Regina v. Secretary of State for the Home Department (Appellant) ex parte Razgar (FC) (Respndent)
These observations are no doubt true, but they cut both ways. Even in the most enlightened host country asylum seekers often have to deal with bleak accommodation or even loss of liberty, public hostility and material deprivation, and these (on top of their earlier, sometimes horrendous, experiences) naturally lead to anxiety, depression and feelings of hopelessness. But neither the truism of human imperfection, nor the evidence (taken at its highest) of conditions in Germany, leads to the conclusion that the appellant's treatment in Germany would probably be so much worse than his present condition as to amount to a flagrant infringement of his human rightsan infringement so serious as would (in the language used in Devaseelan) result in the rights in question being completely denied or nullified. In my view it would need much clearer and more compelling evidence to lead to that conclusion.
38. The Court of Appeal  Imm AR 529 referred to the Dublin Convention but did not discuss its significance. It treated this as a "mixed" case for which it proposed (pp 538-539, para 22) a novel three-stage test requiring the prospect of harm sufficiently serious for article 8 to be engaged, but not (as I read the judgment) anything wholly exceptional. The relevant paragraph is set out by Lord Bingham in his opinion (para 4 above). Lord Bingham does not consider that the Court of Appeal fell into the error of comparing levels of psychiatric care available in the United Kingdom and Germany respectively. But for my part I cannot avoid the conclusion that that was the Court of Appeal's only or principal concern, and that it did amount to a mistaken approach. On this point I respectfully prefer the analysis of my noble and learned friend Baroness Hale of Richmond, whose opinion I have also had the advantage of reading in draft.
39. Had the Court of Appeal not (as I think) erred in its approach, I would not differ from the experienced judges below in their rejection of the Secretary of State's assessment of the facts and his consequent certificate under section 72(2)(a). As it is, I differ from the courts below and from the majority in this House only with the greatest possible diffidence. I do so because in my opinion (even if it seems callous) this case is simply not exceptional in the way that the Strasbourg Court had in mind in Bensaid and Henao. It is, sadly, all too common.
40. I would therefore allow this appeal.
BARONESS HALE OF RICHMOND
41. In his opinion in the cases of Ullah and Do, my noble and learned friend, Lord Bingham of Cornhill, draws a distinction between 'domestic cases' and 'foreign cases'. He defines the former as cases 'where a state is said to have acted within its own territory in a way which infringes the enjoyment of a Convention right by a person within that territory' (paragraph 7). He defines the latter as cases 'in which it is claimed that the conduct of the state in removing a person from its territory (whether by expulsion or extradition) to another territory will lead to a violation of the person's Convention rights in that other territory' (paragraph 9). Another way of putting this distinction is that in domestic cases the contracting state is directly responsible, because of its own act or omission, for the breach of Convention rights. In foreign cases, the contracting state is not directly responsible: its responsibility is engaged because of the real risk that its conduct in expelling the person will lead to a gross invasion of his most fundamental human rights. Ullah and Do were foreign cases which failed to meet that test.
42. The distinction is vital to the present case. In a domestic case, the state must always act in a way which is compatible with the Convention rights. There is no threshold test related to the seriousness of the violation or the importance of the right involved. Foreign cases, on the other hand, represent an exception to the general rule that a state is only responsible for what goes on within its own territory or control. The Strasbourg court clearly regards them as exceptional. It has retained the flexibility to consider violations of articles other than articles 2 and 3 but it has not so far encountered another case which was sufficiently serious to justify imposing upon the contracting state the obligation to retain or make alternative provision for a person who would otherwise have no right to remain within its territory. For the same reason, the Strasbourg court has not yet explored the test for imposing this obligation in any detail. But there clearly is some additional threshold test indicating the enormity of the violation to which the person is likely to be exposed if returned. Ullah and Do on their facts came nowhere near meeting that test. It is, for the reasons given both by Lord Bingham and Lord Steyn, extremely unlikely that a failure to respect religious freedom which fell short of persecution within the meaning of the Refugee Convention would do so.
