Tozlukaya v Secretary of State for the Home Department

A certificate that a human-rights claim is clearly unfounded may be issued only where the claim is bound to fail before the appellate tribunal. The Secretary of State and the reviewing court must assess the case on the most favourable evidential basis that the tribunal could reasonably accept. In an Article 3 case involving threatened suicide, an increased risk caused by removal may establish the necessary causal link, although it is not by itself sufficient. The court must consider the severity of the anticipated harm, the claimant’s perceptions, and the effectiveness of protective measures in the removing and receiving states. A published policy giving weight to children’s ties after seven years’ residence may also make an Article 8 claim arguable, even though it creates no automatic entitlement to leave.

The claimant, a Turkish national, sought judicial review of the Secretary of State’s certificate that his family’s human-rights claims were clearly unfounded. Germany had accepted responsibility for the family’s asylum applications under the Dublin Convention. The claimant relied on Articles 3 and 8 of the European Convention on Human Rights, principally because removal to Germany was said to create a serious risk that his wife would attempt suicide and would worsen the children’s mental health. The family also relied on a published policy concerning children who had lived in the United Kingdom for seven years or more. The central issue was whether the claims were bound to fail before the appellate tribunal.

1. The certificate was quashed. The statutory threshold was objective and high. The question was whether the claims were bound to fail, not whether they were likely to fail. The court had to consider the evidence on the most favourable basis that the tribunal could reasonably accept.
2. The disagreement between the medical experts did not make rejection of the claimant’s evidence inevitable. The tribunal could accept the evidence that removal, detention or transit might trigger self-harm or suicide.
3. The principles in J v Secretary of State for the Home Department [2005] EWCA Civ 629 were applicable. In a foreign Article 3 case the court had to consider the severity of the anticipated treatment, causation, the claimant’s objective fears and the effectiveness of safeguards. The evidence left a real and arguable possibility that removal would significantly increase the risk of suicide, including in the United Kingdom, during transit or after arrival in Germany. The effect on the children was also relevant.
4. The court had to assume that Germany would not return the family to Turkey in breach of the Refugee Convention or the European Convention. That assumption did not eliminate the relevance of the wife’s subjective perception that removal to Germany brought onward removal nearer. The proposed safeguards and medical arrangements did not make failure of the Article 3 claim inevitable.
5. The Article 8 claim based on mental integrity could remain arguable even if the Article 3 threshold were not met. The seven-year policy did not confer an automatic right to remain, but it recognised that children’s established ties would normally outweigh other considerations. The tribunal was entitled to take that policy into account when deciding proportionality under Article 8(2).

The Secretary of State’s certificate was therefore quashed, leaving the human-rights claims for determination by the appellate tribunal.