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

A public authority’s duty under article 3 of the Convention is absolute and includes a duty not knowingly to expose a person to a real risk of torture or inhuman or degrading treatment. Knowledge may be actual or constructive. The assessment requires more than a mere possibility, although the seriousness of the anticipated harm affects the degree of likelihood required. The duty remains relevant to acts performed by outsourced agents. A reporting restriction requires particular vigilance where the parties agree, and section 12 of the Human Rights Act 1998 requires proper regard to freedom of expression. The court also held, subject to the binding effect of EU law, that the Charter of Fundamental Rights created no additional domestic rights through the United Kingdom’s Lisbon Protocol opt-out.

The claimant, an unsuccessful asylum seeker, had been removed to Country A after the Secretary of State rejected representations based on alleged membership of a political organisation. He claimed that confidential documents had been placed in his luggage by immigration officials, disclosed to the authorities on arrival, and used to detain and torture him.

The claim sought permission to return and damages for alleged breaches of public law duties, article 3 and article 8 of the Convention, duties of confidentiality, and articles 7 and 8 of the Charter. An earlier judicial review challenge to the refusal to treat the representations as a fresh asylum claim had been dismissed by His Honour Judge Sycamore. The remaining claim concerned the alleged events following removal and the Secretary of State’s responsibility for them.

1. Claim dismissed. The claimant failed to prove that compromising documents had been placed in his luggage or that he had been detained and tortured after arrival. His extensive history of dishonesty, inconsistencies in his evidence, defects in the photographs and unsatisfactory expert evidence were material to that conclusion.
2. Article 3 imposes an absolute and non-derogable duty. It prohibits both torture or inhuman or degrading treatment and knowingly exposing a person to a real risk of such treatment in the receiving country. The relevant knowledge may be actual or constructive. A real risk is more than a mere possibility: Vilvarajah v UK [1992] 14 EHRR 248.
3. The likelihood required depends on the seriousness of the anticipated harm. Where the harm is catastrophic, a relatively small degree of likelihood may suffice: Re B (a Child) [2013] UKSC 33. Torture is sufficiently serious to engage that lower threshold. On the facts found, however, the claimant faced no risk, let alone a real risk.
4. The court rejected the argument that the Secretary of State was required to inspect confidential personal correspondence or discuss with the claimant whether documents packed by officials might be compromising. That argument did not arise on the facts and was inconsistent with the limited conduct proved against the Secretary of State.
5. The falsification of the room-clearance certificate by agents of the Secretary of State was corrupt and shocking. Outsourcing the relevant functions to private contractors did not alter the public significance of the conduct. The judgment and relevant papers were directed to the Director of Public Prosecutions and the Attorney General.
6. The court expressed the view that the United Kingdom’s Lisbon Protocol prevented the Charter from creating additional justiciable domestic rights, but recognised that the Court of Justice had held otherwise. Applying that binding EU-law position, the claimant could rely domestically on Charter articles 7 and 8.

The judgment itself states that an earlier judicial review challenge to the Secretary of State’s refusal to treat the representations as a fresh asylum claim was dismissed by His Honour Judge Sycamore on 15 November 2012. The present judgment determined the claimant’s consequential claim for return and damages.