Ducja, R (on the application of) v Immigration Appeal Tribunal

In an Article 8 medical-removal case, proportionality under Article 8(2) arises only if the claimant first establishes that removal would interfere sufficiently seriously with private life under Article 8(1). The assessment should examine the claimant’s mental health, treatment and support in the removing state; the likely condition, treatment and support in the receiving state; and whether the difference is likely to cause or materially contribute to serious harm. A comparatively brief decision is adequate where the tribunal has addressed those matters and reached findings open to it. Judicial review should not be remitted for further findings where the outcome is inevitable.

The claimant, a Kosovan Albanian, had suffered persecution in Kosovo and was receiving treatment for post-traumatic stress disorder in the United Kingdom. His asylum claim and Convention claims were rejected by a Special Adjudicator, who later rejected his Article 8 claim after the Immigration Appeal Tribunal remitted that issue for determination.

The claimant sought judicial review, arguing that the Special Adjudicator had failed to apply the guidance in Secretary of State for the Home Department v Razgar [2003] EWCA Civ 840, had made inadequate factual findings, and had failed to address proportionality.

1. Application dismissed. The Special Adjudicator’s conclusion that removal would not infringe Article 8(1) was lawful and supported by adequate reasoning.
2. The approach in Secretary of State for the Home Department v Razgar [2003] EWCA Civ 840 requires consideration of: the claimant’s mental health, treatment and support in the removing state; the likely effect of removal and available treatment and support in the receiving state; and whether any difference is likely to cause or materially contribute to serious harm.
3. The Special Adjudicator had considered the claimant’s treatment in the United Kingdom and the medical facilities likely to be available in Kosovo. His finding that return would not cause serious harm, or an adverse effect on physical and moral integrity sufficient to engage Article 8, was open to him. The reasoning, though brief, was adequate and not irrational.
4. Because the claim failed under Article 8(1), it was unnecessary to consider proportionality under Article 8(2). The Immigration Appeal Tribunal was wrong to criticise the Special Adjudicator for omitting that exercise.
5. Comparison with Djali v Immigration Appeal Tribunal [2003] EWCA Civ 1371 confirmed that remittal would be purposeless. The claimant’s condition could not produce a different Article 8(1) conclusion from the materially more serious condition considered there.

The judicial review claim was dismissed. The claimant was to lodge the public funding certificate for detailed assessment. There was no order for costs.

The judgment itself describes the following procedural history:

• Special Adjudicator: rejected the asylum and Convention claims and subsequently rejected the Article 8 claim after remittal.
• Immigration Appeal Tribunal: initially allowed the claimant’s appeal on the limited Article 8 issue and remitted it to the Special Adjudicator. Leave to appeal from the later determination was refused.
• High Court (Administrative Court): dismissed the application for judicial review.