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

This application concerns a challenge to two written decisions made by the Secretary of State for the Home Department (“the Secretary of State”). The first decision was dated 2 October 2003 and by it the Secretary of State certified pursuant to Section 93(2)(b) of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”) that the claim of Mr. Mehdi K that his return to Germany would breach his human rights was “clearly unfounded” while the second decision made by the Secretary of State, which is contained in a letter dated 17 October 2003, was that he would maintain and refuse to withdraw his certificate of 2 October 2003 in the light of further medical and other evidence that had by then been sent to him by the solicitors for the claimant. It is the later decision that is of critical and determinative significance as it alone was made in the light of the significant medical evidence of Dr. Desiree Saddik, a Consultant Clinical Psychologist dated 10 October 2003. Although the claimant is Mr. K, the medical evidence in this case relates to Mrs. K and it is common ground between the parties that the claim should now be approached as if she were the claimant while taking account of the interests of Mr. K and their two children. I will do so.

The background to the decisions under challenge is that the Secretary of State had decided to remove the K family to Germany pursuant to the terms of the Dublin Convention. Those decisions are and were challenged on the grounds that, if she is removed, there is a substantial risk that her rights under Article 3 and/or Article 8 of the European Convention on Human Rights (“the ECHR”) would thereby be infringed so as to give her a right to a claim under Section 65 of the Immigration and Asylum Act 1999. It is the human rights claims, which were duly certified by the Secretary of State as “clearly unfounded” on 2 October 2003 and which the Secretary of State maintained on which he refused to withdraw on 17 October 2003, which are challenged on this application. To understand this application, it is necessary for me to explain the factual background to which I now turn.

Mr. and Mrs. K sought asylum in the United Kingdom on 15 February 2000. They come from a Serb enclave in Kosovo and they feared non-state persecution from Serbs. Their concern was that the international forces in Kosovo would be unable to provide sufficient protection from such persecution while any suggested internal relocation alternative would be unduly harsh. Germany has accepted the return of members of the K family under the provisions of Article 5.4 of the Dublin Convention.

On 10 March 2001, Mr. K was served by the Secretary of State with a notice that he was certifying the claimant’s asylum application on third country grounds and so he was refusing the application for asylum without substantive consideration. A human rights claim was also made on behalf of Mr. K on the basis that his expulsion would violate his rights under Article 3 of the ECHR. The basis of the claim was the medical evidence relating to the severe psychological damage suffered by Mrs. K, which showed that she had to be supervised so as to ensure that she did not harm the child of herself and of Mr. K. Further medical evidence was submitted by a letter of 22 March 2001, which stated that Mrs. K was unfit to be removed and that her removal would have “further profound damaging implications for her health and for the safety of their baby”.

On 30 March 2001, the Secretary of State replied rejecting the representations made to him in respect of the certification of the asylum claim to which no challenge is now being pursued. The Secretary of State also certified that the allegation of a breach of Mr. K’s rights under the ECHR in the human rights claim was “manifestly unfounded” in accordance with Section 72(2)(a) of the Immigration and Asylum Act 1999. The effect of that certificate was that Mr. K was thereby deprived of his in-country human rights appeal to which he would have otherwise been entitled.

In the present judicial review proceedings, which were commenced on 17 May 2001, Mr. K sought an order quashing the defendant’s decision contained in the letter of 30 March 2001 certifying Mr. K’s human rights claim. The application sought also to challenge the defendant’s decision contained in the 30 March 2001 letter refusing to withdraw his certification of Mr. K’s asylum claim on third country grounds, but that challenge to the certification of the asylum claim is no longer pursued.

On 6 May 2001, the claimant’s solicitors wrote again to the Secretary of State pointing out, among other things, that the Secretary of State had failed to have regard to the medical evidence relating to Mrs. K when certifying the human rights claim. On 10 May 2001, a further medical report was submitted to the Secretary of State in respect of Mrs. K, which explained the severity of her condition and the support that she had received in this country from her doctor, health visitor and social worker. It also confirmed the risk that Mrs. K’s forced removal would cause her to harm herself or her baby. On 11 May 2001, the Secretary of State replied and said in respect of Mrs. K’s condition that medical care was available in Germany and that her husband would be removed as well. The defendant also asserted that the claimant would not have to return to his home area in Kosovo and that the removal could proceed as he was being removed to Germany and not to Yugoslavia. Subsequently, Elias J gave permission to pursue the application for judicial review.

The claim was subsequently stayed while the parties awaited various decisions of appellate courts which indeed disposed of all the grounds raised in the original judicial review claim form, save for the challenge to the certification of the human rights claim, which was the only issue pursued on this application.

The Secretary of State in his letter of 2 October 2003 explained that with the substantive hearing listed for 20 October 2003, he had given further consideration to Mr. K’s claim but, as I have explained, he maintained his decision that Mr. K’s claim that his return to Germany would breach his human rights was “clearly unfounded” and it was duly so certified. The claimant’s solicitor then served on the Secretary of State at some time after 10 October 2003, but before 17 October 2003 a detailed report on Mrs. K’s mental health prepared by Dr. Desiree Saddik. The subsequent decision contained in a letter of 17 October 2003 of the Secretary of State stated that he had considered that material but that he still maintained the certificate of 2 October 2003 which, together with the decision contained in the letter of 17 October 2003, is being challenged on this application.

I should add that after I reserved judgment, the Secretary of State announced that he would grant indefinite leave to remain to certain categories of asylum seekers but the K family do not benefit from this policy. This new policy does not apply where as in this case, the asylum seekers are being removed from the United Kingdom pursuant to the provisions of the Dublin Convention. I also gave counsel an additional opportunity to make additional written submissions and they helpfully availed themselves of this opportunity.

I have set out the relevant statutory material in the Appendix to this judgment. The certificate in this case was issued under Section 93(2)(b) of the 2002 Act and it was that the claim, in the wording of that section, was certified by the Secretary of State as being “in his opinion clearly unfounded”. The previous legislation has stated that the certificate could only be issued if the claim was “manifestly unfounded”. Counsel correctly in my view agree that there is no relevant difference in the wording between both sets of wording and so the old authorities on the meaning of “manifestly unfounded” are still relevant. It is appropriate now to ascertain the duty of the Secretary of State and also the role of the Adjudicator whose decision the Secretary of State has to predict when he is considering whether to certify that claim as “clearly unfounded”.

