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 WC2A 2LL
		1 March 2013

MR JUSTICE HOLMAN:

The issue

1. The Claimant is a young asylum seeker from Syria who claims to have been severely tortured there. He first claimed asylum in Bulgaria. The Secretary of State for the Home Department now wishes to remove him to Bulgaria for his asylum claim to be considered there, pursuant to the provisions of the EU regulation known as Dublin II. So terrified is the claimant of the prospect of ultimate return to Syria that he made an apparent attempt at suicide, and on other occasions significantly harmed himself whilst previously detained here. There is a body of medical evidence to the effect that there is a high risk of completed suicide if the Secretary of State now seeks to remove him, or redetains him as a step towards removal.
2. The claimant claims that his rights under Articles 3 and 8 of the European Convention on Human Rights are thus engaged and that he cannot, or should not, be removed or redetained. The Secretary of State has certified those claims to be "clearly unfounded", which precludes any in-country right of appeal to the Tribunal system. The sole question on the present judicial review is whether that certification is correct.

Certification

3. As the present issue concerns certification, it is convenient first to set out the legal framework for that process and the role of this court upon a judicial review of the certification. At issue in this case is removal of an asylum seeker to a safe third country, pursuant to Council Regulation (EC) No 343/2003 ("Dublin II") and the Asylum and Immigration (Treatment of Claimants) Act 2004.
4. Bulgaria is listed as a safe country in paragraph 2 of Part 2 of Schedule 3 to that Act. Paragraph 5 of Part 2 of Schedule 3 to that Act applies where the Secretary of State proposes to remove a person to a safe country (viz in this case Bulgaria), and the person is not a national or citizen of that state (which the claimant is not). Paragraph 5(4) provides that:

"(4)The person may not bring an immigration appeal... in reliance on a human rights claim... if the Secretary of State certifies that the claim is clearly unfounded; and the Secretary of State shall certify a human rights claim... unless satisfied that the claim is not clearly unfounded."

5. The meaning and effect of the words "clearly unfounded" has been authoritatively stated by the House of Lords in ZT (Kosovo) v SSHD [2009] UKHL 6, [2009] 1 WLR 348. At paragraph 23 Lord Phillips of Worth Matravers said:

"Where, as here, there is no dispute of primary fact, the question of whether or not a claim is clearly unfounded is only susceptible to one rational answer. If any reasonable doubt exists as to whether the claim may succeed then it is not clearly unfounded. It follows that a challenge to the Secretary of State's conclusion that a claim is clearly unfounded is a rationality challenge. There is no way that a court can consider whether her conclusion was rational other than by asking itself the same question that she has considered. If the court concludes that a claim has a realistic prospect of success when the Secretary of State has reached a contrary view, the court will necessarily conclude that the Secretary of State's view was irrational."

At paragraphs 75 and 76 Lord Brown of Eaton-under-Heywood said:

"As I have said, the critical question for the court's determination in these cases is: could the AIT possibly allow an appeal against the rejection of the claim or would it be bound to dismiss it (again, the opposite sides of the same coin)? Could the court ever reach the position of saying: we ourselves do not think that an appeal to the AIT in this case would have been bound to fail but we think that it was reasonable for the Secretary of State to decide that it would? In my opinion it could not. If the court concludes that an appeal to the AIT might succeed, it must uphold the challenge and allow such an in-country appeal to be brought.

It follows that on this issue also I agree with what Lord Phillips says at para 23 of his opinion."

6. Guided by that authority and those passages it seems to me that I myself must ask myself the question whether I consider the asserted human rights claim to be "clearly unfounded". If I do, then the judicial review must fail. If I do not, then it should be allowed. If the claim realistically might succeed on an appeal before a tribunal, then it is not clearly unfounded. If it is bound to fail, then it is clearly unfounded.
7. My attention was drawn to the very penetrating analysis of the authorities on this topic by Beatson J at paragraphs 55 to 73 of his recent judgment in Toufighy v SSHD [2012] EWHC 3004 (Admin). It appears to me to leave intact, in cases falling within paragraph 5(4) of Part 2 of Schedule 3 to the 2004 Act, the approach which I have much more briefly summarised and described above. However, I bear firmly in mind the wise words of Beatson J at paragraph 73 of his judgment in Toufighy:

"73. The justification for a substitutionary approach in this context may be that the question whether a claim is bound to fail at the Tribunal is particularly suitable for determination by a court, involving, as it does, questions of access to an independent adjudicative body. The question can be described as "highly justiciable". Maurice Kay LJ stated in MN (Tanzania) that a generous approach to the scope of the judicial review jurisdiction where the decision denies a person access to the immigration appellate system at the outset is understandable. But it is important not to lose sight of the fact that the jurisdiction remains a reviewing jurisdiction, and that the, admittedly labyrinthine, legislative provisions in the 2002 and 2004 Acts give the Secretary of State a certain "gate-keeping" function as to the availability of an appeal by the process of certification. Care must be taken not inappropriately to deprive the Secretary of State of that function."

I will keep that passage firmly in mind.

