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

This Court considered the lawfulness of certificates issued under section 72(2)(a) of the Immigration and Asylum Act 1999 certifying asylum-seekers' human rights allegations as "manifestly unfounded" and directing removal under the Dublin Convention. The court reiterated that a certificate may be issued only where the Secretary of State is reasonably and conscientiously satisfied that the human rights allegation is bound to fail on appeal (the "manifestly unfounded" threshold established in R (Yogathas) v SSHD). The panel analysed when Articles 3 and 8 ECHR are engaged in removal cases, explained the territoriality principle and how it operates in "mixed" cases involving mental health, and summarised the standard of review: the Secretary of State must apply a screening test while the court gives the decision the most anxious scrutiny. Applying those principles, the Court concluded that in each of the three cases the Secretary of State had not shown that the human rights claims were bound to fail and therefore the certificates did not meet the statutory threshold.

This consolidated appeal arose from three judicial-review challenges to certificates under s.72(2)(a) of the Immigration and Asylum Act 1999 in removal directions to other EU states under the Dublin Convention. Each claimant alleged that removal would breach ECHR rights (Articles 3 and/or 8) because of risks to mental or physical health and, in two cases, family life.

Statutory and procedural context:

• The court summarised the statutory framework (Human Rights Act 1998 s.6; Immigration and Asylum Act 1999 ss.65 and 72(2)(a); Schedule 4 Part III para 21) and the legal meaning of a certificate that a claim is "manifestly unfounded".
• The Court explained the respective roles of the Secretary of State (a screening function, not a merits hearing) and the adjudicator, and the court's supervisory role which requires anxious scrutiny of certificates.

Key factual outlines and procedural posture:

• Razgar: Iraqi Kurd whose asylum claim in Germany had been refused. Richards J had quashed the certificate in so far as it related to Article 8; the Secretary of State appealed to the Court of Appeal.
• Soumahoro: Ivorian claimant; her Article 3 and later Article 8-based claims that removal to France would risk suicide were rejected by the Secretary of State and considered by Cooke J; the claimant appealed to this Court.
• Nadarajah: Sri Lankan Tamil whose German asylum claim had been rejected; his Article 8 challenge (separation from wife and mental health risk) led to proceedings before Stanley Burnton J and thence to this Court.

Issues framed by the Court:

• When and to what extent do Articles 3 and 8 engage in removal to a third EU state?
• What is the seriousness threshold and the required degree of risk for Articles 3 and 8 to be engaged?
• What is the proper standard and scope of review for certificates under s.72(2)(a) and the respective roles of the Secretary of State, adjudicator and courts when Article 8(2) proportionality arises?

Reasoning and conclusions:

• The court analysed the territoriality principle and adopted a tripartite approach to mixed Article 8 mental-health cases: (1) examine the claimant's situation and treatment/support in the deporting state; (2) examine anticipated treatment/support in the receiving state; and (3) determine whether the difference would materially contribute to serious harm. If so, Article 8 may be engaged notwithstanding territoriality.
• The court confirmed that the Secretary of State may certify as manifestly unfounded where there is no arguable case or where Article 8(2) clearly justifies interference, but emphasised that the manifestly unfounded threshold is high: the claim must be bound to fail before an adjudicator.
• Applying these principles, the Court concluded that in Razgar the Secretary of State could not reasonably certify the Article 8 claim as bound to fail given the psychiatrist's evidence and expert material about German treatment and accommodation; the Court dismissed the Secretary of State's appeal. In Soumahoro the Court held that the Article 3 complaint (risk of suicide) could not properly be certified as manifestly unfounded because the evidence did not show that protective measures would certainly remove the risk; the claimant's challenge succeeded. In Nadarajah the Court held that the Secretary of State could not safely conclude that Article 8 claims (family separation and mental health) were bound to fail, in part because of disputed factual issues and credibility matters; the claimant's challenge succeeded.

The Court observed that, although in each case the Secretary of State might still prevail before an adjudicator, Parliament set a high statutory threshold for certification which was not met here.

Mixed disposals. The Court held that the statutory threshold for certification under section 72(2)(a) of the Immigration and Asylum Act 1999 is high: the Secretary of State may certify a human-rights allegation as "manifestly unfounded" only where it is reasonably and conscientiously satisfied that the allegation is bound to fail before an adjudicator. The Court applied the established tests for when Articles 3 and 8 are engaged (including the territoriality principle and the tripartite approach to "mixed" Article 8/mental-health cases), and confirmed the Secretary of State’s screening role and the court’s anxious scrutiny. Result: the Secretary of State's appeal in Razgar was dismissed (Richards J's quashing of the Article 8 certification upheld); the claimant's challenges in Soumahoro and Nadarajah succeeded; in each case the certificate was unlawful because the claim was not shown to be bound to fail.

Appeals to the Court of Appeal from judicial-review decisions in the Administrative Court. Razgar: appeal from Richards J (certificate quashed in respect of Article 8), Secretary of State appealed. Soumahoro: appeal from Cooke J (judgment dismissing challenge to removal on Article 3), claimant appealed. Nadarajah: appeal from Stanley Burnton J (certificate and policy issues), claimant appealed. All three matters heard together before the Court of Appeal, neutral citation [2003] EWCA Civ 840.