When considering similar provisions in a previous Act, the House of Lords explained in R (Yogathas) v. Secretary of State for the Home Department [2003] 1 AC 920, that the Secretary of State is entitled to certify a claim as “manifestly unfounded” if, after carefully considering the allegation, the grounds on which it is made and any material relied on in support of it, “he is reasonably and conscientiously satisfied that the allegation must clearly fail” (per Lord Bingham of Cornhill at page 929 [14]) or the allegation is “so clearly without substance that the appeal [to the adjudicator] would be bound to fail” (per Lord Hope of Craighead at page 934 [34]) or “it is plain that there is nothing of substance in the allegation” (per Lord Hutton at page 946 [72]) Lord Millett and Lord Scott agreed with the reasoning of Lord Bingham, Lord Hope and Lord Hutton. The test to be applied by the Secretary of State in certifying a claim as “manifestly unfounded” is a “screening process” and not “full blown merits review” (per Lord Bingham and Lord Hope [14] and [34] at pages 929 and 934 respectively).

In order to determine the fate of a human rights claim, it is necessary to bear in mind the limited power of the Adjudicator to conclude that a decision of the Home Secretary gives rise to a successful claim under the HRA. In Blessing Edore v. Secretary of State [2003] EWCA 716, Simon Brown LJ (with whom Waller and Kay LJJ agreed) explained the role of the Adjudicator dealing with a human rights appeal in the following way:

“In cases like the present where the essential facts are not in doubt or dispute, the adjudicator’s task on a human rights appeal under s65 is to determine whether the decision under appeal (ex hypothesi a decision unfavourable to the appellant) was properly one within the decision maker’s discretion, i.e. was a decision which could reasonably be regarded as proportionate and as striking a fair balance between the competing interests in play. If it was, then the adjudicator cannot characterise it as a decision “not in accordance with the law” and so, even if he personally would have preferred the balance to have been struck differently (i.e. in the appellant’s favour), he cannot substitute his preference for the decision in fact taken” [20].

It is common ground between the parties that in accordance with the Court of Appeal decision in R v. Secretary of State ex parte Turgut [2001] 1 All ER 719, where the Secretary of State reconsiders his position in the light of evidence submitted during judicial review proceedings, the parties and the court must ordinarily focus upon the latest decision by the Secretary of State with the claimant amending his grounds to challenge it. Thus, as is common ground between counsel, the decisions that I have to consider on this application are those made on 2 October 2003 and 17 October 2003, rather than the earlier ones, which originally gave rise to the judicial review application. The important decision is that of 17 October 2003 because unlike the decision of 2 October 2003, it was taken in the light of Dr. Saddik’s report.

In Yogathas (supra), the House of Lords also established that the court’s role in considering a certificate of the kind made by the Secretary of State in this case is to exercise a function of supervisory review, rather than to engage in a merits review. As Lord Hutton explained, “the question is whether the Secretary of State was entitled to certify that the appellant’s allegation was manifestly unfounded”, rather than “the substantive one whether the removal of the appellant to Germany would breach his human rights under Article 3” ([70] at page 946). A court, when reviewing the decision of the Secretary of State, is required to subject the decision to “the most anxious scrutiny” (Lord Hope of Craighead [58] at page 941) and “rigorous examination” (Lord Hutton [74] at page 947).

The task of determining whether a claim is clearly unfounded “is one which the court is as well placed as the Home Secretary to take and we go on to review the evidence in that light” (R (L and Another) v. Secretary of State [2003] 1 WLR 1230, 239 [29] per Lord Phillips of Worth Maltravers MR). The Master of the Rolls added later in that judgment that:-

“The test is an objective one; it depends not on the Home Secretary’s view but upon a criterion which the court can readily re-apply once it has the materials which the Home Secretary had. A claim is either clearly unfounded or it is not” (ibid 1245 [56]).

IV The basis of the present claim

Mr. Mark Henderson for the claimant contends that the certificates of the Secretary of State should be quashed because the claims of Mrs. K and her family under Articles 3 and 8 of the ECHR were not without substance and were not bound to fail. He relies strongly on the medical evidence relating to Mrs. K and, in particular, on the report of Dr. Saddik relating to Mrs. K. The Secretary of State has not adduced any medical evidence. So Mr. Henderson submits that the Secretary of State therefore had to proceed to consider whether the claim was “clearly unfounded” on the basis that the evidence from Dr. Saddik was correct and that it would be accepted in full by an adjudicator. Mr. Ashley Underwood QC for the Secretary of State has not suggested that this is an incorrect approach and I will therefore adopt it. Mr. Henderson submits that this evidence shows that the certificates must be quashed.

Mr. Underwood contends that the certificates were correctly issued because the human rights claims made by the claimant under Articles 3 and 8 were bound to fail, even in the light of Dr. Saddik’s evidence. It is appropriate now to consider the claim under Article 3.

Article 3 of the ECHR provides that:-

“No-one should be subjected to torture or to inhuman or degrading treatment or punishment”.

Mr. Henderson contends that in the light of the experience of the claimant in Kosovo, any decision to remove her or to threaten to move her to Germany is likely to increase substantially the risk of her committing suicide. He submits that in the light of the approach of the Court of Appeal in the case of R (Razgar) v. Secretary of State for the Home Department [2003] EWCA Civ 840, the certificate must be quashed in respect of the Article 3 claim. In that case, the Court of Appeal considered three conjoined appeals dealing with three different certifications by the Secretary of State that human rights claims were “manifestly unfounded”.

Dyson LJ giving the judgment of the Court stated in dealing with one of those appeals in the case of Soumahoro that “if it was arguable on the evidence that there was a real risk of a significantly increased risk that if [the claimant] were removed to France, [she] would commit suicide, then, in our view, her claim based on Article 3 could not be certified as manifestly unfounded” [85].

Mr. Underwood accepted at the hearing that if that principle is still good law, he would have very substantial difficulties in resisting the claim that the certification in October 2003 by the Secretary of State of the human rights claim was clearly unfounded. Nevertheless, he submits that what was said by Dyson LJ no longer represents the law in the light of what has been stated even more recently by the Court of Appeal in N v. Secretary of State for the Home Department [2003] EWCA Civ 1369 and in Djali v. The Immigration Appeal Tribunal [2003] EWCA Civ 1371. In order to resolve this issue, it is necessary first to summarise the medical evidence in this case, then to consider the effect of Soumahoro on the present claim and finally to look at the impact on the present claim of the Court of Appeal’s more recent decisions in N and Djali.