43. This case, however, is concerned with article 8. In that context, Lord Bingham also refers to a third or hybrid category. Here 'the removal of a person from country A to country B may both violate his right to respect for his private and family life in country A and also violate the same right by depriving him of family life or impeding his enjoyment of private life in country B' (paragraph 18). On analysis, however, such cases remain domestic cases. There is no threshold test of enormity or humanitarian affront. But the right to respect for private and family life, home and correspondence, which is protected by article 8, is a qualified right which may be interfered with if this is necessary in order to pursue a legitimate aim. What may happen in the foreign country is therefore relevant to the proportionality of the proposed expulsion.
44. Article 8 cases in the immigration and expulsion context tend to be of two different types. Most commonly, the person to be expelled has established a family life in the contracting state. His expulsion will be an interference, not only with his own right to respect for his private and family life, but also with that of the other members of his core family group: his spouse (or perhaps partner) and his children. The Strasbourg court regards its task as to examine whether the contracting state has struck a fair balance between the interference and the legitimate aim pursued by the expulsion. The reason for the expulsion and the degree of interference, including any alternative means of preserving family ties, will be explored and compared.
45. Sometimes, the reason for expulsion will be immigration control, which is a legitimate aim 'in the interests of the economic well-being of the country'. In Berrehab v The Netherlands (1988) 11 EHRR 322 the applicant was a Moroccan who was refused a further residence permit after his divorce from his Dutch wife. This was an interference with his right to respect for his family life with his young daughter, whom he saw four times a week for several hours each day. The interference was disproportionate. The applicant had lived there legitimately for several years, had a home and a job there, and very close ties with his daughter which his expulsion threatened to break. A similar case was Ciliz v The Netherlands  2 FLR 469; the applicant was a Turk who was refused a further residence permit after separating from his Dutch wife, despite the fact that he was still pursuing an application for contact with his son; the expulsion thus interfered with the process which was designed to fulfil the state's positive obligation to enable family ties to develop between father and son. In neither case was there an alternative means of preserving or establishing family ties between father and child.
46. Sometimes, the legitimate aim will be 'the prevention of disorder or crime'. This has arisen in a long line of cases concerning people who have lived in the contracting state since childhood but remain liable to expulsion if they commit serious crimes. Moustaquim v Belgium (1991) 13 EHRR 802 concerned a Moroccan who had lived with or near his family in Liège since he was one year old. Beldjoudi v France (1992) 14 EHRR 801 concerned an Algerian born in France before independence who lost his French nationality because his parents failed to make the required declaration but who wanted to resume it, and had married a Frenchwoman; uprooting her would cause her great difficulty so that interference might imperil the unity or even the existence of the marriage. Nasri v France (1995) 21 EHRR 458 concerned an Algerian who had lived virtually all his life in France with his parents and siblings, and was deaf and dumb, so that his family was especially important to him. In Jakupovic v Austria (2003) 38 EHRR 595 the applicant was a Bosnian who had come to Austria to join his mother and siblings when aged 11 but was only 16 when a residence prohibition was imposed as a result of criminal offences. The Court observed that very weighty reasons would be needed to justify sending a 16-year-old alone to a country which had recently experienced armed conflict and where he had no close relatives. In all these cases the interference was found disproportionate.
47. In contrast, in Boughanemi v France (1996) 22 EHRR 228, the applicant was a Tunisian who had lived in France since the age of eight, was deported for serious crimes, but returned illegally and formed a relationship with a Frenchwoman by whom he had a child; the majority did not find his further expulsion disproportionate because of the seriousness of the offences and it was not suggested that he had cut all ties with Tunisia. Judge Martens dissented: he attacked the Court's traditional approach that an integrated alien was not protected from expulsion unless there would be a disproportionate interference with his family life. This had two obvious disadvantages: that not all such aliens had a family life; and it led to uncertainty in assessing and comparing the merits of the individual cases. He thought the time had come to recognise that expulsion of integrated aliens was an interference with their private life, and that it would almost always be disproportionate to expel those who had lived virtually all their lives within the contracting State.
