Bardiqi, R (on the application of) v Secretary of State for the Home Department

MR JUSTICE SULLIVAN: This is an application for judicial review of decisions by the Secretary of State certifying claims made on behalf of the claimant as manifestly unfounded in accordance with section 72(2)(a) of the Immigration and Asylum Act 1999.

There is a relatively lengthy history, which, given the time, I shall do my best to summarise. The claimant, who is an Albanian from Kosovo, arrived with his family at Dover on 16th February 1998. At that time his family consisted of his wife and their two children. When he was interviewed he said that they had left Kosovo on 8th February 1998 and travelled through unknown countries in a lorry before reaching this country and that he had not claimed asylum anywhere else. On investigation it was found that this claim was false. In fact, the claimant had entered Germany in January 1995 and made an unsuccessful claim for asylum there. In the light of that information, the authorities in this country made a formal request to the German authorities, asking them to accept responsibility for the claimant and his family under the provisions of the Dublin Convention. In August 1998 Germany accepted responsibility, and on 24th November 1998 the claimant's asylum application in this country was certified under section 2 of the Asylum and Immigration Act 1996 and shortly thereafter arrangements were made for the claimant to be returned to Germany on 11th December 1998. That return did not take place because an application for judicial review was lodged relying on the case of Gashi, and so removal directions were deferred.

In March 1999 the Court of Appeal decided Gashi's appeal. It was concerned about the apparent discrepancy between the percentages of Kosovan asylum seekers who were returned by the German authorities and by the authorities in this country. At that stage the Secretary of State was not in a position to explain the apparent discrepancy. In due course the Secretary of State resumed returning Kosovan Albanians to Germany under the Dublin Convention. Winstanley-Burgess, the claimant's present solicitors, came on the record. The Secretary of State invited them to withdraw the judicial review proceedings, but they declined to do so.

To cut a very long story short, following the decision of the House of Lords in the case of Zeqiri, the claimant's judicial review application and many others that had been stayed in the Court of Appeal were disposed of on 18th March 2002.

In October 2002 the claimant's solicitors raised an allegation that to return him to Germany would be in breach of Articles 3 and 8 of the European Convention on Human Rights. By that time the claimant and his family had been in this country for some four and a half years and another child had been born in this country.

The letter contending that to return the claimant and his family to Germany would be in breach of Articles 3 and 8 was couched in relatively general terms. It pointed out how long the family had been in this country and referred to the schooling of the children, in particular the schooling of the older son, Armend, who was at that stage ten years old. The response to that letter was contained in a letter dated 14th November 2002. That rejected the contention that there would be any breach of Article 3 - that is no longer pursued on behalf of the claimant. So far as Article 8 is concerned, the letter said:

Arrangements were agreed with Germany for the claimant and his family to be returned there on 24th February 2003. Those arrangements had to be deferred due to bad weather conditions.

On 26th February Messrs Luqmani Thompson & and Partners wrote to the UK Immigration Service, saying that they were instructed on behalf of Mr Bardiqi's wife. Their letter of 26th February explained that she was particularly concerned about confronting a traumatic history which had deeply affected her and her oldest child, Armend, and a report from an independent social worker, Ms Cohen, was enclosed. In very brief summary, what had happened was that Mrs Bardiqi had been raped in front of Armend.

The social worker's report was apparently prepared on the instructions of Winstanley-Burgess Solicitors acting for Mr Bardiqi. It set out the background in some considerable detail, explaining the traumatic impact of the rape on both Mrs Bardiqi and Armend and said, inter alia, that the stabilising experience of school had contributed to Armend's recovery:

A letter of the same date, 26th February 2003, was sent by Winstanley-Burgess, referring to the claim made by Luqmani Thompson and confirming that they continued to represent Mr Bardiqi for the time being and that he was making an application to remain as his wife's dependant.

