Sopa & Ors, 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 defendant to certify as manifestly unfounded the claims by the claimant and his eldest daughter, Urtina (Tina), that to remove them back to Germany, in accordance with the Dublin Convention, would be a breach of Articles 3 and 8 of the European Convention on Human Rights.

The claimant and his family, comprising his wife and four children, the eldest of whom is Tina who has just turned 18, are ethnic Albanians from Kosovo. They left Kosovo in 1992 and claimed asylum in Germany. They lived in Germany for six years. When their asylum claim was refused by the German authorities they entered the United Kingdom illegally, in January 1998, and claimed asylum in the United Kingdom, alleging that they had come direct from Kosovo.

Their claim was investigated and it was found that that statement was false. Their asylum claim was therefore refused on third country grounds under the Dublin Convention on 7th April 1998.

That decision was challenged by way of judicial review. Those proceedings were not disposed of until early 2002. It is conceded, on behalf of the claimant, that there has long ceased to be any basis for the original asylum claim. But in the latter part of 2002 claims were made on behalf of the claimant and Tina that to remove them to Germany would be in breach of their rights under Articles 3 and 8 of the European Convention on Human Rights. Those claims were originally certified in September 2002. I say originally certified because as further information was sent, and further representations were made, to the Secretary of State, the original certification was reconsidered on a number of occasions in September and October 2002 and January 2003.

An application for permission to apply for judicial review was lodged in October 2002. The application was refused by Elias J after an oral hearing in January 2003.

Sedley LJ granted permission to apply for judicial review on 29th August 2003 observing:

The substantive hearing of the application for judicial review was due to take place on 13th February 2004, but the matter was adjourned by Gibbs J because the claimant wished to adduce new evidence, in particular new evidence relating to Tina's psychiatric condition, and to advance a new point, that if Tina was returned to Germany she would be denied the psychiatric treatment that she needs.

This is an illustration of a particular problem which cases such as this one do pose for this court. The goalposts in both factual and legal terms are constantly moving over the months and years. Thus, in the present case, the facts considered in September 2002 are by now out of date. So far as the law is concerned, Razgar was decided by the Court of Appeal on 19th June 2003, after the decision of Elias J. Following the granting of permission to apply for judicial review Razgar was considered by the Court of Appeal in Djali on 16th October 2003. In these circumstances the court has to do its best to consider the justification for certification on the basis of the most up-to-date factual and legal material.

Thus it was that on 13th February Gibbs J drew a line in the constantly shifting sands. He gave the claimant permission to adduce further evidence and set out a timetable for the filing of any further evidence and skeleton arguments. He did not require the defendant to produce a further decision letter and was content that the defendant's up-to-date position could be explained in the skeleton argument filed on his behalf.

The latest evidence may be summarised as follows: (a) a joint report by Dr Judith Komaromi, a consultant child and adolescent psychiatrist, and Mr Alan Jones, an adolescent mental health worker dealing with Tina's psychiatric condition. The contents of that report are not challenged by the defendant; (b) evidence from two German lawyers, Mr Kessler and Professor Dr Hailbronner, on behalf of the claimant and the defendant respectively, dealing with the availability of health care in Germany for those who are either asylum seekers or failed asylum seekers. There is an area of disagreement between these two lawyers. I will return to the significance of that disagreement in due course; (c) evidence contained in letters from bodies such as church organisations and educational organisations, dealing with the extent to which the claimant and his family have integrated into the local community and with the contribution that they make to the local community. That material is not challenged by the defendant.

Against that evidential background I consider the claimant's contention that the defendant was not entitled to certify his and Tina's claims under Articles 3 and 8. It is common ground that there is a high threshold for certification. In practical terms the question is whether the Secretary of State is entitled to maintain the view that their claims under Articles 3 or 8 are bound to fail.

