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

A human-rights claim cannot be certified as clearly unfounded where the evidence shows a real risk of a significantly increased risk of suicide on notification of removal or removal itself. The certification process is a screening exercise, not a full merits review. The Secretary of State must be reasonably and conscientiously satisfied that the claim must clearly fail. The court must apply anxious and rigorous supervisory scrutiny. Safeguards which leave important matters to the receiving state, or which do not address the risk arising before removal, may be insufficient. The exceptional approach concerning disparity in medical resources does not govern a case founded on the traumatic effects of removal and the risk of suicide.

The claimant challenged certificates issued under the Nationality, Immigration and Asylum Act 2002 concerning the proposed removal of the K family to Germany under the Dublin Convention. The claim was advanced principally on the basis that removal would breach Articles 3 and 8 of the ECHR because of Mrs K’s severe psychiatric condition, traumatic experiences in Kosovo and suicide risk.

The Secretary of State maintained the later certificate after considering further psychological evidence. The central issue was whether, on the evidence taken at its highest, the Article 3 claim was clearly unfounded and bound to fail.

1. The claim succeeded. The decision of 17 October 2003 maintaining and refusing to withdraw the certificate of 2 October 2003 was quashed. It was unnecessary to determine the Article 8 claim.
2. The test under the Nationality, Immigration and Asylum Act 2002 was materially the same as the former test of a manifestly unfounded claim. The Secretary of State had to be reasonably and conscientiously satisfied that the allegation must clearly fail, or that an appeal would be bound to fail. Certification was a screening process, not a full merits review.
3. The court’s role was supervisory, but required the most anxious scrutiny and rigorous examination. The question was whether the Secretary of State was entitled to certify the claim, not whether the court itself considered that removal would breach Article 3.
4. The uncontradicted medical evidence established an arguable real risk of a significantly increased risk of suicide if Mrs K were told that she had to leave the United Kingdom or were removed to Germany. Her previous suicide attempt, continuing suicidal statements and severe trauma made the risk materially more than speculative.
5. The reasoning in R (Razgar) v Secretary of State for the Home Department (including the Soumahoro appeal) remained applicable. N v Secretary of State for the Home Department concerned the exceptional situation of inadequate medical resources abroad and did not displace the approach to removal-related suicide risk. The proposed safeguards did not sufficiently address the risk arising on notification of removal, and their extent and effectiveness remained uncertain.

First-instance judicial review proceedings. The judgment itself records earlier administrative decisions and the grant of permission by Elias J, but no prior judgment citation is stated.