Secretary of State for the Home Department v Z A; Secretary of State for the Home Department v M; Secretary of State for the Home Department v A

Removal engages the absolute protection of Article 3 only where substantial grounds show a real risk of prohibited ill-treatment. Its high severity threshold means that a foreign law restricting private adult homosexual conduct does not, by itself, establish an Article 3 breach.

Article 8 may protect private and sexual life even where Article 3 is not engaged. It does not, however, create an automatic bar on removal or displace the need to consider Article 8(2). The effect of removal, the actual enforcement of the foreign law, and any interference with an existing relationship must be examined on the facts. The wider question whether removal can engage Article 8 because of future treatment abroad remained open.

These conjoined appeals concerned three Zimbabwean nationals who claimed protection on grounds connected with homosexuality and the criminalisation of sodomy in Zimbabwe.

In Z, the Secretary of State appealed from an Immigration Appeal Tribunal decision allowing Z's human-rights appeal. The Tribunal had treated the mere existence of the Zimbabwean law as an Article 8 breach. In A, the Tribunal had dismissed asylum and human-rights claims, without addressing adequately the effect of removal on A's relationship with W in the United Kingdom. In M, the Tribunal had refused leave to appeal from the Adjudicator's dismissal of an asylum claim; no human-rights point was pursued.

The central issues were the Article 3 and Article 8 consequences of removal to Zimbabwe, and whether the respective Tribunal decisions could stand.

The Court unanimously allowed the Secretary of State's appeal in Z and A's appeal, set aside the relevant Tribunal determinations and remitted both cases to differently constituted Tribunals. M's appeal was dismissed.

1. Section 6(1) of the Human Rights Act 1998 prohibits removal where substantial grounds show a real risk that the receiving state will subject the person to torture or inhuman or degrading treatment. The Article 3 threshold is high. A law criminalising private consensual homosexual conduct does not automatically make removal contrary to Article 3.

2. The Court accepted that Article 8 may protect sexual life and private life where the severity threshold for Article 3 is not met. It rejected any broad proposition that immigration considerations can never justify removal to a state which restricts private sexual conduct. Article 8(2) remains material. The wider issue of an expelling state's responsibility under Article 8 for future foreign interference was left open and must develop case by case.

3. In Z, the Tribunal had misunderstood Modinos v Cyprus 16 EHRR 485 (1993). That case did not establish that an unenforced sodomy law, without more, was itself an Article 8 breach. The Tribunal had to investigate the likelihood and circumstances of enforcement, including any investigation or prosecution, and then determine both the asylum and human-rights grounds on current evidence.

4. In A, the Tribunal had not decided whether removal would interfere with A's Article 8(1) private life by separating him from W, nor whether immigration control would provide a proportionate justification under Article 8(2). That failure required remittal of both the human-rights and Refugee Convention claims.

5. In M, the Adjudicator had rejected the claimant's credibility. The Court held that the Tribunal had not erred in concluding under Rule 18 that the appeal had no real prospect of success and that there was no other compelling reason to hear it.

Z

• Court of Appeal (Civil Division) In the present conjoined appeal, [2002] EWCA Civ 952, the Secretary of State's appeal was allowed. The Tribunal decision was set aside and Z's asylum and human-rights appeals were remitted to a differently constituted Tribunal.
• Immigration Appeal Tribunal Allowed Z's appeal on human-rights grounds, having dismissed no asylum ground.
• Adjudicator Dismissed Z's asylum and human-rights appeal.

A

• Court of Appeal (Civil Division) Allowed A's appeal, set aside the Tribunal decision and remitted the asylum and human-rights claims to a differently constituted Tribunal.
• Immigration Appeal Tribunal Dismissed A's asylum and human-rights appeal and refused leave to appeal to the Court of Appeal.
• Adjudicator Dismissed A's asylum and human-rights appeal.

M

• Court of Appeal (Civil Division) Dismissed M's appeal from the refusal of leave to appeal.
• High Court Cresswell J refused permission to apply for judicial review of the Tribunal's refusal of leave, and refused permission to appeal.
• Immigration Appeal Tribunal Refused M leave to appeal from the Adjudicator's decision.
• Adjudicator Dismissed M's asylum appeal.