The response to Luqmani Thompson's letter of 26th February is contained in a letter of the same date from the Home Office. It refers to the earlier certification of the claim as manifestly unfounded in the letter dated 14th November 2002, and says:

There is then extensive reference to the case of Zeqiri, including the passage from Lord Hoffmann's speech in which his Lordship said:

That produced a response from Messrs Winstanley-Burgess dated 6th March 2003. It referred to the letter to Luqmani Thompson and said that further representations were now being made on behalf of the family and contended that there were exceptional factors which would make the disruption of this family's private life of "significant detrimental effect". It referred to the fact that they had been settled in the United Kingdom for the last five years and to the fact that the children had been attending the same school and had developed close relationships with their peers. It said that given the extent of these connections, they greatly exceeded those in the Zeqiri case, referred to in the letter of 26th February, and then referred specifically to both Armend and his mother's psychological vulnerability. The letter referred to the Secretary of State's contention that "there is nothing whatsoever in the report of Ms Renee Cohen to indicate that removal from the UK would amount to a breach of your client's human rights" and contended that in the light of that report "there is a clear risk that his [Armend's] mental health and development would be deleteriously affected by removing him from this environment at this stage". The letter continued:

By letter of the same date, 6th March, the Home Office responded to this latest representation, saying:

Collins J granted permission on the papers with the observation:

Messrs Winstanley-Burgess had commissioned a report from Desiree Saddik, a Consultant Child and Family Chartered Clinical Psychologist. It was some time before Ms Saddik could interview Armend. She assessed him on 10th June, and in due course her report was sent to the Secretary of State.

There was a certain amount of correspondence between the parties as to whether or not the Secretary of State had been invited to consider that report. The Secretary of State's skeleton argument dated 9th July contended that the further report had been provided under cover of a letter of 24th June without any request being made for the Secretary of State to reconsider the case in the light of the material in the report, and therefore the Secretary of State did not propose to make any further comment upon it. That provoked a response from the claimant's solicitors, saying that they did indeed wish for the report to be considered. Argument and counter argument then followed as to whether or not an adjournment would or would not be appropriate, but in the event the Secretary of State responded to Ms Saddik's report by letter dated 11th July 2003.

The upshot of all this was that Mr Henderson did not pursue his application for an adjournment upon the basis that he would be permitted to amend his claim form to challenge not merely the decision of 6th March but also the decision of 11th July 2003. Mr Beard was content for that amendment to be made and for the later decision to be considered at this substantive hearing, rather than as an application for permission to apply for judicial review of the latest decision.

The letter of 11th July 2003 refers to the report of Ms Saddik and says that the opportunity has been taken to reconsider the certificate issued under section 72(2)(a) of the 1999 Act:

There is no dispute that, apart from the issue of certification, the Secretary of State was entitled to take that view of the merits of the Article 8 claim. The question is, bearing in mind the high threshold for issuing a certificate under section 72(2)(a), was the Secretary of State entitled to conclude that this was a claim that was bound to fail before an adjudicator.

The report of Ms Saddik sets out the background in some detail, concludes that Armend did suffer from PTSD, but that currently his difficulties do not meet all the criteria for PTSD in the DSM-IV, not meeting three or more items within criteria C. She goes on to say that:

On behalf of the claimant, Mr Henderson, understandably, focuses principally upon the letter of the 11th July. There is no evidence to contradict that of Ms Saddik and in these circumstances Mr Henderson submits that it simply was not open to the Secretary of State to, in effect, dismiss her report out of hand, to say that it added nothing to the case, and to contend that her conclusion that removal from the UK was likely to jeopardise Armend's mental state and diminish his recovery was a speculative finding for which there was no evidence. He submits that those errors are sufficient to fundamentally flaw the certification decision.

In addition, insofar as the latest decision maintained the decision contained in the letter of 6th March 2003, which in turn maintained both of the earlier decisions, not merely the decision of 14th November 2002 but also the decision dated 26th February 2003, he submits that further errors can be seen in the latter decision: firstly, the rejection of the report of Ms Cohen; secondly, the reliance upon the claimant and his family's travelling unlawfully to this country; and, thirdly, the proposition that this case is indistinguishable from Zeqiri. He submits that evidence had been placed before the Secretary of State which indicated that the links this family had made in this country were far more extensive than Zeqiri; that it was not appropriate simply to dismiss Ms Cohen's report out of hand, it is precisely the sort of report that should be obtained when the rights of children are involved; and also that the emphasis on the unlawful nature of the claimant's presence in this country was inappropriate given that the claimant was not an economic migrant, he had fled from Kosovo to Germany, and his concerns about what might happen to him were he returned to Germany were, to put it at its lowest, shared by the Court of Appeal in Gashi. The fact that those concerns, with the benefit of hindsight, may have turned out not to be justified was beside the point.

