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

Although this application for judicial review was originally on a number of grounds, Mr. Jorro on behalf of the Claimant, sensibly and realistically has limited it to one. He seeks to quash the decision of the Secretary of State under section 72(2)(a) of the Immigration and Asylum Act 1999 to certify as manifestly unfounded human rights claims by the Claimant and her son.

Although the Claimant’s account has changed significantly from time to time, for present purposes it can be taken as follows. She is a Kosovan Albanian of mixed Serbian ethnicity. She married her husband, a Kosovan of Albanian ethnicity, in Kosovo in February 1993. Mr. H left for Germany a month or two afterwards. Before the marriage the Claimants says she was raped by two Albanian men. The reason was her mixed ethnicity. She has never told her husband. When Mr. H discovered she was not a virgin he reacted badly, thinking she had had a lover.

In August 1997 the Claimant joined her husband in Germany. Although for some time she claimed that only her husband claimed asylum in Germany and that she was never interviewed, investigations by the Secretary of State have revealed that was not so. She claimed asylum and was interviewed. She failed to mention that she had been raped. She said she had no difficulties or problems in the Federal Republic of Yugoslavia. She now gives as the reason for that her fear that Mr. H would learn of the rape. He was outside the room.

Both claims for asylum failed. Mr. and Mrs. H returned voluntarily to Kosovo. (Mrs. H had originally claimed they were deported).

She and her husband came to the United Kingdom in 1998. They entered illegally in a lorry. Her husband claimed asylum in the United Kingdom. She originally claimed as his dependent. On 16 July 1998 Germany accepted responsibility for both of them under the Dublin Convention. On 11 December 1998 the first child, Bl, was born. On 17 April 2000 the second child Be was born. On 10 May 2002 Germany accepted responsibility of their two children who had been born in the United Kingdom. On 20 May 2002 the Claimant made an asylum application in her own right in the United Kingdom. She claimed to fear persecution in Kosovo on account of her mixed Serbian ethnicity. She raised for the first time the allegation she had been raped. She alleged that her removal from the United Kingdom would breach her human rights. On 25 May 2002 her asylum claim was rejected pursuant to section 11(2)(a) of the Immigration and Asylum Act 1999. Her human rights claim was certified as manifestly unfounded under section 72(2)(a) of the Immigration and Appeal Act on 28 May 2002. It is that decision which is now challenged.

Mr. H has also issue judicial review proceedings. His claims have been listed separately because of the allegation of rape.

Although because of the Claimant’s original account of events in Germany, the applicability of the Dublin Convention was in issue, that is not now pursued. Neither is it pursued that Germany, in considering the Claimant’s asylum claim, would not properly apply the Convention. It is accepted that Germany would be amenable to the Strasbourg Court. The only issue is whether the Secretary of State was entitled to reject as manifestly unfounded claims that removal to Germany would breach her human rights. The rights said arguably to be engaged are the Claimant’s under Articles 8 and 3 and the son Bl’s under Article 8 (although it is right to say that Mr. Jorro only advanced argument in respect of the Claimant on the basis of Article 3).

Section 65 of the Immigration and Asylum Act 1999 (“the Act”) creates the right of appeal to an adjudicator.

“(1)

A person who alleges that an authority has, in taking any decision under the Immigration Acts relating to that person’s entitlement to enter or remain in the United Kingdom, acted in breach of his human rights may appeal to an adjudicator against that decision…”

Section 11(3) of the Act provides:

“Unless a certificate has been issued under section 72(2)(a) in relation to a person, he is not to be removed from the United Kingdom—

(a)

if he has an appeal under section 65 against the decision to remove him in accordance with this section pending; or

(b)

before the time for giving notice of such an appeal has expired.”

Section 72 itself provides:

“(1)

Unless a certificate issued under section 11 or 12 has been set aside…the person in respect of whom the certificate was issued is not entitled to appeal under this Act as respects any matter arising before his removal from the United Kingdom.

(2)

A person who has been, or is to be, sent to a Member State or to a country designated under section 12(1)(b) is not, while he is in the United Kingdom, entitled to appeal—

(a)

under section 65 if the Secretary of State certifies that his allegation as a person acted in breach of his human rights….is manifestly unfounded…”

As is well known, Article 3 of the European Convention on Human Rights provides that no-one shall be subjected to inhuman or degrading treatment. Article 8(1) provides that everyone has the right to respect for his private and family life subject only to such interference as is necessary, in this case, having regard to the requirements of immigration control: Article 8(2).

