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

A human-rights claim is clearly unfounded only where it cannot succeed on any legitimate view. The reviewing court must assess the substance of the claim, the background evidence, its credibility and whether, if accepted, it could fall within the Convention.

A serious suicide risk arising from notification, detention or removal will rarely establish an Article 3 claim where reasonable safeguards exist. Article 8 must not be treated as a repetition of an unsuccessful Article 3 claim, but the same facts may be relevant to private or family life. A claim outside the Immigration Rules may proceed where the facts are capable of amounting to a truly exceptional case. Whether that threshold is met is fact-sensitive and should ordinarily be determined by an immigration judge.

The claimant, a national of the Democratic Republic of Congo, challenged the Secretary of State’s certification under section 93(2)(b) of the Nationality, Immigration and Asylum Act 2002. The certificate stated that her human-rights claims under Articles 3 and 8 of the Convention were clearly unfounded and followed a decision to remove her to France as the safe third country responsible for considering her asylum claim.

The claimant relied on a severe psychiatric condition, a substantial suicide risk, traumatic experiences in Congo and France, and an exceptionally close dependency bond with her only surviving known relative in the United Kingdom. The central issue was whether those claims were incapable of succeeding before an immigration judge, or were sufficiently arguable that certification should be quashed.

1. Article 3. The applicable threshold for a suicide-risk claim was high. The claimant’s concession that this was not a foreign case meant that treatment in France could not found the Article 3 claim; the issue was confined to notification, detention and the process of removal. The Secretary of State had credible evidence of reasonable and practical safeguards, and the likelihood of successful suicide was objectively small. The Article 3 challenge therefore failed.
2. Article 8. The claimant could not simply repackage the failed Article 3 case as an Article 8 claim. Nevertheless, facts relevant to Article 3 could bear on private or family life where they had sufficiently adverse effects on physical and moral integrity.
3. The approach in Huang v Secretary of State for the Home Department [2005] EWCA Civ 105 required an immigration judge to consider whether the case was so exceptional on its particular facts that proportionality demanded an outcome outside the Immigration Rules. The screening question was narrower: whether the claim could not succeed on any legitimate view.
4. The claimant’s severe illnesses, traumatic history, loss of her other family members, minority when she entered the United Kingdom, dependence on her brother, and the fact that France was the place where she had previously been exploited and raped made the Article 8 claim realistic and arguable. Her lies on entry, ability to form other friendships and the speculative possibility of transferring refugee status did not make the claim clearly unfounded.
5. The Article 8 certification was quashed. The claimant succeeded on that issue and was awarded her costs. Permission to appeal was refused, with renewal left to the Court of Appeal.

First-instance judicial review. The judgment records an application for permission to appeal to the Court of Appeal, which was refused by the High Court.