HOUSE OF LORDS
 UKHL 27
on appeal from:  EWCA Civ 840
OF THE LORDS OF APPEAL
FOR JUDGMENT IN THE CAUSE
Regina v. Secretary of State for the Home Department (Appellant) ex parte Razgar (FC) (Respondent)
THURSDAY 17 JUNE 2004
The Appellate Committee comprised:
Lord Bingham of Cornhill
Lord Walker of Gestingthorpe
Baroness Hale of Richmond
HOUSE OF LORDS
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
Regina v. Secretary of State for the Home Department (Appellant) ex parte Razgar (FC) (Respondent)
 UKHL 27
LORD BINGHAM OF CORNHILL
"Can the rights protected by article 8 be engaged by the foreseeable consequences for health or welfare of removal from the United Kingdom pursuant to an immigration decision, where such removal does not violate article 3?"
The second issue is whether the judge was right to quash the Secretary of State's certification of Mr Razgar's claim as manifestly unfounded.
"The Court reiterates at the outset that Contracting States have the right, as a matter of well-established international law and subject to their treaty obligations including the Convention, to control the entry, residence and expulsion of aliens. However, in exercising their right to expel such aliens, Contracting States must have regard to Article 3 of the Convention which enshrines one of the fundamental values of democratic societies.
It is precisely for this reason that the Court has repeatedly stressed in its line of authorities involving extradition, expulsion or deportation of individuals to third countries that Article 3 prohibits in absolute terms torture or inhuman or degrading treatment or punishment and that its guarantees apply irrespective of the reprehensible nature of the conduct of the person in question.
While it is true that Article 3 has been more commonly applied by the Court in contexts where the risk to the individual of being subjected to ill-treatment emanates from intentionally inflicted acts by public authorities or non-State bodies in the receiving country, the Court has, in the light of the fundamental importance of Article 3, reserved to itself sufficient flexibility to address the application of that Article in other contexts which might arise. It is not, therefore, prevented from scrutinising an applicant's claim under Article 3 where the risk that he runs of inhuman or degrading treatment in the receiving country is due to factors which cannot engage either directly or indirectly the responsibility of the public authorities of that country, or which, taken alone, do not in themselves infringe the standards of that Article. To limit the application of Article 3 in this manner would be to undermine the absolute character of its protection. In any such contexts, however, the Court must subject all the circumstances of the case to rigorous scrutiny, especially the applicant's personal situation in the expelling State (see Bensaid v the United Kingdom, no. 44599/98, §§ 32 and 34, ECHR 2001-I).
According to established case-law aliens who are subject to expulsion cannot in principle 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. However, in exceptional circumstances an implementation of a decision to remove an alien may, owing to compelling humanitarian considerations, result in a violation of Article 3 (see D v the United Kingdom, judgment of 2 May 1997, Reports of Judgments and Decisions 1997-III, p. 794, § 54). In that case the Court found that the applicant's deportation to St. Kitts would violate Article 3, taking into account his medical condition. The Court noted that the applicant was in the advanced stages of AIDS. An abrupt withdrawal of the care facilities provided in the respondent State together with the predictable lack of adequate facilities as well as of any form of moral or social support in the receiving country would hasten the applicant's death and subject him to acute mental and physical suffering. In view of those very exceptional circumstances, bearing in mind the critical stage which the applicant's fatal illness had reached and given the compelling humanitarian considerations at stake, the implementation of the decision to remove him to St. Kitts would amount to inhuman treatment by the respondent State in violation of Article 3 (see D v the United Kingdom, cited above, pp. 793-794, §§ 51-54).
The Court has therefore examined whether there is a real risk that the applicant's expulsion to Colombia would be contrary to the standards of Article 3 in view of his present medical condition. In so doing, the Court has assessed the risk in the light of the material before it at the time of its consideration of the case, including the most recent information on the applicant's state of health (see S.C.C. v Sweden (dec.), no. 46553/99, 15 February 2000, unreported).
The Court notes that the applicant stated on 16 August 2002 that he felt well and had worked, although he did suffer from certain side-effects of his medication. The Court further notes that, according to the most recent medical information available, the applicant's current condition is reasonable but may relapse if treatment is discontinued. The Court finally notes that the required treatment is in principle available in Colombia, where the applicant's father and six siblings reside.