In order to understand the medical evidence, it is appropriate to recite some details of the experiences of Mr. and Mrs. K in Kosovo, which I derive from Dr. Saddik’s report. Mr. and Mrs. K, who married in 1997, lived in Mitrovitza, which is a border town currently under dual Serbian and Kosovan rule. Their home is on the Serbian side of the town but they cannot go back to this house since as Kosovans, they would be at risk if they were to enter the Serbian part of Mitrovitza.

Dr. Saddik records various traumatic experiences suffered by Mrs. K in Kosovo during the war years and, in particular, in 1998. Mrs. K refers to two incidents of which the first was when her father was killed in her presence. This happened after the police had attempted to rape her and her father intervened by moving in front of the Serbian police, who then killed him. Dr. Saddik considers that those comments by Mrs. K indicate that she was then probably raped.

The second incident recorded by Dr. Saddik occurred when the Serbian police cut the throat, hands and arms of her two-year-old nephew when Mrs. K, her husband and their extended family were close by. Mrs. K had a very close relationship with her nephew, who was aged two years at the time of his death.

Other members of the family of Mr. and Mrs. K were killed in the war in Kosovo. The brother, sister, sister-in-law, mother, father and grandparents of Mr. K were murdered with a tractor bomb because of his family’s political involvements. Other members of their families also died during the war.

In February 2000, Mr. and Mrs. K left Kosovo by lorry and about four days later, after several lorry changes, they arrived in Dover where they still live. They now have two children, a son Albion, who was born on 4 December 2000 and a daughter Elidiona, who was born on 16 August 2002.

Dr. Saddik, who is a Consultant Psychologist, saw Mrs. K on two occasions, the first of which was on 29 April 2003. Dr. Saddik noted that “she appeared to have a dead-pan expression and flat affect”. Her memory was poor and she was unable to remember when she married or the dates of birth of her children. Dr. Saddik noticed that Mrs. K was unable to recall what she had stated to him a moment earlier and that “she would lose the flow of what she was saying most times”.

Dr. Saddik recorded that when Mrs. K was asked about her experience in Kosovo, she immediately went into what Dr. Saddik considered to be “what appeared to be a panic attack”. Dr. Saddik described those attacks, during which Mrs. K suffered from shortness of breath, probably quickened heart palpitations and at that time she was banging her chest, throwing water over herself and gasping for breath. She then needed to go to the window to get air and it took some time before she recovered. Mr. K attempted to assist Mrs. K by holding her and by banging her chest at her request but Dr. Saddik noted that his attempts “also appeared futile”. When Dr. Saddik asked Mrs. K about this, she stated that she had those experiences every time when she thought about Kosovo and that they occurred on a daily basis.

On another occasion during the interview, Dr. Saddik said that Mr. K mentioned the nephew of Mrs. K at which point she started crying and grasping her baby tighter to her. Dr. Saddik noted that at one point during the interview it became clear that Mrs. K’s son was a trigger to her flashbacks and to her memories of her experiences in Kosovo.

Dr. Saddik also saw Mrs. K on 9 October 2003 when Mrs. K seemed more depressed than before and “her expression appeared more dead-pan” with Mrs. K crying more during the interview. Dr. Saddik noted that Mrs. K did not engage with her children at all and she “could not seem to move physically in order to attend to her children”.

Dr. Saddik also mentioned that the Kurtollis’ two children were present during both interviews and she recorded a lack of contact with them. She noted that Mrs. K was and still is under the care of a Consultant Psychiatrist, Dr. Malasi. She also sees her General Practitioner, who was originally Dr. Le Feuvre, but when he left the clinic, Mrs. K’s condition deteriorated. She refused to leave his clinic when she heard he was leaving as she had seen him since she had arrived in the United Kingdom so that he was aware of her difficulties. After Dr. Le Feuvre left, Mrs. K refused to see any other doctor other than Dr. Le Feuvre’s wife, Dr. Montgomery.

As I have already explained, a fundamental feature of the claimant’s case is the attitude of the claimant towards suicide. Dr. Saddik explains on page 7 of her report that:-

“In March 2001, Mrs. K attempted suicide by drinking bleach. When I heard this I asked her if her experience in Kosovo included her being raped. She stated it had, however she was unable to recall when, except to say it was at the time of the incident when her father was shot (as described in paragraph 24 above). She was stopped by a visitor coming to the door.

Despite this Mrs. K reports constant thoughts of death and wishing she could die. These thoughts have not extended to her planning suicide. However she sees no reason to live. Mrs. K states consistently that if she is required to leave the UK she would kill herself. Mrs. K’s suicide attempt occurred when she was told she had to leave the country”.

Dr. Saddik explained the way in which Mr. K copes with his wife’s problems. Mrs. K remains under strict medical conditions and Mr. K has been instructed by Dr. Le Feuvre not to leave Mrs. K’s side. At night, he monitors her behaviour and her sleep-walking to prevent the children being at risk. He is also required to prevent her from watching television or from listening to the news in case the Kosovan troubles are mentioned. Mr. K also prevents his wife from speaking to her family in Kosovo since she feels that they are in danger and this fact upsets her greatly.

Mr. K has also been informed by Dr. Le Feuvre and Dr. Malasi, Mrs. K’s Consultant Psychiatrist, not to inform Mrs. K about their immigration difficulties or about the court proceedings now taking place. Mrs. K’s response to Mr. K’s support is variable. She believes that he is a great support to her, but that on occasions she fights his constant presence and his restrictions so that she screams and pushes him away.

Dr. Saddik records in her report that she has spoken to Dr. Malasi, who stated that Mrs. K’s mental condition “was at the most severe end of those asylum seekers that he sees”. This is significant because he apparently does a great deal of work among the asylum seekers, especially as he is based in Dover.

Dr. Saddik states on page 9 of her report of Dr. Malasi’s view of Mrs. K that:-

“He recognises she is under increasing pressure and stress as a result of her immigration status and threat of returning to a situation in which she was traumatised. He states she appears to be getting worse. He stated that Mr. K’s anxieties have also increased due to more frequent nightmares and panic attacks, and his need to manage these. He also believes that as long as Mrs. K is in a perceived trauma situation, more intensive psychiatric treatment is inappropriate”.

