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

When deciding whether removal to a safe third country would breach Articles 2 or 3 of the ECHR, the Secretary of State must assess the risk of onward removal and the receiving state’s procedures for considering separate human-rights claims. A refusal to reconsider an asylum claim does not, without more, show that the receiving state would remove a person in breach of the ECHR. Asylum and human-rights claims may produce different outcomes, particularly where persecution is accepted but refugee status fails for lack of a Convention reason or because an exception applies. In the absence of evidence that the receiving state would ignore its international obligations or lacked procedures capable of preventing unlawful removal, the Secretary of State could regard the human-rights allegation as clearly unfounded.

The claimant, a citizen of the Democratic Republic of Congo, sought judicial review of the Secretary of State’s decision to certify that his proposed return to France would not breach his human rights. France had previously refused his asylum claim and had accepted responsibility for considering it. The claimant relied on further material, including an apparently genuine arrest warrant suggesting that he might face the death penalty in the DRC, and argued that France’s refusal to reconsider his asylum claim created a real risk of onward removal in breach of Articles 2 and 3 of the ECHR.

Permission had been granted on the human-rights grounds only. The central issue was whether the Secretary of State had sufficient evidence to conclude that return to France was clearly unfounded as a human-rights claim.

1. Claim dismissed. The Secretary of State’s decision of 24 May 2004 was lawful and supported by the evidence.
2. The French authorities’ refusal to reconsider the claimant’s asylum status did not determine how they would deal with a distinct claim that onward removal to the DRC would breach Articles 2 or 3 of the ECHR. Asylum and human-rights claims can lead to different conclusions.
3. The material showed that the French authorities had accepted, or had not challenged, the seriousness of the treatment the claimant might face in the DRC. His failure to obtain refugee status arose from the absence of a Convention reason or the application of an exception, rather than from a finding that the feared treatment lacked sufficient severity.
4. There was no evidence that France would disregard its ECHR obligations, or that it lacked procedures through which a proposed removal creating a risk under Articles 2 or 3 could be challenged and, if necessary, stayed. The court would not infer that a refusal of asylum constituted permission to remove a person despite a separate human-rights claim.
5. The claimant’s assertion that France had not given an undertaking to consider further evidence was immaterial. No refusal of such an undertaking was before the court, and a request to reconsider fresh evidence would merely return to the rejected asylum claim unless it addressed the separate human-rights issue.
6. An order was made for the claimant to pay the defendant’s costs, to be assessed if not agreed.

First-instance judicial review decision. The judgment states that permission had been granted at an oral hearing by Crane J, and that the claim had previously been dismissed insofar as it concerned asylum matters.