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

On a challenge to certification under Asylum and Immigration (Treatment of Claimants) Act 2004, a claim is not “clearly unfounded” if it has a realistic prospect of success before an immigration tribunal. The reviewing court must ask that question itself, while respecting the statutory gate-keeping function and keeping the inquiry proportionate.

A serious and medically supported risk of suicide or self-harm may engage Articles 3 or 8. Relevant considerations include the severity of the threatened treatment, causation, the objective basis of the claimant’s fear, and the effectiveness of protective measures. Where the claimant may establish that removal or redetention creates a high suicide risk and that no adequate risk-management plan exists, certification should be quashed.

The claimant, a Syrian asylum seeker who had previously claimed asylum in Bulgaria, challenged the Secretary of State’s decision to remove him there under Dublin II. His human rights claim was certified as clearly unfounded under paragraph 5(4) of Part 2 of Schedule 3 to the Asylum and Immigration (Treatment of Claimants) Act 2004.

He relied on evidence of torture, severe post-traumatic stress disorder, repeated self-harm and a continuing high risk of suicide if removal were pursued or he were redetained. The central issue was whether his Articles 3 and 8 claim was bound to fail, or realistically might succeed, before an immigration tribunal.

1. Certification test. The court applied ZT (Kosovo) v Secretary of State for the Home Department [2009] UKHL 6. If the claim realistically might succeed before a tribunal, it is not clearly unfounded. If it is bound to fail, certification is lawful. The judicial review court must ask that question itself, while recognising that certification remains a proportionate screening and gate-keeping process.
2. The inquiry is not a substantive human rights appeal or a fact-finding exercise. The court should largely, though not naively or uncritically, take the claimant’s factual account as stated. The process should normally be conducted in hours rather than days unless an exceptional new point of law requires determination.
3. Suicide risk and human rights. The court applied the principles in Razgar v Secretary of State for the Home Department [2004] UKHL 27 and J v Secretary of State for the Home Department [2005] EWCA Civ 629. A sufficiently grave risk of suicide or serious deterioration in mental health may engage Articles 3 or 8. The relevant assessment includes severity, causation, the objective basis of the fear of return, and whether the removing or receiving state has effective mechanisms to reduce the risk.
4. The claimant had reasonable prospects of establishing that his account was substantially true, that removal or redetention would create a continuing high risk of suicide or serious self-harm, that the Secretary of State had no adequate plan to manage the risk, and that the circumstances were sufficiently exceptional to engage the protection of Articles 3 or 8. Tozlukaya v Secretary of State for the Home Department [2006] EWCA Civ 379 was distinguishable because the evidence and risk-management arrangements were materially different.
5. The judicial review claim was allowed. The certification in the June 2011 decision letter, as maintained in November 2012, was quashed. Any tribunal appeal could address immediate reception and handover conditions in Bulgaria, but not the wider systemic treatment of asylum seekers there. The Secretary of State was ordered to pay the claimant’s costs on the standard basis from 24 May 2012.

The judgment was a first-instance judicial review. Permission had previously been granted at an oral hearing on 23 May 2012. The court allowed the claim and quashed the certification.