Dr. Saddik said that Mrs. K described her symptoms as being “really nervous” but when she was asked what really made her nervous, Mrs. K stated that she feels nervous when she remembers what happened to her. These flashbacks are then described by Dr. Saddik on page 10 of the report in the following way:-

“These occur daily and possibly continue for most of the day. The flashbacks refer to the two life threatening incidents detailed above [as described in paragraphs 24 and 25 above]. In particular one flashback is seeing her hands covered in blood and her father’s body in her hands. A second is seeing her nephew being massacred. The main trigger to her flashbacks is the presence of her son Albion who has a very strong resemblance to her nephew and is currently at the age at which her nephew was massacred. It was easier for Mrs. K to have a daughter than this son, since he is a constant reminder of the trauma. Though she states she loves him very much it makes it very difficult for her to relate to him and parent him. Other triggers for the flashbacks include mention of Kosovo, the word ‘police’ though she appreciates that from her experience in England the police are very helpful, and any television or news of war, trauma, death etc. The consequences of the flashbacks include panic attack symptoms, some aggression, Mr. K stated that ‘she talks nonsense’ and at times she will push Mr. K away. However Mr. K stated that she is very careful in the management of her children and much more careful with them than with him. The flashbacks commenced 2-3 weeks after the birth and seem to have been brought on by having a male child and suffering from postpartum depression”.

According to Dr. Saddik, Mrs. K is currently diagnosed as experiencing Post-Traumatic Stress Disorder and severe postpartum depression with possible psychotic symptoms. Dr. Saddik said that she and Mrs. K’s Consultant Psychiatrist, Dr. Malasi are both of the opinion that the condition of Mrs. K is “still getting worse”. Dr. Malasi attributes her worsening symptoms to “the increasing pressure of immigration issues and the threat of her returning to the country where the traumas occurred or to a country where she does not feel safe”.

Dr. Saddik also notes that in the event of Mrs. K leaving the country, the loss to her and her family of the professional support that the family had built up with general practitioners, the psychiatrist, the asylum team and others including members of the local community are so significant that the threat of this loss would further disturb Mrs. K. Dr. Saddik says that if these professional relationships were now to be involuntarily broken, it would be extremely difficult in the light of that severe setback for her to build up new professional relationships in Germany.

In Dr. Saddik’s view, Mrs. K poses a risk to the emotional and psychological development of her children. At present, according to Dr. Saddik, the children are “generally not at risk of immediate neglect or of physical harm entirely as a result of their father’s care and hyper-vigilance around protecting them from their mother’s absence of care for them and possible smothering”.

Dr. Saddik, who as I have explained in paragraph 33, had previously recorded that Mrs. K’s thoughts had not extended to planning suicide, was also asked to comment specifically on the effect of removal on Mrs. K given her traumatic experiences and the risk that this may pose for the children. Her response on page 12 of her report is that:-

“If Mrs. K was in the first instance aware of a decision that she would have to leave the country, she is highly likely to attempt to commit suicide unless she had very close medical supervision at all times. It would lead to an immediate worsening of the symptoms described above.

Mrs. K’s subjective fear of removal from the UK including to Germany is exceptionally high. Mrs. K believes she is likely to be separated from her husband either by death or imprisonment, if they return to Germany. The impact of her perceived fears would probably cause a deterioration of her condition such that she would probably succeed in committing suicide whether prior to or after removal. Her previous suicide bid in similar circumstances is an extremely serious indicator of a future attempt and evidence shows that someone who has already made a suicide attempt is likely to be more successful in a subsequent attempt”.

This evidence was supported by the fact that Mrs. K had made a previous attempt to commit suicide by drinking bleach when she was told that she had to leave the United Kingdom. It is necessary to stress that the risk of suicide was not because of inadequate facilities in Germany but because of a fear of removal and separation. Dr. Saddik made a number of recommendations, one of which was that she should not be removed from England. Another was that once Mrs. K’s future is sorted out in the United Kingdom, then specific psychological treatment for Post-Traumatic Stress Disorder would be recommended.

It is now necessary to consider in some detail a case to which Mr. Henderson attaches great importance and that is the decision of the Court of Appeal in one of the conjoined appeals considered in Razgar, which was the appeal of Soumahoro, in which the appellant arrived in the United Kingdom from the Ivory Coast and claimed asylum. France accepted responsibility under the Dublin Convention for the examination of her claim. In the light of that acceptance, the Secretary of State refused her claim for asylum without consideration of the merits and he issued a “manifestly unfounded” certificate.

Soumahoro appealed on the grounds that it would be a breach of her rights under Article 3 of the ECHR to remove her to France since the psychiatric evidence indicated that her subjective fear of being returned by the French authorities to Ivory Coast was such that the removal to France would lead to a real risk of suicide. Although the Adjudicator allowed Soumahoro’s appeal, the Immigration Appeal Tribunal allowed the Secretary of State’s appeal. Soumahoro did not seek to challenge the decision of the Immigration Appeal Tribunal, but instead her solicitors made further representations on the basis that her removal to France would constitute a breach of her rights under Article 8 of the ECHR. The Secretary of State certified Soumahoro’s allegation of a breach of her human rights as being “manifestly unfounded” and removal directions were issued.

Further evidence was then adduced in support of the contention made on behalf of Soumahoro that the certification was erroneous and that her removal would be disproportionate. The Secretary of State was served with further evidence but he rejected the claim saying that the proper course of action was for Soumahoro to be removed to France where “her application for asylum will be considered in accordance with France’s international obligations, as would any claim that her human rights would be breached by returning her to the Ivory Coast”.

The appellant’s solicitors took issue with the Secretary of State and they submitted that any action by the Secretary of State to detain the appellant before she was removed would exacerbate her mental anguish and that it would result in a breach of her rights under Article 3. The Secretary of State was asked to reconsider his decision to set removal directions but he subsequently maintained his previous position in upholding the “manifestly unfounded” certificate.

Soumahoro then sought to judicially review that decision and the removal directions. The case for Soumahoro was advanced on the basis that the certificate should be quashed on Article 3 grounds. After the judge at first instance had rejected her claim, she appealed successfully to the Court Appeal.