In these circumstances the Court considers that, unlike the situation in the above-cited case of D. v the United Kingdom or in the case of B.B. v France (no. 39030/96, Commission's report of 9 March 1998, subsequently struck out by the Court by judgment of 7 September 1998, Reports 1998-VI, p. 2595), it does not appear that the applicant's illness has attained an advanced or terminal stage, or that he has no prospect of medical care or family support in his country of origin. The fact that the applicant's circumstances in Colombia would be less favourable than those he enjoys in the Netherlands cannot be regarded as decisive from the point of view of Article 3 of the Convention."
"22. We prefer a somewhat different test. We suggest that, in order to determine whether the article 8 claim is capable of being engaged in the light of the territoriality principle, the claim should be considered in the following way. First, the claimant's case in relation to his private life in the deporting state should be examined. In a case where the essence of the claim is that expulsion will interfere with his private life by harming his mental health, this will include a consideration of what he says about his mental health in the deporting country, the treatment he receives and any relevant support that he says that he enjoys there. Secondly, it will be necessary to look at what he says is likely to happen to his mental health in the receiving country, what treatment he can expect to receive there, and what support he can expect to enjoy. The third step is to determine whether, on the claimant's case, serious harm to his mental health will be caused or materially contributed to by the difference between the treatment and support that he is enjoying in the deporting country and that which will be available to him in the receiving country. If so, then the territoriality principle is not infringed, and the claim is capable of being engaged. It seems to us that this approach is consistent with the fact that the ECtHR considered the merits of the article 8 claim in Bensaid. It is also consistent with what was said in paragraphs 46 and 64 of Ullah  1 WLR 770."
If there is any doubt on this point, it should be dispelled. The Convention is directed to the protection of fundamental human rights, not the conferment of individual advantages or benefits.
"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 …. 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."
"withdrawal of that treatment [NHS treatment since 1996] would risk a deterioration in his serious mental illness, involving symptoms going beyond horrendous mental suffering - in particular there would be a real and immediate risk that he would act in obedience to hallucinations telling him to harm himself and others. This would plainly impact on his psychological integrity. In addition to the ties deriving from his eleven years in the United Kingdom, the treatment which he currently receives is all that supports his precarious grip on reality, which in turn enables some level of social functioning".
The Government (paragraph 45) did not accept that the removal of the applicant from the United Kingdom, where he was illegally, to his country of nationality, where medical treatment was available, would show any lack of respect for his right to private life. Even if there was an interference, such would be justified under article 8(2) on the basis that immigration policy was necessary for the economic well-being of the country and the prevention of disorder and crime.
"46. Not every act or measure which adversely affects moral or physical integrity will interfere with the right to respect to private life guaranteed by Article 8. However, the Court's case-law does not exclude that treatment which does not reach the severity of Article 3 treatment may nonetheless breach Article 8 in its private life aspect where there are sufficiently adverse effects on physical and moral integrity.
47. Private life is a broad term not susceptible to exhaustive definition. The Court has already held that elements such as gender identification, name and sexual orientation and sexual life are important elements of the personal sphere protected by Article 8. Mental health must also be regarded as a crucial part of private life associated with the aspect of moral integrity. Article 8 protects a right to identity and personal development, and the right to establish and develop relationships with other human beings and the outside world. The preservation of mental stability is in that context an indispensable precondition to effective enjoyment of the right to respect for private life.
48. Turning to the present case, the Court recalls that it has found above that the risk of damage to the applicant's health from return to his country was based on largely hypothetical factors and that it was not substantiated that he would suffer inhuman and degrading treatment. Nor in the circumstances has it been established that his moral integrity would be substantially affected to a degree falling within the scope of Article 8 of the Convention. Even assuming that the dislocation caused to the applicant by removal from the United Kingdom where he has lived for the last eleven years was to be considered by itself as affecting his private life, in the context of the relationships and support framework which he enjoyed there, the Court considers that such interference may be regarded as complying with the requirements of the second paragraph of Article 8, namely as a measure 'in accordance with the law', pursuing the aims of the protection of the economic well-being of the country and the prevention of disorder and crime, as well as being 'necessary in a democratic society' for those aims."