The possible engagement of Articles 8 and 3 as far as the Claimant is concerned is said essentially, although not solely, to revolve around her psychological state as a result of the rapes. For present purposes the Secretary of State is content to leave credibility to the German authorities and to accept the Claimant’s account of rape on its face.

Professor Ian Robbins, Consultant Clinical Psychologist at St. Georges Hospital, has prepared two reports on the Claimant. She spoke to him about the rapes and their effect upon her, which was severe. He described her “Current Mental State” in paragraph 9 of his first report.

“Ms. H describes her mood as low and anxious and says she worries considerably. She has problems sleeping, waking frequently during the night and in the early hours of the morning. Often she re experiences nightmares where she re-lives the rape. She often wakes screaming in the night. In addition to the nightmares of rape she also has nightmares where she sees blood and dead people. She experiences some suicidal thinking, particularly when she feels low and feels dirty. Then she thinks that nobody needs her and her children would be better off without her but generally it is the thought of her children which prevents her committing suicide…[She] has frequent intrusive thoughts of the rape every day, although she tries to avoid it…She tries to avoid thinking about the rape and avoids any films of violence or rape scenes…When asked about her feelings about the possibility of an enforced return to Kosovo [she] states she becomes very frightened and distressed…”

In his conclusions and recommendations, Dr. Robbins states that

“Ms H fears that if she is to be returned to Kosovo [my emphasis] that because of her mixed origins she could be vulnerable to rape again. In addition, to this the sense of shame which public disclosure would engender makes her extremely fearful. On thinking about a possible return she still feels forced to contemplate suicide…It is my belief that were Ms H to be returned to Kosovo [my emphasis] that her mental health would deteriorate severely and that there would be a higher risk of self harm. It is my belief that she would benefit from specialist help to deal with the problems associated with rape and to my knowledge specialist services such as this are not freely available in Kosovo [my emphasis]…In addition, were Ms H to be returned to Germany [my emphasis] where she has previously resided with her husband, I feel that again her condition would [be] likely to deteriorate dramatically. She would feel isolated and entirely dependent on her husband. At present she has made a number of contacts in the UK and it is only these that are helping her to cope currently…In conclusion Ms H suffers from marked post-traumatic stress disorder and depression as a consequence of rape…She is fearful of return to Kosovo [my emphasis] and it my belief that an enforced return would cause her marked deterioration in her mental state and a substantial risk of self harm…In addition were she returned to Germany [my emphasis] where she has previously resided I believe that there would be a marked deterioration in her mental state also.”

In his second report of 12 March 2003, Dr. Robbins speaks of the effect on the Claimant of a return to Kosovo. At most therefore, Dr. Robbins speaks of a dramatic or marked deterioration should the Claimant be returned to Germany. He says nothing about the treatment that would be available for her there.

Mr. Jorro has also relied on the letter from Women Against Rape. It speaks of the effect of the rapes upon the Claimant. She suffers from Rape Trauma Syndrome. It states she tried to commit suicide in Kosovo and Germany, although she could not go through with it. As to her removal from the United Kingdom, it expresses concern if she is returned to Kosovo. It states that she

“…can only begin to recover from her traumatic experiences and rebuild her life if she can stay in a place she feels safe from violence…it is urgent for [her] to be allowed to remain in Britain so she can receive counselling and other support…”

It does not mention the consequences of removal to Germany.

Reliance is placed upon the contents of a letter of 22 January 2003 from the Kent Refugee Support Group. I have read it with care. It is not necessary to quote from it. While it reveals the assistance the Claimant has had, it does not suggest a close network of support, the breaking of which would have profound consequences for the Claimant.

He is now some 3 years 6 months old. It is clear he has developmental problems. They are reflected in, among other things, problems with speech, both Albanian (which he speaks at home) and English (which he speaks at school). Ms Arnott, the health visitor mentions the fact he has been referred for speech therapy. He stammers. Laura Seeley, a speech and language therapist, mentions his “significant delay in…spoken…and understanding language.” He would benefit from speech and language therapy. His nursery teacher speaks of “major problems settling into nursery.” The occupational therapist (in a report of 29 September 2003) speaks of “global developmental delay.” As to recommendations, she suggests that he is encouraged to participate in fine motor activities (which activities are delayed), that the occupational therapist observes him at school and provides advice as necessary and that his progress be reviewed in 8 months time.

There is no suggestion that Bl’s special educational needs could not be met in Germany.

Because it is only in later letters that the Secretary of State goes into the detail of his reasons for the decision to certify, it is not necessary to set out his first letter of 28 May 2002.

