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Case ID:
Version Date:
Product(s) to appear in:
Last substantive
update:
Report status:
Citations:
Case name:
Additional
case name:
*Regina v Secretary of State for the Home Department ex parte
Razgar, Appeal judgment, [2004] UKHL 27; ILDC 104 (UK
2004); [2004] 2 AC 368; [2004] 3 WLR 58; [2004] 3 All ER
821, 17 June 2004*
Party 1
Regina
Party 2
Secretary of State for the Home Department
Party 3
Razgar (FC)
Party 3 role:
Ex parte 1
Name type:
Party 1
Party 2
Party 3
Party 3 role:
Other case
name:
Name
Name type
Date:
14 June 2004
Jurisdiction/Court/Chamber: United Kingdom, House of Lords, Appeal Chamber
Judge(s):
Procedural stage:
Previous stages:
Name
Nationality
Role
Opinion
Lord
Bingham of
Cornhill
Leading
opinion
Lord Steyn
Concurring
Lord Walker
of
Gestingthorpe
Dissenting
Baroness
Hale of
Richmond
Dissenting
Lord
Carswell
Concurring
opinion
Appeal judgment

*First instance decision; R (Razgar) v Secretary of State
for the Home Department, [2002] EWHC 2554, 20
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November 2002*

*Appeal of decision at first instance; R (Razgar) v
Secretary of State for the Home Department, [2003]
EWCA Civ 840; [2003] Imm AR 529, 19 June 2003*
Key subjects:

Human rights
Keywords:

