounds to believe that the authorities responsible for him in Germany would not take such steps, then I would accept that his Convention rights were engaged and that the Secretary of State could not properly certify that his claim was manifestly unfounded, at least without making further enquiries or seeking further assurances from the German authorities. But this is not the case. Mr Kessler's report specifically states that 'your client will only receive medical treatment in case of actual danger to himself or to others'. The Secretary of State is entitled to assume that the German authorities will observe their Convention obligations to the claimant unless there is better evidence than this that they will not."

65. In considering the implications for the present case of the decisions in the authorities I have examined, I must be alert to the fact that the test that the courts were applying was not always the same one as the one that applies here. Bensaid was a direct consideration by the European Court of Human Rights of Article 3. In J the Court of Appeal were determining an appeal from the IAT and considering in particular whether the finding they had made that there was no risk of suicide on removal to Sri Lanka was a finding which was open to them. AJ (Liberia) was similar in that it was an appeal from the AIT. In Razgar, the House of Lords was reviewing (in the Article 8 context) the Secretary of State's certification of a claim as manifestly unfounded. In Tozlukaya the Court of Appeal was reviewing in both an Article 8 and Article 3 context, the similar issue of the Secretary of State's certification of a claim as clearly unfounded. I am reviewing the Secretary of State's refusal to treat the claimant's representations as a fresh claim, and in particular a claim which had a realistic prospect of success before an immigration judge.
66. As WM contemplates, the Secretary of State will form his own view of the merits of the renewed claim which will act as a starting point for his evaluation of its prospects of success. His own view is only a starting point, however. The Secretary of State's evaluation of the facts and the legal conclusions that may be drawn from them cannot stop there. Baroness Hale said in Razgar that the Secretary of State had to "ask himself how an appeal might fare before an adjudicator". Although, I remind myself again that she was there considering the rather starker question of whether a claim was manifestly unfounded, the approach seems to me equally applicable to the consideration of whether a fresh claim has been made. In reviewing the Secretary of State's conclusions on this, I do not substitute my own view of the prospects of the claim but it is clear that I cannot carry out a review at all unless I form some views on that subject.
67. Considering only the expressions of general principle in relation to Article 3 as it applies to health cases, and indeed the fact that there is no identified example in the authorities of such a claim succeeding on the basis of mental health difficulties, it is perfectly understandable that the Secretary of State would conclude that the claimant had no realistic prospect of success in front of an immigration judge, even if his case were to be accepted to the full in relation to his own medical situation, the lack of mental health facilities in Albania and the inability of his mother to give him effective support. Whilst the claimant's circumstances would potentially be appalling in Albania and properly give rise to compassion, the Secretary of State could plainly conclude that they were not "exceptional circumstances comparable in impact to those of the terminal patient in D v UK".
68. When one examines the facts of the prominent authorities, however, the situation becomes considerably less clear. In AJ and in Razgar, the appeal courts contemplated that an adjudicator might find established claims under Article 3 and Article 8 respectively. That is self evident from the speeches in Razgar and is clear from the fact that it was open to the Court of Appeal in AJ to decline to return the case to the Tribunal despite its errors if it had considered that it had no realistic prospect of ultimate success and the outcome was inevitably going to be failure for the appellant.
69. It is difficult to see the circumstances of the appellants in Razgar and AJ as markedly worse than Mr Kurtaj's situation. In Razgar, the appellant had made two suicide attempts and there was evidence that he would make a serious attempt to kill himself if returned to Germany and would not receive treatment unless he became a suicide risk. In AJ, medication was available in Liberia but the appellant there was facing a lack of it by virtue of his impecuniosity and risked deterioration in his mental health and suicide. In Mr Kurtaj's case, the uncontroverted up to date medical evidence (the 2002 reports now being so out of date as to be valueless) is that without medication, he would suffer a recurrence of debilitating florid symptoms and his risk of suicide would rise to 50%. There is evidence that the risperidone that he is currently taking would cost more than he could possibly afford and, if haliperidone were to be available free or at a cost he could meet, he would be unlikely to take it voluntarily because of its unpleasant side effects and there would not be the supervision required to impose compliance. If he did take it, it carries a risk of brain damage.