It is convenient to deal separately with the claims made by the claimant and by Tina. In so doing I recognise that the particular circumstances of her case have to be considered against the family background which forms part of the claimant's case, and conversely that Tina's circumstances are part of the family background on which the claimant bases his Article 8 claim. It is necessary for the purpose of analysis to deal with the claims separately, but I do not lose sight of the fact that they are, to a degree, interrelated. Although it is fair to say that there are particular factors relating to Tina which have been given particular emphasis in the most recent representations to the defendant.

Mr Slatter concedes that there is no basis on which the claimant can put forward an Article 3 claim. In my judgment that concession is entirely realistic. The claimant's claim is therefore confined to Article 8.

Although certain medical factors relating to the claimant himself were relied upon and are mentioned in the letter dated 28th November 2003, the essential basis for the claimant's Article 8 claim is that since they have been living in the United Kingdom for more than six years he and his family have integrated into the local community in this country, as evidenced by the letters of support. Indeed, the family makes a positive contribution to the local community.

In September 2002 the Secretary of State had dealt with this aspect of the case in these terms in a reconsideration letter dated 27th September 2002:

The most recent reconsideration letter, dated 28th November 2003, is principally concerned with the medical evidence that had become available by that time, since that had been the focus of what were, at that stage, the most recent representations. But if the letter is read as a whole, it is plain that the defendant did not lose sight of the wider Article 8 context when considering the specific medical points that were being urged upon him. Thus, we find in paragraph 9, dealing with Tina's position:

In my judgment the Secretary of State was entitled to take into account the fact that although the claimant and his family have now been in the United Kingdom for over six years, since the refusal of their asylum application on third country grounds six years ago, they have been well aware that the Secretary of State was of the view that they had no right to be in the United Kingdom and that they would be returned to Germany as soon as it was legally possible to do so.

In Razgar [2003] INLR 543, [2003] EWCA Civ 840, Dyson LJ considered the reasoning of the Court of Appeal in Edore v Secretary of State for the Home Department [2003] INLR 361, [2003] EWCA Civ 716. In paragraph 38 of Razgar Dyson LJ cited paragraph 20 of Edore:

In paragraph 40 Dyson LJ said:

The implications of that were considered. In paragraph 41 Dyson LJ said:

It is to be noted that although Dyson LJ said in paragraph 65 of his judgment that issues under Article 8(2) are fact-sensitive, Article 8(2) did not feature in the evidence in that case. By contrast the Secretary of State has, in the present case, made his views under Article 8(2) crystal clear. He has done that against the background of the representations relating to his family life that have been made by the claimant. The Secretary of State has not taken issue with the previous or recent representations relating to the extent to which the family has integrated into the local community.

This is not, therefore, a case where the essential facts are in doubt or dispute. The Secretary of State has been content to deal with the matter upon the basis of the facts relating to family life as they have been put forward on behalf of the claimant, but has, nevertheless, concluded, particularly by reference to the fact that the claimant has never had any legitimate expectation that he and his family will be able to remain in this country, that removal is not disproportionate under Article 8(2).

It follows that in this case the adjudicator would be deciding whether that decision of the Secretary of State was within the range of reasonable responses open to him. In my judgment, there is no prospect whatsoever of an adjudicator concluding that the Secretary of State's approach to Article 8(2), on the facts of this case, was outwith the range of reasonable responses open to him.

It is not in dispute that over the 6-plus years that the claimant and his family have been in the United Kingdom, they have integrated into the local community, as it would appear they integrated into the community in Germany when they were there for a period of five or six years. But that notwithstanding, the Secretary of State was entitled to take the view that their removal would not be disproportionate for the purposes of Article 8(2). He was, therefore, entitled to conclude that any appeal to an adjudicator on this point was bound to fail.

I turn to Tina's claim. Mr Slatter maintained that Tina was able to put forward a claim under both Article 3 and Article 8. In my judgment, the Article 3 claim is best described as wholly unrealistic. It does not remotely approach the minimum level of severity that is required to engage Article 3.

Upon the basis that there is a lower threshold for a claim under Article 8 (and I recognise that in Djali the Court of Appeal indicated that there may be a possible need for further scrutiny of the interrelationship between the position under Articles 3 and 8), I propose to examine Tina's claim under Article 8.

