Bardiqi, R (on the application of) v Secretary of State for the Home Department [2003] EWHC 1788 (Admin)

Case No CO/1322/2003[2003] EWHC 1788 Admin
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Monday, 14th July 2003
Strand
London WC2
B E F O R E:
MR JUSTICE SULLIVAN
Between
THE QUEEN ON THE APPLICATION OF BARDIQIClaimant-v-
Between
SECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant
Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR M HENDERSON (instructed by Winstanley-Burgess) appeared for CLAIMANTMR D BEARD (instructed by Treasury Solicitors) appeared for DEFENDANT
J U D G M E N T(As approved by the Court)
Crown copyright©Monday, 14th July 2003
[1]MR JUSTICE SULLIVAN: This is an application for judicial review of decisions by the Secretary of State certifying claims made on behalf of the claimant as manifestly unfounded in accordance with section 72(2)(a) of the Immigration and Asylum Act 1999.[2]There is a relatively lengthy history, which, given the time, I shall do my best to summarise. The claimant, who is an Albanian from Kosovo, arrived with his family at Dover on 16th February 1998. At that time his family consisted of his wife and their two children. When he was interviewed he said that they had left Kosovo on 8th February 1998 and travelled through unknown countries in a lorry before reaching this country and that he had not claimed asylum anywhere else. On investigation it was found that this claim was false. In fact, the claimant had entered Germany in January 1995 and made an unsuccessful claim for asylum there. In the light of that information, the authorities in this country made a formal request to the German authorities, asking them to accept responsibility for the claimant and his family under the provisions of the Dublin Convention. In August 1998 Germany accepted responsibility, and on 24th November 1998 the claimant's asylum application in this country was certified under section 2 of the Asylum and Immigration Act 1996 and shortly thereafter arrangements were made for the claimant to be returned to Germany on 11th December 1998. That return did not take place because an application for judicial review was lodged relying on the case of Gashi, and so removal directions were deferred.[3]In March 1999 the Court of Appeal decided Gashi's appeal. It was concerned about the apparent discrepancy between the percentages of Kosovan asylum seekers who were returned by the German authorities and by the authorities in this country. At that stage the Secretary of State was not in a position to explain the apparent discrepancy. In due course the Secretary of State resumed returning Kosovan Albanians to Germany under the Dublin Convention. Winstanley-Burgess, the claimant's present solicitors, came on the record. The Secretary of State invited them to withdraw the judicial review proceedings, but they declined to do so.[4]To cut a very long story short, following the decision of the House of Lords in the case of Zeqiri, the claimant's judicial review application and many others that had been stayed in the Court of Appeal were disposed of on 18th March 2002.[5]In October 2002 the claimant's solicitors raised an allegation that to return him to Germany would be in breach of Articles 3 and 8 of the European Convention on Human Rights. By that time the claimant and his family had been in this country for some four and a half years and another child had been born in this country.[6]The letter contending that to return the claimant and his family to Germany would be in breach of Articles 3 and 8 was couched in relatively general terms. It pointed out how long the family had been in this country and referred to the schooling of the children, in particular the schooling of the older son, Armend, who was at that stage ten years old. The response to that letter was contained in a letter dated 14th November 2002. That rejected the contention that there would be any breach of Article 3 - that is no longer pursued on behalf of the claimant. So far as Article 8 is concerned, the letter said:
"You state your clients' removal from the UK would constitute a breach of their right to private life as the children are settled in school and have spent their formative years in the UK. Although your clients are being returned as a family unit and will be able to rely upon each other for support, the Secretary of State accepts that they may experience a degree of temporary interference to their private life within the evening of Article 8(1) of the ECHR. However, Article 8 is a qualified right which must be balanced against the Secretary of State's legitimate aim to maintain an effective immigration control to the United Kingdom."