The Court then went on to consider the applicant's complaint under article 13 of the Convention that he had no effective remedy against the expulsion. In its judgment on this point the Court described the applicant's article 3 complaint as "arguable" (paragraph 54) and found (paragraph 58) that in judicial review the applicant had available to him an effective remedy in relation to his complaints under articles 3 and 8 of the Convention concerning the risk to his mental health of being expelled to Algeria.
"Article 8 also protects a right to personal development, and the right to establish and develop relationships with other human beings and the outside world."
Elusive though the concept is, I think one must understand "private life" in article 8 as extending to those features which are integral to a person's identity or ability to function socially as a person. Professor Feldman, writing in 1997 before the most recent decisions, helpfully observed ("The Developing Scope of Article 8 of the European Convention on Human Rights",  EHRLR 265, 270):
"Moral integrity in this sense demands that we treat the person holistically as morally worthy of respect, organising the state and society in ways which respect people's moral worth by taking account of their need for security."
The Secretary of State's certification
A The facts
"Incarceration and custody is likely to cause a relapse on the progress he has made so far. Given Mr [Razgar's] subjective fear of ill-treatment in Germany, I feel that he would not make any progress there in rehabilitating from Post Traumatic Stress Disorder, or indeed from his depression."
The Secretary of State at once rejected the representations made by Mr Razgar's solicitors and declined to defer his removal directions. In a letter dated 23 May 2000 Dr Samananthan reported to Mr Razgar's solicitors that he (now in custody) had telephoned "and appeared to be in great distress. He said that he did not want to return to Germany where he had experienced racist attacks, he said he would kill himself if he was sent back there . . . From what he said over the telephone his score would now be 29 [on the Beck's Depression Inventory whereas it had been 26] indicating a worsening of his depressive mood complicating Post Traumatic Stress Disorder . . . I feel incarceration has caused a setback from the progress Mr [Razgar] has made so far, and this is detrimental to his mental health. One cannot rule out the possibility that he might carry out his threat to commit suicide."
"13. The Secretary of State accepts that both the prospect and the actual removal of your client to Germany may have a negative impact upon him. In view of your client's mental health problems the Secretary of State has carefully considered whether there are substantial grounds for believing that your client's proposed and/or actual removal to Germany would be a sufficiently compelling, compassionate factor such as to cause him to depart from his normal policy and practice. Although your client may be exposed to psychological stress as a result of his removal to Germany, the Secretary of State does not accept, on all the evidence submitted to him, that the risk to your client reaches that level of severity of physical or mental suffering as to warrant departing from his usual practice in this case. He takes the view that there are adequate, appropriate and equivalent psychiatric facilities in Germany which will be available to your client upon his return to that country.
14. The Secretary of State has also given very careful consideration to Mr Razgar's ties with the United Kingdom, but he is not persuaded that there are sufficient grounds for allowing your client to remain in this country for such compassionate reasons. Mr Razgar does not, in fact, have any family or other close ties with the United Kingdom."
Further representations were made to the Secretary of State on 2 October 2000 on the coming into force of the Human Rights Act 1998, when Mr Razgar became entitled to appeal on human rights grounds under section 65 of the 1999 Act. These were supported by a report by Mr Stefan Kessler, the effect of which was helpfully summarised by Richards J in paragraphs 24 and 25 of his judgment:
"24. Mr Kessler in his first report dated 19 September 2000 stated that he had worked as a refugee adviser for 15 years and had other substantial credentials in the refugee field in Germany. In his view there was little chance of the claimant gaining refugee status in Germany. His legal status, if returned, was that he would receive a 'Duldung', a form of tolerated status giving temporary protection from prosecution for remaining in Germany, though the stay would still be technically illegal. It was not the same as a residence permit. It did not carry with it the normal rights to live and work in Germany and it resulted in restrictions on residence and freedom of movement. The claimant's mental condition would be considered a 'chronic condition' rather than acute and the claimant would therefore have no right to medical treatment by a psychiatrist, nor would he have any right to treatment by a psychotherapist. The relevant authorities would have a discretion to pay for treatment but would be very reluctant to pay for psychiatric or psychotherapeutic treatment save in case of very urgent need, that is to say immediate danger.
25. Mr Kessler also stated that other aspects of the German system might cause stress for the claimant's mental health, namely that the place where he would be allowed to reside might be quite remote, as well as the fact that his freedom of movement could be restricted and there could be limitations on benefits and on the right to work."
