Practice and Procedure


PUBLISHED November 20, 2003

The Home Secretary was not entitled to maintain his certificate that a claim under Art.3 European Convention on Human Rights was clearly unfounded because there was a significantly increased risk that the claimant's wife would commit suicide if she was removed from the United Kingdom.Application for judicial review of two written decisions by the defendant Home Secretary ('S') relating to the claimant's removal to Germany pursuant to the terms of the Dublin Convention. The claimant ('Mr K') and his wife ('Mrs K') sought asylum in the United Kingdom in February 2000. They came from a Serb enclave in Kosovo and they feared non-state persecution from Serbs. Germany had accepted the return of members of the K family under Art.5.4 Dublin Convention. In March 2001 Mr K was served with a notice from S certifying his asylum application on third country grounds. Mr K disputed this decision with medical evidence, relating to severe psychological damage suffered by Mrs K, which showed damaging consequences for her and their baby if she was removed from the UK. The first decision under review, dated 2 October 2003, in which S certified that K's claim, that his return to Germany would breach his human rights, was clearly unfounded pursuant to s.93(2)(b) Nationality, Immigration and Asylum Act (2002). The second decision, dated 17 October 2003, was that S would maintain and refuse to withdraw his 2 October certificate in the light of further medical and other evidence in relation to the K family's situation. The medical evidence diagnosed Mrs K with post traumatic stress disorder as a result of her treatment by Serbian police. The evidence contended that Mrs K would attempt suicide if she were removed from the UK. S's decisions were challenged by Mr K on the grounds that, if Mrs K were removed, there was a substantial risk that her rights under Art.3 and/or Art.8 European Convention on Human Rights would be infringed so as to give her a right to a claim under s.65 Immigration and Asylum Act 1999.HELD: (1) The uncertainty about the safeguards for assisting the K family in Germany meant that Mrs K's Art.3 claim could not be certified as clearly unfounded in light of the high threshold that had to be reached before such a certificate was given. There were similarities between the instant case and R (On the application of Soumahoro) v Secretary of State for the Home Department (2003). There was a greater risk of Mrs K's suicide if she was removed from the UK and the reasoning in Soumahoro (supra) meant that the claim succeeded on Art.3. (2) Soumahoro was still good law. Nothing said in N v Secretary of State for the Home Department (2003) EWCA Civ 1369 undermined or derogated from the approach in Soumahoro, relating to the fear of the applicant committing suicide. N (supra) was inapplicable to the instant case as there was no complaint of a lack of resources for Mrs K in Germany. (3) Mr K's claim was not bound to fail and was not without substance because the effect of notification of removal on Mrs K was not only exceptional but extreme, because of the increased risk of her committing suicide. S's decisions would be quashed. S was not entitled to maintain his certificate that the claim under Art.3 was clearly unfounded.Judgment accordingly.

[2003] EWHC 2744 (Admin)