Regina v. Secretary of State for the Home Department (Appellant) ex parte Razgar (FC) (Respndent)
13. Mr Razgar then initiated the present application to quash the Secretary of State's certification. In the course of those proceedings Mr Razgar relied on two further reports by Dr Sathananthan. The earlier of these, dated 18 July 2001, was to much the same effect as the earlier reports but recorded that Mr Razgar had been living with his family in Greenford and Ealing Broadway, who gave him meals and accommodation. His opinion was:
The later report, dated 24 September 2002, made reference to two abortive attempts by Mr Razgar to kill himself in 2000 and 2001. His opinion was:
Mr Razgar also relied on further letters from Mr Kessler. The Secretary of State did not submit evidence relating to Mr Razgar's mental condition, but did at a later stage submit evidence challenging some aspects of Mr Kessler's account of how Mr Razgar would be treated if returned to Germany. The judge concluded, rightly in my opinion, that in the absence of any contrary opinion the Secretary of State could not discount the professional judgment of Dr Sathananthan. He also concluded that there was a real risk that Mr Razgar, if returned to Germany, would not receive appropriate treatment there, such treatment being assured only if he became a suicide risk, and that he was likely to be placed in an accommodation centre with substantial restrictions on his liberty. On this basis Richards J held (in paragraph 51 of his judgment) that Mr Razgar's case would not clearly fail before an adjudicator, and the Court of Appeal (in paragraph 64) agreed. The court made no ruling on the effect of article 8(2), which had not featured in the Secretary of State's evidence or in the argument before the judge. At no stage during the correspondence did the Secretary of State accept that article 8 could apply in a case such as this, and in this appeal (as in Ullah and Do) the Attorney General argued that it could not.
B The legislation
14. Section 65 of the 1999 Act, so far as relevant for present purposes, provided:
"Authority" was defined in subsection (7) to include the Secretary of State. Section 72(2)(a) provided:
Section 77(3)(b) provided:
This provision was supplemented, in relation to appeals to an adjudicator, by Part III of Schedule 4 to the Act. Relevant for present purposes is paragraph 21 of the Schedule, which so far as relevant provided:
15. In the ordinary course of review, the reviewer assesses the decision under challenge on the materials available to the decision-maker at the time when the decision was made. In Sandralingham v Secretary of State for the Home Department  Imm AR 97, 112, however, the Court of Appeal held that in asylum cases the appellate structure under the Asylum and Immigration Appeals Act 1993 was to be regarded as an extension of the decision-making process, with the result that appellate authorities were not restricted to consideration of facts in existence at the time of the original decision. This decision was given statutory effect in section 77(3) of the 1999 Act, and was also extended to human rights cases arising under article 3. The restriction to article 3 may well have reflected parliamentary uncertainty whether articles other than article 3 could be engaged in an expulsion case. But there can be no reason for distinguishing article 3 cases from cases arising under other articles of the Convention which (as I have held) are capable of being engaged: see Macdonald's Immigration Law & Practice, ed Macdonald and Webber, 5th ed (2001), para 18.150. By section 85(4) of the Nationality, Immigration and Asylum Act 2002 (which did not come into force until 1 April 2003, and does not apply to this case) it is provided that:
16. The parties to this appeal accepted that "manifestly unfounded" bore the meaning given to it by the House in R (Yogathas) v Secretary of State for the Home Department; R (Thangarasa) v Secretary of State for the Home Department  UKHL 36,  1 AC 920, paragraphs 14, 34 and 72 and accepted the Court of Appeal's opinion (in paragraph 30 of its judgment) that those paragraphs called for no gloss or amplification. It was also, inevitably, accepted that on an application for judicial review of the Secretary of State's decision to certify, the court is exercising a supervisory jurisdiction, although one involving such careful scrutiny as is called for where an irrevocable step, potentially involving a breach of fundamental human rights, is in contemplation.
17. In considering whether a challenge to the Secretary of State's decision to remove a person must clearly fail, the reviewing court must, as it seems to me, consider how an appeal would be likely to fare before an adjudicator, as the tribunal responsible for deciding the appeal if there were an appeal. This means that the reviewing court must ask itself essentially the questions which would have to be answered by an adjudicator. In a case where removal is resisted in reliance on article 8, these questions are likely to be:
(1) Will the proposed removal be an interference by a public authority with the exercise of the applicant's right to respect for his private or (as the case may be) family life?
(2) If so, will such interference have consequences of such gravity as potentially to engage the operation of article 8?
(3) If so, is such interference in accordance with the law?
(4) If so, is such interference necessary in a democratic society in the interests of national security, public safety or the economic well-being 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?
(5) If so, is such interference proportionate to the legitimate public end sought to be achieved?