48. These two types of case come together when an adult immigrant establishes family ties in the contracting state and then commits crimes which make him liable to deportation. In Boultif v Switzerland (2001) 33 EHRR 1179, an Algerian entered Switzerland as a tourist, married a Swiss the following year, was convicted of serious offences but did not serve his sentence until he had been blamelessly at large for some time. The Court listed the criteria to be taken into account - the nature and seriousness of the offence, his length of stay, the time since the offence and his conduct during that time, his family situation including the length of the marriage, the effectiveness of their family life, whether the spouse knew of the offence when entering a family relationship, whether they had children, and "not least" the seriousness of the difficulties the spouse was likely to encounter in the country of origin or elsewhere. These criteria were repeated in Amrollahi v Denmark (Application No 56811/00) (unreported) 11 July 2002, where once again the main obstacle to deporting an Iranian who had committed drugs offences was that his wife could not be expected to follow him to Iran or elsewhere.
49. The recent Grand Chamber case of Slivenko v Latvia  2 FCR 28 is also a domestic case although on its unusual facts it concerned private rather than family life. The applicants were ethnic Russians, the wife and daughter of a former Soviet army officer. The wife, herself the daughter of a Soviet army officer, had lived in Latvia since she was one month old and the daughter had been born there. Following independence in 1991, a treaty between Russia and Latvia provided for Russian officers and their families to leave Latvia. The family was provided with a flat in Russia and the husband went. The wife and daughter resisted joining him as long as they could but eventually did so when the daughter had finished school. This was not an interference with their family life, as the whole family had been deported, but the expulsion of long time residents could also be an interference with their private life, depending upon the degree of social integration. Normally the interests of "national security" in the removal of active foreign servicemen would outweigh this, but the wife's parents remained in Latvia, the husband had retired and so there was no danger to national security in their remaining in Latvia.
50. These were all cases in which deportation would be an interference with the right to respect for the private or family life which the applicant had established in the expelling state. Conditions in the receiving state were relevant only for the purpose of assessing proportionality. Could that family life be established or continue elsewhere? The effect upon the spouse or child left behind had to be considered and might well be determinative. The Court is unsympathetic to actions which will have the effect of breaking up marriages or separating children from their parents.
51. The other type of 'domestic' article 8 case arises where there is no question of expulsion but immigration control prevents other close family members joining a spouse or parents living in the contracting state. The first was Abdulaziz, Cabales and Balkandali v United Kingdom (1985) 7 EHRR 471, in which the argument that Convention rights were not engaged at all in immigration cases was roundly rejected. Husbands and wives have the right to respect for their family life even if they have not yet established a home together. But the Convention does not give them the right to choose where that home shall be. There were no obstacles to these couples establishing their family life in their husbands' countries of origin rather than in the United Kingdom. They knew that the husbands had no right of entry when they married. There was thus no breach of article 8. But there was a breach of article 14. If the sexes had been reversed, the wives would have been allowed to join their husbands here. The different treatment of husbands and wives could not be justified by the differential impact upon the labour market.
52. Other cases have concerned parents who want the children whom they have left behind in their country of origin to join them in the contracting state. Once again, there is no general obligation to authorise family reunion in the contracting state. But the obstacles to developing family life back in the country of origin will be relevant. In Gül v Switzerland (1996) 22 EHRR 93, this would not be easy but there were no obstacles to prevent this, whereas in Sen v Netherlands (2001) 36 EHRR 81, the Court found that there were major obstacles to doing so.
53. These, too, are 'domestic' cases. There is a technical difference from the expulsion cases, in that the people living in the contracting state are relying on the state's obligation to take positive steps to enable family life to develop between parent and child (an obligation recognised since the ground-breaking case of Marckx v Belgium (1979) 2 EHRR 330). But, as Judge Martens observed in his dissenting opinion in Gül, the difference is hardly more than one of semantics - it has no bearing on the burden of proof or the standards of assessing a fair balance, in this case between the right to control immigration and 'a fundamental element of an elementary human right, the right to care for your own children'. Once again, the possibilities of doing so in another country are relevant to that balance, but the conduct being assessed is still that of the contracting state in relation to a right being claimed in that state.
