T (Sri Lanka), R (on the application of) v Secretary of State for the Home Department

Article 7 of the Qualification Directive concerns protection relevant to assessing refugee status. It does not impose an additional duty on the United Kingdom to protect a recognised refugee from the consequences of removing a family member. In a claim based on suicide risk to a person remaining in the United Kingdom, the adapted principles in J v Secretary of State for the Home Department apply. The court must consider whether the feared harm in the receiving state is objectively well founded, while allowing for a genuine but unfounded fear, and whether effective domestic mechanisms can reduce the suicide risk. Appropriate United Kingdom mental-health services may be presumed. Removal to a safe country for a limited period did not reach the Article 3 threshold, and no freestanding Article 8 claim arose.

The claimant was a Sri Lankan Tamil refugee with leave to remain in the United Kingdom. She challenged removal directions made against her adult brother, whose asylum claim Germany had accepted under the Dublin II Regulation. She argued that his removal would breach her rights under Articles 3 and 8 of the ECHR because of the effect on her mental health and the risk of suicide.

The claim was brought after her brother’s own challenges to removal had failed. The claimant relied on psychiatric evidence concerning PTSD, depression, anxiety and suicidal risk. The central issues were whether Article 7 of the Qualification Directive created an additional protective duty, and whether removal would violate the claimant’s Article 3 or Article 8 rights.

1. Claim dismissed. The court accepted that the claimant’s mental-health complaints could not properly be rejected as lacking genuineness. The claim nevertheless failed on the substantive human-rights issues.
2. Article 7 of the Qualification Directive forms part of the provisions governing assessment of applications for international protection. Its reference to protection concerns protection by the country of nationality and does not impose a special or additional duty on the United Kingdom after refugee status has been recognised. The domestic implementation in regulation 4 of the Refugee or Person in Need of International Protection (Qualification) Regulations 2006, together with regulation 1(2), confirmed that conclusion.
3. The court assumed, without deciding, that the principles in J v Secretary of State for the Home Department could apply, with appropriate modification, where the potential victim of suicide remained in the United Kingdom and the person removed was an adult sibling. The relevant considerations were whether the fear of ill-treatment in Germany was objectively well founded, including any genuine but unfounded fear capable of creating a suicide risk, and whether effective United Kingdom mechanisms could reduce that risk.
4. The claimant’s fears about removal to Germany were irrational and not objectively well founded. Germany was a safe country, the brother had previously lived there safely, and he would be able to pursue his asylum claim there. The claimant could visit him. The United Kingdom’s mental-health services, including GP and psychiatric care, crisis support, medication and hospital admission under sections 2 and 3 of the Mental Health Act 1983, were available to manage the risk.
5. The increased anxiety caused by removal, even against the background of the claimant’s severe past trauma, did not amount to inhuman or degrading treatment. The absence of a valid Article 3 claim made a freestanding Article 8 claim particularly unlikely, and no such claim was pursued.
6. The Secretary of State’s discretion under Article 3(2) of the Dublin II Regulation was not a matter for the court to direct or indicate how to exercise. The claim was therefore rejected.