KR (Iraq) v Secretary of State for the Home Department

When deciding whether removal creates a real risk of suicide sufficient to engage the right to respect for private life, a tribunal must make a single, rounded appraisal of all the evidence. It may take account of uncertain factual possibilities without requiring each component to be proved separately on the balance of probabilities.

Exceptionality is not a threshold test for engaging article 8. It reflects the expectation that lawful immigration control will ordinarily be justified under article 8(2). If article 8(1) is engaged, proportionality requires a structured and careful assessment of the severity and consequences of the interference against the public interest in immigration control.

The appellant, an Iraqi Kurd suffering from severe post-traumatic stress disorder, challenged his proposed removal to Iraq. Psychiatric evidence indicated a high risk of self-harm or suicide if he returned without medication and support.

The Asylum and Immigration Tribunal found that there was no real risk of suicide in the United Kingdom, during removal or following return. It relied on the absence of previous suicide attempts, likely parental support and the possible availability of medication. It alternatively held that removal would be proportionate under article 8(2) of the European Convention on Human Rights.

The central issues were whether the Tribunal lawfully assessed the risk of suicide under article 8(1), and whether its alternative proportionality reasoning was adequate.

1. By a majority, the appeal was dismissed. Auld LJ and Smith LJ held that the Tribunal was entitled to find that the appellant had not established a real risk of suicide on return to Iraq. Sedley LJ dissented and would have remitted the case.

2. The assessment of future risk required a single, rounded appraisal. The Tribunal was entitled to consider together the absence of any previous attempt at suicide or self-harm, the strong likelihood of parental support and the possibility that the required medication might be available. In a risk assessment involving uncertain facts, each factual component need not be proved separately on the balance of probabilities. The Tribunal could therefore treat possible access to medication as relevant even though it could not find that medication would probably be available.

3. The assessment was primarily for the expert Tribunal. An appellate court should be slow to interfere where its conclusion was supported by the evidence and was neither irrational nor clearly wrong. Although another decision-maker might have reached a different conclusion, the Tribunal was entitled to find that article 8(1) of the European Convention on Human Rights was not engaged.

4. Auld LJ, with whose observations Smith LJ agreed and whose approach was also accepted by Sedley LJ, explained obiter that [2007] UKHL 11 establishes that exceptionality is not a legal threshold for engaging article 8(1). It is an expectation that lawful removal will only rarely be defeated after the interference and the countervailing considerations under article 8(2) have been weighed.

5. All three members of the court agreed that the Tribunal’s alternative article 8(2) reasoning was inadequate. Once article 8(1) is engaged, proportionality requires a structured, full and case-specific examination of the severity and consequences of the interference against the public interest in effective immigration control. A conclusory reference to compelling humanitarian considerations cannot perform that task. That defect did not require remittal because the majority upheld the finding that article 8(1) was not engaged.

1. Court of Appeal (Civil Division): By a majority, dismissed the appeal and upheld the Tribunal’s conclusion that no real risk of suicide, and therefore no interference with article 8(1), had been established. The court unanimously regarded the alternative article 8(2) reasoning as inadequate.

2. Asylum and Immigration Tribunal: On reconsideration, dismissed the appellant’s appeal. It found no real risk of suicide in the United Kingdom, during removal or in Iraq, and alternatively held that removal was proportionate.

3. Earlier tribunal proceedings: The appellant’s initial appeal succeeded, but that decision was set aside on the Secretary of State’s appeal. Following remission, an immigration judge dismissed the appeal. The Asylum and Immigration Tribunal subsequently identified errors and ordered reconsideration.