KH (Afghanistan) v Secretary of State for the Home Department

A fresh human-rights claim exists only where there is a realistic prospect that an immigration judge, applying anxious scrutiny, might find that removal would breach the Convention.

Removing a person with a serious, naturally occurring physical or mental illness engages European Convention on Human Rights article 3 only in a very exceptional case where the humanitarian grounds are compelling. The case must be exceptional within the relevant class of ill persons. Mental illness, lack of family support and possible destitution do not ordinarily meet that threshold for an adult failed asylum-seeker.

A medical removal claim that fails under article 3 will succeed under article 8 only in a very rare case.

The appellant was an Afghan national whose asylum claim and appeal had been dismissed on credibility grounds. He subsequently relied on depression, symptoms of post-traumatic stress disorder, previous self-harm and the likely loss of medical and social support upon removal to Afghanistan. The Secretary of State decided that this material did not constitute a fresh claim under articles 3 and 8 of the European Convention on Human Rights.

Burnett J dismissed the appellant's application for judicial review, treating the claim as a medical case governed by the high threshold established in Razgar and N. The appellant appealed, contending that the case concerned destitution and loss of support rather than merely inferior medical care.

The central issue was whether there was a realistic prospect that an immigration judge, applying anxious scrutiny, might find that removal would breach article 3 or article 8.

1. Appeal dismissed unanimously. The Court of Appeal held that the new material presented no realistic prospect that an immigration judge would find removal contrary to article 3 or article 8 of the European Convention on Human Rights.

2. The court had to decide for itself whether there was a realistic prospect of success before an immigration judge applying anxious scrutiny. The question was not merely whether the Secretary of State had been entitled to regard an appeal as hopeless. ZT (Kosovo) [2009] 1 WLR 348 was applied.

3. The claim was a medical case because it depended entirely upon the appellant's mental illness. It therefore fell within the medical-removal jurisprudence in Razgar [2004] 2AC 368 and N [2005] 2AC 296. Describing the consequences as destitution or loss of support did not alter the character of the claim.

4. The general observations in Pretty v United Kingdom 35 EHRR 1 did not displace the rule in N. Pretty addressed a different context. N was the later and more considered Strasbourg jurisprudence specifically applicable to removal involving serious physical or mental illness.

5. Article 3 imposes a high threshold. Removal to a country offering inferior treatment, medical support or social assistance violates article 3 only in a very exceptional case where the humanitarian considerations are compelling. The paradigm was a person close to death who lacked nursing care, medical care, family support and basic food or shelter. Other cases could qualify, but they must be equally compelling.

6. A claimant must be exceptional within the class of persons suffering from mental illness without family support. Mental illness, absence of family assistance, possible inability to work and resulting destitution were not themselves very exceptional for an ordinary adult failed asylum-seeker. The present circumstances therefore could not satisfy article 3.

7. The appellant accepted that a medical removal claim failing the article 3 threshold could succeed under article 8 only very rarely. This was not such a case. Burnett J had reached the correct result.

1. Court of Appeal (Civil Division): Dismissed the appeal unanimously and upheld Burnett J's conclusion that the further submissions had no realistic prospect of succeeding under articles 3 or 8 of the European Convention on Human Rights.

2. Administrative Court: Burnett J dismissed the application for judicial review. He held that the claim was a medical case governed by Razgar and N and that the Secretary of State could conclude that an immigration appeal would be hopeless.

3. Immigration adjudicator: Dismissed the appellant's original asylum appeal on 3 June 2003, largely because his account was disbelieved.