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

In a judicial review of immigration decisions, a disagreement with factual evaluation will not ordinarily establish an error of law. Severe illness may be relevant to whether a person would be at risk on return, but Article 3 requires the very high threshold identified in D v United Kingdom and N v United Kingdom. The absence of medical treatment abroad is insufficient unless compelling humanitarian considerations arise in a very exceptional case.

An Article 8 medical claim requires a separate or additional factual element engaging private or family life. A tribunal must nevertheless give reasons for material, separately advanced private-life submissions. Relief may be refused where it is highly likely that the outcome would have been the same, or where remittal would serve no useful purpose.

The claimant, an Afghan national with serious renal disease, challenged the Upper Tribunal’s refusal of permission to appeal against a First-tier Tribunal decision dismissing his asylum, humanitarian protection and Articles 3 and 8 ECHR claims.

By the time of the judicial review hearing, he had received a kidney transplant and had been granted discretionary leave to remain. The court held that the claim was not academic because that leave was limited and did not secure his position after its expiry.

The central issues were whether the tribunals had erred in assessing risk on return, the medical Article 3 threshold, and the claimant’s private-life case under Article 8.

1. Asylum and humanitarian protection. The First-tier Tribunal had accepted the core of the claimant’s account but was entitled to conclude that the Afghan authorities would no longer have an adverse interest in him. His severe illness was a relevant personal circumstance in assessing that issue. The challenge amounted to disagreement with factual findings and evaluative judgment, not an arguable error of law.
2. Article 3. The governing principles were those in D v United Kingdom and N v United Kingdom. Removal of a person who would receive inferior or unavailable medical treatment abroad does not normally breach Article 3. The exception is very narrow and requires compelling humanitarian grounds, such as a critical stage of illness together with the absence of care and support necessary to avoid acute suffering and to die with dignity. The claimant had not produced adequate evidence about accommodation, finances, family support or care. His case therefore did not approach the high threshold.
3. The tribunals had erred in treating the earlier Upper Tribunal decision in GS (India) as good law after it had been set aside. That error made no difference, however, because the Court of Appeal later confirmed the legal approach adopted in the claimant’s case.
4. Article 8. Failure under Article 3 does not necessarily determine an Article 8 claim. A medical Article 8 claim requires a separate or additional factual element engaging the Article 8 paradigm, such as the capacity to form and enjoy relationships. No such special element arose from the claimant’s medical care and treatment. However, the tribunal judges had failed to give reasons addressing the claimant’s separately advanced private-life case. That was an error of law.
5. Relief was refused under section 31(2A) of the Senior Courts Act 1981, since it was highly likely that the outcome would have been substantially the same. Remittal would also serve no useful purpose given the claimant’s discretionary leave and the possibility of a fresh Article 8 claim if removal were later proposed. The judicial review claim was allowed on the reasons ground but no relief was granted; all other grounds were refused.

First-instance judicial review. The claim challenged the Upper Tribunal’s refusal of permission to appeal against the First-tier Tribunal’s decision. The claim was allowed only in respect of the failure to address the Article 8 private-life case, with no relief granted.