The context of the hearing and the nature of the inquiry

8. Clearly the question whether an appeal might succeed or is bound to fail must itself be decided by reference to a correct statement of the relevant law, and I will attempt to do so. But I wish to stress that I consider the present case to be highly fact specific. I do not believe that (in the context of the present judicial review) it raises any new point of law. It is not my intention to state any new proposition of law, or indeed to establish some precedent for any other case. It seems to me also that the process of deciding within a judicial review whether a claim is clearly unfounded requires to be kept within proportionate bounds. This is a review of the certification, not the hearing of a substantive human rights appeal.
9. I completely accept a submission by Mr David Manknell, on behalf of the Secretary of State, that the purpose and process of certification is fundamental to one of the objectives of the Dublin II regulation, namely swift return to the single member state responsible for examining the asylum application under the hierarchy of criteria within the regulation (in this case Bulgaria). That objective would be severely thwarted if removal could be delayed by the simple act of making an appeal. So the purpose of certification is to screen out or prevent appeals by application of the statutory threshold test, namely if clearly unfounded.
10. It is, as Beatson J neatly put it in paragraph 73 of Toufighy quoted above, a "gate-keeping function" as to the availability of an appeal. But although fundamental to the effective operation of Dublin II, the process is nevertheless a screening or threshold or gate-keeping one, and the test is indeed a low one. The task of a court on a judicial review of the certification must obviously be performed judicially, conscientiously and with due regard both to the fundamental purpose of certification and to the context of asylum; and with proper respect for the decision of the Secretary of State. But, as it seems to me, it must also be performed proportionately.
11. Patently this is not a fact-finding exercise, and indeed it is common ground that I must largely, although not naively or uncritically, take the facts to be as stated by, or on behalf of, the claimant. Nor, in my view, is it an occasion for exhaustive consideration of the law, which may indeed require fuller consideration in the context of the facts as found, rather than the facts alleged.
12. During the present hearing I was privileged to hear advocacy and submissions of the utmost skill and highest order from both Mr Hugh Southey QC leading Mr Andreas Pretzell, on behalf of the claimant, and Mr David Manknell, on behalf of the Secretary of State. I am deeply grateful to them all. But the anticipated scale of the present hearing has surprised and concerned me. We know from paragraph 22 of the transcript of the judgment of Mr Clive Lewis QC, who granted permission to apply for judicial review on 23 May 2012, that it took him "more than a day" to read the material assembled for that hearing. Two days were estimated and allowed for the present hearing, plus a day for pre-reading and a day for preparation of this judgment. A bundle of 800 pages of documents was assembled for the present hearing and bundles of around 45 authorities. The skeleton arguments extended to about 30 pages on each side.
13. I cannot accept that the screening, threshold or gate-keeping issue of whether a claim is clearly unfounded (viz whether it might succeed or is bound to fail) is one which should absorb so much judicial time (over five days if one adds Mr Lewis to myself) or which should be subjected to so much detailed consideration, except perhaps in a case, which this is not, which raises some new issue of law which requires prior definitive determination. Indeed, the very fact that two days in court were said to be required for the hearing immediately led to a delay of at least six months, as can be seen from paragraph 31 of the transcript of the hearing of 23 May 2012. The whole process has occupied to date over 20 months since early July 2011.
14. In my view (barring an exceptional case) the process of predicting whether a substantive appeal might succeed or must fail should be performed in hours rather than days, and in a much shorter timescale than this. In my view, without in any way seeking to blame or criticise anyone individually, this case got out of hand; and by the time of the hearing this week there was a limit to how far I could rein it in, although I firmly prevented Mr Southey and Mr Manknell from developing all their points. By this judgment I seek to respect the arguments and the detail with which counsel developed their cases. It is, however, much longer than I believe it ought to be in a case such as this.

The essential facts

15. The claimant was born in a Kurdish area of Syria in January 1989. He was just 21 when he first fled from Syria in January 2010 and claimed asylum in Bulgaria. He is now aged 24. He says that repeatedly during his childhood and upbringing the police raided his family home and detained not only his father but his brother and himself, and that during detention he was confined in small cells for long periods and tortured. The tortures included punching, kicking, beating with plastic cabling, extraction of toe nails and being doused in urine. He tried to hang himself with a sheet, but was prevented by the guards. Eventually he escaped from Syria, travelled through Turkey and arrived in Bulgaria where he claimed asylum and was detained for a period.
16. After his release his asylum claim appears not to have been resolved, and in early 2011 he voluntarily returned to Syria. He says that he did so because he was homesick and he believed that conditions there had improved following the so-called "Arab spring". He says that he was again detained in Syria and required to undertake military duties and to shoot at demonstrators. He refused to do so and says that he was again tortured. The torture included inserting something hard and metallic into his anus and being doused again in urine. Sometimes the urine was cold, but sometimes warm, and although he was lying blindfolded he believed that he was being urinated upon. He again effected escape and travelled in a lorry via Turkey to England where he arrived in mid May 2011. He was arrested by police in Middlewich in Cheshire on 17 May 2011 and claimed asylum. The Secretary of State is sceptical about many parts of the story and undoubtedly its reliability would require careful consideration at any appeal hearing.
17. During the evening of 17 May 2011 the claimant was seen in a police cell at Middlewich and it was recorded that "all was in order". Very shortly afterwards it was seen that he had ripped his clothing and put some of it around his neck like a noose. A later record describes this as attempted suicide by strangulation, although how serious an attempt it was would no doubt require careful consideration. It is also recorded that whilst in police custody he was banging his head on the floor.
18. On 20 May 2011 the claimant was transferred to Brook House Immigration Removal Centre at Gatwick. It was established that he had first claimed asylum in Bulgaria, and by a letter dated 26 May 2011 Bulgaria formally accepted responsibility to take him back under Dublin II. By a first decision letter, also dated 26 May 2011, the UKBA informed the claimant that he would be returned to Bulgaria and that the Secretary of State would not examine his asylum claim substantively.
19. The claimant was medically examined on 28 May 2011 by Dr Abbas Hussan who noted many marks on the body, which the doctor appears (although the brief file note is less than clear) to have regarded as consistent with torture.
20. On 1 June 2011 the Secretary of State set removal directions to Bulgaria for 13 June 2011. The claimant made further representations which were rejected by the UKBA in a letter dated 10 June 2011. That letter clearly stated that parts of the claimant's story were not credible; confirmed that the Secretary of State would remove him to Bulgaria on 13 June 2011 in application of Dublin II; and certified that any human rights claim was clearly unfounded.
21. On 12 June 2011, after receipt of that letter and the day before the planned removal, the claimant slashed his arms, chest and abdomen no less than 40 times with a razor. Most of the incisions were recorded as "superficial", although some were deep and required steristripes, and a deep laceration to the dorsal aspect of the right wrist required three sutures. The claimant told the treating doctor, Dr Van Der Meer, that he would rather die than be sent back to Syria. Dr Van Der Meer advised that he needed to have one-to-one monitoring at the detention facility, but it is unclear whether that was done. In the light of these events the removal on 13 June 2011 was cancelled as the claimant was unfit to fly, but reset for 27 June 2011.
22. On 24 June 2011 the claimant was found lying on the floor vomiting and with further cuts on his arms. Soapy water was found in his room and he was thought to have drunk this in order to induce illness. He later stated that he had drunk it to try to kill himself. It was noticed that he had also removed the existing non-dissolvable sutures from the earlier incident. He was placed on constant watch and the removal directions for 27 June were also cancelled, but reset for 6 July 2011.
23. On 2 July 2011 the claimant, who had been kept under constant watch for his own safety, was examined by a clinical psychologist, Dr Eileen Walsh. She reported first by an email dated 5 July 2011 (now at bundle page 324) and later by a fuller report dated 4 August 2011 (now at bundle pages 129 to 151). As I understand it, however, there was only one examination of the claimant by Dr Walsh, namely that of 2 July 2011. In the email Dr Walsh noted that as of 2 July 2011 the claimant had not eaten for five days. She assessed him "to be at very high risk of suicide". It was her impression that detention was exacerbating his mental health problems and that:

