R (Razgar) v Secretary of State for the Home Department

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Dyson
Judgment Date19 Jun 2003
Neutral Citation[2003] EWCA Civ 840
Docket NumberCase No: C1/2003/0173: C1/2002/2515: C1/2002/2697:

[2003] EWCA Civ 840

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE ADMINISTRATIVE COURT

Cooke J; Richards J; Stanley Burnton J;

Royal Courts of Justice

Strand,

London, WC2A 2LL

Before:

Lord Justice Judge

Lord Justice Dyson and

Mr Justice Pumfrey

Case No: C1/2003/0173: C1/2002/2515: C1/2002/2697:

Between:
(1) Secretary of State for the Home Department
Appellant
and
The Queen on the Application of Razgar
Respondent
(2) The Queen on the Application of Soumahoro
Appellant
and
Secretary of State for the Home Department
Respondent
(3) The Queen on the Application of Nadarajah
Appellant
and
Secretary of State for the Home Department
Respondent

Mr Neil Garnham QC, Mr Michael Fordham and Ms Catherine Callaghan (instructed by Treasury Solicitors) for the Secretary of State for the Home Department

Mr Nicholas Blake QC and Mr Tublu Mukherjee (instructed by Messrs Clore & Co) for Mr Razgar

Ms Frances Webber (instructed by Messrs Bindman and Partners) for Ms Soumahoro

Mr Raza Husain (instructed by Messrs Winstanley Burgess) for Mr Nadarajah

Lord Justice Dyson

This is the judgment of the court.

Introduction

1

These appeals all concern the lawfulness of decisions by the Secretary of State for the Home Department to certify under section 72(2)(a) of the Immigration and Asylum Act 1999 ("the 1999 Act") as "manifestly unfounded" human rights claims raised by asylum seekers whom he has decided to remove to other European Union states under the Dublin Convention. In all the cases, the claimants have sought to challenge their removal to another EU state on the grounds that, if removed, there is a substantial risk that they will suffer a breach of their rights under article 3 and/or 8 of the European Convention on Human Rights ("ECHR").

2

In Razgar, the claimant is an Iraqi citizen who was refused asylum in Germany, subsequently travelled to the UK and sought asylum here. The Secretary of State certified the claim on "safe" third country grounds and directed his removal to Germany. He also certified that a claim based on articles 3 and 8 was manifestly unfounded. Richards J quashed the certificate in so far as it was based on article 8. He held that it was arguable that the mental health implications of a return to Germany were sufficiently serious that the Secretary of State was not entitled to certify the claim as manifestly unfounded. The Secretary of State appeals with the permission of the judge.

3

In Soumahoro, the claimant is a citizen of the Ivory Coast who sought asylum in the UK. The Secretary of State certified the claim on "safe" third country grounds and directed her removal to France. He certified that her claim based on article 8 (that to return her to France would damage her mental health) was manifestly unfounded. Cooke J rejected the challenge to the certificate (which, before him, was based on article 3). He held that there was insufficient evidence that there was a serious risk that, if the appellant were returned to France, she would suffer serious harm. The claimant appeals with the permission of this court.

4

In Nadarajah, the claimant is a Tamil from Sri Lanka whose asylum claim was rejected in Germany. He entered the UK in August 1998 and claimed asylum here. The Secretary of State certified on "safe" third country grounds and directed his removal to Germany. The claimant's wife entered the UK in August 2001. Her claim for asylum was rejected by the Secretary of State. His human rights claim (under articles 3 and 8) was certified as manifestly unfounded. Permission to apply for judicial review was granted only in relation to the certificate in so far as it was based on article 8. The challenge to the certificate was put on the basis that to return the claimant to Germany would violate his article 8 rights because (a) it would separate him from his wife; and (b) it would damage his mental health. Stanley Burnton J rejected both grounds of challenge and upheld the certificate. There were other issues before the judge. The claimant appeals with his permission.

The Statutory Framework

5

Section 6(1) of the Human Rights Act 1998 provides that it is unlawful for a public authority to act in a way which is incompatible with an ECHR right.

6

Section 65 of the 1999 Act provides:

"(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

……

(2) For the purposes of this Part —(b) 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 s.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.

(5) If the … adjudicator, or the Tribunal, decides that the authority concerned-

(b) acted in breach of the appellant's human rights, the appeal may be allowed on that ground "

7

Section 65 is included in Part IV of the 1999 Act. Schedule 4 Part III of the 1999 Act makes provision with respect to the determination of appeals under Part IV of the Act. Schedule 4 Part III includes paragraph 21 which says:

" (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;

(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 [appeals which must be dismissed] 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."

General legal principles

8

Mr Garnham QC submits that, in the context of immigration control, it is necessary to consider three legal questions when deciding whether the removal of asylum seekers to member states of the EU under the Dublin Convention constitutes a violation of their ECHR rights: (a) to what extent (if at all) is the ECHR right engaged by the removal; (b) what is the threshold of seriousness of harm; and (c) what is the appropriate level of risk of that harm occurring. These questions must be addressed by the Secretary of State when he considers whether to certify that an allegation of breach of human rights is manifestly unfounded. We do not understand this submission to be contested. In our view, it is clearly correct. We shall consider these questions separately in relation to articles 3 and The issues of the threshold of "manifestly unfounded" and the court's scrutiny of certificates under section 72(2)(a) were determined by the House of Lords in R(Yogathas) v Secretary of State for the Home Department [2002] UKHL 36, [2002] 3 WLR 1276. But there has been some disagreement before us as to the precise import of that decision. We shall address these points when we have dealt with the three questions that we have identified.

Article 3

(a) Is the right engaged?

9

There is no doubt that article 3 is capable in principle of being engaged when action is taken to remove a person from the UK where there is a real risk that the removal will expose him or her to torture or inhuman and degrading treatment in their home country or a third country. This is now well established: see, for example, Soering v UK (1989) 11 EHRR 439 (extradition to the United States where the applicant faced a real risk of the death row phenomenen); Chahal v UK (1996) 23 EHRR 413 (removal of a Sikh separatist leader to India where there was a real risk that he would be killed or tortured by security forces); and D v UK (1997) 24 EHRR 423 (removal of an AIDS victim to St Kitts where lack of medical treatment would hasten his death).

(b) Seriousness of harm

10

Article 3 provides protection against ill-treatment which attains a "minimum level of severity": see, for example, Soering at para 100. In the context of expulsion cases, 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 there is a real risk of serious ill-treatment": see R (Ullah) v Special Adjudicator [2002] EWCA Civ 1856, [2003] 1 WLR 770 at paras 38–39. As was explained in Ullah (para 47), the application of article 3 in expulsion cases is a significant extension of the principle of territoriality expressed in article 1 of the ECHR. Article 3 provides protection only against the most serious ill-treatment.

(c) Risk of harm

11

There must also be substantial grounds for believing that there is a real risk of ill-treatment in the receiving state before article 3 is engaged: see Soering para 91 and Chahal paras 74 and 80.

Article 8

(a) Is the right engaged?

12

The question of the circumstances in which an article 8 claim is capable of being engaged in expulsion cases is one of considerable importance and some difficulty. It is central to at least one of the present appeals.

13

In Ullah, the claimants contended that their rights under article 9 (freedom of religion) would be infringed if they were removed...

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