In his letter of 25 October 2002, the Secretary of State first set out his decision. He said this,

“The Secretary of State has considered whether removing your client to Germany in her psychological condition would amount to inhuman and degrading treatment. The Secretary of State is aware that Germany has a modern and efficient health service with facilities at least equal to those in the United Kingdom. The German authorities are experienced in dealing with asylum seekers who suffer from post-traumatic stress disorder and other psychological problems. Before she is removed to Germany the authorities there will be made fully aware of your client’s condition. The Secretary of State is satisfied that your client will be medically assessed in Germany and would receive any treatment considered necessary. The Secretary of State would not remove your client to Germany if he was not fully satisfied that appropriate facilities would be available there.

The Secretary of State takes the view that your client’s removal would not constitute inhuman or degrading treatment and would certainly not come anywhere near the threshold required for Article 3 of the ECHR to be breached.

[Bl]…has been assessed by a speech therapist and identified as having problems with his language development. As a child of an asylum seeker he will be entitled to an education and the Secretary of State is satisfied that any special needs will be catered for. Your client’s son is 3 years old and the Secretary of State is confident that the upheaval of removal to Germany will be less disruptive at this age that it would be as he gets older.

The Secretary of State accepts that, on removal, treatment which does not reach the level of severity of Article 3 ill-treatment any nonetheless constitute an interference with the right of respect for private life under Article 8 of the ECHR. However, if such treatment is not attributed to the receiving state a breach will only occur if the person can establish that his or her moral integrity would be substantially affected. Even then the removing state may justify the interference under Article 8(2). The Secretary of State does not accept that the material before him shows an arguable case that removal would constitute such interference.

In any event…he takes the view that any interference…is plainly justified. He takes a serious view of his duty…to maintain a credible and effective immigration control…

He is satisfied they will be able to continue living together as a mutually supportive family unit after their removal.”

In his letter of 10 September 2003 the Secretary of State says,

“[The letter from the Kent Refugee Support Group] states that your client has experienced traumatising events, is at times nervous and anxious and has been receiving support from the asylum team of the social services. However, there is no evidence in this letter to suggest that a breach of your client’s human rights would occur as a result of her removal to Germany in accordance with the law.”

As to both that letter and Dr. Robbins’ report, the Secretary of State, having questioned the accuracy of the Claimant’s account in the light of the changes in it, stated that,

“…in any case, the Secretary of State, having fully considered the letter from Professor Ian Robbins dated 12 February 2002 and the letter from the Kent Refugee Support Group dated 22 January 2003, is not persuaded to alter his opinion that the removal of your client from the UK to Germany would not breach the UK’s obligations under the ECHR. Equally, he does not consider that any adjudicator could reasonably reach a different conclusion.”

He additionally and rightly observed that in his second report, Dr. Robbins did not consider return to Germany.

As to Article 8, he stated,

“…neither does the Secretary of State consider that the letters establish that it is arguable that the effect on your client’s private life and that of her son’s could reach the threshold at which it could be argued that a breach of Article 8(1) might occur. This threshold is, of necessity, high...

The Secretary of State does not consider that an adjudicator would be persuaded that the evidence concerning the effect on your client of removal to Germany demonstrates a sufficiently serious effect on your client’s psychological integrity. Professor Robbins stated in his first report dated 7 August 2002, that your client would feel isolated and entirely dependant on her husband if she were returned to Germany and that it is only her close contacts in the UK which are helping her to cope currently. The Secretary of State considers that there is no reason why your client would not be able to develop a support network in Germany. Furthermore, the Secretary of State is satisfied that your client will receive any medical or psychiatric care that is necessary to allow her to lead a normal life…

[He] acknowledges that Bl has benefited from the assistance that he has received from Parkside Community Primary School [and]…accepts that Bl may find it unsettling to be removed from the UK and his school. However, the Secretary of State takes the view that while the effect of removal may be detrimental to Bl, there is no evidence to suggest that it will have a sufficiently serious adverse impact on his physical and psychological integrity as to interfere with his Article 8 rights…

Even if it could be legitimately argued that Article 8(1) is engaged in this case, the Secretary of State is entitled to rely upon the provisions of Article 8(2) in pursuit of the maintenance of a credible and effective immigration control. Article 8(2) allows for lawful interference with the right to respect for private and family life “as is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” If the Secretary of State was not permitted to invoke the qualifying provision of Article 8(2), the Dublin Convention would be inoperable…

In any case, the Secretary of State is satisfied that Bl will be entitled to an effective education in Germany and any disruption to Bl’s schooling would therefore only be temporary.”

