Regina v. Sectretary of State for the Home Department (Appellant) ex parte Razgar (FC) and two other actions

Article 8 may be engaged by the foreseeable effects of immigration removal on a person's mental health, even where removal would not violate article 3, provided the effects are sufficiently grave. Private life includes features integral to identity, social functioning and mental stability.

When reviewing a certificate that a human-rights claim is manifestly unfounded, the court must consider how the claim might fare before an adjudicator. It must address interference, gravity, lawfulness, legitimate aim and proportionality. Lawful immigration control will ordinarily carry substantial weight, but a certificate cannot stand if an adjudicator might properly find that removal would strike an unfair balance.

The Secretary of State proposed to remove an Iraqi Kurdish asylum seeker to Germany under the Dublin Convention. The claimant relied on psychiatric evidence that he suffered from depression and post-traumatic stress disorder and might attempt suicide if removed. The Secretary of State certified under section 72(2)(a) of the Immigration and Asylum Act 1999 that his human-rights claim was manifestly unfounded, thereby preventing an appeal from within the United Kingdom.

Richards J quashed the certificate in [2002] EWHC 2554 (Admin). The Court of Appeal dismissed the Secretary of State's appeal in [2003] EWCA Civ 840, [2003] Imm AR 529. The House considered whether health consequences falling short of article 3 could engage article 8 and whether the certificate could lawfully stand.

1. Appeal dismissed by a majority of three to two. Lord Bingham delivered the leading speech, Lord Steyn agreed with it, and Lord Carswell agreed that the certificate had to be set aside. Lord Walker and Baroness Hale dissented.

2. Per Lord Bingham, article 8 can in principle be engaged by the foreseeable health consequences of removal even where article 3 would not be violated, if the applicant's facts are sufficiently strong. Bensaid v United Kingdom (2001) 33 EHRR 205 established that mental health and mental stability form part of private life. Article 8 protects fundamental aspects of identity and social functioning; it does not confer an entitlement to the comparatively better medical or welfare provision of the removing state.

3. Per Lord Bingham, a court reviewing a manifestly unfounded certificate should consider five questions: whether removal would interfere with private or family life; whether the consequences would be sufficiently grave to engage article 8; whether the interference would be lawful; whether it would pursue a legitimate aim and be necessary in a democratic society; and whether it would be proportionate. Lawful immigration control will almost always satisfy the legitimate-aim stage. Proportionality nevertheless requires a fair balance between the individual and community interests.

4. The adjudicator forms an integral part of the decision-making process and must exercise an independent judgment on proportionality. Relevant evidence arising after the original decision may be considered. The reviewing court must therefore assess the claim on the material which would be available to an adjudicator and apply the careful scrutiny appropriate where an irrevocable step might breach fundamental rights.

5. An adjudicator might properly find both an interference with the claimant's private life and consequences grave enough to engage article 8. Lawfulness and legitimate aim admitted of affirmative answers. Proportionality remained open because the claimant's psychiatric evidence, including the asserted suicide risk and his fear of Germany, had not been tested. His claim could not therefore be ruled out at the threshold as one which must fail.

6. Lord Carswell stressed that the House was deciding only whether an appeal could be excluded at the outset. He considered that even an irrational but genuinely extreme fear could be relevant because the decision-maker must address the claimant's actual mental condition. The House expressed no view on how an adjudicator should determine the substantive appeal on current and tested evidence.

7. Lord Walker and Baroness Hale would have allowed the appeal. They regarded the claim as a foreign health case requiring exceptionally compelling humanitarian circumstances. In their view, the evidence did not show that conditions in Germany or the availability of treatment there would amount to the required grave denial of Convention rights, and the German authorities could be presumed to perform their Convention obligations.

1. House of Lords: By a majority of three to two, dismissed the Secretary of State's appeal and left the certificate quashed: [2004] UKHL 27.
2. Court of Appeal: Dismissed the Secretary of State's appeal from Richards J and agreed that the claim could not be certified as manifestly unfounded: [2003] EWCA Civ 840, [2003] Imm AR 529.
3. High Court, Administrative Court: Richards J quashed the Secretary of State's certificate: [2002] EWHC 2554 (Admin).