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

Under paragraph 353 of the Immigration Rules, further submissions amount to a fresh claim where they are significantly different and, considered with the earlier material, create a realistic prospect of success before an immigration judge. The Secretary of State must ask that question, rather than decide the substantive claim himself, and must assess the material with anxious scrutiny. In a foreign Article 3 health case involving suicide risk, relevant considerations include the seriousness of the anticipated treatment, causation, the heightened threshold, the objective basis of any fear, and the effectiveness of safeguards in the receiving state. A realistic prospect may exist where removal would deprive a mentally ill claimant of essential medication and supervision, producing a substantial risk of suicide. The court reviews the decision on ordinary judicial-review grounds and does not substitute its own factual assessment.

The claimant, an Albanian national suffering from paranoid schizophrenia, had previously failed in asylum and human-rights proceedings. After further deterioration in his mental health, new psychiatric evidence was submitted, including evidence of a high risk of suicide if he were removed to Albania and of the lack of affordable medication and effective community support there.

The Secretary of State repeatedly refused to treat the further representations as a fresh claim. The claimant sought judicial review, arguing that removal would arguably breach Articles 3 and 8 of the European Convention on Human Rights. The central issue was whether the new material created a realistic prospect of success before an immigration judge.

1. Fresh-claim test. Applying WM(DRC) v The Secretary of State for the Home Department [2006] EWCA Civ 1495, paragraph 353 required two questions: whether the new material was significantly different from material previously considered, and whether, taken with that material, it created a realistic prospect of success. The first question was conceded. The new psychiatric evidence was materially more serious and included evidence of suicide risk not previously available.
2. Scope of review. The Secretary of State had to ask whether an immigration judge, applying anxious scrutiny, might find a real risk of Article 3 ill-treatment. His own view of the merits was only a starting point. The court could not substitute its assessment of the facts, but had to intervene if the correct question was not asked or the evaluation was not anxious and lawful.
3. Article 3. The court adopted the framework derived from J v SSHD [2005] EWCA 629, as endorsed in Tozlukaya v SSHD [2006] EWCA 379 and explained in AJ (Liberia) v Secretary of State for the Home Department [2006] EWCA 1736. The inquiry includes the severity of the anticipated treatment, causation, the particularly high threshold in a foreign case involving naturally occurring illness, whether suicide can in principle engage Article 3, the objective basis of the claimant’s fears, and effective mechanisms in the receiving state to reduce the risk. The factors are not exhaustive.
4. There was a realistic prospect that an immigration judge would find sufficiently serious treatment. The evidence indicated that essential risperidone was unaffordable, substitute medication was unlikely to be taken voluntarily and might cause serious side effects, and reliable supervision was unavailable. Without effective treatment, the suicide risk was estimated at 50 per cent. Removal to Albania would be the causal obstacle to adequate treatment. The claimant’s objectively unfounded persecution fears did not materially weaken the case because his mental illness distorted his perception. Albania appeared to lack effective mechanisms to reduce the risk.
5. The Article 3 conclusion made it unnecessary to determine Article 8. Article 8 could in principle protect mental stability and might apply where Article 3 did not, but the qualified nature of the right meant that only compelling humanitarian considerations could outweigh immigration control. The claim for judicial review therefore succeeded to the extent that the representations should have been treated as a fresh claim. That status gave the claimant a right of appeal, but did not determine that the appeal would succeed.

First-instance judicial review proceedings. The claimant’s earlier asylum and human-rights appeal had been dismissed by an adjudicator on 2 July 2003 and by the Immigration Appeal Tribunal on 23 April 2004. Permission to appeal to the Court of Appeal was refused. Those earlier decisions were not under appeal in the present proceedings.