Djali v Immigration Appeal Tribunal

In a removal case based on mental ill-health, Article 8(1) requires substantial grounds for believing that removal presents a real risk of serious harm to physical and mental integrity, materially caused by differences in treatment or support between the two states. A risk that removal merely impedes a better recovery is insufficient. Where Article 8(1) is engaged, immigration control will often outweigh the Convention interest, but proportionality is not automatic. On the facts, Article 8(1) was not engaged and removal was proportionate in any event.

The appellant abandoned his asylum claim but succeeded before an Adjudicator on Article 8 grounds. The Adjudicator found that his wife suffered severe post-traumatic stress disorder arising from her experiences in Kosovo and that removal would breach her rights, while separating the family would also breach Article 8.

The Immigration Appeal Tribunal allowed the Secretary of State’s appeal. It considered a fresh psychiatric report, concluded that the available evidence did not establish a rare and exceptional case, and found removal proportionate. The central issues before the Court of Appeal were whether Article 8(1) was engaged, whether the Tribunal had applied the correct approach to Article 8(2) proportionality, and whether the case should be remitted.

Lord Justice Simon Brown gave the leading judgment. Lord Justice Laws and Lady Justice Arden agreed. The appeal was dismissed.

1. The Immigration Appeal Tribunal had misdirected itself by following the approach in Kacaj, which treated immigration control as virtually conclusive where removal did not involve persecution or Article 3 ill-treatment. The correct approach, stated in Razgar [2003] EWCA Civ 840, was that immigration control will often, but not invariably, outweigh an engaged Article 8 right.
2. For Article 8(1), the claimant had to establish substantial grounds for believing that removal created a real risk of serious harm to mental health, producing a sufficiently adverse effect on physical and mental integrity. The harm had to be caused or materially contributed to by the difference between treatment and support in the United Kingdom and that available in Kosovo. The only current treatment was anti-depressant medication, which was available in Kosovo. Even assuming psychotherapy would later be unavailable, removal would at most imperil the prospects of a better recovery. It could not amount to the necessary serious harm. Article 8(1) was therefore not engaged.
3. The comparison with M was misplaced. M involved ongoing psychotherapy which had reached a critical point after more than six months. It was materially stronger than the present case. Whether M itself crossed the Article 8(1) threshold did not need to be decided.
4. Alternatively, if Article 8(1) had been engaged, the adjudicators were entitled to reach their own independent proportionality conclusions. The Edore [2003] 3 All ER 1265 approach did not apply because the Secretary of State had not made an Article 8 proportionality decision. This was a borderline and widely replicated asylum case. Immigration control was therefore the imperative and overriding factor, making removal proportionate.
5. The court added an obiter observation that it would be anomalous for Article 8 to provide a markedly more generous approach to mental ill-health claims than Article 3 provides for comparable physical-health claims. The relationship between the two provisions might require further scrutiny.

The appeal was dismissed. The appellant was ordered to pay the respondent’s costs, subject to detailed assessment under the Community Legal Service funding and costs regulations. Permission to appeal to the House of Lords was refused.

• Court of Appeal (Civil Division): Appeal dismissed. Permission to appeal to the House of Lords refused.
• Immigration Appeal Tribunal: On 3 March 2003, allowed the Secretary of State’s appeal against the Adjudicator and held that removal to Kosovo would not be disproportionate.
• Adjudicator: Allowed the appellant’s appeal on Article 8 grounds after the asylum claim was abandoned, finding that removal of his wife and family would breach Article 8.