IKM, R (On the Application Of) v Secretary of State for the Home Department

Certification of a human-rights claim as clearly unfounded requires a stringent assessment. The Secretary of State must consider whether there is any reasonable possibility that an appeal could succeed. That assessment must address the claimant’s individual circumstances, including serious mental-health consequences of removal and any real risk of onward refoulement. The availability of medical care in the receiving state does not answer the separate question whether removal itself would materially damage the claimant’s health. A decision which fails to engage with those matters cannot support certification under Asylum and Immigration (Treatment of Claimants, etc.) Act 2004, Schedule 3, paragraph 5(4).

The claimant, a Sudanese national from Darfur, challenged the Secretary of State’s decision to return her to the Republic of Ireland under the Dublin arrangements and to certify her human-rights claim as clearly unfounded. She had previously claimed asylum in Ireland, where her claim was refused, and feared onward removal to Sudan. She suffered from PTSD arising from torture and sexual violence, and her health had deteriorated during earlier detention in the United Kingdom.

The claimant also challenged her detention. The Secretary of State conceded that detention was unlawful. The central issue was whether the certification decision lawfully addressed the consequences of removal to Ireland, including the claimant’s mental health and the risk of refoulement.

1. Certification. The test under paragraph 5(4) of Schedule 3 to the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 is stringent. Certification is impermissible where there is a reasonable possibility that an appeal in the United Kingdom could succeed (para [17]).
2. Health consequences. The Secretary of State’s recognition that appropriate medical care would be available in Ireland did not address the material issue. The claimant’s fear that return would lead to onward removal to Sudan was reasonably held and could itself cause serious deterioration in her health, including a real risk of suicide. The earlier deterioration caused by detention demonstrated that available treatment did not necessarily prevent harm caused by the circumstances of removal (paras [14]-[15]).
3. Refoulement. The decision-maker had failed properly to take into account the arguable real risk of refoulement. The absence of forcible returns from Ireland at that time, and the possibility of a fresh humanitarian-protection claim, did not remove the concern that the claimant would lack refugee status and remain exposed to a future change in policy or circumstances (para [15]).
4. Detention and disposition. The detention was unlawful, as conceded by the Secretary of State. In view of the medical evidence and the absence of exceptional circumstances, continued detention was unjustifiable. The certification decision was quashed. The damages claim was directed for consideration by a Queen’s Bench judge unless the parties agreed that it should proceed in the County Court. The claimant received the usual legal-aid order and costs on the standard basis; indemnity costs and permission to appeal were refused (paras [11]-[12], [17], [31], [37], [39], [41]).

First-instance judicial review. The judgment records interlocutory applications and orders made before the claim came before the Administrative Court, but identifies no earlier substantive decision. Permission to appeal was refused.