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

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Richards,Lord Justice Lloyd,Lord Justice Buxton
Judgment Date11 April 2006
Neutral Citation[2006] EWCA Civ 379
Docket NumberCase No: C4/2005/2338

[2006] EWCA Civ 379




Mr Andrew Nicol QC (sitting as a Deputy High Court Judge)

Royal Courts of Justice

Strand, London, WC2A 2LL


Lord Justice Buxton

Lord Justice Lloyd and

Lord Justice Richards

Case No: C4/2005/2338

Case No: CO/3085/2004

The Queen (On The Application of Mehmet Tozlukaya)
Secretary of State for The Home Department

Monica Carss-Frisk QC and Tim Eicke (instructed by The Treasury Solicitor) for the Appellant

Hugh Southey (instructed by Trott & Gentry) for the Respondent

Lord Justice Richards

This case raises once more an issue recently considered in J v Secretary of State for the Home Department [2005] EWCA Civ 629, namely the circumstances in which the removal of an asylum-seeker from the United Kingdom can be resisted under articles 3 and 8 of the European Convention on Human Rights on the ground that it will create or exacerbate a risk of suicide by the asylum-seeker himself or a member of his family who will be removed with him.


It also raises questions concerning the Secretary of State's policy relating to removal of families with children who have seven years or more continuous residence in the United Kingdom: what the policy actually is and what implications it has for the application of article 8 in the particular circumstances of this case.


The case comes before us as an appeal from a decision of Andrew Nicol QC, sitting as a Deputy Judge of the High Court, in which he quashed a certificate by the Secretary of State under section 93(2) (b) of the Nationality, Immigration and Asylum Act 2002 that the respondent's claim under articles 3 and 8 was "clearly unfounded".

The facts


I take the factual background from the judgment of the deputy judge, with various points of amplification or qualification that have emerged from the submissions to this court.


The respondent and his wife (Maryem Tozlukaya) are Turkish nationals who entered Germany in 1996 and claimed asylum there. On 8 June 1998, following the rejection of their claim by the German authorities, they and their daughter (Kader, born on 2 February 1997) travelled to the United Kingdom, where they again claimed asylum.


In October 1998 the Secretary of State asked Germany to accept responsibility under the Dublin Convention (as it then was) for examining the asylum claim. The German authorities accepted such responsibility in January 1999, and the Secretary of State then certified the claim on "third country" grounds and set removal directions. The respondent's representatives made representations that his removal to Germany would be in breach of article 3, on the basis that if removed to Germany as an undocumented asylum seeker he would be at risk of indirect refoulement to Turkey. No mental health grounds were advanced. The representations were rejected by the Secretary of State.


The respondent failed to report in accordance with the removal directions. Then, in February 1999, he lodged an application for permission to apply for judicial review of the Secretary of State's certificate on the basis of his article 3 claim. That application was withdrawn in October 2001 when decisions of the appellate courts made it clear that the objection to the certificate was unsustainable. In the meantime, in June 2001, the respondent's second daughter (Rojda) was born.


In November 2001 further representations were made, under article 3 and article 8, on the basis that, since the respondent had already been refused asylum in Germany, his case would not be given proper consideration on his return there and that he had close family ties in the United Kingdom. Again no mental health grounds were advanced. The representations were rejected by the Secretary of State, who certified the claim as manifestly unfounded. By mistake, however, the refusal letter included an appeal form which appeared to grant a right of appeal. In consequence of that administrative error, the Secretary of State withdrew his certificate.


The respondent then appealed the Secretary of State's decision, first to an adjudicator and then to the Immigration Appeal Tribunal, in each case without success. In the course of those appeals he relied on a psychiatric report in support of his contention that his return to Germany with his family would be in breach of his human rights, but no mention was made of any mental health problems suffered by Mrs Tozlukaya.


