SN (Botswana) v Secretary of State for the Home Department

The issue for me this morning is whether or not I should make an order giving permission to the Applicant in this case to proceed to a full hearing in the Administrative Court on her application for judicial review of the decision or decisions of the Secretary of State that her Article 3 human rights claim should not be treated as a fresh claim.

The proceedings are complicated, at least in historical terms, by the fact that there is a separate issue not unrelated to the substantive Article 3 claim, but specific to the question of whether or not the Applicant is fit to fly.

I do not intend to go into the full details of her mental health, but it is accepted by the Secretary of State that she is a suicide risk. That, however, (that is to say the question of whether she is fit to fly) has been catered for by the Secretary of State making it clear in her decision letter that there would be no removal back to Botswana of the Applicant unless and until a medical report had indicated that she was fit to fly.

That is a self-contained issue, as I have said, but in this case it led to the Applicant dropping at the renewal stage her reliance on her Article 3 grounds in relation to the fitness to fly issue. I am not, therefore, concerned with that as part of the application this morning.

Her position is that she has an Article 3 human rights claim largely based on the fact that if returned to Botswana she would not receive adequate assistance and health care in relation to the psychiatric condition which gives rise to the risk of suicide. This is not because in Botswana sufficiently suitable facilities do not exist but rather because her condition, it is said, is such that she will not be able to bring herself to make use of those facilities.

The issue of whether or not that Article 3 claim gives rise to a fresh claim which is, as I say, the basis of the challenge in the current judicial review proceedings turns on the two limbs of paragraph 353 of the Immigration Rules. In short, they require the Secretary of State to treat the claim as a fresh claim unless it can be said that the claim is one that has already been raised in the previous asylum and human rights challenge in front of the Tribunal and secondly, that looked at on its merits through the eyes of a Tribunal, it would have a realistic prospect of success.

So far as the first of those two issues are concerned, Miss Lawton, on behalf of the Applicant, submits that the Article 3 claim that is now relied on, or would sought to be brought if this matter were returned to the Tribunal, is not one that was previously considered because, at the time of the earlier proceedings in front of the First-tier Tribunal, the Secretary of State had not accepted, as she now accepts, that the Applicant is a serious suicide risk.

The human rights claim was rejected on the grounds that it had no realistic prospect of success before an immigration judge. That can be seen from the terms of the decision letter of 15 August 2013.

So the issue comes back to whether or not, assuming on the evidence it can be said that there is a real and substantial likelihood that the Applicant's condition is sufficiently serious not only to give rise to a suicide risk but also to prevent her from making use of the medical or psychiatric help facilities that exist back in Botswana, it is at least arguable that there is not a sufficient mechanism on return within the sixth limb of the decision in J.

As I have made clear during the course of argument, I have some doubt whether or not when finally adjudicated upon the Article 3 claim will necessarily succeed, but I have been reminded that the threshold, as appears from the decided cases on what constitutes a fresh claim, is a very low one. Buxton LJ in WM described it as somewhat modest.

Despite the doubts which I have expressed, I am not in the end satisfied that I can simply dismiss it out of hand by refusing to grant permission to bring the judicial review challenge in the Administrative Court. It will be for the judge on that application to decide, at greater leisure than I have been able to this morning and on the basis of full argument from both sides, whether or not it can properly be said that the Article 3 challenge does have a realistic prospect of success.

If the judge decides that it does, it must follow that the Secretary of State's decision was wrong and unlawful and will have to be set aside, but with the consequence that the matter will then be remitted to the Tribunal for a hearing on the merits. But that lies in the future.

For the purposes of this morning, I am satisfied that the minimum threshold of arguability has been reached. What I propose, therefore, to do is to grant permission for judicial review with the result that the application will proceed to a full hearing in the Administrative Court.