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

In reviewing a certificate that an asylum claim is clearly unfounded, the court must examine the Secretary of State’s decision against the evidence available at the time. Conflicting medical opinions must be assessed on their merits; the expert’s source of instruction is not automatically decisive. Although the permission threshold is low, Article 3 presents a high hurdle in health-related removal cases. Only an exceptionally compelling case will establish a breach where return may cause serious health deterioration. The availability and practical accessibility of psychiatric care must be considered in the round.

The appellant sought judicial review of the Secretary of State’s refusal to revoke a deportation order. The Secretary of State maintained a certificate on an earlier asylum claim that the claim was clearly unfounded, preventing an in-country appeal. Andrew Thomas QC, sitting as a Deputy High Court Judge, dismissed the judicial review.

On a renewed application for permission to appeal, the appellant challenged the treatment of conflicting psychiatric evidence and argued that subjective fears would prevent him accessing psychiatric care in Nigeria, creating a continuing suicide risk contrary to Article 3.

The Court of Appeal refused permission to appeal. The question was whether either proposed ground had a real prospect of success.

1. The first ground did not establish that the judge had treated the opinions of psychiatrists working in detention centres as automatically preferable to an independent expert’s opinion. The judge had read and weighed the reports and had reviewed the Secretary of State’s decision in light of the evidence before her. The source of an expert’s instruction was not itself determinative.

2. The court considered the respondent’s reliance on Das, concerning the general entitlement to rely on responsible clinicians where medical opinions conflict. The first ground did not truly engage that issue. In any event, the judgment below indicated that the treating psychiatrists were preferred because they had more information and were better placed to assess the appellant, rather than because of their institutional status.

3. The second ground concerned suicide risk and the appellant’s asserted inability, because of his subjective fears, to access psychiatric care available in Nigeria. The court applied the general principle stated in Y (Sri Lanka) v Secretary of State for the Home Department [2009] EWCA Civ 362: humanitarian consequences of return will breach Article 3 only in an exceptionally compelling case where health is likely to deteriorate terminally.

4. The facts in Y (Sri Lanka) were exceptional and materially different. They involved torture and other ill-treatment by state authorities, closely connected with the inability to access psychiatric care. Here, care was available, and the court considered the evidence concerning care before, during and after return, including possible emergency measures. There was no real prospect of establishing an Article 3 breach.

Permission to appeal was refused.

• Court of Appeal (Civil Division): On 23 March 2016, the court refused the renewed oral application for permission to appeal: [2016] EWCA Civ 384.
• High Court of Justice, Queen’s Bench Division: Andrew Thomas QC, sitting as a Deputy High Court Judge in the Administrative Court, dismissed the judicial review of the refusal to revoke the deportation order and the maintenance of the clearly unfounded certificate.