Secretary of State for the Home Department v Said

Removal on the basis that a person may face poverty, destitution or inferior medical and social provision abroad will breach article 3 only in the very exceptional and compelling circumstances identified in the D and N authorities. A different approach may apply where the feared humanitarian conditions result from relevant direct or indirect violent acts.

Country guidance on a returnee’s access to family, clan, remittances and livelihood cannot substitute for that article 3 inquiry. The likelihood of living in an internally displaced persons’ camp is not, without an individual assessment, determinative of an article 3 claim.

The respondent, a Somali national with indefinite leave to remain, was liable to automatic deportation after convictions for rape. The First-tier Tribunal dismissed his claims under articles 3 and 8 of the European Convention on Human Rights.

On appeal, the Upper Tribunal found an error of law on article 3 and held that removal to Somalia would breach that article. It considered that depression, PTSD, absence of close family in Somalia and the risk of destitution made him vulnerable under the country guidance in MOJ, [2014] UKUT 00442(IAC). The Secretary of State appealed. The central issue was whether those circumstances met the high article 3 threshold for resisting deportation.

1. Appeal allowed unanimously. Burnett LJ, with whom Sharp and Christopher Clarke LJJ agreed, quashed the Upper Tribunal’s decision and substituted an order dismissing the respondent’s underlying appeal from the First-tier Tribunal.

2. Article 3 removal claims based on naturally occurring illness, inadequate medical or social provision, or anticipated destitution fall outside the ordinary paradigm of intentional ill-treatment. They succeed only in very exceptional cases where humanitarian grounds against removal are compelling, under the approach in D v United Kingdom and N v United Kingdom. The respondent’s depression and PTSD did not approach that threshold.

3. The applicable approach depends on the source of the feared conditions. Where deprivation is predominantly caused by conflict and the direct or indirect acts of parties to it, the approach in MSS and Sufi and Elmi may apply. Where the difficulty arises from poverty, lack of resources or inadequate social provision, the N approach governs.

4. The court rejected the submission that the country guidance in MOJ, [2014] UKUT 00442(IAC), made a prospective stay in an internally displaced persons’ camp automatically contrary to article 3. Paragraphs 407(h) and 408 were likely directed to internal relocation and could not replace the required article 3 assessment. Paragraph 422 correctly required an assessment of the individual’s circumstances. Article 15(b) of the Qualification Directive corresponded in substance to article 3, whereas article 15(c) had distinct content.

5. The evidence did not establish that the respondent would be unable to work, obtain ordinary treatment, receive remittances from his supportive family in the United Kingdom, obtain clan assistance, or establish himself in Mogadishu. It therefore did not establish a real likelihood that he would be destitute or live in an internally displaced persons’ camp. Remittal would serve no purpose.

• Court of Appeal (Civil Division): Allowed the Secretary of State’s appeal in [2016] EWCA Civ 442, quashed the Upper Tribunal’s article 3 decision and substituted dismissal of the underlying appeal.
• Upper Tribunal (Immigration and Asylum Chamber): Found an error of law in the First-tier Tribunal’s article 3 decision, preserved its article 8 decision, and concluded on redetermination that deportation would breach article 3.
• First-tier Tribunal: Dismissed the respondent’s appeal against deportation in a determination promulgated on 9 December 2013.