Rahman v Secretary of State for the Home Department

In a medical-removal case, Article 3 requires evidence that the claimant is a seriously ill person and substantial grounds for believing that removal creates a real risk of prohibited treatment. The post-Paposhvili extension remains narrow and requires the high threshold of serious, rapid and irreversible deterioration, intense suffering or significant reduction in life expectancy.

An Article 8 assessment must address the relevant medical, treatment, family and private-life circumstances as a whole. A mistaken description of lawful residence as illegal may be immaterial where immigration status was precarious and the evidence could not establish very significant obstacles to integration. A claim may be certified as clearly unfounded where an appeal would be bound to fail.

The appellant, a Bangladeshi national who had lived in the United Kingdom since 2008 under successive grants of student leave, applied for leave to remain on human rights grounds. The Secretary of State refused the application and certified the claim as clearly unfounded. The appellant sought judicial review, alleging irrationality, errors concerning overstaying and private life, misunderstanding of medical evidence, and breaches of Articles 3 and 8.

On 9 December 2015, Upper Tribunal Judge Rogers refused permission to bring judicial review proceedings and declared the claim wholly without merit. HHJ Purle QC granted permission to appeal to the Court of Appeal on 7 June 2016. The central issues were whether the refusal and certification were unlawful and whether permission for judicial review should have been granted.

Appeal dismissed.

1. The Secretary of State adopted a structured and comprehensive approach. The relevant matters were considered under the applicable rules and law, together with an overarching assessment. The inaccurate statement that the appellant had developed his private life while residing illegally was immaterial. Sections 117B(4) and (5) of the Nationality, Immigration and Asylum Act 2002 were to like effect concerning private life, and the Secretary of State could have referred to the appellant’s status as precarious. The evidence also fell far short of establishing very significant obstacles to integration under paragraph 276ADE(1)(vi) of the Immigration Rules.
2. Under Article 3, applying AM (Zimbabwe) v Secretary of State for the Home Department [2018] EWCA Civ 64, the applicant bears the overall burden of showing substantial grounds for believing that removal would create a real risk of prohibited treatment. The effect of Paposhvili v Belgium was modest. Article 3 remained engaged only where the evidence established that the claimant was seriously ill and demonstrated the requisite real risk. The appellant’s evidence did not come close to meeting that threshold.
3. The Secretary of State expressly considered Article 8, including the appellant’s medical conditions, the availability of treatment in Bangladesh, family members there, and the other circumstances relied upon. The conclusion that removal would not breach Article 8 was open to her.
4. The correct test was applied to certification. The claim was so lacking in substance that an appeal would be bound to fail. Certification as clearly unfounded was therefore lawful, and the Upper Tribunal was right to refuse permission for judicial review.
5. Hickinbottom LJ added concurring observations on procedure. Under rule 30(4A) of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008 No 2698), a paper finding that a claim is totally without merit removes the right to oral reconsideration. An internally inconsistent order should have been clarified, rather than used to grant permission to appeal without addressing the merits. There is no appeal as such against a declaration that a claim is totally without merit, as stated in R (Wasif) v Secretary of State for the Home Department [2016] EWCA Civ 82.

• Court of Appeal (Civil Division): dismissed the appeal and upheld the refusal of permission to bring judicial review proceedings.
• Upper Tribunal Immigration and Asylum Chamber: Upper Tribunal Judge Rogers refused permission on 9 December 2015 and declared the claim wholly without merit. HHJ Purle QC granted permission to appeal on 7 June 2016.
• Secretary of State: refused leave to remain on 23 April 2015 and certified the human-rights claim as clearly unfounded.