R LINDITA MEHMETI v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SEDLEY |
| Judgment Date | 24 February 2005 |
| Neutral Citation | [2005] EWCA Civ 207 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | C4/2004/2678 |
| Date | 24 February 2005 |
[2005] EWCA Civ 207
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
(MR JUSTICE BEATSON)
Lord Justice Sedley
C4/2004/2678
MR SATVINDER JUSS (instructed by Messrs Simman Solicitors, Croydon CR0 1RN) appeared on behalf of the Applicant
The Respondent did not appear and was not represented
This is a renewed application for permission to appeal against the refusal by Beatson J of judicial review of a decision by the Home Secretary to certify as manifestly unfounded the applicant's human rights claim resisting removal to Greece under the Dublin Convention.
Buxton LJ has refused permission on the papers on these grounds:
"This appeal has no reasonable prospect of success.
The principal Ground advanced, that the court should have an opportunity to consider the application of article 8(2), is misconceived. Although Beatson J addressed article 8(2) he did not decide the case on that basis (see paragraph 38 of his judgment), and any conclusion of this court on his reasoning could make no difference to the outcome of the case.
As to the complaints in relation to the substance of Beatson J's decision, the judge analysed the evidence in careful detail, and correctly directed himself as to the law. His approach was appropriate to a certification case. This court will not interfere with his conclusions."
The applicant is a Kosovar citizen who, by various shifts, has now been here for 7 years with her husband and children, notwithstanding that it is Greece (from where she arrived in the United Kingdom) which, under the Dublin Convention, has the task of deciding her asylum claim. The current question is thus not whether she is entitled to asylum, but whether the Human Rights Act prevents her removal to Greece for the determination of her entitlement. The immediate issue is whether the Secretary of State was acting within the law when he certified her human rights claim as manifestly unfounded, and thereby denied her any appeal on the question.
Mr Juss, appearing for the applicant today, rightly stresses that the matter of certification is a threshold matter which, from the Home Secretary's point of view, has no more impact than to deny the applicant an appeal to an adjudicator, and possibly onwards, but from the applicant's point of view has the effect of complete finality on the issue.
The judgment of Beatson J is, if I may respectfully say so, an exemplary judgment. To do it justice it needs to be read in full. For present purposes, however, I shall take it as read and the facts of the case, so far as material, as read with it.
The critical element of the judgment is, in effect, a fact-finding as to whether the medical evidence, read as a whole, meets the threshold indicated by Lord Bingham's second question in the case of Razgar [2004] UKHL 27, [2004] 2 AC 368. That question, in paraphrase, is whether the proposed removal will be an interference with the applicant's private or family life of such gravity as to engage Article 8. This the judge has answered in the negative. If his decision is sustainable, then the ground of appeal which Mr Juss would want to put in the forefront of the case, namely the impact of Article 8(2) in the light of Razgar is a question of legal interest but of no potential consequence. Mr Juss therefore accepts that he has to show a viable appeal on Article 8(1) if he is to get anywhere. If he can show it, then the Article 8(2) issue comes naturally and importantly in its train.
The judge at paragraphs 31 to 37 of his judgment analyses and evaluates the medical evidence with great care and clarity. The medical evidence is relied on essentially for the proposition that Mrs Mehmeti is, and has for some time been, in a fragile and vulnerable mental state which is capable of being precipitated into a suicidal state if she is removed. I will come back in a moment to the detail of this, which seems to me the central, indeed the only, matter material to the present application.
The judge noted that there was no evidence that the applicant could not obtain suitable treatment once she was in Greece, if removed there, and this Mr Juss does not contest. There is in Mr Juss' skeleton argument a complaint that the judge drew wrong distinctions between the facts of the present case and the facts of Razgar It is quite true that the judge at more than one point made factual comparisons with Razgar in order to test his own judgment of the facts. It follows that Mr Juss is perfectly entitled in turn to submit that there is a parallel between this case and the facts of Razgar For my part, it seems to me that the factual distinctions drawn by the judge, so far as these were relevant, between the two cases are entirely sustainable. Nevertheless, if one eschews factual comparison (as probably one should) and asks the question asked by Lord Bingham of himself in...
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