There is then reference to Article 8(2) and the Secretary of State says that he does not consider that "such interference as will be caused to your clients' family life to be either disproportionate or unreasonable":
"Your clients have been aware since they arrived in the United Kingdom on 16 February 1998 that their rights of residence in the United Kingdom were at best precarious. They cannot have entertained any reasonable expectation that they would be allowed to remain in the UK once their asylum application had been refused in December 1998. Were the Secretary of State to permit persons in your clients' situation to remain in the United Kingdom this would run contrary to the maintenance of a credible and effective immigration control and to the spirit and purpose of the Dublin Convention which is designed to ensure that it is the responsible Member State which considers an application for asylum and processes the claim."
Another article in Protocol 1 to the Convention is referred to, but that has played no part in the proceedings before me today. The Secretary of State certified the human rights claim as manifestly unfounded in accordance with section 72(2)(a) of the 1999 Act.[7]Arrangements were agreed with Germany for the claimant and his family to be returned there on 24th February 2003. Those arrangements had to be deferred due to bad weather conditions.[8]On 26th February Messrs Luqmani Thompson & and Partners wrote to the UK Immigration Service, saying that they were instructed on behalf of Mr Bardiqi's wife. Their letter of 26th February explained that she was particularly concerned about confronting a traumatic history which had deeply affected her and her oldest child, Armend, and a report from an independent social worker, Ms Cohen, was enclosed. In very brief summary, what had happened was that Mrs Bardiqi had been raped in front of Armend.[9]The social worker's report was apparently prepared on the instructions of Winstanley-Burgess Solicitors acting for Mr Bardiqi. It set out the background in some considerable detail, explaining the traumatic impact of the rape on both Mrs Bardiqi and Armend and said, inter alia, that the stabilising experience of school had contributed to Armend's recovery:
"It is my opinion that if the family were forced to leave the UK, the disruption which would be involved would not be in Armend's best interests at all as it is likely to damage the recovery he has made."
Also enclosed was a letter from the children's headteacher.[10]A letter of the same date, 26th February 2003, was sent by Winstanley-Burgess, referring to the claim made by Luqmani Thompson and confirming that they continued to represent Mr Bardiqi for the time being and that he was making an application to remain as his wife's dependant.[11]The response to Luqmani Thompson's letter of 26th February is contained in a letter of the same date from the Home Office. It refers to the earlier certification of the claim as manifestly unfounded in the letter dated 14th November 2002, and says:
"After full and careful consideration of the materials presently placed before him, including the report prepared by Ms Renee Cohen, a social worker, the Secretary of State has concluded that further allegation on behalf of your client would be manifestly unfounded for the following reasons."
A number of detailed reasons are set out and reference is made to the case of Thangarasa. In paragraphs 18 and 19 the letter says:
"18. The Secretary of State takes the view that there is nothing whatsoever in the report of Ms Renee Cohen to indicate that removal from the United Kingdom would amount to a breach of your client's human rights. 19. Your client travelled unlawfully to this country from Germany and she should not profit by her unlawful travel to, and presence in, this country to the disadvantage of those who obtain the means to enter and remain in the UK lawfully..."
[12]There is then extensive reference to the case of Zeqiri, including the passage from Lord Hoffmann's speech in which his Lordship said:
"'All that can be said is that he had made friends (principally with other Kosovan Albanians) during a period prolonged by his legal proceedings and during which he was aware that the Secretary of State regarded him as removable to Germany. In my opinion, it is impossible to challenge the conclusion that these were insufficient grounds to require an exercise of discretion in his favour.'"
Paragraph 24 of the letter says:
"The Secretary of State takes the view that your client's situation as regards the prolongation of his stay in this country as a result of protracted litigation is, in all major respects, indistinguishable from that of the Claimant in Zeqiri."
