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

For the purposes of a fresh claim, the Secretary of State must apply anxious scrutiny and ask whether the new material gives rise to a realistic prospect of success before an immigration judge. Article 3 may be engaged without deliberate ill-treatment where anticipated conduct by state authorities triggers a medical condition causing exceptional and sufficiently serious harm. The relevant risk may arise from conduct which would ordinarily be harmless, such as prolonged questioning. A decision-maker must assess the specific risk relied upon and engage with expert psychiatric evidence. It is insufficient to focus on the availability of medical treatment where treatment in the receiving state is not the issue.

The claimant, a Turkish national of Kurdish origin and failed asylum-seeker, challenged the Secretary of State’s decision of 12 April 2010 refusing to treat further representations as a fresh claim under paragraph 353 of the Immigration Rules.

The further representations relied on psychiatric evidence that prolonged interrogation on arrival in Turkey could trigger post-traumatic stress disorder, re-traumatisation and serious self-harm, potentially including suicide. The central issue was whether that claim had a realistic prospect of success before an immigration judge and could disclose a breach of Article 3.

1. The claim succeeded. The decision of 12 April 2010 could not stand and required reconsideration.
2. The Secretary of State was required to apply anxious scrutiny to the fresh material and determine whether there was a realistic prospect that an immigration judge would allow the Article 3 claim. That was a modest threshold, although the Secretary of State remained a gatekeeper entitled to exclude claims plainly lacking such a prospect.
3. The country guidance in A (Turkey) [2003] UKIAT 00034, as reviewed in IK (Turkey) [2004] UKIAT 00312, supported a real risk of detention and interrogation for six to nine hours on return. That risk was relevant to the medical evidence.
4. Article 3 could be engaged without direct and deliberate ill-treatment where anticipated conduct by state authorities triggered a medical condition producing exceptional serious harm. Serious self-harm and possible suicide were capable of meeting the required threshold. The case was concerned with anticipated interrogation, not inadequate medical treatment in Turkey.
5. The decision-maker had considered the possibility of prolonged questioning but had concentrated excessively on treatment facilities and had rejected the foundation of the psychiatric evidence. Insufficient weight had been given to the genuineness of the symptoms and the risk identified by Dr Gardner.
6. R (on the application of M) v Secretary of State for the Home Department (2010) was distinguishable. That case concerned the general consequences of removal, family support and medical facilities, whereas this claim concerned a specific risk of serious harm triggered by airport interrogation.
7. A new immigration judge needed to examine the expert evidence, the likelihood and nature of reception arrangements in Turkey, and whether those arrangements would address the risk of re-traumatisation and serious self-harm.

The judgment describes a series of permission hearings and amended decisions. Permission was ultimately granted on 31 August 2010 to challenge the Secretary of State’s decision of 12 April 2010. The challenge was upheld by the Administrative Court.