Dyson LJ giving the judgment of the Court of Appeal, explained that:-

It is now necessary to explain how the Secretary of State arrived at his decision to certify in this case. As I have explained, he did this on the basis initially, in his letter of 2 October 2003, which was, of course, before he had received Dr. Saddik’s report. In that first letter, the Secretary of State noted that nowhere in the information on Mrs. K that had been submitted to him was there any information concerning three issues, which were first any prognosis of Mrs. K’s state if she were to remain in the United Kingdom, second any attempt to evaluate the risk of Mrs. K harming herself or her baby if she was removed to Germany and third, any evidence on the possibility of medical treatment in Germany or its likely effectiveness. Thus, the Secretary of State remained satisfied that at its highest, the evidence then presented to him disclosed an unquantifiable risk that Mrs. K might have been more likely to harm the baby or to suffer harm if removed.

The letter also records that there is no assertion that the level of medical or psychiatric care that Mrs. K would receive in Germany would be in practical terms inferior to that which had been available to her in this country. The Secretary of State had also considered the evidence from Mrs. K’s General Practitioner, Dr. Le Feuvre before concluding that the medical evidence was not capable of establishing either the degree of harm necessary to trigger liability under Article 3 as a result of the removal or to show any relevant causation. The Secretary of State then stated that he was also satisfied that Mr. K had not established that the removal of him and his family arguably constituted a breach of the family life provisions of Article 8 as there was no intention to separate the family.

He concluded his letter by saying that:-

“He has balanced your client’s representations against his duty to Parliament to maintain a credible and effective immigration policy, and his other public interest concerns, to which he of necessity attaches very great weight. The initial certification in your client’s case was pursuant to provisions in the Immigration and Asylum Act 1999 which have been repealed or replaced (sections 65 and 72). He therefore maintains his decision that your client’s allegation, that his return to Germany would breach his human rights, is clearly unfounded and accordingly he hereby certifies to that effect pursuant to Section 93(2)(b) of the Nationality, Immigration and Asylum Act 2002”.

Thereafter, the Secretary of State received Dr. Saddik’s report as well as two witness statements or draft witness statements. The first was that of Mr. K in which he said, amongst other things, that he felt fearful of the deterioration of his wife’s health because removal of her to Germany would in her mind be equivalent to being sent back to Kosovo. He also said that he could not bear to think about the effects of such an upheaval on his wife’s mental state as she was so withdrawn already and was hardly capable of coping with the children. Mr. K also pointed out that she had built up a relationship with her General Practitioner and psychiatrist, which is important because it took some time for Mrs. K to be persuaded by him even to see the psychiatrist. Thus, he says to disrupt his wife’s treatment now would be unbearable.

Mr. K also pointed out that Mrs. K had been supported emotionally by two friends in this country and in particular by Nexhmije Barja Zani, who was also an ethnic Albanian who had known Mrs. K since the schooldays, but now lives in Dover having settled status in the United Kingdom. He explained that she had given much friendly support to his wife, as had another friend, Deborah Simpson, who visits Mrs. K on a weekly basis and who takes her out shopping.

The second witness statement comes from Ms. Zani, who as Mr. K had explained, was an old school friend of Mrs. K. She explains that Mrs. K is now a very different person from the person whom she originally knew in their home area. Ms. Zani thought that her contact with Mrs. K had provided her with the valuable emotional support.

In his letter of 17 October 2003, the Secretary of State maintained his certificate and he concluded his letter to the claimant’s solicitors by saying:-

“5.

The Secretary of State has carefully reviewed his position in the light of all the material that you have presented. The report of Ms. Desiree Saddik, in particular the stated suicide risk if Mrs. K is required to leave the United Kingdom, has been given particularly anxious consideration. In this regard, all reasonable steps will be taken to minimise that risk by providing medical and security escorts throughout her return to Germany. The German authorities will be informed of her medical and psychiatric condition well in advance of her return there so that they can make appropriate reception arrangements. I am entirely satisfied that Mrs. K will have immediate and free access to appropriate treatment in Germany and, prior to her removal, I will confirm with the German authorities that she will be met on arrival, assessed and provided with such treatment as she may require. She will not be removed until I have that reassurance. If you or Mrs. K’s medical advisers wish to suggest other safeguards then I will be pleased to take those suggestions into account. For example it may be desirable to have one of her medical advisers on hand when she is served with removal directions, and I would welcome your views.

6.

Having fully considered the information referred to above, the Secretary of State is satisfied that there is nothing in the evidence now available to him that demonstrates any possibility that a Special Adjudicator could find in your client’s wife’s favour on Articles 3 or 8 of the ECHR”.

In order to show that the K family do not have any Article 3 claim, Mr. Underwood seeks to obtain assistance from the European Court’s decision in Bensaid v. United Kingdom (2001) 33 EHRR 10, in which an Algerian had claimed unsuccessfully that removal of him from this country to Algeria would infringe his Article 3 rights because of the disparity between the medical treatment he was receiving in England and what he would have received in Algeria. The applicant in that case claimed that his proposed expulsion to Algeria placed him at risk of inhuman and degrading treatment.

I do not derive assistance from that case for three reasons. First, in common with many cases on what engages a breach of Article 3, the Court’s decision in Bensaid was fact-sensitive. Second, the Bensaid judgment deals with the issue of the difference in treatment of the applicant in England and the country to which he or she is to be sent, which is not the issue that arises in this case, where the claim relates to the traumatic effects of an actual or a threatened move on a psychiatrically ill wife and mother. Third, Bensaid dealt with the issue of whether Article 3 rights had actually been infringed while the present case is concerned with the different issue of whether the Article 3 claim reaches the high threshold of being “clearly unfounded”.

I also considered Mr. Underwood’s submission that the present human rights claim of the K family should, like the claim of Bensaid, be considered to be “speculative” [39]. There is a marked difference from the role of the European Court which was to ascertain if a breach of Article 3 had occurred from my role in this case, where the decision of the Secretary of State is subjected to rigorous scrutiny to see if the claim of the K family is without any basis. In other words, a lower threshold is required. It is clear from Dr. Saddik’s evidence that the consequences to Mrs. K and her family of being told of a move and a subsequent move are much more certain than “speculative” not only for the reasons set out in paragraph 42 above but also because she had attempted suicide before when she was told that she had to leave the country.