In a letter dated 7 February 2001 the Secretary of State maintained his decision to remove, and in a further letter of 9 April 2001 he communicated the decision which is now the subject of challenge:
"4. The Secretary of State has noted that Germany is a full signatory to the Geneva Convention of 1951 and to the ECHR. He routinely and closely monitors the practice and procedures of Member States, including Germany, in the implementation of the ECHR in order to satisfy himself that its obligations are fulfilled. He is satisfied that your client's human rights would be fully respected in Germany and that your client would not be subjected to inhuman or degrading treatment or punishment if removed there. He is also satisfied that your client will be able to raise any continuing protection concerns that he may have under the provisions of the ECHR with the authorities in Germany. In the circumstances, the Secretary of State does not accept that your client's removal to Germany would be in breach of his human rights. Indeed, he regards your continued assertion to this respect, particularly following the consideration already given to the matter which has been supported by the Court, to be merely a device to prevent further your client's proper return to Germany under the terms of the Dublin Convention.
15. In the light of the above, the Secretary of State hereby certifies the allegation of a breach of your client's human rights under the ECHR as being manifestly unfounded. Your client has a right of appeal against this decision under section 65 of the Immigration and Asylum Act, but under section 72(2)(a) of the Act this may only be exercised from abroad. Arrangements for your client's removal to Germany on 12 April 2001 therefore remain in place."
"Incarceration and custody is causing a relapse on the progress Mr [Razgar] had made during treatment. He would be deprived of his support network from family (cousin and friends), when he is removed to Germany. He would not have access to medication or Cognitive Behaviour Therapy as he would only be given temporary immigration status by the authorities. His accommodation in a refugee camp will cause flashbacks of his incarceration in prison in Iraq and worsen his depressive mood and sense of despair. I feel that sending him back to Germany or even to Iraq would be very detrimental to his mental and physical well-being. I think he would make a serious attempt to kill himself."
The later report, dated 24 September 2002, made reference to two abortive attempts by Mr Razgar to kill himself in 2000 and 2001. His opinion was:
"Mr Razgar still suffers from Depressive illness, Pain Disorder and Post Traumatic Stress Disorder. He finds himself to be safe living in this country and is afraid of being sent back to either Germany, or even Iraq where he had been harassed. He finds support from his friends who live with him. Whenever the Court case comes up in conversation his whole mood changes, he looks very anxious and quiet. He has decided that he would rather die than go back to Germany or Iraq. He is afraid of being put in detention again, which brings back memories and feelings of hopelessness. He has seen other young men kill themselves, and at times has suicidal ideation himself."
Mr Razgar also relied on further letters from Mr Kessler. The Secretary of State did not submit evidence relating to Mr Razgar's mental condition, but did at a later stage submit evidence challenging some aspects of Mr Kessler's account of how Mr Razgar would be treated if returned to Germany. The judge concluded, rightly in my opinion, that in the absence of any contrary opinion the Secretary of State could not discount the professional judgment of Dr Sathananthan. He also concluded that there was a real risk that Mr Razgar, if returned to Germany, would not receive appropriate treatment there, such treatment being assured only if he became a suicide risk, and that he was likely to be placed in an accommodation centre with substantial restrictions on his liberty. On this basis Richards J held (in paragraph 51 of his judgment) that Mr Razgar's case would not clearly fail before an adjudicator, and the Court of Appeal (in paragraph 64) agreed. The court made no ruling on the effect of article 8(2), which had not featured in the Secretary of State's evidence or in the argument before the judge. At no stage during the correspondence did the Secretary of State accept that article 8 could apply in a case such as this, and in this appeal (as in Ullah and Do) the Attorney General argued that it could not.
B The legislation
"65. (1) A person who alleges that an authority has, in taking any decision under the Immigration Acts relating to that person's entitlement to enter or remain in the United Kingdom, acted in breach of his human rights may appeal to an adjudicator against that decision unless he has grounds for bringing an appeal against the decision under the Special Immigration Appeals Commission Act 1997.
(2) For the purposes of this Part, an authority acts in breach of a person's human rights if he acts, or fails to act, in relation to that other person in a way which is made unlawful by section 6(1) of the Human Rights Act 1998.