70. AJ was determined with the six points in amplification of the Article 3 test set out by Lord Justice Dyson in J in mind and, on one view, identifying parity between circumstances of the appellant there and the claimant in this case obviates the need to go through each of the six matters specifically. I will nevertheless do so as a valuable cross check. An absence of suitable medication and the resulting deterioration in mental state, and perhaps most particularly the 50% risk of suicide that the expert opinion attributes to Mr Kurtaj on return to Albania, could on the authorities be accepted as sufficiently serious ill treatment to make it an affront to fundamental humanitarian principles to remove Mr Kurtaj. This could be so even bearing in mind the particularly high threshold in a foreign case where the alleged inhuman treatment results from a naturally occurring illness. There would be a causal link between the removal and the ill-treatment – presence in Albania as opposed to the United Kingdom would represent the obstacle to proper treatment. Although it has been determined that Mr Kurtaj's fear of persecution in Albania is objectively unfounded, that is of little, if any, consequence given his mental illness which is characterised by fundamental distortion of thinking and perception. As Dr McKee said, "I don't believe that it matters if in reality he is not subjected to further persecution, his mind can do quite a lot of that on its own if you read his records." As to the sixth question i.e. whether the receiving state has effective mechanisms to reduce the risk of suicide, there is, it seems to me, a realistic prospect of a tribunal concluding on the evidence here that it does not.
71. In these circumstances, it seems to me that the challenge to the Secretary of State's decision succeeds in relation to Article 3 and that he was not entitled on the material he had and in the light of the legal authorities to conclude that there was no realistic prospect of success before an immigration judge and that Mr Kurtaj's representations did not therefore amount to a fresh claim. In reaching this conclusion, I have made allowances for the fact that the Secretary of State would be entitled to view the evidence critically when forming an opinion of what factual findings would be likely to be made by the immigration judge and also reminded myself that my task is not to substitute my own assessment for his but to carry out a judicial review of his decision.
72. I should stress that treating Mr Kurtaj's representations as a fresh claim means only that he will be entitled to a right of appeal. If he exercises it, all the evidence will be considered with a view to determining whether the high Article 3 threshold is reached. There is absolutely no guarantee that that appeal will succeed.
73. Strictly speaking, my conclusion on Article 3 renders it unnecessary for me to consider the arguments in relation to Article 8 which, whatever I say about them, can be advanced on appeal to the immigration judge in any event. Counsel for the claimant concentrated his written submissions on Article 3 with Article 8 as a supplement. In oral submissions, he reversed that treatment and concentrated on Article 8. I have to say that I considered his first approach the more realistic. Article 8 is undoubtedly capable of extending to situations in which there is a threat to the mental stability which is an indispensable precondition to effective enjoyment of private life and it has been accepted that in principle it would be possible in circumstances of this type for Article 8 to be satisfied where Article 3 is not (see Bensaid, for example). However, Article 8 is only a qualified right and it is not surprising that Baroness Hale observed in Razgar that:

"Although the possibility cannot be excluded, it is not easy to think of a foreign health care case which would fail under article 3 but succeed under article 8. There clearly must be a strong case before the article is even engaged and then a fair balance must be struck under article 8(2). In striking that balance, only the most compelling humanitarian considerations are likely to prevail over the legitimate aims of immigration control or public safety."

74. If the claimant's Article 3 claim succeeds in front of the immigration judge, it seems to me that it might be possible to establish an Article 8 claim too although the balance that would have to be struck under Article 8(2) would make it an even more difficult claim to advance and the argument would be entirely academic. It could be said therefore that the Secretary of State should have treated the Article 8 claim as a fresh claim as well as the Article 3 claim. It is not necessary for the purposes of this judicial review for me to express a view about the prospects of Mr Kurtaj establishing an Article 8 claim if his Article 3 claim fails but it is implicit in what I have just said that I think it exceptionally unlikely that he would be able to do so.