In written submissions sent after the oral hearing, Mr. Underwood attaches great significance to the precautions to which the Secretary of State referred in paragraph 5 of his letter of 17 October 2003 and which are set out in paragraph 56 above. They were (i) that all reasonable efforts would be taken to minimise the suicide risk by providing medical and security escorts throughout her return to Germany, (ii) that the German authorities would be informed of her medical and psychiatric conditions “well in advance of her return so that they can make appropriate reception arrangements”, (iii) that he was “entirely satisfied” that Mrs. K would have immediate and free access to appropriate treatment in Germany, (iv) that prior to her removal he “would confirm with the German authorities that she will be met on arrival, assessed and provided with such treatment as she might require” and that prior to receiving that assurance, she would not be removed and (v) that he “will be pleased” to take into account any other safeguards that Mrs. K’s solicitors or her medical advisors wished to suggest to him. Mr. Underwood submits that the decision to remove the K family with those safeguards “could not be said to be an affront to humanitarian principle”.

In Soumahoro, the judge at first instance said that the Secretary of State would have to take necessary steps for ascertaining and safeguarding the claimant in that case as soon as the decision was published and as soon as any order was made and from then on until handover to the French authorities. They must be fully appraised of the situation so that any risk is minimised to the maximum extent.

Dyson LJ said in relation to the precautions that had been proposed by the Secretary of State in that case that:-

“There was no evidence as to what precautions would be taken to minimise the risk of suicide, and in particular what measures the French authorities would take and for how long; and how effective they would be. Without a clear understanding of what precautions would be likely to be deployed and how effective they would likely to be, we do not see how the Secretary of State could have been satisfied that this claim would be bound to fail” [86].

I agree with Mr. Underwood that the detail of the safeguards that the Secretary of State set out in his letter of 17 October 2003 were more extensive than those proposed in the Soumahoro case. Nevertheless, in this case the Secretary of State was leaving very important matters in the hands of the German authorities. They merely had to undertake that Mrs. K would be “met on arrival, assessed and provided with such treatment as she may require”. Although the Secretary of State said he would consider any proposals from the claimant’s solicitors, the interference with the Article 3 rights of Mrs. K and her family would arise, as I have explained in paragraph 42 above, not because of inadequate resources in Germany but because of the increased risk that Mrs. K would commit suicide either when told of her impending removal to Germany or when she is removed.

I cannot accept for two reasons Mr. Underwood’s submission that the safeguards proposed by the Secretary of State mean that his decision under challenge cannot be impugned. First, the suggestions of the Secretary of State aimed at assisting the K family in Germany do not address a major feature of the challenge to the certificates, which relate to the fears concerning Mrs. K’s actions in this country when she is told that she will be removed from this country to Germany and back to Kosovo. Those fears are not concerned with the inadequacy of treatment in Germany as the Secretary of State’s arguments suggest, but as I explained in paragraph 42 above, Dr. Saddik considers that if Mrs. K was notified of the decision that she would have to leave this country “she is highly likely to attempt to commit suicide unless she had very close medical supervision at all times”. Second, in any event, the contention of the Secretary of State that the human rights claim “must clearly fail or would be bound to fail” is not well-founded when the extent of the safeguards being offered to them remain uncertain as irrespective of what might be suggested to him, the reaction of the Secretary of State to such suggestion is unclear with the result that there may or may not be additional safeguards. In other words, the uncertainty about the safeguards means that I cannot be satisfied that the Article 3 claim cannot reach the low threshold so as to be clearly unfounded. The position on safeguards might have been different if the Secretary of State had received the suggestions from the claimant’s solicitors and dealt with them fairly before issuing his certificate.

As Dyson LJ explained in Soumahoro, “there is no evidence as to what precautions would be taken to minimise the risk of suicide and in particular, what measures the [receiving country’s] authorities would take and for how long and how effective they would be”. As I have already stated, Mr. Underwood with characteristic frankness admitted at the oral hearing that he would have substantial difficulties in resisting the claim in respect of Article 3 if the last word on the state of the law was what had been expressed by Dyson LJ in Soumahoro in the passage that I have quoted. I agree because it is quite clear from the evidence of Dr. Saddik, that in the words of Dyson LJ in paragraph 85 of Soumahoro, which I have already quoted in paragraph 49(iii), it was arguable on the evidence that “there was a real risk of a significantly increased risk” that if [Mrs. K] were removed to [Germany], [she] would commit suicide. On that basis, like Soumahoro, her claim based on Article 3 could not be certified as “clearly unfounded”, especially in the light of the high threshold that has to be reached before such a certificate can be given.

I am fortified in coming to that conclusion by similarities between the present case and that of Soumahoro. It is noteworthy that in Soumahoro, the Court of Appeal held that the human rights claim could not be certified as “manifestly unfounded” because the applicant first was suffering from depression, second, she had taken overdoses on two occasions and third, if removed to France, there would be a real risk of her committing suicide until she realised that the French authorities did not intend to send her back to the Ivory Coast, assuming this to be the case. In the present case, Mrs. K had attempted suicide by drinking bleach when she was told that she had to leave this country, but apart from that, her case is very similar to Soumahoro in two respects. First, as Dr. Saddik records that while Mrs. K’s present thoughts “have not extended to her planning suicide”, Mrs. K states constantly that if she is required to leave the United Kingdom, she would kill herself. Second, Dr. Saddik explains that “the impact of her perceived fears would probably cause a deterioration of her condition such that she would probably succeed in committing suicide whether prior to or after removal”. This is a greater risk of suicide than if she was allowed to remain in this country.

Thus, the reasoning in Soumahoro means that the present claim succeeds on Article 3 unless, as Mr. Underwood submits, the law has been altered by N and Djali to which I now turn.

As I have explained, the decision of N given on 16 October 2002 represents the latest statement of the Court of Appeal’s approach to Article 3. Mr. Underwood contends that for that reason, I should follow it rather than anything that had been said in Soumahoro. Mr. Henderson contends that the reasoning and decision in Soumahoro is unaffected by N. So it now becomes necessary to consider in some detail what N actually decided.

