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

A human rights claim is clearly unfounded only if it cannot succeed on any legitimate view. Removal involving a suicide risk may engage article 3, but an increased or even severe risk does not suffice without meeting its particularly high threshold. Effective safeguards during removal, appropriate treatment in the receiving state and the objective basis of the person’s fears are important considerations.

Under article 8, a child’s lengthy residence and resulting private-life ties may make proportionality arguable. A government policy favouring families with children resident for seven years may affect that assessment. A relevant ministerial statement cannot properly be disregarded when the policy is applied.

The Secretary of State appealed against the Administrative Court’s order quashing a certificate under section 93(2)(b) of the Nationality, Immigration and Asylum Act 2002. The certificate stated that a Turkish asylum-seeker’s claims under articles 3 and 8 of the Convention were clearly unfounded.

The family was to be removed to Germany. Medical evidence indicated that the respondent’s wife suffered from depression and post-traumatic stress disorder and faced an increased risk of suicide. The Secretary of State produced evidence of safeguards during removal and of psychiatric care, medical assessment and accommodation in Germany.

The family also relied on the private life of two children, particularly an elder child who had lived in the United Kingdom for about seven years. The central questions were whether either human rights claim was bound to fail and what significance attached to the Secretary of State’s policy concerning children with at least seven years’ residence.

1. Appeal dismissed. Richards LJ, with whom Lloyd and Buxton LJJ agreed, held that the article 3 claim and the mental-health aspect of the article 8 claim were clearly unfounded. The certificate was nevertheless properly quashed because the children’s distinct article 8 claim was arguable.

2. A claim is clearly unfounded under section 93(2)(b) of the Nationality, Immigration and Asylum Act 2002 only where it cannot succeed on any legitimate view. The inquiry is objective. A reviewing court with the same material is as well placed as the Secretary of State to decide it.

3. Article 3 can apply to removal involving a risk of suicide without any actual or notional Convention breach by the receiving state. The court rejected the submission that Bagdanavicius required such a breach. The applicable approach was that in J v Secretary of State for the Home Department [2005] EWCA Civ 629. It required consideration of the seriousness of the anticipated harm, causation, the especially high threshold in foreign medical cases, whether the underlying fear was objectively well founded, and the effectiveness of protective mechanisms.

4. The domestic authorities would remain obliged to take reasonable protective measures after notification and during the flight. Suitably qualified escorts made actual self-harm during removal unlikely. Germany would provide specialist assessment, psychiatric care and suitable accommodation. Even accepting a severe and continuing increase in suicide risk, removal would not approach the high article 3 threshold or affront fundamental humanitarian principles. The possible effect upon the children did not alter that conclusion.

5. The mental-health claim under article 8 was also bound to fail. The threshold was very high, and the evidence concerning treatment and facilities in Germany distinguished the circumstances from Razgar.

6. The children’s lengthy residence and established ties arguably engaged their right to private life. A relevant policy may affect the proportionality balance and support a finding that a case is exceptional. The 1999 ministerial statement strongly suggested a presumption against removing families with children continuously resident for seven years. Ignoring that statement was contrary to good administration and arguably frustrated a legitimate expectation. The decision refusing the family the concession therefore carried no weight in the Tribunal’s independent proportionality assessment. The children’s article 8 claim was not bound to fail.

1. Court of Appeal (Civil Division): Dismissed the Secretary of State’s appeal and upheld the quashing of the certificate, solely because the children’s article 8 claim was not clearly unfounded.
2. Administrative Court: Andrew Nicol QC, sitting as a Deputy High Court Judge, quashed the certificate under section 93(2)(b) of the Nationality, Immigration and Asylum Act 2002. He held that the article 3 claim was not bound to fail and considered the article 8 claim arguable. No citation is stated.