Following the dismissal of the appeal to the Immigration Appeal Tribunal the Secretary of State set further removal directions, for 14 June 2004. The respondent and his family were detained shortly before the removal was due to take place. At the airport on 14 June, Mrs Tozlukaya complained of abdominal pains and informed the authorities that she was four months pregnant. The removal was not proceeded with on that day, but the family remained in detention. Mrs Tozlukaya was examined by the duty doctor and was declared fit to travel, and the removal was re-arranged for 17 June. But an attempt at removal on 17 June also failed, when the captain of the aircraft refused to carry Mrs Tozlukaya because she again complained of abdominal pains and was distressed. (One set of medical notes refers to an attempt by Mrs Tozlukaya to hang herself in the toilet of the aircraft during this second attempt at removal, but the Secretary of State has no record of any such suicide attempt and it is not referred to in any of the other medical reports on her.)


At about the time of the first of those attempted removals, further representations were made to the Secretary of State, claiming that the respondent was entitled to remain on the basis of the backlog clearance exercise announced by the Secretary of State in October 2003 or by virtue of his rights under the EC/Turkey Association Agreement. Those representations again made no mention of any mental health problems suffered by Mrs Tozlukaya. The representations were rejected by the Secretary of State on 16 June.


By letter of 22 June 2004 the respondent's representatives made further representations as to why his removal to Germany would be in breach of article 8. The letter also raised for the first time the issue of Mrs Tozlukaya's "mental health problems", but making no reference to a risk of suicide.


On the same day, 22 June, there occurred the only officially recorded attempt at self-harm by Mrs Tozlukaya. The family had remained in detention, at Oakington Immigration Reception Centre. Mrs Tozlukaya was found in her room with one end of a bed sheet around her neck and the other end over the door. There were no marks around her neck, and the detention custody officer who attended the scene wrote that "it wasn't tight enough to do any harm but was obviously a cry for help". On the other hand, there is other material to support the view that this was a serious suicide attempt. Some of the expert reports regard it as such, and it must be treated as such for present purposes.


Some time after this incident the respondent and his family were moved from Oakington to Dungavel Immigration Reception Centre.


On 13 July 2004 Mrs Tozlukaya was seen by a psychiatrist, Dr Aryiku. She said that she wanted to be with her (dead) father who was calling on her and that she intended to end her own life. Dr Aryiku said that he would section her under the Mental Health Act and recommended constant observations within the health centre until a hospital bed was available.


On 14 July it was reported that the midwives could detect no foetal heart beat. It was determined that the baby had died inutero. Mrs Tozlukaya was admitted to the maternity ward of Wishaw General Hospital where, on 18 or 23 July (the records differ) , the dead foetus was delivered.


While in the maternity ward Mrs Tozlukaya was seen by Dr Keith, a consultant psychiatrist. In his report dated 27 July 2004 he noted that the duty psychiatrist had seen her on 21 July and had thought she was threatening suicide and was refusing essential medical treatment. She had therefore been detained under the Mental Health Act (Scotland) . From his own observations of her, however, Dr Keith concluded that, whilst she had suffered from a quite normal and understandable distress at having a stillborn baby, she had recovered physically and mentally and "could be considered mentally well"; she was "both mentally and physically fit to cooperate with whatever further disposal should be arranged for her"; and he did not think there was any significant illness such as would prevent her removal.


As a result, on 28 July Mrs Tozlukaya was discharged from hospital and returned to Dungavel. The deputy judge notes (though it does not fit easily with the assessment by Dr Keith that led to her discharge) that on admission there she was believed to be at high risk of suicide and was placed on constant observation and was to have an officer with her at all times.


The family was then moved from Dungavel to Yarlswood Immigration Reception Centre. On 4 August Mrs Tozlukaya was diagnosed by Dr Pinto, a consultant psychiatrist, as suffering from a mild dissociative reaction in the context of a post-natal depression: she was not overtly distressed but appeared to deny the death of her child and to be convinced that she was holding and nursing the child in the form of a rolled-up blanket which she constantly carried with her. She was therefore admitted on 6 August under the Mental Health Act to the secure unit at Luton Hospital.


On 7 August Mrs Tozlukaya was seen by Dr Hajioff, a consultant psychiatrist...

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