Rodriguez-Torres, R (on the application of) of v Secretary of State for the Home Department

Removal on health grounds will breach articles 3 or 8 of the European Convention on Human Rights only in exceptional cases. The threshold is especially high where removal occurs in the ordinary operation of immigration control. A claimant’s subjective fear may contribute to a risk to mental health, even if irrational, but the tribunal must assess the evidence and balance the individual’s interests against the community’s interests in lawful immigration control. Where an adjudicator applies an insufficiently demanding threshold or fails properly to analyse the medical evidence, the appellate tribunal may identify an error of law and reconsider the case on its merits.

A Peruvian national challenged the refusal of permission to remain after the Secretary of State rejected his asylum claim. An adjudicator rejected the asylum case but allowed the human-rights appeal, finding that removal would probably worsen the appellant’s severe depression and interfere disproportionately with his private and family life. The Immigration Appeal Tribunal allowed the Secretary of State’s appeal, holding that the adjudicator had erred in law by failing properly to analyse the medical evidence and the high threshold governing articles 3 and 8.

The appeal concerned the Tribunal’s jurisdiction, the adequacy of the Secretary of State’s grounds, and whether the adjudicator had applied the correct legal test. The central issue was whether removal to Peru would violate the appellant’s Convention rights because of its likely effect on his mental health.

1. Jurisdiction and grounds. The Secretary of State’s grounds sufficiently identified alleged errors of law, although they did not use those exact words. Grounds should not be construed narrowly or formalistically. They need only identify the legal question with sufficient clarity for the respondent and Tribunal to understand it.
2. Perversity. The Tribunal was entitled to consider the substance of the Secretary of State’s case. A complaint that the adjudicator failed to consider relevant factors, gave them insufficient weight, or applied the wrong legal test was not excluded because the Secretary of State had avoided describing the decision as perverse.
3. Articles 3 and 8. Following the guidance in R (Razgar) v Secretary of State for the Home Department [2004] UKHL 27, removal may engage article 8 because of its effect on mental health even where article 3 is not breached. The threshold is high and is met only in exceptional cases. Subjective perception of threatened ill-treatment may be relevant, but the decision-maker must assess the medical evidence and strike a fair balance between the individual and the community. Lawful immigration-control decisions will be proportionate in all but a small minority of cases.
4. The adjudicator directed himself that a high threshold applied but failed to appreciate how demanding it was. He also failed adequately to analyse the medical evidence. The Tribunal was therefore entitled to find an error of law and consider the case afresh, including the later medical report.
5. On the evidence, including the appellant’s deteriorating depression and fear of return, the Tribunal was entitled to conclude that removal would not violate articles 3 or 8. The appeal was dismissed.

• Court of Appeal (Civil Division): Dismissed the appellant’s appeal and upheld the Tribunal’s conclusion that removal would not breach articles 3 or 8.
• Immigration Appeal Tribunal: On 5 November 2004, allowed the Secretary of State’s appeal against the adjudicator’s human-rights decision and dismissed the appellant’s asylum appeal.
• Adjudicator: Allowed the appellant’s appeal on human-rights grounds but rejected his asylum claim.