"There are multiple triggers for his trauma history within the detention centre environment, which are elevating his PTSD symptoms ... His only coping strategy at present is self-harm, which is placing him at risk of physical health problems. He is at risk of further suicide attempts."

24. The report dated 4 August 2011 is much fuller. In essence, it diagnosed severe PTSD with a marked impairment of functioning (paragraphs 25 and 26) and major depressive disorder (paragraph 42). It referred at paragraph 46.5 to his hopelessness, which it said is the biggest risk factor in predicting suicidal behaviour in individuals with symptoms of depression. The report concluded that he "is currently at a very high risk of suicide". At paragraph 58 of her report (now at bundle page 148) Dr Walsh stated:

"... with regards to his mental health, he is not currently fit to fly. I do not believe he has the capacity to manage a move to Bulgaria. He does not present with the capacity to manage his emotions sufficiently to keep himself safe from harm. Although Bulgaria may be independently regarded as a safe country for Mr Ibrahim, his account of previous experience of being refused asylum in Bulgaria and becoming destitute, combined with his current poor mental state and PTSD, leave him perceiving a move to Bulgaria as extremely threatening. This is exacerbating his symptoms and placing him at high risk of suicide. He is also at risk of serious physical harm as a result of his self-harm behaviours."

25. In the light of the email from Dr Walsh a judge ordered on 5 July 2011 that the claimant must not be removed until further order. The removal directions for 6 July were accordingly cancelled and on 7 July 2011 the claimant was released from detention at Brook House. Since about that date he has resided, as I understand it, in accommodation in the Manchester area funded by the SSHD through the National Asylum Support Service. He receives counselling and support from various bodies in the Manchester area and receives continuing medical treatment for both physical and mental conditions. He is prescribed an antidepressant, Mirtazapine.
26. The subsequent procedural history is that after refusal on paper in August 2011 the claimant was granted permission to apply for judicial review at the renewed oral hearing on 23 May 2012, as already described.
27. The claimant has undergone further significant examinations as to his mental health. He was seen on four occasions during August and September 2011 by Dr Alex Gorton, whose report dated 4 November 2011 is now at bundle pages 97 to 115. The report records a detailed narrative, obtained from the claimant during the four examinations, of his history and torture, which, if true, was severe and included something such as a pole being thrust into his anus while he was blindfolded and held facing a wall.
28. Dr Gorton noted a large number of scars on the body. He distinguished those which were admittedly caused by self-harm from those said to be caused by torture. He considered that those attributable to self-harm were suggestive of serious and repeated attempts at self-harm, and that those attributed to torture were consistent with the account given. Ano-rectal injuries and symptoms were said to be highly consistent with the account given.
29. On psychological examination Dr Gorton considered that the claimant "fully meets the criteria for PTSD" (paragraph 95). At paragraph 101 (now bundle page 112) Dr Gorton stated:

"Clearly Mr Ibrahim appears to be significantly more mentally stable now than he was when assessed by Dr Walsh. There are several reasons for this. Some of his improvement is likely to be due to the medications he has been taking. Some of it is distance in time and space from the events of his ill-treatment. Finally his symptoms are likely to be significantly more apparent if he is re-traumatised by exposure to stressors particularly events that remind him of his torture such as being detained as he was on arrival in the UK. I believe that he would be likely to deteriorate significantly again if placed under similar stressful circumstances."

At paragraphs 108 and 109 (now bundle page 113) Dr Gorton stated:

"Mr Ibrahim was originally assessed as a high risk patient both by Dr Walsh and at Brook House. Although many of his symptoms have improved as described above I believe he is still at high risk of deterioration, further self-harm and suicide.