In that case, N, a Ugandan citizen arrived in the United Kingdom on 28 March 1998 with a false passport. At that stage, she did not know that was seriously ill and she that was HIV positive. In support of her claim for asylum, it was pointed out that her life expectancy was under 12 months if she was returned to Uganda where she would receive adequate treatment, while if she stayed in the United Kingdom, she “is likely to remain well for decades”. The Secretary of State refused N’s asylum claim. The adjudicator dismissed the asylum appeal but allowed her appeal based on Article 3 and he did not find it necessary to consider the case put forward under Article 8. The Immigration Appeal Tribunal allowed the Secretary of State’s appeal against the determination of the adjudicator. The Court of Appeal held that the decision of the Immigration Appeal Tribunal was “flawed by the want of legally sufficient reasons” (per Laws LJ [25]).

The issue that the Court of Appeal then had to consider was whether the matter should be remitted to the Immigration Appeal Tribunal. The Secretary of State argued that N was not entitled to the protection of Article 3, even taking the evidence in the case at its highest in her favour and so that there would be no point in remitting the case. The majority of the Court of Appeal accepted that submission and it is their reasoning on that issue on which Mr. Underwood relies as showing that the Secretary of State’s certificates on the Article 3 ground cannot be impugned.

Counsel for N had contended the case should be remitted to the Immigration Appeal Tribunal because there were prospects of N succeeding at the remitted hearing in the light of the decision of the European Court of Human Rights in D v. UK (1997) 24 EHRR 423. In that case, it was held that it would have been an infringement of the applicant’s rights under Article 3 to return the claimant, who was then in the advanced stage of a terminal and incurable illness to his home country of St. Kitts where he would die without medical treatment in appalling conditions whereas if he remained in this country, he would receive sophisticated medical treatment and have a longer life.

Laws LJ considered that the issue raised on the applicability of D to N’s case was, with his italicised emphasis “the extent to which as a matter of principle the signatory States to ECHR have undertaken to protect individuals from what may be done to them, or what they may suffer, in other jurisdictions” [27].

He explained, with his own emphasis italicised, that:-

“the decision in D, then, on its face contemplates that Article 3 may oblige a State Party to the ECHR to give refuge to an immigrant so as to protect him from the happening of events in his own country which would not themselves give rise to a violation of the Article 3 standard; and this, despite the fact that as [the decision of the Court of Appeal in Ullah v. Special Adjudicator [2003] 1 WLR 770] makes plain, “extra-territorial” effect constitutes an exceptional extension of the Treaty obligations, even in a case where what may await the applicant if returned home would breach the Article 3 standard” [36].

Laws LJ also accepted as correct the contention of counsel for the Secretary of State that the decision in D involved an:-

““Extension of an extension” to the obligation owed under Article 3. Not only was the signatory State made liable, by a constrained exception to its immigration policy, to protect an immigrant from what might happen to him in violation of the Article 3 standard in another jurisdiction over which it had no control: so much was given by Soering [Soering v. UK (1989) 11 EHRR 439 was a case in which extradition to the United States was not allowed because the applicant feared a real risk of the death row phenomenon]. It was now made liable to do so also where, and only because, the humanity of the immigrants’ treatment here stood in too great a contrast to what, without violation of the Article 3 standard, would befall him there” [37].

In paragraph 40 of his judgment, Laws LJ explained that:-

“I am no less clear that D should be very strictly confined. I do not say that its confinement is to deathbed cases; that would be a coarse rule and an unwise one: there may be other instances which press with equal force. That said, in light of the considerations I have described I would hold that the application of Article 3 where the complaint in essence is of want of resources in the applicant’s home country (in contrast to what has been available to him in the country from which he is to be removed) is only justified where the humanitarian appeal of the case is so powerful that it could not in reason be resisted by the authorities of a civilised State. This does not, I acknowledge, amount to a sharp legal test; there are no sharp legal tests in this area. I intend only to emphasise that an Article 3 case of this kind must be based on facts which are not only exceptional, but extreme; extreme, that is, judged in the context of cases all or many of which (like this one) demand one’s sympathy on pressing grounds”.

Carnwath LJ dissented but Dyson LJ agreed with Laws LJ and he said of the decision in D that:-

“The court did not explain why it was only in exceptional circumstance that Article 3 was engaged in a case “where the source of the risk of proscribed treatment in the receiving countries stems from 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” (para 49). But in my judgment it is implicit in the approach of the court that it recognised that this was an extension of an extension to the Article 3 obligation as Laws LJ explains at paras 36 and 37 of his judgment. For this reason, it is only in a very exceptional case, where there are compelling humanitarian considerations in play, that the application of the extension to the extension is justified. It is clear that what was considered by the court to be very exceptional about the facts in D was that the applicant’s fatal illness had reached a critical stage and that “the limited quality of life he now enjoys results from the availability of sophisticated treatment and medication in the United Kingdom and the care and kindness administered by a charitable organisation” … it was not the inequality of the medical treatment that made the removal a violation of Article 3. It was the fact that the applicant was to be deported in the final stages of an incurable disease” [46].

Mr. Henderson disputes Mr. Underwood’s submissions first, that what was said in N, rather than the decision in Soumahoro, represents the present law and second that in consequence the claimant’s application must fail. As I will explain, I have concluded that Mr. Henderson is correct. Four overlapping reasons individually and collectively drive me to that conclusion first, that N and Soumahoro were dealing with different and discreet issues, second that Soumahoro is still good law and finally, that it, and not N, is applicable to and determinative of this application in relation to Article 3.

First, for the seven reasons that I will outline, I do not consider that anything that was said by the majority of the Court of Appeal in N undermines or derogates in any way from the clear approach of Dyson LJ giving the judgment of the Court of Appeal in Soumahoro relating to the fear of the applicant committing suicide.

Those reasons in no particular order of importance are that:-

The second reason why I do not think that the reasoning in the N case assists the Secretary of State even in respect of the consequences that might occur to the K family of moving abroad is that N was dealing with a case where the complaint is of lack of resources in the applicant’s home country, which in that case related to deficiencies in the medical services in Uganda. The risk of expedited death in N’s case would only arise because of this deficiency in Uganda. The concerns of the K family, like those of Soumahoro which give rise to their Article 3 human rights claim, do not relate to lack of resources in the applicant’s home country or indeed lack of resources anywhere. As I have explained, the main reasons why Dr. Saddik contends that the claimant should not be moved are first, that there is “a high subjective fear of removal from the United Kingdom, including to Germany” (page 12 of her report), second that the family “are likely to be accommodated amongst war traumatised communities [which] is likely to evoke further memories of trauma for Mrs. K and worsening still of her condition, including significant increased suicide risk” (page 13 of her report) and third, Mrs. K’s “intense fear of returning to Kosovo” (page 20 of her report). In other words, the basis of the Article 3 complaint in the present case was the likely trauma caused to Mrs. K and the consequences to her family of her contemplating a move and actually moving abroad from Dover. There is no complaint whatsoever of lack of resources for the claimant outside this country with the result that the reasoning of the majority of the Court of Appeal in N is inapplicable to this case.

