References: [2004] UKHL 27, [2004] 3 WLR 58, Times 21-Jun-04, [2004] 2 AC 369, [2004] 3 All ER 821, [2004] INLR 349
Links: House of Lords, Bailii
Coram: Lord Bingham of Cornhill, Lord Steyn, Lord Walker of Gestingthorpe, Baroness Hale of Richmond, Lord Carswell
The claimant resisted removal after failure of his claim for asylum, saying that this would have serious adverse consequences to his mental health, infringing his rights under article 8. He appealed the respondent’s certificate that his claim was manifestly unfounded.
Held: Mental health was part of the respect for private life protected by article 8. Where it was forseeable that a claimant’s health would be damaged by a removal, then article 8 could be engaged. Henao’s case had not been argued under article 8. Decisions made within the procedures would only rarely be non-compliant with Human Rights law, and exceptions could only be identified individually. Here, the Home Secretary’s could not properly certify that the claim was manifestly unfounded.
Statutes: European Convention on Human Rights 8, Immigration and Asylum Act 1999 72(2)(a)
This case cites:
- Appeal from – Secretary of State for the Home Department, Regina on the Application of Soumahoro; Regina on the Application of Nadarajah; Regina on the Application of Razgar, Secretary of State for the Home Department, Secretary of State for the Home Department CA ([2003] EWCA Civ 840, Bailii, [2003] Imm AR 529)
In each case asylum applicants had been certified as suitable to be returned to the first country at which they had arrived on fleeing their home countries.
Held: To determine whether article 8 was engaged given the territoriality principle, . . - First Instance – Razgar, Regina (on the Application of) -v- Secretary of State for the Home Department Admn ([2002] EWHC 2554 (Admin))
The claimant challenged the respondent’s certificate that his appeal was manifestly unfounded.
Held: The certificate was wrongly given. . . - Cited – Regina -v- Special Adjudicator ex parte Ullah; Regina -v- Secretary of State for the Home Department HL (House of Lords, [2004] UKHL 26, Bailii, Times 18-Jun-04, [2004] 3 WLR 23, [2004] 2 AC 323, [2004] INLR 381, [2004] UKHRR 995, [2004] 3 All ER 785)
The applicants had had their requests for asylum refused. They complained that if they were removed from the UK, their article 3 rights would be infringed. If they were returned to Pakistan or Vietnam they would be persecuted for their religious . . - Incorporated – Regina -v- Special Adjudicator ex parte Ullah; Regina -v- Secretary of State for the Home Department HL (House of Lords, [2004] UKHL 26, Bailii, Times 18-Jun-04, [2004] 3 WLR 23, [2004] 2 AC 323, [2004] INLR 381, [2004] UKHRR 995, [2004] 3 All ER 785)
The applicants had had their requests for asylum refused. They complained that if they were removed from the UK, their article 3 rights would be infringed. If they were returned to Pakistan or Vietnam they would be persecuted for their religious . . - Cited – Sandralingham -v- Secretary of State for the Home Department; Ravichandran -v- Secretary of State for the Home Department ([1996] Imm AR 97, Bailii, [1995] EWCA Civ 16)
The three Tamil applicants had left the area of Sri Lanka controlled by the Tamil Tigers and gone to live in Colombo. It was asserted that in Colombo they had a well-founded fear of persecution because they were young male Tamils and were therefore . . - Cited – Henao -v- Netherlands ECHR (13669/03,
The applicant was a national of Colombia. While serving a prison sentence in Holland for a drugs offence he was diagnosed HIV-positive. He sought to resist expulsion to Columbia on Article 3 grounds.