There are a number of factors to be considered when assessing suicide risk. Mr Ibrahim fulfils a number of these, being a young male with depression and lack of social support. Additionally he has made previous attempts of suicide and has chronic pain with associated physical illnesses. Taking these together he is at high risk of further self-harm and suicide, especially where he to be re-traumatised or given the additional burden of hopelessness, not least as he equates return to Bulgaria with a return to Syria and the hands of his tormentors."

30. Finally, and about a year later, the claimant was examined on four occasions during July, August and September 2012 by a consultant psychiatrist, Dr Tania Stanway. In her report dated 23 October 2012 she concluded that he continues to suffer from a major depressive disorder with PTSD and severe depression. His current medication is likely to be helping with the symptoms. However, despite this he continues to live with the symptoms on a daily basis.
31. At paragraphs 93 and 94 of her report (now at bundle page 82) Dr Stanway stated:

"The risk of him actually committing suicide in his current circumstances is lower than it was when he was in detention. However, as detailed previously he continues to experience suicidal ideation and has made preparatory acts, including going to a bridge, on at least one occasion... He has felt less compelled to fully act on his suicidal thoughts because he is not in a custody setting and because of this his PTSD symptoms are precipitated less frequently as he is not exposed to those specific triggers as detailed previously. Should his circumstances change to a setting more likely to trigger such symptoms (for example if he were to be taken back into custody) it is my opinion that his risk of completed suicide would rapidly escalate.

Mr Ibrahim understands that he may be removed to Bulgaria and/or Syria. He is terrified by this. His expectation is that in either country he would be subject to custodial conditions and his previous experience is that, under such conditions, his symptoms of Post Traumatic Stress Disorder become intolerable. There is documented evidence of suicidal behaviour in custodial settings in the UK both in a police cell and whilst detained at Brook House."

At paragraph 98 (now bundle page 84) Dr Stanway stated:

"... there is a high likelihood of deterioration in Mr Ibrahim's mental health were he to experience further time in custody. His clinical condition is highly likely to deteriorate with increased risk of repeated suicidal behaviour to an extent that he would need urgent expert treatment, most probably in an inpatient psychiatric facility."

At paragraph 99, now bundle page 84, Dr Stanway stated:

"... Mr Ibrahim is unfit for detention in any country as he has not yet made sufficient progress in treatment to suggest there is any chance at all of his being able to resist the pressures that drove him to deliberate self-harm in the past."

As to the risk of suicide, Dr Stanway summarised the risk factors at paragraphs 101 and 102 and concluded at paragraphs 103 and 105 (now at bundle page 85):

"Taking all these factors into account it is my opinion that Mr Ibrahim is at ongoing high risk of completed suicide.

...

It is of particular significance that previous suicide attempts have been precipitated by unmanageable symptoms of Post Traumatic Stress Disorder heightened by custodial settings. It is my opinion that being in a custodial setting would greatly increase risk of completed suicide."

Dr Stanway made an important observation at paragraph 107 of her report:

"Acts of self-harm and suicide can be impulsive and those involved in his care may have no opportunity to act to protect him."

32. That observation is relevant to the management of risk and the "central dilemma", to which I will later refer.
33. That report was sent to the UKBA, but by a further decision letter dated 29 November 2012 they maintained their decision to remove the claimant to Bulgaria. The letter states that treatment will be available in Bulgaria so the claimant "will not go untreated on his return there". The report of Dr Stanway could be sent to the Bulgarian authorities in advance. The suicidal ideation had been very carefully considered by the UKBA. The letter continued at paragraphs 10 to 12:

"The UK Border Agency will take steps to minimise the risk that your client may harm herself before and during his removal to Bulgaria. In relation to any such risk prior to removal, and in particular following notification of the decision to remove him, your client will be able to access the support network he has in the UK thus keeping any distress minimal. It is evident that your client has access to the necessary support network to assist him and safeguard against any risk in the build up to removal as he has been referred to the Young Asylum Seekers Project in Manchester who have arranged a weekly counsellor. If your client is taken to an Immigration Removal Centre prior to removal, the authorities at the IRC concerned will remain under a positive obligation to take reasonable measures to protect your client against self-harm and/or suicide. We will also ensure that a 'Fit to Fly' certificate is obtained prior to removal taking place. The 'Fit to Fly' certificate is a medical report compiled by a doctor who will deem the subject as fit to fly prior to removal.

During his physical removal he will be accompanied by suitably qualified escorts, which will mean that the risk that he will harm himself during the journey is very low indeed. 'Escorted' means a person would be accompanied by an employee of Reliance (an external contracted company who deal with removals) to guard against disruptive behaviour and who have control over restraint training and first aid training. This is not only to prevent escape but is also heavily geared towards detainee welfare and specifically, self-harm. An escort who has custody of a detainee is duty bound, and trained to physically prevent self-harm if attempted, and to administer first aid should it be required.

Your client will have every opportunity to alert the Bulgarian authorities of any concerns he may have regarding his health who will in turn make appropriate arrangements for him to receive any necessary treatment. Furthermore, as stated above, the psychiatric report provided can be forwarded to the Bulgarian authorities in advance of the date of his arrival so that they can take appropriate measures both at the airport and subsequently to protect against the risk of suicide."