There is no dispute as to the test the Secretary of State must apply. If having regard to all the material in front of him he reasonably concludes that any human rights claim would clearly be bound to fail before an adjudicator, he may certify: see Yogathas and Thangarasa v SSHD [2003] 1 AC 920: also, Razgar and others V SSHD [2003] EWCA 840.

Mr. Jorro suggests that this case is not dissimilar on its facts to that of Tenin Soumahoro, one of the claimants in Razgar, although he accepts it is not on its facts as strong as that case. There, the claimant, who was from the Ivory Coast, was to be returned to France. She feared removal from there back to the Ivory Coast. She suffered from a psychiatric condition. She suffered from depression and had taken an overdose. In spite of attempts at reassurance by her doctors, she had “an irrational fear of removal that cannot be assuaged. This compulsive fixation is leading to a deterioration of her mental health.” The court concluded on the evidence in that case that arguably there was “a real risk of a significantly increased risk” that if removed to France she would commit suicide. The certificate was quashed.

Although Mr. Jorro submits that I should have regard to the claimant’s perception here, the reality is that the evidence falls far short of that in Soumahoro. Most of the evidence concerns her fear of return to Kosovo. At its highest, Dr. Robbins, at paragraphs 10.5 and 10.7 in his first report, on no clearly argued basis, suggests such a return would cause a “severe”, alternatively, “marked” deterioration in mental health if returned to Germany. Nothing is said about self harm. In his second, more recent report, Germany is not mentioned at all. There is nothing to suggest the Claimant is receiving treatment. Ms Neale’s report (from Women Against Rape) concerns only return to Kosovo. The witness statements say nothing of any fear of returning to Germany. There is nothing to suggest that the Claimant had to be reassured about Germany or that she feared Germany would not abide by its Convention obligations.

The case of Djali C1/2003/1032 involved the return to Kosovo of a Kosovan woman still suffering significantly from the effects of having been raped. Facilities in Kosovo were to a much lower standard than in the United Kingdom (or Germany). Lord Justice Brown stated (paragraph 16),

“that Razgar establishes that…an Article 8(1) claim would is capable only of being engaged only if there are substantial grounds for believing that the claimant…would face a real risk…of serious harm to her mental health caused or materially contributed to by the difference in treatment and support that she is enjoying in the deporting country and that which would be available to her in the receiving country…that harm constituting a sufficiently adverse effect on physical and mental integrity, and merely health as to engage Article 8.”

It is trite to say so. Germany has an advanced welfare and medical system.

Ms Richards on behalf of the Secretary of State also drew my attention to N v Secretary of State for the Home Department C1/2003/0915 in which Article 3 was held not to be engaged in the case of the return to Uganda of a woman suffering from AIDS.

In my view, it is not necessary on the facts of this case to go outside the test in Razgar. On the evidence before the Secretary of State any argument to an adjudicator that removal to Germany would risk the sort of mental harm envisaged in Razgar would clearly be bound to fail. The Secretary of State was entitled to conclude that Article 8(1) was not arguably engaged. He was entitled to certify.

It does not stop there. As to Article 8(2), the court can only interfere with the Secretary of State’s decision, if it is outside the range of permissible responses open to him: see Edore v Secretary of State of the Home Department [2003] 3 All ER 1265. On the facts this case it could not conceivably be said, assuming Article 8 were engaged at all, that the response of the Secretary of State was outside that permissible range. On the basis of Article 8(2) therefore, the Secretary of State was entitled to certify.

In the light of what I have said, any claim under Article 3 clearly could not arguably succeed.

Mr. Jorro submits Bl is receiving treatment, he is setting down at a nursery and removal to Germany would have serious problems for him given he will have to learn a new language. He has problems enough with English. He submits that Article 8(1) is plainly engaged. There is quite a strong case under Article 8(2). He suggests this is not the sort of case in which it can be said that Article 8(2) is bound to trump Article 8(1): see paragraph 65 of Razghar.

Miss Richards on behalf of the Secretary of State accepts that Bl is a little boy with learning difficulties in English who will not find learning German easy. That falls far short, she submits, of having a significant effect on his mental integrity. A little boy having learning difficulties such as his does not reach the threshold.

I agree with Miss Richards. While it will not be easy for Bl, he is young. Such help as he presently receives is limited. He will not be alone in Germany. He speaks Albanian at home anyway. Germany has advanced medical and support systems. In YA v Secretary of State for the Home Department C1/2003/0820 the Court of Appeal, in a case involving four children with medical evidence stronger than the present, decided that Article 8 was not engaged.

In any event, it seems to me unarguably to be the case that the Secretary of State was entitled to rely upon Article 8(2)

In the circumstances this application for judicial review fails.