Asylum

Deportation

Human Rights, civil and political rights

Human rights, freedom from torture and cruel, inhuman,
or degrading treatment

Human rights, right to family

Human rights, right to life

International law and domestic law, conflicts between
Subsequent stages:
Related developments:
Core issues:
Whether the rights protected by *Article 8 European Convention
on Human Rights* were engaged by the foreseeable
consequences for health or welfare of removal from the United
Kingdom pursuant to an immigration decision, where such
removal does not violate *Article 3 European Convention on
Human Rights*.
Facts:
F1 Mr Razgar was a twenty six year old asylum seeker from Iraq.
He was arrested, imprisoned and tortured for two and a half years
in Iraq until he bribed his way out in 1997. He then travelled to
Germany via Turkey, where he was detained. He arrived in the
UK on 22 February 1999 and claimed asylum.
F2 The Secretary of State proposed to remove Mr Razgar to
Germany under the provisions of the *Convention Determining
the State Responsible for Examining Applications for Asylum
Lodged in One of the Member States of the European
Communities (15 June 1990) OJ 1990 L254, entered into force
on 1 September 1997* (‘Dublin Convention’). Mr Razgar
challenged such removal on the grounds that it would violate his
rights under *Article 8 Convention for the Protection of Human
Rights and Fundamental Freedoms (4 November 1950) 213
UNTS 222; 312 ETS 5, entered into force 3 September 1953*
(‘ECHR’). The Secretary of State certified under *Article
72(2)(a) Immigration and Asylum Act, 1999 (United Kingdom)*
that the claim for asylum was manifestly unfounded.
F3 Mr Razgar and his consultant psychiatrist, Dr Sathananthan,
stated that Mr Razgar was suffering from severe depression and
Post Traumatic Stress Disorder, as a result of his treatment under
Saddam Hussein’s regime and the racist abuse he suffered whilst
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in detention in Germany.
F4 Mr Razgar applied for permission to seek judicial review of
the Secretary of State’s decision to remove, but the judge refused
permission and an application for permission to appeal was in the
end discontinued.
F5 There were two stages to the present cases before it came to
the House of Lords where Mr Razgar challenged the Secretary of
State’s certification. *R (Razgar) v Secretary of State for the
Home Department, Decision at first instance, [2002] EWHC
2554, 20 November 2002* and *R (Razgar) v Secretary of State
for the Home Department, Appeal of decision at first instance,
[2003] EWCA Civ 840, [2003] Imm AR 529, 19 June 2003*.
F6 Mr Razgar then initiated the present application to quash the
Secretary of State’s certification that asylum must be denied. If
the certification stood it would have precluded any appeal by Mr
Razgar against his removal from the country.
Held:
H1 As per *Bensaid v United Kingdom, Merits, App no
44599/98; IHRL 2982 (ECHR 2001), 6 February 2001*
(‘Bensaid’), reliance could be placed, in principle, on *Article 8
ECHR* to resist an expulsion decision even where the main
emphasis was not on the severance of family and social ties
which the applicant had enjoyed in the expelling country but on
the consequences for his mental health of removal to the
receiving country. The rights protected by *Article 8 ECHR*
could be engaged by the foreseeable consequences for health of
removal from the UK pursuant to an immigration decision, even
where such removal did not violate *Article 3 ECHR*, if the
facts relied on by the applicant were sufficiently strong. [paras
9-10]
H2 In a case where removal was resisted on the basis of *Article
8 ECHR*, the reviewing court had to assess whether the
proposed removal amounted to an interference by a public
authority with the exercise of the applicant’s right to respect for
his private life, and whether such interference was in accordance
with law, necessary in a democratic society and proportionate to
the legitimate public end sought to be achieved. [paras 16-7]
H3 In this case, question 1 and 2 were answered in the
affirmative. The question of gravity of consequences should be
properly answered in the affirmative because a decision to
remove Mr Razgar might result in the taking of his own life. The
decision to remove would amount to an interference with
*Article 8 ECHR*. [paras 22-23]
H4 Lord Bingham stated that the questions of legality in question
3 and necessity in question 4 would have been answered in the
affirmative by an adjudicator. [para 24]
H5 The crux of the case was whether the decision to remove was
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proportionate in the light of the facts; whether a fair balance was
struck between the right of Razgar under *Article 8 ECHR* and
the immigration policy of the UK. However the Secretary of
State and the judge in the Court of Appeal, *R (Razgar) v
Secretary of State for the Home Department, Appeal of decision
at first instance, [2003] EWCA Civ 840*, did not consider
question of proportionality. There remained the possibility that
Mr Razgar’s rights under *Article 8 ECHR* might be violated if
he were returned to Germany. The Secretary of State erred in not
considering Article 8 ECHR in arriving at the decision to certify
this claim to be manifestly unfounded.[para 24] Although not
unanimously, the majority of the Appellate Committee members
found for Mr Razgar and dismissed the appeal. As regards the
proportionality of the expulsion, Lord Bingham. Lord Steyn
agreeing, stated that if Mr Razgar’s phobia of returning to
Germany was genuine and if his account of his previous
experience was found to be true then a decision to return Mr
Razgar to Germany would violate his rights under *Article 8
ECHR*. [para 25- 26]
H6 Lord Carswell, in an individual opinion agreed with the
balancing approach to answering the proportionality question
proposed by Lord Bingham. Lord Carswell also dismissed the
appeal on the reasoning that Mr Razgar’s *Article 8 ECHR*
right was not considered, and as an adjudicator, acting
reasonably, might not uphold the decision to remove, the lack of
consideration paid by the Secretary of State to *Article 8 ECHR*