18. If the reviewing court is satisfied in any case, on consideration of all the materials which are before it and would be before an adjudicator, that the answer to question (1) clearly would or should be negative, there can be no ground at all for challenging the certificate of the Secretary of State. Question (2) reflects the consistent case law of the Strasbourg court, holding that conduct must attain a minimum level of severity to engage the operation of the Convention: see, for example, Costello-Roberts v United Kingdom (1993) 19 EHRR 112. If the reviewing court is satisfied that the answer to this question clearly would or should be negative, there can again be no ground for challenging the certificate. If question (3) is reached, it is likely to permit of an affirmative answer only.
19. Where removal is proposed in pursuance of a lawful immigration policy, question (4) will almost always fall to be answered affirmatively. This is because the right of sovereign states, subject to treaty obligations, to regulate the entry and expulsion of aliens is recognised in the Strasbourg jurisprudence (see Ullah and Do, para 6) and implementation of a firm and orderly immigration policy is an important function of government in a modern democratic state. In the absence of bad faith, ulterior motive or deliberate abuse of power it is hard to imagine an adjudicator answering this question other than affirmatively.
20. The answering of question (5), where that question is reached, must always involve the striking of a fair balance between the rights of the individual and the interests of the community which is inherent in the whole of the Convention. The severity and consequences of the interference will call for careful assessment at this stage. The Secretary of State must exercise his judgment in the first instance. On appeal the adjudicator must exercise his or her own judgment, taking account of any material which may not have been before the Secretary of State. A reviewing court must assess the judgment which would or might be made by an adjudicator on appeal. In Secretary of State for the Home Department v Kacaj  Imm AR 213, paragraph 25, the Immigration Appeal Tribunal (Collins J, Mr C M G Ockelton and Mr J Freeman) observed that:
In the present case, the Court of Appeal had no doubt (paragraph 26 of its judgment) that this overstated the position. I respectfully consider the element of overstatement to be small. Decisions taken pursuant to the lawful operation of immigration control will be proportionate in all save a small minority of exceptional cases, identifiable only on a case by case basis.
D The present case
21. It remains to apply the questions outlined above to the present case.
22. In my opinion an adjudicator would, or might properly, answer question (1) in the affirmative. It is quite true, as the Attorney General urged, that Mr Razgar cannot show the long residence and deep social roots found in many of the decided cases. He cannot show nineteen years of residence like the applicant in Moustaquim v Belgium (1991) 13 EHRR 802, nor eleven years of residence like the applicant in Bensaid v United Kingdom (2001) 33 EHRR 205. He cannot show a disruption of family life. But he bases his case on the threat to his private life. In this country he is able, with psychiatric help, to enjoy a measure of freedom, independence and autonomy which, arguably, he could not enjoy in Germany, where he knows no one, may not receive needed medical help and may be accommodated in a remote refugee centre.
23. On the facts as presently understood, I consider that an adjudicator would, or might properly, answer question (2) in the affirmative. A decision which, if implemented, might lead to Mr Razgar taking his own life, could scarcely (if that evidence were accepted, and it has not as yet been tested) be dismissed as of insufficient gravity.
24. I have no doubt but that an adjudicator would, and could only, answer questions (3) and (4) in the affirmative. Question (5), being more judgmental, is more difficult and, as already observed, the Secretary of State and the judge did not consider it. The Secretary of State, moreover, failed to direct himself that article 8 could in principle apply in a case such as this. Question (5) is a question which, on considering all the evidence before him, an adjudicator might well decide against Mr Razgar. If, however, his phobia of returning to Germany were found to be genuine (whether well-founded or not), and if his account of his previous experience (including his account of the severe brutality he claims to have suffered) were found to be true, I do not think one can rule out in limine the possibility of a finding, properly made, that return to Germany would violate Mr Razgar's rights under article 8. It follows that in my opinion, agreeing with both the judge and all three members of the Court of Appeal, the Secretary of State could not properly certify this claim to be manifestly unfounded.
25. I would dismiss the appeal.
26. I have read the opinion of my noble and learned friend Lord Bingham of Cornhill. I agree with it. I would also dismiss the appeal.
LORD WALKER OF GESTINGTHORPE
27. I have had the advantage of reading in draft the opinion of my noble and learned friend Lord Bingham of Cornhill. I gratefully adopt his statement of the facts and I am very largely in agreement with him as to the principles to be applied. In particular, I am in full agreement with his analysis of the scope for judicial review of a certificate by the Secretary of State under section 72(2)(a) of the Immigration and Asylum Act 1999 certifying that an appeal (based on breach of human rights) is manifestly unfounded. I have the misfortune to differ, however, as to the application of the principles to the facts of this case. In the circumstances I shall state my reasons as briefly as possible.