34. The letter considered the authorities of J v SSHD, Tozlukaya, and D v UK (ECHR) and concluded that the claimant's "circumstances are not sufficiently exceptional and therefore the decision to remove him to Bulgaria would not give rise to a violation of his rights under Article 3 of the Convention." The letter concludes at paragraph 21 by saying:

"The Secretary of State has fully considered your client's human rights claim but for the reasons set out above and in the letter of 10 June 2011, it is not accepted that your client's removal to Bulgaria would be in breach of his human rights. Therefore, the certification of your client's human rights claims as "clearly unfounded" ... on 10 June 2011 is hereby maintained."

Key features of the claimant's case

35. Based on those facts Mr Southey identified certain "key features" or "key materials" of the claimant's case, all of which I accept without a need for much elaboration.
36. (1) First, the claimant's claim to have been tortured in Syria both before he first left and again after his later return is capable of being believed. His story is not inherently incredible and it has been regarded as credible and consistent with observed physical and psychiatric features by three doctors on separate occasions. The story would need careful testing and close scrutiny, but it would clearly be open to an Immigration Judge to conclude that the claimant has indeed been tortured substantially as he claims.
37. (2) Second, it would be open to an Immigration Judge to conclude that there is a rational basis in objective fact for the claimant's expressed terror at being returned to Syria. That would follow from a conclusion that he had already been tortured and is now also buttressed by materials such as the UKBA's own "Operational Guidance Note: Syria" published on 15 January 2013 (now at bundle pages 765 to 793). Paragraph 3.10.9 of that guidance note states:

"The Syrian Government is brutally repressive of dissent ..."

Paragraph 3.11.9 states:

"... it is likely that a failed asylum seeker or forced returnee would, in general, face a real risk of arrest and detention on return, and of serious mistreatment during that detention as a result of imputed political opinion ..."

38. Pausing there, it is important to stress that although the claimant has made a claim for asylum, the present proceedings do not directly concern that claim for asylum. They concern a human rights claim not to be redetained and not to be removed to Bulgaria, based on the high risk of completed suicide, or serious self-harm, if those steps are reactivated or embarked upon. The relevance of the first and second "key features" above is that, if true, they provide, or may be considered by an Immigration Judge to provide, an objective basis for the claimant's expressed terror of ultimate return to Syria and an explanation for his diagnosed PTSD, depression and suicidal ideation. He is not threatening suicide as a device to remain here, but out of a terror which has a basis in fact at the prospect of being removed there.
39. (3) Third, it would be open to an Immigration Judge to find that the claimant has seriously self-harmed himself and/or made suicidal attempts on several occasions while actually detained in preparation for removal, viz in the period 17 May to July 2011. That follows from a number of well documented events and the opinion, in particular, of Dr Gorton, all as summarised above.
40. (4) Fourth, it would be open to an Immigration Judge to find that there is a continuing high, or very high, risk of completed suicide if steps are now taken to remove the claimant, or to redetain him as a step towards removal. The evidence of three doctors considering the claimant at different periods in an overall period of about 14 months from July 2011 (Dr Walsh) to September 2012 (Dr Stanway) is all substantially to the same effect. The most recent evidence is of course that of Dr Stanway. In passages quoted more fully above she says that the claimant is at ongoing high risk of completed suicide (paragraph 103). That risk would be greatly increased by being in a custodial setting (paragraph 105). The claimant is unfit for detention in any country as he has not yet made sufficient progress in treatment to suggest that there is any chance at all of his being able to resist the pressures that drove him to deliberate self-harm in the past (paragraph 99).
41. (5) Fifth, it would be open to an Immigration Judge to conclude (on the current state of the evidence) that the Secretary of State has not described any plan, and probably has no plan, adequately to address the risk of self-harm or suicide while the claimant remains in the United Kingdom or in transit to Bulgaria, nor in any handover stage on arrival in Bulgaria. The Secretary of State does have a policy which is described in a UKBA document "Human rights claims on medical grounds" dated 5 October 2012 (now at bundle pages 386 to 412). Under the heading "Considering suicide threats", at internal page 19 and bundle page 404, that document states:

"If an applicant claims that their removal will give rise to a real risk of suicide or self-harm, that claim may engage the UK's obligations under the European Convention on Human Rights (ECHR), principally articles 3 and/or 8. You must carefully consider all such threats of suicide or self-harm.

Minimising the risk of suicide or self-harm

A claim that removal will lead to a risk of suicide or self-harm will not always mean that the applicant will not be removed, or that leave will be granted. However, where there are substantial grounds to believe that removal would expose an applicant to that risk, you must consider the circumstances and what reasonable steps can be taken to minimise it (it is not necessary to eliminate the risk but all reasonable steps must be taken)."

42. Whilst paragraphs 10 to 12 of the decision letter of 29 November 2012 assert that the UKBA will take steps to minimise the risk, and then describe a range of protective measures, Mr Southey submits that none of them address the "central dilemma" in this case: The claimant cannot be detained because he is unfit to be detained, but if he is again told that he will imminently be removed, and yet is not immediately detained, then there is a very high risk, from which the Secretary of State cannot protect him, of suicide within the community.
43. Mr Southey made a number of detailed points about the contents of paragraphs 10 to 12 of the letter of 29 November 2012, with which I do not need to deal at this hearing. His essential point is that the whole question of whether the claimant can be kept safe, and if so how, requires thorough and case specific consideration in a tribunal; and unless the Secretary of State can satisfy an Immigration Judge that the claimant can and will be kept safe, the human rights claim, far from being clearly unfounded, is likely to succeed.
44. Mr Manknell repeatedly said that the Secretary of State has not made any decision to redetain the claimant and suggested that it is only if and when she were to do so that a challenge to detention could properly be made. Mr Southey's point is that by then it might tragically be too late, and the Secretary of State simply has not worked out the process between informing the claimant of his imminent removal, and how safely to deliver him to appropriately qualified reception personnel in Bulgaria.