On behalf of the Secretary of State, Mr Beard submitted that there was no conflict between the letter of 14th November 2002, which accepted that there might be a temporary interference with the claimant and his family's private life within the meaning of Article 8(1), and the statement in the letter of 11th July 2003 that the impact upon Armend would not be so severe as to even arguably engage Article 8(1). He pointed out that there were two aspects to family and private life: the former the more conventional linkages of family life; the latter the effect that there may be upon what has been described in the cases as an individual's "physical and moral integrity". So far as the latter aspect of private life is concerned, the so-called Bensaid threshold is a very high one before that aspect of Article 8 can be engaged. He referred to the Court of Appeal's decision in Ullah as authority for the proposition that in cases outwith Article 3, which is no longer relied upon by the claimant in this case, the United Kingdom cannot be held responsible for the actions or inactions of the state to where a person is to be returned.

He acknowledges that the threshold for certification is a high one (see paragraph 111 of the Court of Appeal's decision in Razgar), but nevertheless he submits that there is a substantial gulf between what the Secretary of State acknowledges is likely to be an upsetting experience for Armend and something so detrimental as to cross the Bensaid threshold and engage Article 8.

In Razgar the Court of Appeal considered the effect of the territoriality principle referred to in Ullah upon Article 8 claims, noting that such claims were more difficult to analyse. In paragraph 18 of the court's judgment it considered two paradigm cases:

Mr Beard submitted that the reference to a speculative finding in the letter of 11th July 2003 was not challenging the conclusions in Ms Saddik's report; that would not be open to the Secretary of State in the absence of expert evidence to the contrary. Rather, the Secretary of State was saying that there was a speculative statement on behalf of the claimant as to the absence of suitable treatment being available in Germany. Thus, the speculation was as to the manner in which Armend's mental condition would be dealt with in Germany. On that basis the Secretary of State was entitled to express the view that he did in paragraph 3 of the letter, and in any event his conclusion in paragraph 4 that any interference would be justified was one which was within the wide margin of discretion that is conferred upon him under Article 8(2).

Standing back from the detail, this appears to be a case where an initial certification in accordance with section 72(2)(a), which was readily understandable on the basis of the very limited information that had been provided to the Secretary of State in late 2002, has been somewhat doggedly maintained, despite the fact that further evidence has become available to support the claimant's case. As more and more evidence has been provided, so the Secretary of State's response has been to say more and more emphatically that this is a case which is bound to fail.

The initial letter certifying the human rights claim dated 14th November 2002 cannot be criticised given the limited amount of information that had been provided to the Secretary of State at that time. There was really very little to take this case out of the ordinary run of cases where, because of delays in the judicial process, the claimant and his family had been able to reside in this country for a number of years.

Arguably, warning signals should have been heeded when the report of Ms Cohen, the social worker, was supplied. The letter dated 26th February 2003 contended that there was "nothing whatsoever in the report of Ms Renee Cohen to indicate that removal from the United Kingdom would amount to a breach of your client's human rights". The Secretary of State was of course perfectly entitled to take a dim view of the merits of the claim, but given what had been said by Ms Cohen at that stage, it was questionable this was a case which was not merely very likely to fail, but which was bound to fail.

There are two further aspects to the decision making process at this stage. Firstly, despite the Secretary of State's contention that this case is in all major respects indistinguishable from that of the claimant in Zeqiri, there clearly are distinctions. This is a family with children and they had have, at least arguably, put down more extensive roots in the community. The second point is the emphasis upon the fact that the claimant had travelled unlawfully to this country from Germany. That was certainly a matter upon which the Secretary of State was entitled to place considerable weight, but, equally, the claimant was arguably entitled to point out that having fled Kosovo he had been reluctant to return to Germany at a time when there was a degree of concern about what would happen to Kosovan refugees who were returned to Germany. That degree of concern was reflected in the Court of Appeal's decision in Gashi.

For the sake of completeness I should mention the fact that, initially, Mr Beard submitted that the letter dated 26th February 2003 was irrelevant, since it related to a separate claim by the claimant's wife. This submission was not pursued in the light of the letters from the claimant's solicitors, in effect associating the claimant and his family with the points made on behalf of his wife (letters dated 26th February and 6th March 2003).

It is unnecessary to reach any conclusion as to whether the decision to maintain certification in the letter dated 26th February was justified, because matters moved on.

