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

A human-rights claim may be certified as manifestly unfounded where, on the material before the Secretary of State, it is clearly bound to fail before an adjudicator. For an Article 8 claim based on psychological harm following removal, the evidence must show substantial grounds for believing that removal would create a real risk of serious harm materially caused by differences in treatment and support, with a sufficiently adverse effect on physical or mental integrity. Even where Article 8 is arguably engaged, certification is lawful if the Secretary of State’s reliance on Article 8(2) falls within the range of permissible responses. The same principles apply to a child’s developmental and educational difficulties.

The claimant, a Kosovan Albanian of mixed Serbian ethnicity, challenged the Secretary of State’s certification under section 72(2)(a) of the Immigration and Asylum Act 1999 of her human-rights claims and those relating to her son. Removal to Germany was proposed under the Dublin arrangements.

The claimant relied principally on Articles 3 and 8, alleging that removal would seriously worsen her psychological condition following rape, and that disruption to her son’s education and support would engage his Article 8 rights. The issue was whether the claims were manifestly unfounded.

1. Certification test. The Secretary of State may certify under section 72(2)(a) where, having regard to all the material before him, he reasonably concludes that any human-rights claim is clearly bound to fail before an adjudicator. The court applied the approach in Yogathas and Thangarasa v Secretary of State for the Home Department [2003] 1 AC 920 and Razgar and others v Secretary of State for the Home Department [2003] EWCA 840.
2. As to the claimant’s Article 8 claim, the evidence principally addressed feared return to Kosovo. It did not establish substantial grounds for believing that removal to Germany would create the requisite real risk of serious mental harm. Germany had advanced medical and welfare systems, and the evidence did not show that appropriate treatment or support would be unavailable. The Article 8(1) claim was therefore clearly bound to fail. The Article 3 claim necessarily failed as well.
3. In any event, even if Article 8 were engaged, the Secretary of State was entitled to rely on Article 8(2). His decision could be challenged only if it fell outside the range of permissible responses, and it did not: Edore v Secretary of State of the Home Department [2003] 3 All ER 1265.
4. The son’s developmental and speech difficulties, although removal would be unsettling, did not establish a sufficiently serious adverse impact on his physical or psychological integrity to engage Article 8(1). His young age, family support, and the availability of medical and educational systems in Germany were relevant. The court applied YA v Secretary of State for the Home Department C1/2003/0820. Article 8(2) independently justified certification.
5. The application for judicial review failed.

First-instance judicial review decision. No prior decision is stated in the judgment.