The law in relation to Articles 3 and 8 and threatened or predicted suicide

45. It might once have been argued or thought that suicide or the threat, or a predicted risk, of suicide or other self-harm could not engage human rights at all since it is, by definition, self-directed and self-inflicted. But that is not the law. Razgar v SSHD [2004] UKHL 27, [2004] 2 AC 368 clearly establishes that a sufficiently grave threat to a person's mental health, and certainly a sufficiently grave risk of suicide from an immigration decision, is capable of engaging Articles 3 or 8 of the Convention. In the fourth of the six propositions in J v SSHD [2005] EWCA Civ 629, [2005] Imm AR 409 at paragraph 29, the Court of Appeal simply stated:

"... an article 3 claim can in principle succeed in a suicide case."

In CN (Burundi) v SSHD [2007] EWCA Civ 587 Maurice Kay LJ said at paragraph 1:

"It is well established that there may be circumstances in which it would not be possible for the Secretary of State to remove a foreign national to his home country where he would be at a high and increased risk of committing suicide without contravening that person's human rights, in particular the rights safeguarded by Articles 3 and 8 of the European Convention on Human Rights... Notwithstanding the principle, successful resort to it remains elusive."

At paragraph 28 Maurice Kay LJ said on the facts of that case:

"28. I do not underestimate the magnitude of the task that faces the appellant in the pursuit of his Article 3 claim. However, he is entitled to have it properly considered in a determination that is free from material legal error. Some cases which raise the issue of suicide risk are readily identifiable as hopeless. However, this appellant has been in receipt of expert medical and other professional care over a significant period of time and the material he is able to produce ... puts him in a different category from some whose claims are vague and supported only by cursory expert opinions."

Mr Southey submits that the position of the present claimant is not dissimilar.

46. The authorities draw a distinction between "foreign cases" and "domestic cases" and as the third proposition in J v SSHD at paragraph 28 explains:

"... in the context of a foreign case, the article 3 threshold is particularly high simply because it is a foreign case."

However, Mr Southey stresses that the primary basis of his claim in the present case relates to "domestic" treatment within the UK, or in transit from the UK, and before any handover to the Bulgarian authorities has been completed. The remaining propositions in J apply equally to a domestic case (see paragraph 33). They are:

"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 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 ..."

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...

...

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."

In amplification of the sixth factor in domestic cases the court said at paragraph 33:

"The sixth factor is of particular significance. This is not surprising because the signatories to the ECHR have sophisticated mechanisms in place to protect vulnerable persons from self-harm within their jurisdictions. Although someone who is sufficiently determined to do so can usually commit suicide, the fact that such mechanisms exist is an important, and often decisive, factor taken into account when assessing whether there is a real risk that a decision to remove an immigrant is in breach of article 3."

47. On behalf of the Secretary of State Mr Manknell particularly emphasised the fifth and sixth factors. He submitted that any fear by the claimant of being onwards removed by Bulgaria to Syria is not objectively well-founded since the Dublin II machinery presumes that Bulgaria will treat him fairly and will fairly assess the strength of his asylum claim, and indeed any human rights claim based on his mental fragility. Mr Southey meets that point, first, by referring to the qualification upon the fifth factor in J by the Court of Appeal in the later case of Y (Sri Lanka) V SSHD [2009] EWCA Civ 362, [2009] HRLR 22 page 660, where Sedley LJ said at paragraph 16:

"One can accordingly add to the fifth principle in J that what may nevertheless be of equal importance is whether any genuine fear which the appellant may establish, albeit without an objective foundation, is such as to create a risk of suicide if there is an enforced return."

48. Mr Southey submits that it is well arguable before an Immigration Judge that, irrespective of objective foundation, the claimant has a genuine subjective fear that removal to Bulgaria will lead on to return to Syria, and it is that fear which creates a risk of suicide. Second, Mr Southey stresses that there is medical evidence that the fear and effect even of redetention here in the UK would create a high risk of suicide.
49. With regard to the sixth factor in J, as elaborated in relation to domestic cases in paragraph 33, Mr Manknell submits that there are effective mechanisms here to protect the claimant from suicide or self-harm. That, however, returns us to what Mr Southey identified as the "central dilemma" in this case, as I have referred to at paragraph 42 above.
50. Mr Manknell also relied heavily on the decision of the House of Lords in N v SSHD[2005] UKHL 31, [2005] 2 AC 296. That case related to the return of a person who was seriously ill with AIDS to a state (Uganda) where the required treatment was not available so that the person's life expectancy would be greatly reduced from one of decades to one of months. The House of Lords held that such considerations could not impede removal unless the person's medical condition had reached such a stage that he was actually dying and needed care, which was not available in the receiving state, to prevent acute suffering while actually dying. In my view, however, the approach to a life-shortening illness such as AIDS can only be of tangential relevance to the approach to suicide, which may be impulsive, sudden and by an unpredictable mechanism.
51. Much more formidable is Mr Manknell's reliance upon the suicide specific case of Tozlukaya v SSHD [2006] EWCA Civ 379, [2006] INLR 354. The procedural position in that case was similar to that in the present case. The Secretary of State proposed to remove the claimants to Germany by application of the previous version of the Dublin regulation. He certified human rights claims as clearly unfounded. On a judicial review the judge quashed the certification, just as I am being asked to do in the present case. The Secretary of State appealed to the Court of Appeal. The appeal was dismissed, but for reasons which related to a distinct Article 8 claim which is not germane to the present case. In relation to claims based on the risk of suicide, the Court of Appeal would have allowed the appeal. The claimant and his wife in that case were asylum seekers from Turkey, who had first claimed asylum in Germany. They subsequently travelled to the UK from which some years later the Secretary of State proposed to remove them to Germany. Whilst detained here, the claimant's wife attempted to commit suicide, and at paragraph 13 of the judgment Richards LJ said:

"... it must be treated as [a serious suicide attempt] for this purpose".