in reaching the decision was impermissible. [Para 77]
H7 Lord Walker, dissenting disagreed with the application of the
law to the facts in this case. [para 27] Although he noted that the
evidence presented as to the appellant’s experiences and their
effect on his mental and physical condition, if found to be
truthful, provoked deep concern and sympathy, he went on to add
that such experiences and their effects were unfortunately not
exceptional. [para 29] He further added that there was no general
human right to physical and good mental health. [para 34]
H8 Baroness Hale considered the distinction between domestic
cases and foreign cases to be vital to the present case. In her
opinion, the right to respect for private and family life, home and
correspondence, guaranteed by *Article 8 ECHR*, is a qualified
right which may be interfered with if this is necessary in order to
pursue a legitimate aim. What may happen in the foreign country
is therefore relevant to the proportionality of the proposed
expulsion. Mr Razgar’s degree of social integration in the UK is
nowhere near strong enough to make this a ‘domestic’ case. This
is a ‘foreign’ case in which the UK’s responsibility is only
indirectly engaged as a result of what might happen to him if
removed. The fact that the same treatment may not be available
in Germany is not sufficient evidence to suggest that the
medication is essential to prevent a serious deterioration. The risk
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of suicide is therefore capable of engaging *Articles 2*, *3*, and
*8 ECHR*.
Analysis:
A1 The meat of this case, as summed up by Richards J in the
Court of Appeal, ‘was that the claimant’s mental health would
suffer serious a decline in Germany by reason, in particular, of
the lack of appropriate treatment; it would have to deteriorate to
the point where his condition was acute, that is to say where he
became a suicide risk, before treatment could be assured. By
contrast if he stayed in the UK he could expect to receive
appropriate treatment and to make progress. [para 61]
A2 The court considered, in light of Strasbourg jurisprudence,
whether removal from a country to another country where
comparable medical facilities were not available amounted to a
violation of *Article 8 ECHR*. Normally, challenges to
deportation orders have been dealt with by the ECHR under
*Article 3 ECHR*, which admittedly sets a high threshold.
Nonetheless, should removal from the UK violate *Article 8
ECHR* then this too could prevent removal from the UK. In *D
v United Kingdom (1997) 24 EHRR 423* the court held that
removal cannot be resisted merely on the ground that medical
treatment or facilities are better or more accessible in the
removing country than in that to which the applicant is to be
removed. In *Henao v The Netherlands, Decision, App no
13669/03, unreported, 24 June 2003* considered deportation
which would result in lack of medical treatment but the case was
argued solely on *Article 3 ECHR* grounds and dismissed. The
House of Lords later found in *R (Ullah) v Special Adjudicator,
Appeal decision, [2004] UKHL 26; ILDC 103 (UK 2004), 17
June 2004* and *Do v Secretary of State for the Home
Department, Appeal decision, [2004] UKHL 26; ILDC 103 (UK
2004), 17 June 2004* that removal cannot be resisted simply
because medical treatment or facilities are better or more
accessible in the removing country than in the country to which
the applicant will be removed.[para 4] The convention is
directed to the protection of fundamental human rights, not the
conferral of individual advantages or benefits. [para 4]
A3 The bedrock of Mr Razgar’s case was *Bensaid*. In that case
the Court first considered Bensaid’s claim under *Article 3
ECHR*, as a means to block removal taking into account the
exceptional facts of *D v United Kingdom, Judgment, Merits and
just satisfaction, App no 30240/96, 2 May 1997*, and then
considered the applicant’s complain based on *Article 8 ECHR*.
In those cases the court held that removal from the UK to a
country where medical treatment was available did not violate
Article 8 ECHR. Even if there was interference it would be
justified on the basis of *Article 8(2) ECHR* on the basis that
immigration policy was necessary for the economic well-being of
the country and the prevention of disorder and crime. In theory
therefore *Article 8 ECHR* could be applied to prevent removal
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so long as the facts were of sufficient seriousness.
A4 In light of the facts surrounding Mr Razgar’s case, the
question is whether the quashing of the Secretary of State
certification of Mr Razgar’s claim as manifestly unfounded was
correct? Mr Razgar and his psychiatrist, Dr Sathananthan, argued
that removal from the UK would cause psychological stress. The
Secretary of State acknowledged this negative impact on Mr
Razgar but did not accept, on all of the evidence submitted, that
the risk to Mr Razgar reached that level of severity of physical or
mental suffering as to warrant departing from his usual practice.
He also stated that he was satisfied that Mr Razgar’s human
rights would be fully respected in Germany.
A5 Lord Walker also argued that the Court of Appeal and Lord
Bingham had erred when it compared the levels of psychiatric
care available in the UK and Germany. The Court of Appeal and
Lord Bingham held that under *Bensaid *, *R (Ullah) v Special
Adjudicator* and *Do v Immigration Appeal Tribunal* if the
mental health of the applicant were to deteriorate in Germany
then the claim for asylum based on *Article 8 ECHR* would be
engaged. Lord Walker stated ‘even in the most enlightened host
country asylum seekers often have to deal with bleak
accommodation or even loss of liberty, public hostility and
material deprivation, and these ... naturally lead to anxiety,
depression and feelings of hopelessness’. [para 37] It appears
therefore that there is an inherent tension in the jurisprudence
between a willingness to engage Article 8 ECHR should
circumstances be sufficiently serious and a reluctance to compare
levels of human rights protection in member states.
A7
Further analysis:
Instruments cited:
Cases cited:
International

