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

Where credible medical evidence raises a substantial possibility that removal may expose a person to serious harm contrary to Article 3, the Secretary of State should not proceed with removal without obtaining adequate specialist medical evidence addressing the diagnosis, likely consequences of removal and available treatment or safeguards.

The court may adjourn judicial review proceedings to obtain that evidence where the existing material is incomplete and further evidence may resolve the central issues, prevent premature determination and avoid successive proceedings. The burden of proof on the claimant does not justify removal in the face of an unresolved and properly notified medical risk.

The claimant, an asylum seeker from the Congo, applied for judicial review after the Secretary of State maintained removal directions and rejected further representations as not constituting a fresh claim. The claimant relied on a neurologist’s evidence diagnosing temporal lobe epilepsy and warning that travel and deportation-related stress might cause serious convulsions.

The Secretary of State relied on contrary medical evidence, challenged the diagnosis and opposed an adjournment on the ground that judicial review was not the forum for gathering factual evidence. The central issue was whether the proceedings should remain on foot while a further specialist report investigated the diagnosis, the consequences of removal and whether medication or medical assistance could control the risk.

1. Adjournment granted. The judicial review proceedings were adjourned so that a joint specialist medical report could be obtained.
2. The court rejected the submission that the claimant’s failure to establish the medical case on the existing evidence required immediate dismissal. If the claimant in fact suffered epilepsy and removal caused seriously harmful fits, removal might breach Article 3. The Secretary of State had been put on notice of the potential risk by the medical evidence already supplied.
3. The existing evidence was incomplete. It did not adequately address the diagnosis, the effect of medication, what might happen during removal, the measures required if a fit occurred, or the possible long-term consequences. The further examination therefore needed to be undertaken by a neurologist or another expert with relevant specialist expertise.
4. Obtaining the evidence was more expedient and proportionate than determining the judicial review on an incomplete report. The new evidence might resolve the dispute, demonstrate that the claimant was fit to travel, or support the Article 3 argument. It might also generate further representations or proceedings, but keeping the claim on foot avoided unnecessary sequential litigation.
5. The order directed that a joint medical report address whether the claimant suffered from epilepsy, the expected consequences of removal, and the extent to which any risks could be controlled by medication. The matter was relisted in three months for an hour-long directions hearing, with liberty to apply. There was no order as to the costs of the day, subject to legal aid taxation.

First-instance interlocutory decision. The judgment does not state any further appellate history.