At paragraph 62 the court stressed that in that case, as here:

"the risk ... arises not just from the person's removal to a place where the condition is likely to worsen, but from the direct impact on that person's mental health of the decision to remove."

At paragraphs 69 to 72 Richards LJ said:

"69... I do not consider there to be any question of a breach of article 3 while Mrs Tozlukaya remains in this country following the communication to her of the removal decision, even if communication of that decision gives rise in itself to an increased risk of suicide. The authorities will remain under a positive obligation to take reasonable measures to protect her against the risk of suicide ... There is no reason to believe that they will be in breach of that obligation.

70. Similar considerations apply to the second stage, i.e. physical removal by aeroplane to Germany. Mrs Tozlukaya will have suitably qualified escorts ... which ...will mean that the risk of her harming herself during this period is low. In any event, what is proposed amounts in principle to the taking of reasonable measures to protect against that risk and there is again no reason to believe that there will be any breach of the positive obligation to take such measures under article 3.

71. As to the third stage, it is clear from the Secretary of State's evidence (para 36 above) that appropriate measures will be taken by the German authorities, both at the airport and subsequently, to protect against the risk of suicide. In addition to the general point that Germany is a signatory to the European Convention on Human Rights, there is specific evidence that relevant medical facilities will be available in Germany for the respondent and his family and that the treatment that Mrs Tozlukaya will receive can be expected to be at least as good as the treatment she has received in this country. In addition, suitable accommodation will be provided.

72. In my judgment it is plain in these circumstances that an increase in the risk of suicide as a result of the removal is not sufficient to bring the case near the high Article 3 threshold, even if the risk is regarded as severe and likely to continue. I do not see how it could be said to be an affront to fundamental humanitarian principles to return this respondent and his family to Germany."

52. Mr Manknell submits that there is simply no material difference between Tozlukaya and the present case, and that accordingly I must reach the same conclusion as that reached by Richards LJ in the Court of Appeal in paragraph 72, and should conclude that the claim is bound to fail.
53. Mr Southey submits, however, that there are sufficient, if subtle, differences in the facts between the two cases to put the present case at least arguably on the other side of the line. First, the context of the present case, if the claimant is believed, is one of severe torture over a long period. Mr Southey, who also acted for the claimants in Tozlukaya, says that a history of torture was not a factor in that case. The relevance of a risk of suicide being as a consequence of a history of torture, rather than of a naturally occurring illness, was referred to by Sedley LJ in Y (Sri Lanka) v SSHD at paragraph 50. Second, the evidence of past suicide attempts and significant self-harming is more powerful in the present case than in Tozlukaya. Third, and most significantly, the focus in Tozlukaya was upon the risk of suicide in Germany after return there, rather than here before return, notwithstanding paragraphs 62 and 69 of the judgment in Tozlukaya.
54. As to the risks in Germany after return, the Secretary of State had produced positive evidence, as quoted in paragraph 36 of the judgment, of a kind which is simply non-existent in the present case. So in the passage at paragraphs 70 and 71 of his judgment, quoted above, Richards LJ was able to refer back to detailed evidence quoted earlier in his judgment at paragraphs 35 and 36. As to the situation before actual transit Richards LJ was content to say at paragraph 69:

"The authorities will remain under a positive obligation to take reasonable measures to protect her against the risk of suicide ... There is no reason to believe that they will be in breach of that obligation."

55. In the present case, however, there is the "central dilemma" referred to above and, Mr Southey submits, no evidence at all from the Secretary of State as to how she will keep the claimant safe from suicide. There is nothing in the present case, at least so far, corresponding to the detailed evidence referred to in paragraph 35 of Tozlukaya.
56. I conclude this review of authority by quoting a sensitive paragraph in the judgment of Sedley LJ in Y (Sri Lanka) at paragraph 62 where he said:

"None of this reasoning represents a licence for emotional blackmail by asylum-seekers. Officials and immigration judges will be right to continue to scrutinise the authenticity of such claims as these with care... But there comes a point at which an undisturbed finding that an appellant has been tortured and raped in captivity has to be conscientiously related to credible and uncontradicted expert evidence that the likely effect of the psychological trauma...if return is enforced, will be suicide."

Analysis and conclusion

57. In order to succeed on an appeal to a tribunal the claimant would essentially need to prove or establish that:

(1) His history is essentially as claimed;

(2) He remains at high risk of suicide or serious self-harm if the Secretary of State were to proceed to implement removal;

(3) The Secretary of State has no plan or means of managing that risk, and in particular detention is not an option and yet without detention the claimant would be at very high risk in the community;

(4) The level of risk in this case is so high, and the factors identified in J sufficiently satisfied, that he can bring himself within the circumstances in which the courts will vindicate and protect a right not to be exposed to the risk of suicide or serious self-harm by an immigration decision.

58. In my view the claimant has reasonable prospects of establishing all of the above and the claim is far from being one which is bound to fail. That is not at all "a licence for emotional blackmail", and it will now be for an Immigration Judge closely to scrutinise every one of the four points I have just identified to see if they are made good. I will therefore allow the claim for judicial review and quash the certification first made in paragraph 10 of the letter of 10 June 2011, and maintained in paragraph 21 of the letter of 29 November 2012.