Held: ‘ . . the Court considers that, . . - Cited – Bensaid -v- The United Kingdom ECHR (44599/98, (2001) 33 EHRR 205, (2001) 33 EHRR 10, [2001] ECHR 82, Bailii, [2001] INLR 325, 11 BHRC 297)
The applicant was a schizophrenic and an illegal immigrant. He claimed that his removal to Algeria would deprive him of essential medical treatment and sever ties that he had developed in the UK that were important for his well-being. He claimed . . - Cited – D -v- United Kingdom ECHR ((1997) 24 EHRR 423, 30240/96)
In the circumstances of the case, where the applicant was in the advanced stage of a terminal illness (AIDS), to implement a decision by the respondent to remove the appellant to St Kitts in the West Indies would be a violation of his rights under . . - Cited – Costello-Roberts -v- The United Kingdom ECHR (Independent 26-Mar-93, 13134/87, (1993) 19 EHRR 112, Bailii, [1993] ECHR 16, ECHR, , Bailii)
‘Slippering’, a punishment by hitting a child with a slipper, when used as part of school discipline was not a degrading punishment under the convention. Conduct must attain a minimum level of severity to engage the operation of the Convention. . . - Cited – N -v- the Secretary of State for the Home Department CA ([2003] EWCA Civ 1369, Times 23-Oct-03)
The applicant entered the UK illegally. She was unwell and was given treatment. She resisted removal on the grounds that the treatment available to her would be of such a quality as to leave her life threatened.
Held: D -v- UK should be . . - Cited – Devaseelan -v- Secretary of State for the Home Department IAT ([2003] Imm AR 1, [2002] IAT 702)
The tribunal asked as to the relevance of the possible mistreatment of the applicant if returned to his home country: ‘The reason why flagrant denial or gross violation is to be taken into account is that it is only in such a case – where the right . . - Cited – Kacaj -v- Secretary of State for the Home Department Admn ([2001] INLR 354, [2002] Imm AR 213)
The relevant test of whether an order returning an asylum applicant to another country would infringe his human rights was whether there were substantial grounds for believing that the petitioner faced a real risk of relevant ill treatment if . . - Cited – Regina -v- Secretary of State for the Home Department, Ex Parte Thangarasa; Same Ex parte Yogathas HL (House of Lords, Times 18-Oct-02, Bailii, [2002] UKHL 36, [2002] 3 WLR 1276, [2003] 1 AC 920, [2002] 4 All ER 785, [2002] INLR 620, [2003] Imm AR 227, [2002] 14 BHRC 185)
The applicants were asylum seekers who had been ordered to be returned to Germany, the country to which they had first escaped, for their asylum claims to be dealt with. They objected, asserting that Germany would not deal with their applications in . .
This case is cited by:
- Cited – Regina -v- Special Adjudicator ex parte Ullah; Regina -v- Secretary of State for the Home Department HL (House of Lords, [2004] UKHL 26, Bailii, Times 18-Jun-04, [2004] 3 WLR 23, [2004] 2 AC 323, [2004] INLR 381, [2004] UKHRR 995, [2004] 3 All ER 785)
The applicants had had their requests for asylum refused. They complained that if they were removed from the UK, their article 3 rights would be infringed. If they were returned to Pakistan or Vietnam they would be persecuted for their religious . . - Cited – Michael Atkinson -v- Secretary of State for the Home Department CA (Bailii, [2004] EWCA Civ 846, Times 20-Jul-04)
The applicant sought judicial review of the respondent’s certification under s94 that his cliam for asylum was hopeless. He said that he had acted as an informer against criminal gangs in Jamaica, and that the state of Jamacia could not provide him . . - Cited – Government of the United States of America -v- Barnette and Montgomery (No 2) HL (House of Lords, Bailii, [2004] UKHL 37, [2004] 4 All ER 289, [2004] 1 WLR 2241)
The applicant sought to resist orders for the return to the US of what were alleged to be the proceeds (direct or indirect) of a fraud committed there. She had been in contempt of the court in the US and was a fugitive here. She complained that the . . - Cited – Regina (G) -v- Secretary of State for the Home Department CA (Times 05-May-05)
The claimant had first sought asylum saying she was born in 1984. On being refused, she said she was born in 1988 and was only 15 years old, and that her removal and return to Somalia would breach the regulation, and interfere with her right to . . - Cited – Countryside Alliance and others -v- HM Attorney General and others Admn (Bailii, [2005] EWHC 1677 (Admin), Times 03-Aug-05, [2006] EuLR 178)
The various claimants sought to challenge the 2004 Act by way of judicial review on the grounds that it was ‘a disproportionate, unnecessary and illegitimate interference with their rights to choose how they conduct their lives, and with market . . - Cited – Bermingham & others -v- The Director of the Serious Fraud Office QBD (Bailii, [2006] EWHC 200 (Admin), Times 24-Feb-06, [2006] 3 All ER 239, [2007] QB 727, [2006] UKHRR 450, [2006] ACD 55, [2007] 2 WLR 635)
The claimants faced extradition to the US. They said that the respondent had infringed their human rights by deciding not to prosecute them in the UK. There was no mutuality in the Act under which they were to be extradited.
