AJ (Liberia) v Secretary of State for the Home Department

In a foreign mental-health or suicide case, removal infringes article 3 only where the circumstances cross its particularly high threshold. An increased suicide risk does not itself establish a breach. The availability of effective mechanisms in the destination state is important but not determinative.

A tribunal must base findings about access to medication or treatment on evidence. It must also permit the parties to address a material possibility raised for the first time in its reasons. Mental-health consequences may engage article 8 below the article 3 threshold, but legitimate immigration control will ordinarily be proportionate unless the case is truly exceptional.

The appellant, a Liberian national and former child soldier, challenged his proposed removal on the ground that returning him to Liberia would create a serious risk of psychological deterioration and suicide. His asylum claim and his claim based on ill-treatment by third parties were no longer pursued.

An immigration judge rejected his claims under articles 3 and 8 of the European Convention on Human Rights. On reconsideration, the Asylum and Immigration Tribunal accepted the evidence of his treating psychologist but concluded that removal would breach neither article. It considered that medication could probably be obtained privately in Monrovia or taken from the United Kingdom.

The central issue was whether the Tribunal had lawfully assessed the risk and the mechanisms available in Liberia to reduce it, and whether it had correctly distinguished the tests under articles 3 and 8.

1. Appeal allowed. The Tribunal's decision was set aside and the case remitted for continuation of its reconsideration. The Court expressed no view on whether the appellant ultimately satisfied article 3 or article 8.

2. Article 3 can apply where removal risks deterioration in mental health or suicide, even though neither state would inflict the anticipated harm. The threshold is nevertheless particularly high in a foreign case. An increased risk of suicide is insufficient by itself. There must be exceptional circumstances comparable in impact to the terminal condition considered in D v UK (per Hughes LJ, with whom Maurice Kay LJ and Sir Mark Potter P agreed).

3. The factors identified in J v Secretary of State for the Home Department, including whether the claimant's fears are objectively well founded and whether the destination state has effective mechanisms to reduce suicide risk, are important but non-exhaustive. The availability of mental-health facilities is relevant but does not determine the claim. The ultimate question remains whether the circumstances cross the particularly high article 3 threshold.

4. The Tribunal was entitled to determine the Convention issue for itself despite accepting the psychologist's evidence. It also correctly treated articles 3 and 8 as imposing different tests. Evidence may, however, be relevant to both. Mental-health effects falling below article 3 may engage article 8, but legitimate immigration control will ordinarily be proportionate unless the case is truly exceptional.

5. The Tribunal had considered the absence of counselling, family support and other conditions in Liberia. It erred, however, by finding without an evidential basis that the appellant could obtain medication in Monrovia or take a supply from the United Kingdom. The latter possibility had not been raised at the hearing, so the parties had no opportunity to address prescription, duration or need.

6. Those unsupported findings may have affected the assessment of suicide risk and the conclusions under both articles. As those evaluations were primarily for the specialist Tribunal, remittal was required.

1. Court of Appeal (Civil Division): The appeal was allowed. The Tribunal's decision was set aside and the matter remitted for continuation of the reconsideration: [2006] EWCA Civ 1736.

2. Asylum and Immigration Tribunal: Following a full reconsideration, the Tribunal rejected the claims under articles 3 and 8 of the European Convention on Human Rights.

3. Immigration judge: On rehearing, the asylum claim and the distinct claims based on suicide risk were rejected.

4. Immigration and Asylum Tribunal: The first adjudicator's decision was quashed in January 2005 and the case remitted for a fresh hearing.

5. Adjudicator: The original asylum and associated article 3 claims were rejected in March 2004.