R (Razgar) v Secretary of State for the Home Department
|England & Wales
|MR JUSTICE RICHARDS
|20 November 2002
| EWHC 2554 (Admin)
|Queen's Bench Division (Administrative Court)
|20 November 2002
 EWHC 2554 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Mr Justice Richards
MR N BLAKE QC AND MR T MUKHERTEE (FOR JUDGMENT MR S GRODZINSKI) (instructed by Clore & Co) appeared on behalf of the CLAIMANT
MR A UNDERWOOD QC AND MISS J ANDERSON (FOR JUDGMENT MISS C CALLAGHAN) (instructed by Treasury Solicitor) appeared on behalf of the DEFENDANT
The claimant is an asylum seeker from Iraq whom the Secretary of State proposes to remove to Germany under the provisions of the Dublin Convention. The claimant alleges that his removal to Germany would be in breach of his rights under Articles 3 and 8 of the European Convention on Human Rights. The Secretary of State does not accept that his removal would be in breach of the Convention and has certified under section 72(2)(a) of the Immigration and Asylum Act 1999 that the allegation is manifestly unfounded, with the consequence that the claimant's right of appeal against the rejection of his human rights claim can only be exercised from abroad. For someone in the position of the claimant, this is plainly a very serious disadvantage as compared with an in-country appeal.
The issue in the case is whether the Secretary of State acted lawfully in certifying that the claimant's allegation is manifestly unfounded. But the submissions have concerned the correct approach to be adopted towards the determination of that issue as well as the application of the relevant principles to the particular facts.
There is a lengthy factual background which I need to summarise in order to place the present issue in context. The claimant left Iraq and arrived in Germany in 1997. He claimed asylum on arrival in Germany on the grounds that he was a Kurd and a member of the Iraqi Communist Party, had been arrested, detained and tortured by the Iraqi regime for two-and-a-half years as a result of his ethnic origin and/or political activities and would face persecution if returned. His claim was refused.
He travelled to the United Kingdom, arriving here and claiming asylum in February 1999. In April 1999 the German authorities accepted responsibility from him under the Dublin Convention. In May the Secretary of State decided to certify the claim on safe third country grounds. The relevant notice was not in fact served until a year later, May 2000, for reasons with which it is unnecessary to deal. Meanwhile, in November 1999, the claimant had started to receive treatment from a consultant psychiatrist, Dr Sathananthan. On 17th May 2000, following service of the third country notice, the claimant's solicitors made further representations on his behalf, submitting a report by Dr Sathananthan dated 16th May 2000 in which he expressed concerns as to the effect on the claimant's mental and physical well-being if he were removed to Germany. I will come back to the details. On the same day, 17th May, the Secretary of State rejected representations and declined to defer removal directions.
That led to judicial review proceedings alleging that the claimant's removal would violate Articles 3 and 8 of the European Convention on Human Rights. In the context of the application for permission, the Secretary of State wrote to the claimant's solicitors on 4th July 2000 giving a considered response to the matters raised to date and adhering to his previous decision. One of the matters dealt with was the psychiatric evidence submitted on the claimant's behalf, in relation to which the Secretary of State expressed the view that adequate, appropriate and equivalent psychiatric facilities would be available to the claimant in Germany. Permission to apply for judicial review was refused soon afterwards. An application for permission to appeal was lodged but discontinued.
Further representations were made to the Secretary of State on 2nd October 2000 on the coming into force of the provisions conferring a right of appeal under section 65 of the 1999 Act on human rights grounds. The representations enclosed, amongst other material, a report from a German refugee adviser, Stefan Kessler, which dealt with the claimant's legal status if returned to Germany and indicated that he would not have the right to or funding for psychiatric treatment in Germany. Again, I will come back to the details. In a response dated 7th February 2001 the Secretary of State maintained his decision to remove the claimant.
On 8th February 2001 the claimant's solicitors purported to exercise a right of appeal on human rights grounds under section 65 of the 1999 Act but no formal notice of appeal was served. On 6th April the claimant was served with removal directions. This led to a further letter from his solicitors purporting to exercise his right of appeal on human rights grounds. The Secretary of State's response was the original decision under challenge in this case, namely a letter of the 9th April 2001 certifying that the allegation of a breach of the claimant's human rights was manifestly unfounded.
The present judicial review proceedings were then commenced. Permission was refused at first instance in July 2001 but granted by the Court of Appeal on amended grounds in December 2001. Only now in November 2002 has the matter come on before the Administrative Court for substantive hearing. It appears that a hearing was fixed for earlier this term but was adjourned in order to enable the Secretary of State to consider additional evidence filed on behalf of the claimant.
Since the date of the original decision there has been additional evidence all round, including two further reports from Dr Sathananthan and further letters from Mr Kessler. Evidence on behalf of the Secretary of State was filed for the first time on 8th November 2002 in the form of a witness statement from Mr Pulham, a senior caseworker of the third country unit which is responsible for the certification of asylum claims on third country grounds. That witness statement took issue with some of the points in Mr Kessler's evidence and that, in turn, prompted a response from Mr Kessler served by means of a witness statement from the claimant's solicitors on 14th November. It is also right to mention that since the date of the original decision there have been further letters from the Secretary of State maintaining that decision in the light of the further evidence. There is a short letter to that effect dated 13th August 2001 (which Mr Blake QC described in his submissions as the decision letter as at the date when the Court of Appeal granted permission on the claimant's amended grounds). There is a longer letter dated 7th November 2002 exhibited to Mr Pulham's recent witness statement in which a number of points are made about the claimant's further evidence, and it is said that nothing in the further evidence requires the Secretary of State to alter his decision to remove the claimant.
Thus the Secretary of State's position has been throughout that he was entitled to certify the claimant's human rights claim as manifestly unfounded and that none of the evidence submitted subsequently on the claimant's behalf has caused him to alter his decision.
The first matter I have to consider is the test to be applied by the Secretary of State in certifying a claim as manifestly unfounded, and the test to be applied by the court in determining whether a certification was lawfully made.
Mr Blake put forward his submissions in terms of there being an arguable case or a serious issue to be tried on appeal before an adjudicator, and that the existence of such an arguable case or issue to be tried precluded the Secretary of State from certifying that the claim was manifestly unfounded. The language of arguability was used and applied by Scott Baker J in Admin, where he compared the test of manifestly unfounded with the threshold test of arguability for judicial review.
was decided in September of this year, before the reasons for the decision of the House of Lords in were published. Those reasons now appear in the reported judgment under the title of the conjoined case of . The judgment provides an authoritative statement of the relevant principles. At paragraph 14 Lord Bingham states:
"Before certifying as 'manifestly unfounded' an allegation that a person has acted in breach of the human rights of a proposed deportee the Home Secretary must carefully consider the allegation, the grounds on which it is made and any material relied on to support it. But his consideration does not involve a full-blown merits review. It is a screening process to decide whether the deportee should be sent to another country for a full review to be carried out there or whether there appear to be human rights arguments which merit full consideration in this country before any removal order is implemented. No matter what the volume of material submitted or the sophistication of the argument deployed to support the allegation, the Home Secretary is entitled to certify if, after reviewing this material, he is reasonably and conscientiously satisfied that the allegation must clearly fail."
At paragraphs 33—34 Lord Hope states:
"…Provision is made, in recognition of the obligations of the United Kingdom under the ECHR, for an appeal on human...
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