Held: The Director . . - Cited – Regina -v- Liliane Makuwa CACD (Bailii, [2006] EWCA Crim 175, Times 28-Apr-06)
The defendant appealed her conviction for using a false instrument (a passport) intending someone else to accept it as genuine.
Held: Once she had brought forward sufficient evidence to support a claim to asylum status, it was then for the . . - Cited – Huang -v- Secretary of State for the Home Department HL (Bailii, [2007] UKHL 11, [2007] 2 AC 167, [2007] 2 WLR 581, [2007] 4 All ER 15, (2007) 24 BHRC 74, [2007] INLR 314, [2007] UKHRR 759, [2007] 1 FLR 2021, [2007] Imm AR 571, [2007] Fam Law 587, [2007] HRLR 22)
The House considered the decision making role of immigration appellate authorities when deciding appeals on Human Rights grounds, against refusal of leave to enter or remain, under section 65. In each case the asylum applicant had had his own . . - Cited – EB (Kosovo) -v- Secretary of State for the Home Department HL (Bailii, [2008] UKHL 41, [2008] 3 WLR, Times 30-Jun-08, HL, [2009] 1 AC 1159, [2008] UKHRR 1087, (2008) 25 BHRC 228, [2008] Imm AR 713, [2008] INLR 516, [2008] HRLR 40, [2008] 4 All ER 28)
The claimant arrived as a child from Kosovo in 1999. He said that the decision after so long, it would breach his human rights now to order his return.
Held: The adjudicator had failed to address the effect of delay. That was a relevant . . - Cited – G, Regina (on the Application of) -v- Nottinghamshire Healthcare NHS Trust Admn (Bailii, [2008] EWHC 1096 (Admin), Times 28-May-08)
The applicants were detained at Rampton. The form of detention denied the access to space in which they would be able to smoke cigarettes to comply with the law.
Held: The claim failed. The legislative objectives were sufficiently serious to . . - Cited – Rainford, Regina (on the Application of) -v- Secretary of State for the Home Department Admn (Bailii, [2008] EWHC 2474 (Admin))
The claimant had been in England since he was 11, and was now 38. He had been repeatedly convicted. He had challenged a deportation notice on a human rights basis. He now challenged a certificate that this claim was manifestly ill founded.
- Cited – EM (Lebanon) -v- Secretary of State for the Home Department HL (Bailii, [2008] UKHL 64, Times, [2008] 3 WLR 931, HL, [2009] HRLR 6, [2009] AC 1198, [2009] 1 FCR 441, [2009] 1 All ER 559, [2009] UKHRR 22, [2008] Fam Law 1190, [2008] 2 FLR 2067)
The claimant challenged the respondent’s decision to order the return of herself and her son to Lebanon.
