TH (Pakistan) v Secretary of State for the Home Department

Further submissions must disclose a realistic prospect of success before a tribunal to amount to a fresh claim. An applicant seeking interim protection against removal must show a reasonable arguable case that the refusal was unlawful. Where a serious medical condition does not prevent removal under Article 3, it cannot ordinarily confer wider Article 8 protection against removal on health grounds. In applying paragraph 276ADE(vi) of the Immigration Rules, the Secretary of State may consider the applicant’s long residence and ties in the country of return. Earlier mishandling during detention does not establish a present transportation risk where the Secretary of State has notice of the medical condition and has made appropriate arrangements.

The applicant, a Pakistani national with achondroplasia, entered the United Kingdom in 2006 and remained after his visitor’s visa expired. His asylum and Article 8 claims were dismissed in 2009. Further representations in 2012 and 2014 relied on new medical evidence and Articles 3 and 8. The Secretary of State rejected them as not amounting to a fresh claim in a decision dated 28 January 2015. Upper Tribunal Judge Ward dismissed the judicial review application on the papers. The present matter was a renewed oral application for a stay of removal and interim injunctive relief, concerning paragraph 276ADE(vi), Article 8 outside the Rules, and transportation arrangements.

1. Interim relief. The renewed application for a stay of removal and an interim injunction was dismissed. The applicant had to show a reasonable arguable case of error of law capable of justifying such relief.
2. Fresh claim. Applying the approach in WM(DRC) [2006] EWCA Civ 1495, the relevant question was whether the further submissions created a realistic prospect of success before a tribunal. The Secretary of State had rationally concluded that the medical evidence did not prevent removal under Article 3. The challenge therefore disclosed no reasonable arguable unlawfulness.
3. Articles 3 and 8. Article 3 imposed more stringent obligations than Article 8. Since the medical condition did not establish an Article 3 impediment, it could not on that basis give rise to wider Article 8 protection against removal. The Secretary of State was entitled, under paragraph 276ADE(vi) of the Immigration Rules, to consider the applicant’s 41 years in Pakistan and conclude that there were no very significant obstacles to integration there.
4. Article 8 outside the Rules. The Secretary of State’s reasoning was also rationally open in relation to exceptional circumstances outside the Rules. It addressed the absence of an Article 3 case, the applicant’s family support network in Pakistan, access to treatment, and the limited visits by his sister. The earlier deterioration of his condition during detention did not make the present decision arguably unlawful.
5. Transportation. The Secretary of State had been given current medical information and had arranged an ambulance, medical escorts and onward assistance. The earlier transportation incident did not justify inferring a future breach. The material concerning Choices and Weldo did not show that the proposed assistance was unavailable. No good arguable case for interlocutory relief was established.

1. Court of Appeal (Civil Division): Sales LJ dismissed the renewed oral application for a stay of removal and interim injunctive relief.
2. Court of Appeal (Civil Division): Ryder LJ had earlier dismissed an application for similar interim relief.
3. Upper Tribunal: Upper Tribunal Judge Ward dismissed the application for judicial review on the papers; the Court of Appeal agreed with his reasons.
4. Asylum and Immigration Tribunal: The applicant’s asylum appeal, including his Article 8 case, was dismissed in September 2009. Reconsideration applications to the Tribunal and the High Court were refused.