R (Razgar) v Secretary of State for the Home Department

The House held that the rights protected by article 8 of the European Convention on Human Rights can, in principle, be engaged by the foreseeable consequences for a person's health of removal under an immigration decision, even where article 3 is not violated, although the threshold for success is high. The court set out the practical approach a reviewing court should take when considering a challenge to a Secretary of State certificate under section 72(2)(a) of the Immigration and Asylum Act 1999: the reviewer should ask how the appeal would be likely to fare before an adjudicator and consider (1) whether removal would interfere with private or family life, (2) whether the interference attains sufficient gravity to engage article 8, and (3)-(5) whether the interference is in accordance with the law, necessary and proportionate.

The House applied these principles to the facts before it and concluded that, on the untested medical and factual material before the Secretary of State, an adjudicator could properly find that article 8 might be engaged and that the Secretary of State could not properly certify the claim as manifestly unfounded under section 72(2)(a). Accordingly the Secretary of State's certification was quashed; the appeal by the Secretary of State was dismissed.

This case concerned an asylum seeker, Mr Razgar, who faced removal to Germany under the Dublin Convention. The Secretary of State had certified the claimant's allegation that a removal would breach his Convention rights as "manifestly unfounded" under section 72(2)(a) of the Immigration and Asylum Act 1999, thereby limiting his right to appeal while in the United Kingdom. The claimant sought judicial review of that certification and succeeded at first instance and on appeal to the Court of Appeal; the Secretary of State appealed to the House of Lords.

Nature of the application: judicial review of the Secretary of State's certification under section 72(2)(a) that the claimant's human rights allegation was manifestly unfounded; declaratory and quashing relief was sought to allow an in-country appeal under section 65.

Issues framed:

• Whether article 8 ECHR can be engaged by foreseeable consequences for health or welfare of removal where article 3 is not engaged;
• Whether the Secretary of State was entitled to certify the claimant's article 8 human rights allegation as manifestly unfounded in the light of the material before him.

Reasoning and outcome: the House (majority) held that article 8 can, in principle, be engaged by the foreseeable consequences for health of removal even if article 3 is not engaged, but a high threshold applies. The court explained that, on judicial review of a certificate, the court must consider how an adjudicator would be likely to decide an in-country appeal and set out five practical questions for that assessment (interference, gravity, legality, necessity, proportionality). Applying those questions to the untested medical and country-evidence before the Secretary of State, the House concluded that an adjudicator might properly find article 8 engaged and therefore the Secretary of State could not properly certify the claim as manifestly unfounded. The Secretary of State's appeal was dismissed and the certificate could not stand.

The House emphasised both the exceptional character of successful claims based on health/welfare consequences of removal and the need to assess proportionality between individual rights and legitimate immigration-control aims.

Appeal dismissed. The House held that article 8 may be engaged by foreseeable consequences for health of removal even where article 3 is not engaged, but the threshold is high; on the material before the Secretary of State an adjudicator might properly find article 8 engaged and therefore the certification under section 72(2)(a) as manifestly unfounded could not properly be made and was quashed.

First instance: Richards J, quashed the Secretary of State's certification (see [2002] EWHC 2554 (Admin)). Court of Appeal: appeal dismissed ([2003] EWCA Civ 840). Appeal to House of Lords: [2004] UKHL 27, appeal dismissed.