*Convention for the Protection of Human Rights and
Fundamental Freedoms (4 November 1950) 213 UNTS
222; 312 ETS 5, entered into force 3 September 1953*,
*Articles 2*, *3*, and *8*{discussed}

*Convention Determining the State Responsible for
Examining Applications for Asylum Lodged in One of
the Member States of the European Communities (15
June 1990) OJ 1990 L254, entered into force on 1
September 1997*
United Kingdom

*R (Yogathas) v Secretary of State for the Home
Department; R (Thangarasa) v Secretary of State for the
Home Department, Appeal judgment, [2002] UKHL 36;
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[2003] 1 AC 920, 17 October 2002*

*R(Ullah) v Special Adjudicator, Appeal judgment,
[2004] UKHL 26; ILDC 103 (UK 2004), 17 June 2004*
{discussed}

*Do v Immigration Appeal Tribunal, Appeal judgment,
[2004] UKHL 26; ILDC 103 (UK 2004), 17 June 2004*
{discussed}
European Court of Human Rights

*Marckx and Marckx v Belgium, Judgment, App No
6833/74; IHRL 22 (ECHR 1979), 13 June 1979*

*Abdulaziz and ors v United Kingdom, Admissibility,
Merits and Just Satisfaction, App nos 9214/80, 9473/81,
9474/81; (A/94); IHRL 52 (ECHR 1985), 28 May 1985*
{discussed}

*Moustaquim v Belgium, Judgment, Merits and Just
Satisfaction, App no 12313/86; (A/193); IHRL 2949
(ECHR 1991), 18 February 1991*

*Beldjoudi v France, Merits and just satisfaction, App no
12083/86; (A/234-A); IHRL 2932 (ECHR 1992), 26
March 1992* {discussed}

*Costello-Roberts v United Kingdom, Decision on merits,
App no 13134/87 (A/247-C); IHRL 2593 (ECHR 1993),
25 March 1993*

*Nasri v France, Judgment, Merits and just satisfaction,
App no 19465/92, 13 July 1995* {discussed}

*Gül v Switzerland, Merits, App no 23218/94; ECHR
1996-I; IHRL 3144 (ECHR 1996), 19 February 1996*

*Boughanemi v France, Judgment, Merits, App no
22070/93, 24 April 1996 * {discussed}

*D v United Kingdom, Judgment, Merits and just
satisfaction, App no 30240, 2 May 1997* {discussed}

*Bensaid v United Kingdom, Merits, App no 44599/98;
IHRL 2982 (ECHR 2001), 06 February 2001*
{discussed}

*Boultif v Switzerland, Judgment, Merits and just
satisfaction, App no 54273/00, 2 August 2001*
{discussed}

*Sen v Netherlands, Judgment, Merits App no 31465/96,
21 December 2001*

*Pretty v United Kingdom, Judgment, Merits, App no
2346/02, 29 April 2002* {discussed}

*Amrollahi v Denmark, Judgment, Merits and just
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satisfaction, App no 56811/00, 11 July 2002* {discussed}

*Jakupovic v Austria, Judgment, Merits and just
satisfaction, App no 36757/97, 6 February 2003*
{discussed}

*Arcila Henao v The Netherlands, Decision, App no
13669/03, 24 June 2003* {discussed}

*Slivenko and Slivenko v Latvia, Merits and just
satisfaction, App no 48321/99; ECHR 2003-XI; IHRL
3255 (ECHR 2003), 09 October 2003* {discussed}

*Tomic v United Kingdom, Decision, App no 17837/03,
unreported, 14 October 2003*
Reporter:
Christy Shucksmith
Report date:
30 July 2010
Commentator:
Christy Shucksmith
Analysis date:
30 July 2010