The Secretary of State was again invited to reconsider his position. It was pointed out that the family's links with the UK were more extensive than those in Zeqiri, and also the issue of Armend and his mother's psychological vulnerability was raised. In the exchange of correspondence dated 6th March 2003 the Secretary of State did not respond to those contentions, he simply maintained both of the earlier decisions.

By this stage warning bells should have been ringing somewhat louder, but the Secretary of State could fairly point to the fact that although an assertion had been made about the psychological impact upon Armend and his mother of removal from the UK, no expert evidence had been provided. It will be remembered that Ms Cohen is a social worker rather than a child psychologist. That omission was, however, remedied by the report of Ms Saddik.

I am afraid that I am unable to accept the interpretation of the Secretary of State's letter dated 11th July that is urged upon me by Mr Beard. Ms Saddik's report said nothing whatsoever about the availability or otherwise of treatment in Germany. She dealt with the effect of removal from the United Kingdom upon Armend and said in terms that it was likely to jeopardise his mental state and diminish his recovery: "There is a high risk of relapse and Post Traumatic Stress Disorder". She was concerned that there should not be a relapse into PTSD, not with whether there would be mental health facilities in Germany to respond to such a relapse.

Faced with a contention that there is a high risk that a 10 year old child who has suffered from PTSD, but no longer does so because of the very supportive environment he currently experiences in the UK, may relapse into PTSD, the Secretary of State's response is that this "adds nothing to the claimant's case." The relevant passage in paragraph 2 of the letter states:

In my judgment, this approach to Ms Saddik's report fundamentally flaws the letter because the Secretary of State's assessment of whether or not an interference will be proportionate and justified under Article 8(2) plainly relies at least in part upon his assessment of the degree of interference under Article 8(1). If removal from the UK would be merely "upsetting" and no more for Armend, then the conclusion in relation to Article 8(2) would be readily understandable, but if the Secretary of State was not justified in reaching that conclusion, then his conclusion in relation to Article 8(2) also falls. In so concluding, I do not mean to imply that the Secretary of State is not entitled to take the view that the claim under Article 8 should be reject. In a certification case there is a high threshold: the Secretary of State must be satisfied that a claim is bound to fail. Thus, in considering his reasons for refuting a claim, one has to be satisfied that the Secretary of State's argument would be bound to succeed before an adjudicator. I am unable so to conclude in respect of the Secretary of State's final comment that Ms Saddik's finding in relation to Armend's mental state appears "speculative".

Thus, conscious as I am of the breadth of discretion conferred upon the Secretary of State under Article 8(2), this is a case where the Secretary of State, in the light of his response to the expert report of Ms Saddik, has said that a particular aspect of Article 8(1) relied upon by the claimant is not even arguably engaged.

At the end of the day an adjudicator might well reject Ms Saddik's conclusions, but it cannot be said that the views expressed in the Secretary of State's letter of 11th July are so clearly correct that they would be bound to succeed before the adjudicator. For these reasons, the decision to maintain certification contained in the letters of 6th March and 11th July 2003 must be quashed.

MR HENDERSON: My Lord, I am grateful. I have an application for my costs and for detailed assessment in respect of my public funding certificate.

MR JUSTICE SULLIVAN: Yes.

MR BEARD: My Lord, there is nothing to be said on that matter, but the Secretary of State would ask for permission to appeal in this matter.

MR JUSTICE SULLIVAN: I will deal with costs first. Your costs and detailed assessment for public funding purposes.

Mr Beard, do you want to say anything further about it?

MR BEARD: My Lord, although your Lordship in your judgment has dealt with the particular facts of the case and the terms of the letter in particular with which this proceeding has been concerned, there are matters in your Lordship's judgment referring to the consideration of material relating to mental health which are related to the tests under Razgar and Ullah, matters which the Secretary of State considers it may be appropriate to pursue further and have a more full exposition of the relevant test to be applied in circumstances such as this case, and therefore, although your Lordship's judgment focuses upon the particular circumstances of this case, it does raise further issues.

MR JUSTICE SULLIVAN: Yes. Thank you very much. I do not think it would be appropriate for me to give permission. As far as I am concerned, it really turns on the terms of the letters of 11th June in particular and 6th March. If you can persuade the Court of Appeal there is a wider point of principle that they should look at, good luck to you, but I refuse permission.