Mekshi, R (on the application of) v Secretary Of State For Home Department

Whether conduct amounts to torture is primarily an evaluative question for the special adjudicator. The conduct must be so extreme that no reasonable adjudicator could reach the conclusion adopted before appellate intervention is justified.

A return will breach Article 3 only where the evidence establishes the necessary severity of treatment or circumstances. A claimant’s need for medical treatment, and uncertainty about its availability on return, does not automatically require that conclusion. The appellate court may refuse permission where the adjudicator’s findings and reasons provide a rational basis for rejecting the claim.

The claimant, a citizen of Kosovo, sought asylum after alleging detention and ill-treatment by Serb police. His asylum claim was rejected and certified. A special adjudicator found that he did not have a well-founded fear of persecution, that the evidence did not establish torture, and that removal would not breach Article 3. The adjudicator nevertheless recommended temporary leave because of the claimant’s medical condition and doubts about treatment in Kosovo. The Secretary of State declined to grant exceptional leave.

Newman J refused permission to apply for judicial review. The claimant sought permission to appeal, arguing that the special adjudicator had accepted his account and was therefore bound to find torture, and that the medical evidence required a finding that removal would breach Article 3.

1. Permission refused. The Court of Appeal held that Newman J was right to refuse permission. The proposed appeal could not succeed on the grounds advanced.
2. The argument that the special adjudicator had acted inconsistently with the Secretary of State’s decision was rejected. If the conduct found did not amount to torture, there was no inconsistency in concluding that the claimant had not produced evidence of torture.
3. There is no precise definition of torture for the purpose of the issue raised. It was for the special adjudicator to assess whether the conduct found amounted to torture. The conduct described was not so extreme that no reasonable adjudicator could have reached the conclusion that it was not torture.
4. The special adjudicator’s reasons for rejecting the asylum claim were appropriate on the evidence. His determination also expressly concluded that return would not breach Article 3.
5. The Court considered the medical-treatment issue. The notice of appeal’s grounds were unavailable, and the claimant’s statement appeared to confine the Article 3 submissions to torture rather than treatment availability. In any event, the medical evidence did not support a conclusion that return would breach Article 3.
6. The Court relied on Bensaid v The United Kingdom (Application No 44599/98, 6 February 2001), where return of a seriously mentally ill failed asylum seeker, despite difficulties obtaining medication, was held not to breach Article 3. The present case was materially weaker. The claimant had received appropriate treatment in Kosovo before leaving, and the only conclusion reasonably open to the special adjudicator was that return would not breach Article 3.
7. The applications were refused. The application for public funding was adjourned for determination on paper upon receipt of a representation order.

• High Court, Queen’s Bench Division, Administrative Court: Newman J refused permission to apply for judicial review on 10 August 2001.
• Court of Appeal (Civil Division): Permission to appeal was refused; the order below was upheld.