Paragraph 26 concludes that the claim should be certified as manifestly unfounded.[13]That produced a response from Messrs Winstanley-Burgess dated 6th March 2003. It referred to the letter to Luqmani Thompson and said that further representations were now being made on behalf of the family and contended that there were exceptional factors which would make the disruption of this family's private life of "significant detrimental effect". It referred to the fact that they had been settled in the United Kingdom for the last five years and to the fact that the children had been attending the same school and had developed close relationships with their peers. It said that given the extent of these connections, they greatly exceeded those in the Zeqiri case, referred to in the letter of 26th February, and then referred specifically to both Armend and his mother's psychological vulnerability. The letter referred to the Secretary of State's contention that "there is nothing whatsoever in the report of Ms Renee Cohen to indicate that removal from the UK would amount to a breach of your client's human rights" and contended that in the light of that report "there is a clear risk that his [Armend's] mental health and development would be deleteriously affected by removing him from this environment at this stage". The letter continued:
"In these circumstances we contend that to remove this family would clearly raise the prospect of breaches of Article 3 and 8 ..."
[14]By letter of the same date, 6th March, the Home Office responded to this latest representation, saying:
"You have already made an allegation on behalf of the family that removal to Germany would breach their human rights under Articles 3 and 8 of the ECHR. This allegation was certified as manifestly unfounded by the Secretary of State dated 14 November 2002. Luqmani Thompson & Partners have also made a similar allegation on behalf of Mrs Bardiqi which was certified as manifestly unfounded by letter dated 26 February 2003. The Secretary of State maintains both of these decisions and is not prepared to defer the family's removal directions."
The next paragraph of the letter says:
"The Secretary of State notes the representations submitted on behalf of the family and your view that it would appear the public interest would support a decision not to enforce removal. However, the Secretary of State must give consideration to the wider public interest. Were the Secretary of State to permit persons in your client's situation to remain in the United Kingdom this would run contrary not only to his duty to Parliament to maintain a credible and effective immigration control but also to the proper operation of the Dublin Convention. Removal directions remain in place for 10 March 2003."
Those removal directions were again deferred after the institution of these proceedings, which initially sought permission to challenge the decision of the 6th March 2003 maintaining both of the earlier certifications.[15]Collins J granted permission on the papers with the observation:
"While the wishes of members of the local community and the length of time there cannot of themselves justify a favourable exercise of Article 8.2, I am just persuaded that Armend's position in particular and the real fear in 1998 that Germany might wrongly return may distinguish this case from Zeqiri. It turns on its own facts."
[16]Messrs Winstanley-Burgess had commissioned a report from Desiree Saddik, a Consultant Child and Family Chartered Clinical Psychologist. It was some time before Ms Saddik could interview Armend. She assessed him on 10th June, and in due course her report was sent to the Secretary of State.[17]There was a certain amount of correspondence between the parties as to whether or not the Secretary of State had been invited to consider that report. The Secretary of State's skeleton argument dated 9th July contended that the further report had been provided under cover of a letter of 24th June without any request being made for the Secretary of State to reconsider the case in the light of the material in the report, and therefore the Secretary of State did not propose to make any further comment upon it. That provoked a response from the claimant's solicitors, saying that they did indeed wish for the report to be considered. Argument and counter argument then followed as to whether or not an adjournment would or would not be appropriate, but in the event the Secretary of State responded to Ms Saddik's report by letter dated 11th July 2003.[18]The upshot of all this was that Mr Henderson did not pursue his application for an adjournment upon the basis that he would be permitted to amend his claim form to challenge not merely the decision of 6th March but also the decision of 11th July 2003. Mr Beard was content for that amendment to be made and for the later decision to be considered at this substantive hearing, rather than as an application for permission to apply for judicial review of the latest decision.[19]The letter of 11th July 2003 refers to the report of Ms Saddik and says that the opportunity has been taken to reconsider the certificate issued under section 72(2)(a) of the 1999 Act:
