NA (Iran) v Secretary of State for the Home Department

Where a human-rights claim accompanying a Dublin II transfer is certified as clearly unfounded, the court must determine for itself whether the certification is lawful. The question is whether dependable evidence establishes a real risk that removal will violate Article 3 or Article 8 rights. Evidence may concern the consequences of the removal process, including medically supported risks of serious mental deterioration, self-harm or harm to a child. Fears about treatment in the receiving state may be answered by the international arrangements governing the transfer. Immigration policy must also allow reconsideration where changed circumstances create a real Convention-rights risk. The duty under Borders Act 2009 s.55 requires continuing and sensitive attention to children’s welfare. The evidence here did not reach the real-risk threshold, so certification remained lawful.

The claimant and her husband, Iranian nationals, claimed asylum in the United Kingdom after travelling through Latvia. Latvia accepted responsibility under the Dublin II arrangements, and the Home Secretary certified their human-rights claims as clearly unfounded under paragraph 5(4) of Schedule 3 to the Asylum and Immigration (Treatment of Claimants etc.) Act 2004. The husband was removed, but the claimant remained in the United Kingdom, became pregnant and gave birth prematurely.

She sought judicial review, relying on medical and welfare evidence that removal to Latvia could cause suicide or self-harm, damage her ability to care for her daughter, and violate their rights under Articles 3 and 8. Vincent Fraser QC, sitting as a deputy judge, refused permission in [2010] EWHC 3010 (Admin). The Court of Appeal considered whether the evidence disclosed a real risk of a Convention breach and whether the certification could therefore stand.

1. Disposition. Sir Stephen Sedley concluded that the application for judicial review should be refused. Black LJ and Hallett LJ agreed. The appeal was therefore dismissed.
2. Approach to certification. Following ZT (Kosovo) [2009] UKHL 6, the court had to determine for itself whether certification as clearly unfounded was lawful. The judgment also noted that MN (Tanzania) [2011] EWCA Civ 193 requires a different approach in rule 353 fresh-claim cases.
3. Convention-rights threshold. The issue was whether dependable evidence established a real risk that removal would result in a breach of Article 3 or Article 8 rights. The court could act on evidence that the removal process might cause such deterioration in the claimant’s mental health that removal would amount to inhuman or degrading treatment of her or her child. It could also act where removal might damage the mother-child relationship so seriously as to constitute a disproportionate denial of respect for family life.
4. Assessment. Concerns about healthcare and treatment in Latvia were answered by the Dublin II arrangements, the whitelisting provisions and the Minimum Standards Directive (2003/9/EC). The claimant’s husband was already in Latvia, so removal would involve reunification. The purpose of Dublin II removal was also limited to ensuring that the asylum claim was processed by the responsible member state. These matters were relevant countervailing features, but the evidence still did not reveal a real risk that removal would provoke self-harm or harm to the child. The Home Office’s general experience in handling medically vulnerable removals was not a sufficient answer.
5. Continuing welfare duty. The court gave further guidance under s.55 of the Borders Act 2009. Policy and practice had to provide a route for reconsideration where changed circumstances created a real risk of Convention breach. The claimant could not be treated as being on an irreversible one-way process. A constant and careful watch, with a sensitive response to professional evidence of deterioration, was required.

• Court of Appeal (Civil Division): The court refused the application for judicial review and dismissed the appeal. [2011] EWCA Civ 1172
• Administrative Court: Vincent Fraser QC, sitting as a deputy High Court judge, refused permission to proceed with the judicial review claim. [2010] EWHC 3010 (Admin)