If the Secretary of State was entitled to conclude that this claim was bound to fail then he was also entitled to conclude that any claim under Article 3 was bound to fail.

The joint report of Dr Komaromi and Mr Jones summarises Tina's relevant medical history. It notes that she was initially seen by a psychiatrist, Dr Steadman, in July 2002. Dr Steadman found her to be suffering from symptoms of depression. She was subsequently seen by Dr Paul Bester in October 2002. He also felt that Tina was depressed and that this was manifesting itself in behavioural difficulties and suicidal thoughts. Her GP had referred her to the Primary Care Services for counselling because he was concerned that she was feeling depressed.

Thus it was that Tina was referred to the Child & Adolescent Mental Health Services. Her first consultation with Dr Komaromi and Mr Jones was on 9th July 2003. There is a description of the way in which she presented herself on that occasion and Dr Komaromi says:

The joint report said that Tina would benefit significantly from therapeutic work with Mr Jones. She met with Mr Jones on ten occasions since 18th August 2003. These consultations are arranged around her work, and if she is unable to attend appointments then they are able to be rescheduled. The joint report says:

Her condition on 2nd February 2004 is described. Dr Komaromi said that the change was notable, she not having seen Tina since July 2003. But the report is concerned about her vulnerability to relapse to her initial presentation following the slightest disappointment and change to her circumstances. Under the heading "Consequences to Tina if she is forcibly returned to Germany" the report says this in part:

As to what facilities might be available for Tina in Germany, we have the reports of Mr Kessler and Dr Hailbronner. These may be summarised as follows. Medical facilities are undoubtedly available. In general terms there is nothing to contradict the Secretary of State's view that generally the medical facilities available in Germany are at least the equal of those available in the United Kingdom.

The principal issue between Mr Kessler and Dr Hailbronner is whether persons in the claimant's position, who would be regarded as failed asylum seekers by the German authorities, would be entitled to be provided with medical facilities as of right, or whether the authorities would merely have a discretion to pay the necessary sums for medical treatment. Whether there is a right to treatment, or whether it is a matter of discretion, depends, it would appear, upon whether an illness can be described as acute or chronic. If it is the former, medical treatment is available as of right. If the latter, treatment is available upon a discretionary basis.

In addition to the distinction between acute and chronic illness, there is also the issue of pain. Medical treatment is available for the treatment of "pains". There is no doubt that "pains" may include at least some psychiatric illnesses. Mr Kessler is of the view that the authorities would not pay for psychotherapeutic treatment of Tina's depressive syndrome. He cites examples of decisions where the authorities have refused to do so. His overall response to Dr Hailbronner is that:

What is, however, plain, from the reports of both experts, is that if an individual is not given treatment, in circumstances where they contend that they should have been given treatment, then they may challenge the decision not to give them treatment through the German Administrative Court system. It is plain from the decisions cited, that the Administrative Court in Germany will then examine the medical evidence in some detail in order to decide whether or not withholding treatment is lawful.

What Mr Kessler does not say is also significant. There is no suggestion in his reports that where the authorities have a discretion to pay for medical services, they will exercise that discretion in such a way as to infringe an individual's rights under either Article 3 or Article 8. Even if there was a suggestion that the authorities would exercise their discretion in that way, it is plain that such an exercise of discretion would be capable of being challenged through the Administrative Court system in Germany.

Although Mr Slatter mentioned certain cases dealing with the German Courts' approach to asylum seekers, the position relating to the Refugee Convention is to be distinguished from the present case. Under the Refugee Convention there can be perfectly legitimate differences of approach as to the proper interpretation of a state's obligations under that Convention.

So far as the European Convention on Human Rights is concerned, by way of contrast, if there was any evidence that the German authorities were refusing discretionary medical assistance so as to breach individuals' rights under either Article 3 or Article 8, then it would be possible to challenge such decisions before the European Court of Human Rights. It is not suggested that there have been any such challenges.