"The Secretary of State remains satisfied, however, that the report adds nothing to your client's case. Indeed, it demonstrates that Armend has made a noticeable recovery in the last five years. The level of his anger and violence has greatly reduced and he has been able to develop friendships and mutual trusting relationships with others. Ms Saddik states that Armend suffered from PTSD following witnessing the abuse of his mother in Kosovo at the age of 3 but that his difficulties no longer meet all the criteria for PTSD in the DSM-IV. The Secretary of State notes that Ms Saddik states that removal from the UK is likely to jeopardise Armend's mental state and diminish his recovery. The Secretary of State considers this finding speculative, as no evidence is presented to substantiate this assertion. While the Secretary of State accepts that removal may be upsetting for Armend, he does not consider that this is so severe as to even arguably engage Article 8(1). 3. Armend is not undergoing any kind of treatment for his condition. However, should he require medication or counselling, he would have recourse to this in Germany. While it is the case that German law dictates that medical treatment is only available to asylum seekers suffering from acute conditions, in practice, no one is denied medical treatment. This is similar to the situation in the United Kingdom. 4. In any event, the Secretary of State believes that any risk of interference with Article 8(1) is plainly justified under Article 8(2) and that any allegation to the contrary would be bound to fail. Whilst in this country, Armend's stay has been at best precarious. It is considered that removal to Germany, where his parents' asylum application would receive conscientious and thorough consideration, would give him the stability he needs. Furthermore, he would be removed to Germany with his parents whom he will be able to rely on for emotional support. The Secretary of State is confident that any risk of interference with Article 8 is plainly both proportionate and justified when balanced against his public interest concerns and duty to Parliament. 5. The Secretary of State hereby maintains his certificate issued under section 72(2)(a) of the Immigration and Asylum Act 1999."
[20]There is no dispute that, apart from the issue of certification, the Secretary of State was entitled to take that view of the merits of the Article 8 claim. The question is, bearing in mind the high threshold for issuing a certificate under section 72(2)(a), was the Secretary of State entitled to conclude that this was a claim that was bound to fail before an adjudicator.[21]The report of Ms Saddik sets out the background in some detail, concludes that Armend did suffer from PTSD, but that currently his difficulties do not meet all the criteria for PTSD in the DSM-IV, not meeting three or more items within criteria C. She goes on to say that:
"He does however currently meet all the Scheeringa et al 1995 criteria specifically adapted for children."
She makes reference to the fact that the quality of Armend's life has improved markedly and that:
"... the level of his anger and violence is greatly reduced and no longer evident in his school and social life. He has been able to develop friendships, and mutual trusting relationships with others, eg his headteacher. This is directly related to him having had years of a stable environment both in his home and school life ..."
She goes on to say:
"Removal from the UK is likely to jeopardise his mental state and diminish his recovery. In addition, non-voluntary removal from the clearly very supportive environment he currently experiences would lead to Armend losing control and mastery in all areas of his life. He is very aware that leaving the UK would mean enduring further losses, of his good achievements, of his friends, of those who understand him and his difficulties eg the headteacher and that he will not be able to read and write in Kosovo and a possible break up of the family. This would result in deterioration, the loss of the gains he has made so far and further psychological damage as a result of further losses and potential threats. Although Armend has rebuilt his life and recovered to an extent from his traumatic past it would be much more difficult for him to rebuild his life elsewhere yet again. He would have seen the relationships that he has worked to build torn apart by his removal from the UK. It is unlikely that he would have the emotional resilience to develop trusting and secure relationships for a long time and without these the prognosis for his psychological health is poor. A major trigger to him deteriorating is conversations about Kosovo or the threat of return. In addition another major trigger of his symptoms is any further witnessing of domestic violence or conflict. Wherever he is placed, in Kosovo or Germany, I understand, from my work generally with asylum-seekers and refugees in the UK and Germany that he is likely to be accommodated amongst war traumatised communities where re-enactment and conflict will prevail. This is very likely to result in him regressing into an emotional state marked by fear, withdrawal, anger and violence. There is a high risk of relapse and Post Traumatic Stress Disorder. To answer the original question given in the letter of instruction; Armend's mental health is highly likely to be affected by removal firstly because of the loss of the very supportive environment he has experienced in the UK over the last 5 years and secondly he is clearly more vulnerable to disruptions than other children his age because of the trauma he has endured including experiencing years of Post Traumatic Stress Disorder."
