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

In an European Convention on Human Rights Article 3 removal case, judicial review remains supervisory. The court must subject the decision to rigorous and anxious scrutiny of the underlying material. It does not become the primary fact-finder.

The challenge succeeds only where the material compels the conclusion that a reasonable decision-maker had to find a real risk of prohibited ill-treatment. The absolute nature of Article 3 means that the court gives the executive only a narrow discretionary area of judgment. However, the court cannot intervene merely because it might have assessed an uncertain risk differently.

The applicant was a Turkish Kurd and draft evader whose asylum claim had failed. He challenged the Secretary of State’s refusal of exceptional leave to remain, contending that his return to Turkey without travel documents would expose him to a real risk of treatment contrary to Article 3 of the European Convention on Human Rights.

Carnwarth J rejected the challenge on 22 May 1998. The Court of Appeal subsequently granted permission and retained the substantive judicial review. By the hearing, the Secretary of State had made five successive decisions refusing exceptional leave as further country material became available.

The central issues were whether the court should make its own primary assessment of risk, and whether the evidence made the Secretary of State’s assessment irrational.

1. Application dismissed unanimously. Simon Brown LJ gave the leading judgment. Schiemann LJ agreed, and Thorpe LJ agreed with both judgments.

2. The court rejected the submission that Article 13 required it to become the primary fact-finder in an Article 3 removal case. The domestic court must review the Secretary of State’s decision with rigorous and most anxious scrutiny, but its constitutional role remains supervisory. The court must examine the underlying evidence for itself and ask whether it compels a conclusion different from that reached by the Secretary of State. Only then can an irrationality challenge succeed.

3. Article 3 is absolute and fundamental. It permits no balancing against national security or other social interests. Those features mean that the Secretary of State has only a narrow discretionary area of judgment on the factual assessment of risk. They do not, however, displace the supervisory character of judicial review. The court distinguished the national-security setting in Chahal v UK (1997) 23 EHRR 413 and the proportionality issue in Smith and Grady v UK (27 September 1999).

4. The relevant time for assessing risk was the date of the court’s consideration, so later evidence could be received. On the extensive and conflicting country material, the Secretary of State had conscientiously assessed the applicant’s individual risk. The evidence did not compel the finding that he would face a real risk of Article 3 ill-treatment. The decision was therefore reasonable, even if another decision-maker might have reached the opposite conclusion.

5. Schiemann LJ added procedural guidance. Relevant evidence is not confined to material before the original decision-maker. At the trial stage of judicial review, a later decision may generally be substituted for the earlier decision challenged. On a true appeal from the High Court, however, the ordinary rules governing fresh evidence normally apply.

• Court of Appeal (Civil Division) — dismissed the judicial-review application: [2000] EWCA Civ 22 .
• High Court — Carnwarth J rejected the challenge on 22 May 1998; a citation is not stated in the judgment.