It is necessary, perhaps, to emphasise that the European Convention is not concerned with theoretical possibilities that there might be infringements of rights under the Convention, it is concerned with practicalities. There is simply no evidence that the German authorities, any more than the authorities in the United Kingdom, would deny medical treatment to Tina if such treatment was required in order to avoid an infringement of her rights under Article 3 or Article 8. It simply does not matter whether such treatment would be provided as a matter of right or as the result of a discretionary decision. The crucial question is whether the German authorities would refuse to provide such treatment in circumstances where to do so would result in a breach of Article 3 or Article 8. There is simply no evidence to support the suggestion that they might act in such a way.

In Djali [2003] EWCA Civ 1371, Simon Brown LJ, as he then was, analysed the court's decision in Razgar. In paragraph 13 of his judgment he identified the critical paragraphs in Razgar. Those paragraphs included paragraphs 23 and 24 which deal, respectively, with the seriousness of the harm required under Article 8 and the risk of harm:

In paragraph 17 Simon Brown LJ said that such treatment was equally available in Kosovo. He went on to say:

In my judgment this case is almost on all fours with the circumstances in Djali. I accept, of course, that in the present case Tina has been receiving counselling, but the question is, upon the wholly unrealistic assumption that the German authorities would not make any provision for such counselling even if it was required, what effect would the cessation of that counselling have upon her, in view of the uncontested medical evidence?

It is plain from the joint report of Dr Komaromi and Mr Jones that counselling is, in their words, "the ideal treatment modality" for that age group, but if she did not have counselling she would relapse to the state of depression in which she had been when she first presented herself. The seriousness of that condition can be judged by the fact that it required no medication by way of antidepressant treatment and was dealt with by a series of counselling appointments, those appointments being sufficiently flexible to be capable of being rearranged around her work experience.

If one then turns to Article 8(2), Simon Brown LJ noted that the facts in Djali meant that this was not an Edore type of case. But he went on to say this:

Whilst I have very considerable sympathy for the circumstances in which Tina finds herself, being subject to upheaval on a number of occasions in her life, in my judgment those observations of Simon Brown LJ are equally apt in the present case.

Amongst the wealth of authorities and the detailed evidence, it is sensible to stand back and remember that the proposal in the Djali case was that the claimant and his wife and children should be returned to Kosovo itself. In the present case, the Secretary of State does not propose to return the claimant and his family to Kosovo, it is proposed to return them to Germany where they had previously lived for over five years. Tina therefore has to establish not merely that if she was denied treatment in Germany there would be a sufficiently serious effect on her mental state to engage Article 8 (see paragraph 23 of Razgar), but also that if she suffered such harm there are substantial grounds for believing that there is a real risk that the German authorities would not respond by using their discretionary power (according to Mr Kessler) to provide appropriate medical treatment.

In my judgment, Tina cannot get over the first of those hurdles. But even upon the assumption that she could, there is no possible basis for arguing that she could surmount the latter hurdle. As I have mentioned, this is not a proposal to return her to Kosovo, it is a proposal to return her to Germany. Indeed, I would go so far as to say that the proposition that Germany would deny Tina medical treatment, in circumstances where to do so would breach her Article 8 rights, is fanciful rather than realistic. For these reasons the Secretary of State was entitled to certify this claim.

I would say, again, I do have a considerable sympathy for the claimant, and particularly for Tina, but the fact remains that the claimant and his family lived in Germany for many years, and although they have been in the United Kingdom for over six years, throughout almost the whole of that time they have been well aware that the Secretary of State intended to return them to Germany as soon as he was in a position to do so.

MISS ANDERSON: My Lord, as the claimants are legally aided I simply ask for what I think is the national lottery order, which is that there be an order for my client's costs subject to a further order of the court. Your learned associate is nodding in a knowledgeable way.

MR JUSTICE SULLIVAN: She knows the wording, even though I do not. Can you resist that, Mr Slatter?

MR SLATTER: Well, my Lord, there is the issue -- I do not resist that obviously --

MR JUSTICE SULLIVAN: Right.