54. How then should the health cases be regarded? By a 'health case', I mean one in which the applicant's health needs are being properly or at least adequately met in this country and the complaint is that they will not be adequately met in the country to which he is to be expelled. Thus far, in my view, these have all been regarded as 'foreign' cases. They date back to D v United Kingdom (1997) 24 EHRR 423, in which the proposed expulsion of a drug smuggler apprehended on arrival but in the terminal stages of AIDS after serving his sentence was found in breach of article 3:
55. This principle was repeated in the very similar case of Henao v The Netherlands (Application No 13669/03) (unreported) 24 June 2003, where there was no breach because the humanitarian considerations were not as strong. It has also been applied in cases where the applicant has been properly resident for some time but remains subject to expulsion, either because of criminal offences, as in BB v France Reports of Judgments and Decisions 1998-VI, p 2595 or because of immigration control, as in SSC v Sweden (2000) 29 EHRR CD 245. In all of these the health complaint depended upon article 3, although in BB v France, there was also a complaint of potential deprivation of moral support of family and friends.
56. This brings us to Bensaid v United Kingdom (2001) 33 EHRR 205. As with the HIV/AIDS cases, this was a case based upon the risk of injury to health in removing someone from a place where his health needs were being adequately addressed to a place where it was alleged that they would not be. As with the HIV/AIDS cases, the main complaint was raised under article 3. The applicant was a schizophrenic who required medication. Without it, there was a risk of relapse into hallucinations and delusions involving a risk of self harm and harm to others both here and in Algeria. The fact that his circumstances in Algeria would be less favourable than here was not decisive. The risks were speculative. There was a high threshold, especially when the case did not concern the direct responsibility of the state for inflicting harm. It did not fall into the exceptional category covered by D v United Kingdom.
57. The court's case law did "not exclude that treatment which does not reach the severity of article 3 treatment may nonetheless breach article 8 in its private life aspect where there are sufficiently adverse effects upon physical and moral integrity" (paragraph 46). "Mental health must . . . be regarded as a crucial part of private life associated with the aspect of moral integrity . . . The preservation of mental stability is . . . an indispensable precondition to effective enjoyment of the right to respect for private life [protected by article 8]" (paragraph 47). But it had not been established that the risk of damage to his health from returning him to his country of origin would substantially affect his moral integrity to a degree falling within the scope of article 8. Even assuming the dislocation caused by his removal could be regarded as affecting his private life - the relationships and support established here - it was justified under article 8(2) (paragraph 48).
58. In my view, the court was here drawing a distinction between the 'foreign' and 'domestic' aspects of the case. The 'foreign' aspect was the difficulty in accessing appropriate psychiatric treatment in Algeria. This fell mainly to be dealt with under article 3, although the court did not rule out that it might be dealt with under article 8 if the threat to moral integrity was sufficiently severe. The court did not in so many words repeat the 'high threshold' point made in relation to article 3 but if it applies to article 3 it ought logically to apply to article 8, unless this is thought unnecessary because the interference will always be justified under article 8(2) unless the high threshold is reached. The 'domestic' aspect might have been the dislocation in his private life here caused by removing him, but that was clearly justified under article 8(2).
59. Although the possibility cannot be excluded, it is not easy to think of a foreign health care case which would fail under article 3 but succeed under article 8. There clearly must be a strong case before the article is even engaged and then a fair balance must be struck under article 8(2). In striking that balance, only the most compelling humanitarian considerations are likely to prevail over the legitimate aims of immigration control or public safety. The expelling state is required to assess the strength of the threat and strike that balance. It is not required to compare the adequacy of the health care available in the two countries. The question is whether removal to the foreign country will have a sufficiently adverse effect upon the applicant. Nor can the expelling state be required to assume a more favourable status in its own territory than the applicant is currently entitled to. The applicant remains to be treated as someone who is liable to expulsion, not as someone who is entitled to remain.
60. I agree that the Secretary of State had to ask himself how an appeal might fare before an adjudicator. He also had to bear in mind that the adjudicator is an integral part of the decision-making process and thus would have to consider the issue of proportionality on the evidence before him. The Secretary of State had to assume that the evidence put forward on the claimant's behalf might be accepted by an adjudicator. In those circumstances, was he entitled to certify that Mr Razgar's human rights claim was manifestly unfounded? In my view, he was.