28. On the (so far untested) evidence of the appellant Mohammed Ali Razgar and on the medical reports (so far unchallenged) of a distinguished psychiatrist, Dr Sathananthan, the appellant is in a fragile mental state. He claims on grounds which appear credible to have been tortured in Iraq, where his father was hanged. He says that he still suffers pain, insomnia and nightmares when he does sleep. He is described as severely depressed, with feelings of personal worthlessness and hopelessness about the future. He has said that he will kill himself if returned to Germany. When he saw the psychiatrist on 10 September 2002 he spoke of two suicide attempts which he had made in this country, in 2000 and 2001, although neither seems to have been mentioned during his examination (at the Gatwick Detention Centre) on 7 June 2001. The psychiatrist's opinion on 7 June 2001 was that if sent back to Germany or Iraq the appellant would make a serious attempt to kill himself. On seeing the appellant on 15 April 2002 (after his release from custody) the psychiatrist considered that the appellant "was not suicidal, but was determined that he would kill himself if he was sent abroad." After seeing him again on 10 September 2002 the psychiatrist recorded that the appellant had seen other young men kill themselves, and at times had suicidal ideation himself. There is no evidence of his present condition.
29. The evidence as to the appellant's experiences and their effect on his mental and physical condition, if found to be truthful, must provoke deep concern and sympathy. But such experiences and their effects are unfortunately not exceptional. Man's inhumanity to man is all too common. Torture, ill-treatment and imprisonment without trial often produce severe psychiatric problems which may persist throughout the sufferer's lifetime, even with the best psychiatric care. The fact that the appellant's troubles do not seem to be exceptional, deplorable though it is, lies at the heart of the difficulties which I feel about this appeal.
30. In his clear and comprehensive opinion in the linked appeals of R (Ullah) v Special Adjudicator and Do v Secretary of State for the Home Department  UKHL 26, Lord Bingham has drawn attention to the wholly exceptional nature of a deporting state's responsibility for ill-treatment or harm subsequently suffered in the receiving state. It is unnecessary to repeat all the citations but it is relevant to note that the Strasbourg Court's insistence on the need for "very exceptional circumstances" continues to be maintained in the most recent jurisprudence: see the admissibility decision in Henao v The Netherlands (Application No 13669/03) (unreported) 24 June 2003.
31. In N v Secretary of State for the Home Department  EWCA Civ 1369 Laws LJ (with whom Dyson LJ agreed, although Carnwath LJ dissented) accepted the submission of counsel for the Secretary of State that the well-known case of D v United Kingdom (1997) 24 EHRR 423 was an "extension of an extension" (para 37). He concluded (paras 40 and 42):
In my opinion those conclusions are justified by the Strasbourg jurisprudence.
32. In his opinion in Ullah and Do Lord Bingham approved the formulation of the Immigration Appeal Tribunal in Devaseelan v Secretary of State for the Home Department  Imm AR 1, para 111:
I respectfully agree. I also respectfully agree with Lord Bingham's observation in this appeal (para 10 above) that where the appellant's case is based on his need for medical treatment or on his welfare, he could never hope to resist expulsion without showing "something very much more extreme than relative disadvantage" (as between the deporting state and the receiving state).
33. My problem is with the application of these principles to the facts of this appeal. It is largely attributable to two factors which, although noted in the course of argument, were not to my mind fully explored. That is not a criticism of counsel: it may be that, in the present state of Strasbourg jurisprudence, they cannot be taken much further. There seems to be surprisingly little discussion of the Dublin Convention in judgments of the Strasbourg court.
34. The first difficulty is the abstract and volatile character of article 8 rights so far as they are not firmly linked either to family life or to other particular values such as respect for an individual's personal privacy, his home or his correspondence. The Strasbourg court has clearly recognised that article 8 rights also extend to an individual's sexuality. Bensaid v United Kingdom (2001) 33 EHRR 205, para 47 appears to show a further extension (building on rather uncertain footings in earlier cases) in the field of mental health:
This language is wide and imprecise and it must in my opinion be treated with some caution. There is no general human right to good physical and mental health any more than there is a human right to expect (rather than to pursue) happiness.
35. My second difficulty is in connection with the Dublin Convention of 15 June 1990 (determining the state responsible for examining applications for asylum lodged in one of the member states of the European Communities) (1997, Cm 3806). Before he arrived clandestinely in the United Kingdom on 22 February 1999 the appellant had already applied for but been refused asylum in Germany. Under the terms of the Dublin Convention the United Kingdom was at liberty to return the appellant to Germany without examining his asylum application on its merits. Indeed the German authorities accepted their responsibility on 29 April 1999, within a few months of the appellant's arrival in this country, and it is only because of determined activity by the appellant and his solicitors, and scrupulous observance of his claims by the United Kingdom authorities, that the appellant has had any sort of private life in this country. He has received skilled psychiatric help since November 1999, but his presence in this country has at all times been on a most precarious footing.
36. The appellant is strongly opposed to being returned to Germany; so strongly that he has threatened suicide if he is returned. But Germany is a full signatory of the European Convention on Human Rights and of the Geneva Convention. In R (Yogathas) v Secretary of State for the Home Department)  1 AC 920, 927, para 9 Lord Bingham drew attention to two important considerations:
The other members of the House expressed similar views. Lord Hope of Craighead gave a valuable account of the background to the Dublin Convention at pp 932-935, paras 26-37. He observed (p 934, para 33):
37. In his clear and thorough judgment in this case Richards J referred briefly to this point but was not impressed by it. He said (para 55):