[22]On behalf of the claimant, Mr Henderson, understandably, focuses principally upon the letter of the 11th July. There is no evidence to contradict that of Ms Saddik and in these circumstances Mr Henderson submits that it simply was not open to the Secretary of State to, in effect, dismiss her report out of hand, to say that it added nothing to the case, and to contend that her conclusion that removal from the UK was likely to jeopardise Armend's mental state and diminish his recovery was a speculative finding for which there was no evidence. He submits that those errors are sufficient to fundamentally flaw the certification decision.[23]In addition, insofar as the latest decision maintained the decision contained in the letter of 6th March 2003, which in turn maintained both of the earlier decisions, not merely the decision of 14th November 2002 but also the decision dated 26th February 2003, he submits that further errors can be seen in the latter decision: firstly, the rejection of the report of Ms Cohen; secondly, the reliance upon the claimant and his family's travelling unlawfully to this country; and, thirdly, the proposition that this case is indistinguishable from Zeqiri. He submits that evidence had been placed before the Secretary of State which indicated that the links this family had made in this country were far more extensive than Zeqiri; that it was not appropriate simply to dismiss Ms Cohen's report out of hand, it is precisely the sort of report that should be obtained when the rights of children are involved; and also that the emphasis on the unlawful nature of the claimant's presence in this country was inappropriate given that the claimant was not an economic migrant, he had fled from Kosovo to Germany, and his concerns about what might happen to him were he returned to Germany were, to put it at its lowest, shared by the Court of Appeal in Gashi. The fact that those concerns, with the benefit of hindsight, may have turned out not to be justified was beside the point.[24]On behalf of the Secretary of State, Mr Beard submitted that there was no conflict between the letter of 14th November 2002, which accepted that there might be a temporary interference with the claimant and his family's private life within the meaning of Article 8(1), and the statement in the letter of 11th July 2003 that the impact upon Armend would not be so severe as to even arguably engage Article 8(1). He pointed out that there were two aspects to family and private life: the former the more conventional linkages of family life; the latter the effect that there may be upon what has been described in the cases as an individual's "physical and moral integrity". So far as the latter aspect of private life is concerned, the so-called Bensaid threshold is a very high one before that aspect of Article 8 can be engaged. He referred to the Court of Appeal's decision in Ullah as authority for the proposition that in cases outwith Article 3, which is no longer relied upon by the claimant in this case, the United Kingdom cannot be held responsible for the actions or inactions of the state to where a person is to be returned.[25]He acknowledges that the threshold for certification is a high one (see paragraph 111 of the Court of Appeal's decision in Razgar), but nevertheless he submits that there is a substantial gulf between what the Secretary of State acknowledges is likely to be an upsetting experience for Armend and something so detrimental as to cross the Bensaid threshold and engage Article 8.[26]In Razgar the Court of Appeal considered the effect of the territoriality principle referred to in Ullah upon Article 8 claims, noting that such claims were more difficult to analyse. In paragraph 18 of the court's judgment it considered two paradigm cases:
"In case A, the person is in good health in the UK, but he says that, if he is deported to a 'safe' third country, there is a real risk that he will suffer a serious decline in his mental health, because he has a fear (admittedly irrational) that he will be returned to face persecution in his country of origin. In case B, the person is already suffering from mental ill-health for which he is receiving treatment in the deporting country. His case is that, if he is deported, his medical condition will become significantly worse because in the receiving state he will not be given the treatment that he has previously enjoyed. 19. It is clear that case A is not capable of engaging Article 8: the territoriality principle is decisive. But what about case B? The allegation is that the expulsion will cause a significant deterioration in the claimant's mental health. But will it be as a result of the cessation of treatment in the deporting country, or will it be because the treatment previously enjoyed will not be replicated by the receiving country? On an application of the 'but for' test, both will be effective causes ..."
