Bonyoma v Secretary of State for the Home Department

In an irrationality challenge involving removal to a safe third country, the court must examine the underlying factual material rigorously to determine whether it compels a conclusion different from that reached by the Secretary of State. The court must assess the decision and the evidence as a whole, including medical evidence and the availability of treatment and protection in the receiving country. A serious medical or psychiatric condition does not itself make removal unlawful under Articles 2 or 3 of the Convention. Where the decision-maker has addressed the material risks and reached a conclusion reasonably open to him, permission for judicial review should be refused.

The applicant, a national of the Democratic Republic of the Congo who had lost a leg after stepping on a land mine and was diagnosed with post-traumatic stress disorder, challenged the Secretary of State’s decision to remove him to Belgium. Belgium had accepted responsibility for examining his asylum claim under the Dublin Convention. The applicant relied on psychiatric evidence concerning deterioration, suicide risk and the effect of removal, and alleged irrationality, disproportionality and breaches of Articles 2 and 3 of the Convention.

Permission for judicial review had been refused by Mr Justice Sullivan. The Court of Appeal considered a renewed application for permission.

1. Application refused. The Secretary of State’s decision to remove the applicant to Belgium was rational and no arguable ground justified judicial review.
2. In an irrationality challenge concerning Articles 2 or 3 of the European Convention on Human Rights, the court must subject the Secretary of State’s decision to rigorous examination. It must examine the underlying factual material to determine whether that material compels a different conclusion from the one reached by the decision-maker, adopting a more stringent Wednesbury review where appropriate: [2001] EWCA Civ 1353.
3. The decision letter had considered the psychiatric report as a whole. It accepted that removal might have a negative psychological effect, but concluded that the risk did not reach the severity required to justify an exceptional departure from the normal policy. It also addressed the availability of equivalent medical and psychiatric facilities in Belgium and the protection available from the Belgian authorities.
4. The court emphasised that the proposed removal was to Belgium, a safe third country, rather than to the applicant’s country of origin. The medical evidence and the applicant’s understandable anxiety did not compel a finding that removal would be irrational or contrary to Articles 2 or 3.
5. Lord Justice Mummery and Sir Martin Nourse agreed with Lord Justice Judge. The order was: Application refused.

• Court of Appeal (Civil Division): the renewed application for permission to apply for judicial review was refused.
• High Court: Mr Justice Sullivan refused permission for judicial review on 25 August 2000.