61. Mr Razgar's degree of social integration into this country (to adopt the language used in Slivenko) is nowhere near strong enough to make this a 'domestic' case. This is a 'foreign' case in which the United Kingdom's responsibility is only indirectly engaged as a result of what might happen to him if removed. The meat of his case, as summed up by Richards J, 'was that the claimant's mental health would suffer a serious decline in Germany by reason, in particular, of the lack of appropriate treatment; it would have to deteriorate to the point where his condition was acute, that is to say where he became a suicide risk, before treatment could be assured. By contrast, if he stayed in the United Kingdom he could expect to receive appropriate treatment and to make progress.' (paragraph 51)
62. Dr Sathananthan had diagnosed post traumatic stress disorder and depression, for which the appropriate treatment was medication and cognitive behavioural therapy. The claimant had been receiving medication and some counselling but not the cognitive behavioural therapy, apparently because his English was not yet good enough. Such therapy is in any event in short supply, so that whether it would actually become available is a matter of speculation. But clearly, he was currently managing without it. Its aim would be to make him better, not to prevent a serious deterioration in his mental state. The fact that it might not be available to him in Germany does not engage his Convention rights under either article 3 or article 8. Nor does the evidence suggest that the medication is essential to prevent a serious deterioration: this is not a case of psychosis in which there is a very real risk of a return to hallucinations if medication is not available.
63. Similarly, the complaints he makes about life in Germany compared with life here cannot be sufficient to engage his Convention rights. The situation he would face in Germany may compare unfavourably with his present life here, although everything of which he complains in Germany could also happen to him here. Regrettably, there is racism here as well as in Germany. People liable to expulsion may be dispersed to remote areas where they would prefer not to be. They may even be held in centres where their liberty is restricted. They are not allowed to work. His status as 'duldung' in Germany is not to be compared with the situation of someone who has been given the long term right to live and work in this country. That is not the issue. The issue is whether his situation in Germany would raise the serious humanitarian concerns raised in D v United Kingdom 24 EHRR 423 or otherwise constitute such a serious threat to his physical and moral integrity as to be disproportionate to the legitimate aim which his removal would serve.
64. Dr Sathananthan was of the opinion that 'sending him back to Germany or even to Iraq would be very detrimental to his mental and physical well-being. I think he would make a serious attempt to kill himself.' I accept entirely that the risk of suicide is capable of engaging the claimant's rights under articles 2 and 3 and article 8 and must be given very serious consideration by the decision makers. There is a positive obligation under the Convention to take reasonable steps to prevent a vulnerable person in custody from committing suicide: see Keenan v United Kingdom (2001) 33 EHRR 913. If there were substantial grounds to believe that the authorities responsible for him in Germany would not take such steps, then I would accept that his Convention rights were engaged and that the Secretary of State could not properly certify that his claim was manifestly unfounded, at least without making further enquiries or seeking further assurances from the German authorities. But this is not the case. Mr Kessler's report specifically states that 'your client will only receive medical treatment in case of actual danger to himself or to others'. The Secretary of State is entitled to assume that the German authorities will observe their Convention obligations to the claimant unless there is better evidence than this that they will not.
65. For those reasons, I would hold that the Secretary of State was entitled to reach the conclusion he did on the material before him and would therefore allow this appeal. I appreciate that this may seem a harsh conclusion to draw. But this is a field in which harsh decisions sometimes have to be made. People have to be returned to situations which we would find appalling. The United Kingdom is not required to keep people here who have no right to be here unless to expel them would be a breach of its international obligations. It does the cause of human rights no favours to stretch those obligations further than they can properly go. In my view, those obligations are not such as to require the United Kingdom to refrain from returning Mr Razgar to Germany in accordance with the Dublin Convention.
66. I have had the advantage of reading in draft the opinion of my noble and learned friend Lord Bingham of Cornhill and I am in agreement with him that the appeal should be dismissed.