G v Secretary of State for the Home Department

Article 3 protection against removal on suicide-risk grounds is confined to truly exceptional cases. The court asks whether removal itself would sufficiently exacerbate suffering from a naturally occurring illness to amount to ill-treatment, assessed against the applicant’s present medical condition. In suicide cases, the feared ill-treatment in the receiving state must have objectively well-founded grounds. A claimant cannot meet the threshold where the asserted persecution has been rejected, the evidence does not show that return would aggravate the illness, and removal is more likely to relieve the principal source of distress. A tribunal’s observation that suicide risk is not imminent does not impose an unlawful test if it correctly applies the exceptional-case standard.

The appellant, an Ethiopian national, challenged the refusal of asylum and leave to remain on human-rights grounds. An adjudicator dismissed the claim in June 2004, after which the matter was remitted for reconsideration under the new system. In May 2005, Immigration Judge D G Zucker dismissed the claim again.

The Asylum and Immigration Tribunal granted permission to appeal only on whether the judge had applied the correct Article 3 test to the asserted suicide risk. The Court of Appeal therefore considered whether removal, in light of the appellant’s serious depression and medical evidence, could breach Article 3 despite rejection of his account of persecution and torture.

The appeal was dismissed unanimously. The appellant’s application for an extension of time to file an appellant’s notice was refused, and the respondent was granted permission to file a respondent’s notice out of time.

1. Permission to appeal should not be granted merely because a point is faintly arguable. The power is to be exercised sparingly, unless an overriding reason exists. The grant of permission was properly confined to the Article 3 suicide-risk issue.
2. The governing Article 3 threshold is reached only in truly exceptional cases. Where removal would sufficiently exacerbate suffering from a naturally occurring illness, the question is whether removal itself is properly characterised as Article 3 ill-treatment in light of the applicant’s present medical condition. The court referred to M v Home Secretary [2005] UKHL 31 and the terminal-illness example in D v United Kingdom [1997] 24 EHRR 423.
3. The same exceptional approach applies where the threat to life or wellbeing arises from suicidal impulses. A material question identified in J v Home Secretary [2005] EWCA Civ 629 is whether the feared ill-treatment in the receiving state is objectively well-founded.
4. This case differed materially from J. The appellant’s account of torture and persecution had been rejected. The evidence indicated that his depression and suicidal ideation principally arose from anxiety about his family’s circumstances following his departure. Removal to Ethiopia was therefore likely to alleviate rather than aggravate the principal source of distress. The medical evidence did not show that return would precipitate suicide or that appropriate care could not cushion its effects.
5. The immigration judge’s observation that the medical evidence did not suggest an imminent suicide risk was a factual observation, not the imposition of an incorrect legal threshold. The judge had identified the governing very exceptional circumstances test.
6. A criticism that the immigration judge had inadequately set out the medical evidence was not developed and did not affect the decisive conclusion that the evidence could not reach the Article 3 threshold.

• Court of Appeal (Civil Division) dismissed the appeal, refused the appellant’s extension application, and granted the respondent permission to file a respondent’s notice out of time.
• Asylum and Immigration Tribunal granted permission only on the Article 3 suicide-risk issue and remitted the matter for reconsideration before Immigration Judge D G Zucker, who dismissed the claim in May 2005.
• Adjudicator dismissed the appellant’s original appeal against refusal of asylum and human-rights leave in June 2004. The matter was subsequently remitted under the new reconsideration procedure.