Sopa & Ors, R (on the application of) v Secretary of State for the Home Department

Certification of a human-rights claim as manifestly unfounded is justified where the claim is bound to fail. Where the essential facts are accepted, the decision-maker’s Article 8 proportionality assessment need only fall within the range of reasonable responses open to him.

A medical claim requires sufficiently serious harm to engage Article 8 and substantial grounds for believing that the feared harm presents a real risk. Convention rights are concerned with practical risks, not theoretical possibilities. A claim based on the possible withholding of treatment in a receiving state will fail where there is no evidence that treatment would be refused in circumstances amounting to a Convention breach.

The claimant and his family, ethnic Albanians from Kosovo, had lived in Germany for about six years before entering the United Kingdom and claiming asylum. Their United Kingdom asylum claim was refused on third-country grounds under the Dublin Convention.

The Secretary of State certified as manifestly unfounded claims by the claimant and his eldest daughter, Tina, that removal to Germany would breach Articles 3 and 8 of the European Convention on Human Rights. The claimant relied principally on family and private life developed in the United Kingdom. Tina relied on her psychiatric condition, ongoing counselling and the asserted risk that suitable treatment would not be available in Germany.

The central issue was whether either claim was bound to fail.

1. Certification test. The relevant practical question was whether the Secretary of State was entitled to maintain the view that the claims under Articles 3 or 8 were bound to fail. Certification involved a high threshold.
2. The claimant’s Article 8 claim. The claimant accepted that there was no realistic Article 3 claim. The Secretary of State had accepted the family’s evidence of integration into the local community but was entitled to give substantial weight to immigration control, the family’s lack of any right or legitimate expectation to remain, and their longstanding knowledge that they would be returned to Germany. The essential facts were not in dispute. Applying the approach described in Razgar [2003] EWCA Civ 840, the question was whether the Secretary of State’s assessment fell outside the range of reasonable responses. It plainly did not. The Article 8 claim was therefore bound to fail.
3. Tina’s Article 3 and Article 8 claims. Her Article 3 claim did not approach the minimum severity required to engage that provision. Her Article 8 claim required sufficiently serious harm to physical or mental integrity and substantial grounds for believing that she faced a real risk of that harm. Those requirements were drawn from Razgar and applied in Djali [2003] EWCA Civ 1371.
4. The evidence showed that counselling was beneficial and that Tina might relapse if removed. Even assuming that treatment in Germany might be discretionary rather than available as of right, there was no evidence that the German authorities would refuse treatment where refusal would breach Articles 3 or 8. Any such decision could also be challenged in the German administrative courts. The asserted risk was therefore theoretical and, in the circumstances, fanciful rather than realistic. The claim was bound to fail.
5. The claimant’s application for judicial review was dismissed. The claimant was ordered to pay the defendant’s costs on normal terms, enforcement being subject to the court’s consent. The costs of the earlier adjourned hearing were not awarded against the defendant.

The judgment itself records that Elias J refused permission after an oral hearing in January 2003. Sedley LJ granted permission on 29 August 2003, observing that Razgar had significantly clarified the law. The present court then determined the substantive judicial review application.