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

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeLORD WALKER OF GESTINGTHORPE, LORD STEYN, LORD BINGHAM OF CORNHILL, LORD CARSWELL, BARONESS HALE OF RICHMOND
Judgment Date17 Jun 2004
Neutral Citation[2004] UKHL 27

[2004] UKHL 27

HOUSE OF LORDS

The Appellate Committee comprised:

Lord Bingham of Cornhill

Lord Steyn

Lord Walker of Gestingthorpe

Baroness Hale of Richmond

Lord Carswell

Regina
and
Secretary of State for the Home Department
(Appellant)
ex parte Razgar (FC)
(Respondent)
LORD BINGHAM OF CORNHILL

My Lords,

1

Mr Razgar is an asylum seeker from Iraq whom the Secretary of State proposes to remove to Germany under the provisions of the Dublin Convention. Mr Razgar resists such removal on the ground that it would violate his rights under article 8 of the European Convention on Human Rights. The Secretary of State does not accept that removal would violate Mr Razgar's rights under article 8, and has certified under section 72(2)(a) of the Immigration and Asylum Act 1999 that the claim is manifestly unfounded. The consequence of that certification, if it stands, is to preclude any appeal by Mr Razgar against his removal from within this country. In these proceedings Mr Razgar has challenged the Secretary of State's certification and has succeeded before Richards J ( [2002] EWHC 2554 (Admin) and the Court of Appeal (Judge and Dyson LJJ and Pumfrey J: [2003] EWCA Civ 840, [2003] Imm AR 529). In this appeal by the Secretary of State two main questions arise, one of pure principle and one directed to the facts of this case so far as they are now known and the process of review. The question of principle is agreed to be:

"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 principle

2

This appeal was heard immediately following the appeals in R (Ullah) v Special Adjudicator and Do v Immigration Appeal Tribunal. The opinions of the House in those appeals are directly germane to the issue of principle in the present case (see [2004] UKHL 26 and should be read, to the extent that they are relevant, as incorporated in this opinion. In this appeal it is, however, necessary to give more detailed consideration to article 8 of the Convention.

3

In the course of argument both sides made generous reference to authority, but each side relied on one authority in particular as encapsulating the pith of its argument. For the Secretary of State, the Attorney General placed strong reliance on a recent admissibility decision of the Strasbourg court in Henao v The Netherlands (Application No 13669/03, 24 June 2003, unreported). The applicant was a Colombian national who was arrested, tried and imprisoned for carrying drugs into the Netherlands. While serving his sentence he was found to be HIV-positive and received appropriate treatment. He resisted deportation to Colombia at the end of his sentence on the ground that he would face difficulties in obtaining treatment for his condition in Colombia, placing reliance on article 3 of the Convention. In holding that the application was manifestly ill-founded, the Court said:

"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."

4

As is clear from this judgment, the applicant in Henao placed reliance on article 3 alone. Read in isolation, the judgment might suggest that only article 3 can be relied on to resist a removal decision made by the immigration authorities. But the House has held in Ullah and Do that that is not so, and it seems clear that the Court confined its attention to article 3 because that was the sole ground of the application. The case does however illustrate the stringency of the test applied by the Court when reliance is placed on article 3 to resist a removal decision. It also shows, importantly for the Secretary of State, that removal cannot be resisted merely on the ground that medical treatment or facilities are better or more accessible in the removing country than in that to which the applicant is to be removed. This was made plain in D v United Kingdom (1997) 24 EHRR 423, paragraph 54. Although the decision in Henao is directed to article 3, I have no doubt that the Court would adopt the same approach to an application based on article 8. It would indeed frustrate the proper and necessary object of immigration control in the more advanced member states of the Council of Europe if illegal entrants requiring medical treatment could not, save in exceptional cases, be removed to the less developed countries of the world where comparable medical facilities were not available. I do not understand the Court of Appeal to have proposed a...

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