The limits of this decision

59. By paragraphs 8 and 9 of his judgment granting, but also limiting, permission Mr Clive Lewis was clearly seeking to ensure that this case did not sprawl into an examination of the treatment by Bulgaria of asylum seekers taken back by that state under Dublin II. By paragraphs 15(2), 16, 81 to 94 and 95(2) of their skeleton argument dated 3 February 2013, Mr Southey and Mr Pretzell have sought to raise issues as to a claimed systemic failure in Bulgaria, at any rate in their reception and treatment of the class of asylum seekers who suffer serious mental ill health and are at risk of suicide. I have not permitted them to develop that argument; first, because it clearly goes beyond what Mr Lewis intended to permit, and second, because it is, in reality, a distraction from their essential case, which is the high risk that the claimant would not even reach Bulgaria alive.
60. In my view the temporal scope of an appeal now to the Immigration Tribunal may extend as far as, and include, the immediate reception conditions for the claimant on arrival and handover in Bulgaria, and consideration of the medical facilities that would be provided to keep him safe on first arrival and in the aftermath of the journey. Beyond that it should not go. The claimant would then become firmly the responsibility of the State of Bulgaria, and the presumption that underpins the Dublin II regulation must apply.
61. I need hardly add that the scope and limit of my decision is that the human rights claim is not clearly unfounded. On the now anticipated appeal to the tribunal system everything, both as to the facts and the law, is at large, and the First-tier Tribunal judge should not feel bound, fettered or even affected by anything I have said, save in the preceding paragraph above.
62. MR JUSTICE HOLMAN: Is there anything else anybody now wishes me to deal with or say?
63. MR DONMALL: You will be conscious that I did not appear before you in this matter. I have come to collect judgment. There are two points you have given provisional indication in respect of: first, that in the event that the Secretary of State seek to appeal that you would consider a written application along those lines.
64. MR JUSTICE HOLMAN: I said I would do that precisely because Mr Manknell is not here.
65. MR DONMALL: Exactly, my Lord.
66. MR JUSTICE HOLMAN: You have to identify significant errors of law.
67. MR DONMALL: That happily would be his job and not mine. The second is in respect of costs. I am conscious that, as I understand it, you just indicated that counsel need not appear today and the claimant's counsel are not here today. I understand an agreement has not been reached between the parties in the event of your decision, and that certainly the claimant's solicitors would ask for the opportunity for both parties to put in --
68. MR JUSTICE HOLMAN: When you say agreement has not been reached, do you mean attempts were made but failed, or they did not engage in the process?
69. MR DONMALL: Attempts were made but failed.
70. MR JUSTICE HOLMAN: The only area, you may or may not know, is in relation to the costs of the hearing on 23 May.
71. MR DONMALL: I certainly understand that the claimant's intention is that because of the permission it extended before that to preparation, in effect, of costs --
72. MR JUSTICE HOLMAN: Just give me one moment. I had a thought about that subsequently. The point that Mr Manknell made, with some force, was that the claimant radically changed the basis of the case. Let us look at the date of the amended grounds of judicial review?
73. MR DONMALL: I think they were 2 November 2011, as I understand it.
74. MR JUSTICE HOLMAN: That was some time before the May hearing, was it not?
75. MR DONMALL: As I understand it, and I hesitate to give any detailed submissions on this given my limited understanding, but it was really at the hearing in May that the Bulgaria issue fell apart and Clive Lewis QC, sitting as a deputy, identified the real force of what the challenge was, such that all the costs expended in preparing the Bulgaria point were unfairly expended.
76. MR JUSTICE HOLMAN: I do not, frankly, want to be assailed by written submissions some day in the future when today is my last day sitting in the Administrative Court for some time. Frankly, it is very inconvenient when these things follow one around later.
77. MR DONMALL: I can see that.
78. MR JUSTICE HOLMAN: It has definitely been decided, whether you like it or not, that you have to pay their costs starting on 24 May. The only issue is where the costs of and incidental to the 23 May itself should fall.
79. MR DONMALL: They are, in the claimant's case, very substantial. While the Secretary of State's own costs for that -
80. MR JUSTICE HOLMAN: I am going to make a decision - it may be rough justice - that you ought to pay the costs of the claimant to be assessed, if not agreed, on and after 24 May.
81. MR DONMALL: I am grateful.
82. MR JUSTICE HOLMAN: Who is going to draw an order?
83. MR DONMALL: I can do so.
84. MR JUSTICE HOLMAN: Mr Southey and Mr Pretzell act for the claimant who is the successful party. I think really they should draw the order. Will you ensure that there is liaison with them and a suitable order is drawn and lodged by email with today's most excellent associate, to the effect that I have allowed the judicial review, quashed the certification in the 10 June letter, as maintained in the November letter, and the Secretary of State must pay the costs of the claimant to be assessed on the standard basis, if not agreed, on and after 24 May 2012.
85. If you put in a prompt application for permission to appeal, identifying the error of law, I will consider it. You will have to do it very rapidly. I am not going to encourage it, having already said this is a case that has got out of hand. Quite frankly, if the Secretary of State had not certified, as she did, there would have been a resolution before the Tribunal long ago, and he would either have a decision that he should not be removed, or alternatively by now be in Bulgaria or even Syria. I do not think you want to prolong this any further. It is costing you good money to support him while waiting for a resolution. It cannot be good for him. The one thing that cannot be good for him is prolonging the uncertainty. Anyway there you are.
86. MR DONMALL: I have made a note of those observations.