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

When reviewing a refusal to treat further material as a fresh claim, the court must decide for itself whether the Home Secretary was right that an immigration judge could not find the material to afford a fresh claim. A Wednesbury standard and substantial judicial deference are inappropriate, following ZT (Kosovo) [2009] UKHL 6. At the permission stage, the court asks whether there is an arguable realistic prospect of success under Article 3 or Article 8, or another compelling reason to entertain the appeal. The apparent tension between medical-removal cases and the wider degradation analysis under Article 3 may itself justify permission.

The applicant, an Afghan national, had previously failed in an asylum claim. Following serious mental and physical deterioration, including homelessness and self-harm risk, he made a renewed application for humanitarian protection and non-removal based on his mental condition and the likely destitution awaiting him in Afghanistan. He had received treatment and support under the National Assistance Act 1948.

Burnett J refused judicial review of the Secretary of State’s refusal to treat the renewed material as a fresh claim: [2008] EWHC 1911 Admin. Keene LJ later refused an extension of time and permission to appeal. The central issues before Sedley LJ were the correct standard for reviewing the fresh-claim refusal and whether the Article 3 and Article 8 arguments, or another compelling reason, justified permission to appeal.

Application granted. Sedley LJ enlarged time and granted permission to appeal. The substantive Article 3 and Article 8 merits were not finally determined.

1. Standard of review. Following ZT (Kosovo) [2009] UKHL 6, a refusal to treat further material as a fresh claim is not reviewed by asking whether the Secretary of State was entitled to reach her view under a Wednesbury-type standard. The court must independently decide whether she was right or wrong in concluding that an immigration judge could not find the material to afford a fresh claim. Independent scrutiny is also appropriate because the Home Secretary is acting as judge in her own cause.
2. Permission inquiry. The court should ask whether it is arguable that the applicant has a realistic prospect of succeeding with an Article 3 or Article 8 claim, or whether there is another compelling reason to entertain the appeal.
3. Article 3. The claim was properly viewed as a medical case. Under N [2005] UKHL 31, the medical threshold was not met unless the victim was close to death. Bensaid v UK [2001] ECHR 82 showed that returning an ill person to a country where the condition would worsen through lack of treatment was not, by itself, a breach of Article 3.
4. Unresolved tension. Pretty v United Kingdom [2002] ECHR 427 suggested that State action could breach Article 3 by making a bad condition worse. The apparent difference between that approach and N was troubling and capable of affecting other cases, although Sedley LJ did not resolve it.
5. The lack of a realistic prospect of success did not make the issue unarguable. The unresolved Article 3 question supplied the compelling reason required for permission. The final order was: application granted.

1. Court of Appeal (Civil Division): Sedley LJ granted the application, extending time and granting permission to appeal: [2009] EWCA Civ 836. He treated the Article 3 issue as a compelling reason for permission.
2. Administrative Court: Burnett J refused judicial review of the refusal to treat the renewed material as a fresh claim: [2008] EWHC 1911 Admin.
3. Interim procedural decision: In December 2008, Keene LJ refused an extension of time and permission to appeal, but Sedley LJ reconsidered enlargement of time together with the merits of permission.