MR SLATTER: -- the judgment has gone against me, save for the issue of the previous hearing. What I would say in relation to that is that the similar terms that Gibbs J granted the adjournment upon were set out in a letter dated 30th January -- perhaps if I can refer you to that. The defendant was asked, on that date, to adjourn the hearing -- it is at page 14 of the claimant's bundle -- and indeed, following which an application notice was actually issued to the court on 6th February.

So, my Lord, it is not quite correct to say that we asked for an adjournment on the day of the last hearing. An adjournment was actually sought, and indeed prior to the hearing sought by consent between the parties, failing which an application notice was lodged at page 5. Your Lordship will note that the application was granted in almost identical terms to that sought at that hearing. So, in relation to those costs, my Lord, we say that they could have been averted. The need to attend that hearing could and ought to have been averted. But that would be the only basis upon which I seek to take issue with the order my friend seeks.

MR JUSTICE SULLIVAN: Was there any reason why the further material was not produced at an earlier stage after the letter of 28th November 2003? The psychiatric report is headed 5th February 2004. There is a fax heading on mine anyway, on page 26, 5th February, which suggests that someone was being sent it on 5th February.

MR SLATTER: Yes, there were difficulties in obtaining that despite --

MR JUSTICE SULLIVAN: I can understand that the defendant might kick up a bit, and he obviously did kick up, but not to any great effect, that things were being sent late. But, anyway, that was the basis, presumably, on which the Secretary of State said we should have an adjournment, and Gibbs J said "Look, I am going to draw a line."

MISS ANDERSON: My Lord, could I just indicate, firstly, I am a bit surprised this is being raised now, it should have been raised in front of Gibbs J. He was, of course, the best placed person to decide the circumstances in which he granted his order. It was an order that was granted with some reluctance, and really only on the basis that: well, they are going to apply again anyway so we will allow the new points, because there were two issues, my Lord: one issue was the up-to-date psychiatric evidence in which there was no objections to that coming in. It was the raising of the whole new issue about the Germany situation and the evidence from Mr Kessler which is what was being resisted, ie adding on to the claim, not only after permission, but after it was meant to have been first heard, a whole new tranche of material that required evidential work and so on and so forth. That was the --

MR JUSTICE SULLIVAN: I cannot actually see anything about the costs in Gibbs J's order, but I infer that he reserved them, although nothing was said about them.

MISS ANDERSON: No application was made to him about costs, so it is rather surprising --

MR SLATTER: There was not an application, but it was certainly canvassed before Gibbs J that this was not a new issue that had arisen. One of the main reasons that the new evidence had been issued is referred to in the skeleton argument before the Court of Appeal, which I can certainly take your Lordship to, and it has always been said that inadequate enquiries had been made and inadequate reasons had been given.

MR JUSTICE SULLIVAN: You have put your point on that hearing. Your contention is that you ought to have the costs of that hearing, as I understand it?

MR SLATTER: My Lord, yes.

MR JUSTICE SULLIVAN: That is the point. I do not need to trouble you, Miss Anderson, on that, thank you very much. I am not satisfied that it would be right to order the defendant to pay the costs of the adjourned hearing in front of Gibbs J. It does seem to me that, effectively, the decision to adjourn and to permit the fresh evidence in was largely forced upon the judge by the fact that the evidence had come in some time after the November decision. It was clearly entirely sensible to draw a line and make arrangements that all the fresh evidence could be considered. It seems to me that if there had been any serious fault on the part of the Secretary of State in responding, then that matter could and should have been raised before Gibbs J. He would have been much better able than me to decide what factors particularly prompted him to grant an adjournment contrary to the defendant's wishes.

So, for those reasons, the claimant is to pay the defendant's costs, but that is to be on the normal terms, not to be enforced without the consent of the court. I imagine, Mr Slatter, anyway, you will want taxation for community legal services funding purposes, will you not, as well?

MR SLATTER: I would be grateful, my Lord.

MR JUSTICE SULLIVAN: Yes, thank you both.