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

A human rights claim may be certified as manifestly unfounded only where it is bound to fail before an adjudicator. A claim which is likely, or even very likely, to fail does not meet that threshold.

An expulsion engaging private life through threatened mental deterioration may satisfy the territoriality principle where the loss of treatment or support in the removing state materially contributes to serious harm. The claimant must show substantial grounds for believing that there is a real risk of a sufficiently adverse effect on physical or mental integrity.

Certification may account for justification under article 8(2), but proportionality is fact-sensitive. Credibility disputes and unsupported assumptions about protective measures ordinarily preclude certification unless no adjudicator could accept the claim.

These conjoined appeals concerned certificates issued under section 72(2)(a) of the Immigration and Asylum Act 1999. The Secretary of State had decided to remove three asylum seekers to France or Germany under the Dublin Convention and certified their claims under articles 3 or 8 of the European Convention on Human Rights as manifestly unfounded.

• Richards J quashed Mr Razgar’s certificate insofar as it concerned article 8. The Secretary of State appealed.
• Cooke J dismissed Ms Soumahoro’s challenge based on article 3. She appealed.
• Stanley Burnton J upheld Mr Nadarajah’s certificate concerning article 8. He appealed.

The central issues were when articles 3 and 8 could be engaged by removal, the applicable seriousness and risk thresholds, the operation of article 8(2), and when a claim could lawfully be certified as bound to fail.

1. Disposition. The Secretary of State’s appeal in Razgar was dismissed. The appeals of Ms Soumahoro and Mr Nadarajah were allowed. Each certificate under section 72(2)(a) of the Immigration and Asylum Act 1999 was successfully challenged.

2. A claim is manifestly unfounded only where the Secretary of State, after careful consideration, is reasonably and conscientiously satisfied that it must clearly fail before an adjudicator. Certification is a screening process, not a full merits determination. On judicial review, the court performs supervisory review but applies the most anxious scrutiny. A claim which is merely likely, or even very likely, to fail cannot be certified.

3. Article 3 may be engaged by removal where substantial grounds establish a real risk of sufficiently serious ill-treatment in the receiving state. Article 8 may be engaged in a mixed mental-health case where removal disrupts treatment or support enjoyed in the removing state and that difference causes or materially contributes to serious mental harm. The effect must be sufficiently adverse to physical or mental integrity, and its occurrence must present a real risk.

4. The Secretary of State may consider article 8(2) when certifying. Certification is permissible where there is no arguable case that the interference is unjustified. Proportionality is nevertheless fact-sensitive. Where the essential facts are undisputed, an adjudicator asks whether the Secretary of State’s decision fell within the range of reasonable, proportionate responses. If later factual findings substantially undermine the original balancing exercise, the adjudicator may have to conduct that exercise personally while giving very considerable weight to effective immigration control.

5. Mr Razgar’s loss of treatment and support in the United Kingdom could materially contribute to serious deterioration after removal. The conflicting evidence about treatment in Germany could not properly be resolved against him at the certification stage. Nor was article 8(2) plainly decisive.

6. Ms Soumahoro had uncontroverted medical evidence of an increased suicide risk associated with removal. General assertions that detention, supervision and notification of the French authorities would minimise that risk were insufficient without evidence of the precautions, their duration and likely effectiveness.

7. Mr Nadarajah’s family-life claim was not bound to fail under article 8(2). The applicable policy and his credibility raised arguable issues. Lack of credibility alone justifies certification only where nobody could believe the account.

• Court of Appeal (Civil Division): In [2003] EWCA Civ 840, dismissed the Secretary of State’s appeal in Razgar, allowed Soumahoro’s and Nadarajah’s appeals, and held that all three section 72(2)(a) certificates failed the statutory threshold.
• Administrative Court — Razgar: Richards J quashed the certificate insofar as it concerned article 8 because the mental-health claim was arguable.
• Administrative Court — Soumahoro: Cooke J dismissed the challenge based on article 3, concluding that removal with protective precautions would not constitute inhuman treatment.
• Administrative Court — Nadarajah: Stanley Burnton J upheld the certificate concerning article 8, including the family-life and mental-health grounds.