(3) Subsections (4) and (5) apply if, in proceedings before an adjudicator or the Immigration Appeal Tribunal on an appeal, a question arises as to whether an authority has, in taking any decision under the Immigration Acts relating to the appellant's entitlement to enter or remain in the United Kingdom, acted in breach of the appellant's human rights.
(4) The adjudicator, or the Tribunal, has jurisdiction to consider the question.
(5) If the adjudicator, or the Tribunal, decides that the authority concerned acted in breach of the appellant's human rights, the appeal may be allowed on that ground."
"Authority" was defined in subsection (7) to include the Secretary of State. Section 72(2)(a) provided:
"A person who … is to be … sent to a member State … is not, while he is in the United Kingdom, entitled to appeal -
(a) under section 65 if the Secretary of State certifies that his allegation that a person acted in breach of his human rights is manifestly unfounded …"
Section 77(3)(b) provided:
"In considering -
(b) any question relating to the appellant's rights under Article 3 of the Human Rights Convention,
the appellate authority may take into account any evidence which it considers relevant to the appeal (including evidence about matters arising after the date on which the decision appealed against was taken)."
This provision was supplemented, in relation to appeals to an adjudicator, by Part III of Schedule 4 to the Act. Relevant for present purposes is paragraph 21 of the Schedule, which so far as relevant provided:
"21. (1) On an appeal to him under Part IV, an adjudicator must allow the appeal if he considers -
(a) that the decision or action against which the appeal is brought was not in accordance with the law or with any immigration rules applicable to the case, or
(b) if the decision or action involved the exercise of a discretion by the Secretary of State or an officer, that the discretion should have been exercised differently,
but otherwise must dismiss the appeal.
(2) Sub-paragraph (1) is subject to paragraph 24 and to any restriction on the grounds of appeal.
(3) For the purposes of sub-paragraph (1), the adjudicator may review any determination of a question of fact on which the decision or action was based."
"On an appeal under section 82(1) [immigration decisions] or 83(2) [asylum claims] against a decision an adjudicator may consider evidence about any matter which he thinks relevant to the substance of the decision, including evidence which concerns a matter arising after the date of the decision."
C The scope of review
(1) Will the proposed removal be an interference by a public authority with the exercise of the applicant's right to respect for his private or (as the case may be) family life?
(2) If so, will such interference have consequences of such gravity as potentially to engage the operation of article 8?
(3) If so, is such interference in accordance with the law?
(4) If so, is such interference necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others?
(5) If so, is such interference proportionate to the legitimate public end sought to be achieved?
"although the [Convention] rights may be engaged, legitimate immigration control will almost certainly mean that derogation from the rights will be proper and will not be disproportionate."
In the present case, the Court of Appeal had no doubt (paragraph 26 of its judgment) that this overstated the position. I respectfully consider the element of overstatement to be small. Decisions taken pursuant to the lawful operation of immigration control will be proportionate in all save a small minority of exceptional cases, identifiable only on a case by case basis.
D The present case
LORD WALKER OF GESTINGTHORPE
". . . that the application of article 3 where the complaint in essence is of want of resources in the applicant's home country (in contrast to what has been available to him in the country from which he is to be removed) is only justified where the humanitarian appeal of the case is so powerful that it could not in reason be resisted by the authorities of a civilised state."
". . .that the position regarding article 8 will want some further scrutiny if my view of this case were to prevail."
In my opinion those conclusions are justified by the Strasbourg jurisprudence.
"The reason why flagrant denial or gross violation is to be taken into account is that it is only in such a case—where the right will be completely denied or nullified in the destination country—that it can be said that removal will breach the treaty obligations of the signatory state however those obligations might be interpreted or whatever might be said by or on behalf of the destination state".
I respectfully agree. I also respectfully agree with Lord Bingham's observation in this appeal (para 10 above) that where the appellant's case is based on his need for medical treatment or on his welfare, he could never hope to resist expulsion without showing "something very much more extreme than relative disadvantage" (as between the deporting state and the receiving state).
"Mental health must also be regarded as a crucial part of private life associated with the aspect of moral integrity. Article 8 protects a right to identity and personal development and the right to establish and develop relationships with other human beings and the outside world. The preservation of mental stability is in that context an indispensable precondition to effective enjoyment of the right to respect for private life".
This language is wide and imprecise and it must in my opinion be treated with some caution. There is no general human right to good physical and mental health any more than there is a human right to expect (rather than to pursue) happiness.