The third reason is that it is necessary to distinguish between events which found an Article 3 claim that occurred in the United Kingdom and those which happen abroad because N was concerned with events occurring outside the jurisdiction, while the K family would suffer in this country. In other words, there is nothing extraterritorial about where Mrs. K would suffer as I must now explain. An important ingredient of the Article 3 claim of the K family is the consequence to Mrs. K of being told while she was living in this country that she would have to go abroad. In that case, as I have explained in paragraph 42 above, if Mrs. K were aware of a decision that she would have to leave the country, then, in Dr. Saddik’s words, “she is highly likely to attempt to commit suicide unless she had very close medical supervision at all times”. It would, in Dr. Saddik’s words, “lead to an immediate worsening of symptoms”, while at present her “thoughts have not extended to her planning suicide”. Dr. Saddik also explains that Mrs. K’s fear of removal from the United Kingdom, including to Germany is “exceptionally high” and she “believes she is likely to be separated from her husband either by death or imprisonment if they returned to Germany”. Then it is pointed out by Dr. Saddik that “the impact of her perceived fears would probably cause a deterioration of her condition, such that she would probably succeed in committing suicide whether prior to or after her removal”. It is also said by Dr. Saddik that her previous suicide occurred in similar circumstances and this is “an extremely serious indicator of a future attempt and evidence shows that someone who has already made a suicide attempt is likely to be more successful in a subsequent attempt”.

A fourth reason is that the reasoning of the Court of Appeal in N is based on the same overriding principle as was adopted by the Court of Appeal in Soumahoro; this indicates a similar approach was adopted in both cases as the basis of its decision. The common overriding principle is for the application of the ECHR to the act of expulsion, 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” (R (Ullah) v. Secretary of State [2002] QB 525 [39] per Lord Phillips of Worth Maltravers MR giving the judgment of the Court of Appeal). The decisions and approaches of the Court of Appeal in N and Soumahoro are best understood as identical approaches to different problems, which therefore produce different results. This indicates that the decision in N is not a judicial change of course from Soumahoro.

Thus, the reasoning in Soumahoro remains valid and it is relevant to the present case. The evidence in this case shows that the risk of Mrs. K committing suicide in England or abroad when she was told in England that she would leave this country and this would establish “a real risk of significantly increased risk that she would commit suicide”, which in Dyson LJ’s views in Soumahoro would mean that a claim based on Article 3 “could not be certified as manifestly unfounded” [85]. I stress the difference between the attitudes of Mrs. K at the present time and if she was told that she would be sent to Germany. Dr. Saddik records that in the first case, she is not planning suicide but in the second case “the impact of her perceived fears would probably cause a deterioration in her condition, such that she would probably succeed in committing suicide whether before or after removal”. For the purpose of completeness, I could not find anything in the Secretary of State’s letter of 17 October 2003 which undermines in any way this evidence of Dr. Saddik, which I have just quoted on the increased risk of Mrs. K committing suicide first if she was told that she would have to leave this country or second if she was removed from this country.

In case I am wrong and Dyson LJ’s approach in Soumahoro is no longer good law, I have also considered the challenge to the Secretary of State’s certificate on two alternative bases. The first is that in the event that Mr. Underwood is correct in submitting that an Article 3 claim can only succeed, in the words of the his latest skeleton argument, which are reminiscent of Laws LJ’s comments in Re N, namely that such a claim only lies “in those exceptional situations where the humanitarian case against removal is so powerful that it could not reasonably be resisted by a civilised state or is an affront to humanitarian principles”. If that was the correct criterion for success of the present challenge, I would still hold that the Secretary of State was not entitled to not withdraw his certificate in his letter of 17 October 2003 on the Article 3 claim. The reason for that view is the fear of removal or the effect of removal of Mrs. K would be an affront to humanitarian principles because, as I have explained, the notification of the decision to remove Mrs. K with her mental health problems caused by her experiences in Kosovo and the implementation of that decision would mean, according to Dr. Saddik’s evidence, that the mental condition of Mrs. K who is not at present planning suicide, would probably deteriorate so that she would probably or might well succeed in committing suicide. To my mind, to remove or to threaten to remove a person psychiatrically and psychologically scarred in the way that Mrs. K is, would affront humanitarian principles in the light of the greatly increased risk that she would commit suicide.

The second alternative basis on which I considered the Article 3 claim was that propounded by Laws LJ in N. I considered that for the reasons that I have set out in paragraph 84, this claim was not bound to fail or was not without substance, because in Laws LJ’s words in Re N, which I have quoted in paragraph 75 above, the effect of notification of removal or actual removal on Mrs. K was “not only exceptional but extreme because of the increased risk of committing suicide”.

To my mind, adopting the tests that I have set out in paragraph 12 above, and irrespective of whether I apply Dyson LJ’s approach in Soumahoro or Mr. Underwood’s test set out in paragraph 84 above or Laws LJ’s test in N, the Secretary of State’s decision of 17 October 2003 to maintain and to refuse to withdraw his certificate of 2 October 2003 must be quashed as he could not be “reasonably and conscientiously satisfied that the allegation must clearly fail” (per Lord Bingham of Cornhill [14]) or was “so clearly without substance that the appeal to [the adjudicator] would be bound to fail” (per Lord Hope [34]) or “it is plain that there is nothing of substance in the [claimant’s] allegation” (per Lord Hutton [72]).

I am satisfied that after applying any of those tests, the Secretary of State was not entitled to maintain or to refuse to maintain his certificate that the claim under Article 3 was clearly unfounded because there is a real risk of a significantly increased risk that if Mrs. K were to be told that she was to be removed to Germany and/or if she was removed to Germany, she would then commit suicide. The Secretary of State was not entitled to maintain his certificate on the Article 3 claim and it must be quashed.

In the light of my decision in respect of the Article 3 claim, it is unnecessary for me to comment on the Article 8 claim as the claimant succeeds.