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

Removal will breach Article 3 only where the claimant establishes substantial grounds for believing that removal exposes them to a real risk of torture or cruel, inhuman or degrading treatment or punishment. Social ostracism, stigma, verbal harassment and isolated prejudice may be serious, but do not ordinarily reach that threshold without evidence of a substantial risk of physical or comparable ill-treatment.

As the law then stood, Convention rights other than Article 3 did not ordinarily create a lawful impediment to removal. The assessment remains fact-sensitive, and the court must scrutinise the evidence carefully, but a lack of reliable evidence of organised targeting, violence or ineffective protection may defeat the claim.

The claimant, a Kosovan national, sought judicial review of the Immigration Appeal Tribunal’s refusal of leave to appeal from a Special Adjudicator’s decision concerning his human-rights claim. He argued that removal would breach Articles 3 and 8 of the European Convention on Human Rights and Fundamental Freedom because of the risks faced by homosexual men in Kosovo.

The Special Adjudicator rejected his credibility case on sexual orientation, found that Article 8 private life was engaged but that removal was proportionate for immigration control purposes, and concluded that the evidence did not establish persecution or Article 3 ill-treatment. The judicial review focused on the treatment of the objective evidence and on whether the asserted risks created an impediment to removal.

1. Claim dismissed. The court proceeded on the assumption that the claimant was of homosexual orientation, because determining that issue conclusively was inappropriate on the evidence and was unnecessary to the outcome.
2. The Special Adjudicator’s treatment of the objective evidence was brief and open to criticism, but was not so inadequate as to justify remission. The reports established uncertainty and the possibility of discrimination, ostracism and harassment. They did not establish a substantial risk of torture, violence or cruel, inhuman or degrading treatment.
3. The claimant bore the burden of establishing substantial grounds for believing that removal would expose him to a real risk of Article 3 treatment. The evidence did not show that homosexuals in Kosovo were systematically targeted, subjected to organised violence or denied the possibility of investigating and prosecuting ordinary offences. Isolated prejudice, police inactivity in a particular case, verbal harassment and social isolation did not meet the Article 3 threshold.
4. The possible continuation of criminalisation under the Kosovo penal code, carrying a maximum sentence of one year’s imprisonment, did not itself reach the Article 3 threshold. The court did not approve criminal sanctions, but assessed the asserted punishment against the Convention standard.
5. Following the analysis in SSHD v Z; M & A v SSHD (2002) EWCA Civ 952 and Ullah & Do (2002) EWCA Civ 1856, Convention rights other than Article 3 did not, on the law then applicable, create a lawful impediment to removal. In any event, the facts disclosed no exceptional or flagrant abuse of Article 8 rights.
6. The additional expert report confirmed rather than undermined the Special Adjudicator’s conclusions. The judicial review claim therefore failed, and permission to appeal was refused.

The judgment describes the following procedural history:

• Special Adjudicator: dismissed the claimant’s human-rights appeal, finding that Article 8 was proportionately interfered with and that the evidence did not establish an Article 3 risk.
• Immigration Appeal Tribunal: refused leave to appeal.
• High Court (Administrative Court): dismissed the judicial review claim and refused permission to appeal.