Held: The test for whether a claimant’s rights would be infringed to such an extent as to prevent their return home was a strict one, but . . - Cited – Purdy, Regina (on the Application of) -v- Director of Public Prosecutions and Another QBD (Bailii, [2008] EWHC 2565 (QB), Times)
The applicant suffered mutiple sclerosis and considered that she might wish to go abroad to end her life. She asked the court to make more clear the guidance provided by the Director as to whether her partner might be prosecuted under section 2(1) . . - Cited – RG (Suicide, Risk, Razgar Considered) Sri Lanka IAT (Bailii, [2005] UKIAT 00072)
. . - Cited – Purdy, Regina (on the Application of) -v- Director of Public Prosecutions and Another Admn (Bailii, [2008] EWHC 2565 (Admin), (2008) 104 BMLR 231, [2009] HRLR 7, [2009] UKHRR 94)
The applicant said that the defendant had unlawfully failed to provide detailed guidance under section 10 of the 1985 Act, on the circumstances under which a prosecution might lie of a person performing acts which might assist another to commit . . - Cited – ZT (Kosovo) -v- Secretary of State for the Home Department HL (Bailii, [2009] UKHL 6, HL, Times, [2009] 1 WLR 348, [2009] INLR 310, [2009] 3 All ER 976)
The claimant sought asylum. The respondent on her appeal certified that the claim was clearly unfounded. The House was asked how further submissions might be made and what approach should be taken on a request for judicial review of such a decision. . . - Cited – Purdy, Regina (on the Application of) -v- Director of Public Prosecutions and others CA (Bailii, [2009] EWCA Civ 92, Times, [2009] 1 Cr App R 32, (2009) 159 NLJ 309, [2009] WLR (D) 62, WLRD, (2009) 106 BMLR 170, [2009] UKHRR 1005)
The claimant suffered a debilitating terminal disease. She anticipated going to commit suicide at a clinic in Switzerland, and wanted first a clear policy so that her husband who might accompany her would know whether he might be prosecuted under . . - Cited – N, Regina (on the Application of) -v- Secretary of State for Health; Regina (E) v Nottinghamshire Healthcare NHS Trust CA (Bailii 24-Jul-09, [2009] EWCA Civ 795, Times, [2009] HRLR 31)
The claimants appealed against the imposition on them of smoking bans while they were compulsorily detained at Rampton Hospital. They said that other persons detained for example in prisons had been exempted fully.
Held: The right or freedom . . - Cited – Norris -v- Government of United States of America SC (Bailii, [2010] UKSC 9, Times, UKSC 2009/0052, SC, SCSumm, [2010] 2 All ER 267, [2010] 2 WLR 572, [2010] Lloyd’s Rep FC 325, Bailii Summary, [2010] 2 AC 487)
The defendant faced extradition to the USA on charges of the obstruction of justice. He challenged the extradition on the basis that it would interfere with his article 8 rights to family life, given that the offence was merely ancillary, the result . . - Cited – Quila and Another, Regina (on The Application of) -v- Secretary of State for The Home Department SC (SC, SC Summ, UKSC 2011/0022, Bailii Summary, Bailii, [2011] UKSC 45, [2012] 1 All ER 1011, [2011] 3 WLR 836, [2012] Imm AR 135, [2012] 1 FLR 788, [2011] UKHRR 1347, [2012] Fam Law 21, [2011] 3 FCR 575, [2011] INLR 698, [2012] 1 AC 621, [2012] HRLR 2)
Parties challenged the rule allowing the respondent to deny the right to enter or remain here to non EU citizens marrying a person settled and present here where either party was under the age of 21. The aim of the rule was to deter forced . . - Cited – HH -v- Deputy Prosecutor of The Italian Republic, Genoa SC (Bailii, [2012] UKSC 25, [2012] 3 WLR 90, Bailii Summary, SC Summary, SC, UKSC 2011/0128, [2013] 1 AC 338, [2012] HRLR 25, [2012] 4 All ER 539)
In each case the defendant sought to resist European Extradition Warrants saying that an order would be a disporportionate interference in their human right to family life. The Court asked whether its approach as set out in Norris, had to be amended . . - Cited – Zoumbas -v- Secretary of State for The Home Department SC (Bailii, [2013] UKSC 74, [2013] 1 WLR 3690, [2014] 1 All ER 638, [2013] WLR(D) 458, [2014] Imm AR 479, [2014] INLR 262, [2014] 1 FCR 141, 2014 SC (UKSC) 75, WLRD, Bailii Summary, UKSC 2013/0100, SC Summary, SC)
The appellant challenged a decision that he did not qualify for asylum or humanitarian protection and that his further representations were not a fresh human rights claim under paragraph 353 of the Immigration Rules. He argued that the return to the . .