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

Removal to another country may engage article 3 where there is a real risk of treatment reaching the required minimum level of severity, including treatment by private persons where the receiving state cannot or will not provide adequate protection. Mental suffering must attain a sufficient degree of intensity. On an irrationality challenge involving an absolute Convention right, the court must examine the underlying factual material with anxious scrutiny, while recognising the Secretary of State’s comparative advantage on matters concerning the foreign state and its systems. A speculative or inadequately evidenced case does not establish a real risk of degrading treatment.

The applicant, an Ethiopian national living with HIV, challenged the Secretary of State’s decision to issue a certificate under section 2 of the Asylum and Immigration Act 1996, authorising his removal to Germany. He alleged that return would expose him to deportation to Ethiopia, inadequate medical treatment and degrading treatment by German officials.

Tucker J refused permission to apply for judicial review. The applicant sought permission to appeal out of time. The central issue was whether there was an arguable error of law or irrationality in the Secretary of State’s assessment that return to Germany would not create a real risk of treatment contrary to articles 2 or 3 of the European Convention on Human Rights.

1. Application refused. The court granted the short extension of time required but dismissed the application for permission to appeal and for judicial review.
2. Article 3 mistreatment must reach a minimum level of severity. Mental suffering must attain a sufficient degree of intensity. Removal may breach the Convention where there is a real risk that the receiving country will expose the person to such treatment, whether through state action or through a failure to provide appropriate protection.
3. The court applied the anxious-scrutiny approach stated in Abdullah Turgut v Secretary of State [2000] IAR 306. Because article 3 protects an absolute and fundamental right, the court must rigorously examine the underlying evidence and need not show especial deference to the Secretary of State’s factual conclusion. The court should nevertheless recognise that the Secretary of State may be better placed to assess the foreign state and its systems.
4. The Secretary of State had considered the material sufficiently for the purpose of deciding whether the applicant’s account was credible. The evidence contained material inconsistencies, lacked contemporaneous complaints or documentary support, and did not establish that the German authorities had previously subjected the applicant to degrading treatment or that he faced a real risk of such treatment on return.
5. The evidence did not establish that appropriate medical treatment would be unavailable in Germany. The German authorities had given specific assurances concerning treatment, notice of the applicant’s condition and interpretation. The criticism of the previous dual-drug therapy lacked specialist medical support and was not shown to demonstrate degrading treatment.
6. The applicant’s reliance on general observations in ex parte Adan [2001] 2 WLR 143 concerning destitution in a third country did not assist him. There was no evidential basis for concluding that conditions in Germany would compel him to return to Ethiopia.
7. Lord Justice Simon Brown agreed with Lord Justice Mance and described the Secretary of State’s decision as unassailable. The application was refused, with copies of the judgment sent to both parties at public expense and detailed assessment of the applicant’s costs.

• Court of Appeal (Civil Division): [2001] EWCA Civ 412. Permission to appeal and the application for judicial review were refused.
• Administrative Court: Tucker J refused permission to apply for judicial review.