"The first is that the Home Secretary and the courts should not readily infer that a friendly sovereign state which is party to the Geneva Convention will not perform the obligations it has solemnly undertaken. This consideration does not absolve the Home Secretary from his duty to inform himself of the facts and monitor the decisions made by a third country in order to satisfy himself that the third country will not send the applicant to another country otherwise than in accordance with the Convention. Sometimes, as notably in Ex p Adan  2 AC 477, he will be unable properly to satisfy himself. But the humane objective of the Convention is to establish an orderly and internationally-agreed regime for handling asylum applications and that objective is liable to be defeated if anything other than significant differences between the law and practice of different countries are allowed to prevent the return of an applicant to the member state in which asylum was, or could have been, first claimed. The second consideration is that the Convention is directed to a very important but very simple and very practical end, preventing the return of applicants to places where they will or may suffer persecution. Legal niceties and refinements should not be allowed to obstruct that purpose. It can never, save in extreme circumstances, be appropriate to compare an applicant's living conditions in different countries if, in each of them, he will be safe from persecution or the risk of it."
The other members of the House expressed similar views. Lord Hope of Craighead gave a valuable account of the background to the Dublin Convention at pp 932-935, paras 26-37. He observed (p 934, para 33):
"The purpose of the legislation would be frustrated if the asylum seeker could ensure that he remained in this country pending a full review on the merits of an allegation of a breach of his human rights which was clearly without substance".
"I should also mention that the claimant's case under article 8 was not, in my view, adequately met by the very general proposition upon which the Secretary of State relied that Germany respects human rights. Although true as a general proposition, it is not a sufficient basis for rejecting a reasoned case supported by evidence of the kind submitted here. The United Kingdom respects human rights, but situations can nonetheless arise in which Convention rights are breached. The same must be capable of happening in Germany".
These observations are no doubt true, but they cut both ways. Even in the most enlightened host country asylum seekers often have to deal with bleak accommodation or even loss of liberty, public hostility and material deprivation, and these (on top of their earlier, sometimes horrendous, experiences) naturally lead to anxiety, depression and feelings of hopelessness. But neither the truism of human imperfection, nor the evidence (taken at its highest) of conditions in Germany, leads to the conclusion that the appellant's treatment in Germany would probably be so much worse than his present condition as to amount to a flagrant infringement of his human rights—an infringement so serious as would (in the language used in Devaseelan) result in the rights in question being completely denied or nullified. In my view it would need much clearer and more compelling evidence to lead to that conclusion.
BARONESS HALE OF RICHMOND
"Aliens who have served their prison sentences and are subject to expulsion cannot in principle claim any entitlement to remain on 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 during their stay in prison. However, in the very exceptional circumstances of this case and given the compelling humanitarian considerations at stake, it must be concluded that the implementation of the decision to remove the applicant would be a violation of article 3." (paragraph 54)
"I feel that sending him back to Germany or even to Iraq would be very detrimental to his mental and physical well-being. I think he would make a serious attempt to kill himself."
The picture painted of the appellant in his report of 24 September 2002 appeared somewhat less sombre, but Dr Sathananthan expressed concern that if he were returned to Germany his mental state would drastically deteriorate. We did not have the benefit of any more up-to-date psychiatric evidence.
"satisfied that your client's human rights would be fully respected in Germany and that your client would not be subjected to inhuman or degrading treatment or punishment if removed there."
The reference is clearly to the requirements of article 3 of the Convention and there is no indication in the letter that the Secretary of State had regard to the possibility that article 8 might be engaged. Indeed, the Attorney General argued on his behalf at the hearing of this appeal that as a matter of law article 8 could not be engaged in any circumstances. It might be said that this alone constitutes a misdirection of himself by the Secretary of State which is sufficient to vitiate his decision. It was clear, however, from the application for judicial review brought in May 2000 and subsequent correspondence that the applicant's solicitors were relying on article 8 as well as article 3 and a reference to both articles is contained in the letter of 4 July 2000 from the UK Immigration Service. I would therefore be willing to assume for the purposes of this appeal that the Attorney General's argument had its roots in the decision of the Court of Appeal in R (Ullah) v Special Adjudicator  1 WLR 770 and that the Secretary of State did take article 8 into account as well as article 3.