The Court of Appeal set out its own test in paragraph 22 of the judgment:
"We suggest that, in order to determine whether the article 8 claim is capable of being engaged in the light of the territoriality principle, the claim should be considered in the following way. First, the claimant's case in relation to his private life in the deporting state should be examined. In a case where the essence of the claim is that expulsion will interfere with his private life by harming his medical health, this will include a consideration of what he says about his mental health in the deporting country, the treatment he receives and any relevant support that he says that he enjoys there. Secondly, it will be necessary to look at what he says is likely to happen to his mental health in the receiving country, what treatment he can expect to receive there, and what support he can expect to enjoy. The third step is to determine whether, on the claimant's case, serious harm to his mental health will be caused or materially contributed to by the difference between the treatment and support that he is enjoying in the deporting country and that which will be available to him in the receiving country. If so, then the territoriality principle is not infringed, and the claim is capable of being engaged. It seems to us that this approach is consistent with the fact that the ECtHR considered the merits of the article 8 claim in Bensaid. It is also consistent with what was said in paragraphs 46 and 64 of Ullah."
[27]Mr Beard submitted that the reference to a speculative finding in the letter of 11th July 2003 was not challenging the conclusions in Ms Saddik's report; that would not be open to the Secretary of State in the absence of expert evidence to the contrary. Rather, the Secretary of State was saying that there was a speculative statement on behalf of the claimant as to the absence of suitable treatment being available in Germany. Thus, the speculation was as to the manner in which Armend's mental condition would be dealt with in Germany. On that basis the Secretary of State was entitled to express the view that he did in paragraph 3 of the letter, and in any event his conclusion in paragraph 4 that any interference would be justified was one which was within the wide margin of discretion that is conferred upon him under Article 8(2). My conclusions[28]Standing back from the detail, this appears to be a case where an initial certification in accordance with section 72(2)(a), which was readily understandable on the basis of the very limited information that had been provided to the Secretary of State in late 2002, has been somewhat doggedly maintained, despite the fact that further evidence has become available to support the claimant's case. As more and more evidence has been provided, so the Secretary of State's response has been to say more and more emphatically that this is a case which is bound to fail.[29]The initial letter certifying the human rights claim dated 14th November 2002 cannot be criticised given the limited amount of information that had been provided to the Secretary of State at that time. There was really very little to take this case out of the ordinary run of cases where, because of delays in the judicial process, the claimant and his family had been able to reside in this country for a number of years.[30]Arguably, warning signals should have been heeded when the report of Ms Cohen, the social worker, was supplied. The letter dated 26th February 2003 contended that there was "nothing whatsoever in the report of Ms Renee Cohen to indicate that removal from the United Kingdom would amount to a breach of your client's human rights". The Secretary of State was of course perfectly entitled to take a dim view of the merits of the claim, but given what had been said by Ms Cohen at that stage, it was questionable this was a case which was not merely very likely to fail, but which was bound to fail.[31]There are two further aspects to the decision making process at this stage. Firstly, despite the Secretary of State's contention that this case is in all major respects indistinguishable from that of the claimant in Zeqiri, there clearly are distinctions. This is a family with children and they had have, at least arguably, put down more extensive roots in the community. The second point is the emphasis upon the fact that the claimant had travelled unlawfully to this country from Germany. That was certainly a matter upon which the Secretary of State was entitled to place considerable weight, but, equally, the claimant was arguably entitled to point out that having fled Kosovo he had been reluctant to return to Germany at a time when there was a degree of concern about what would happen to Kosovan refugees who were returned to Germany. That degree of concern was reflected in the Court of Appeal's decision in Gashi.[32]For the sake of completeness I should mention the fact that, initially, Mr Beard submitted that the letter dated 26th February 2003 was irrelevant, since it related to a separate claim by the claimant's wife. This submission was not pursued in the light of the letters from the claimant's solicitors, in effect associating the claimant and his family with the points made on behalf of his wife (letters dated 26th February and 6th March 2003).[33]It is unnecessary to reach any conclusion as to whether the decision to maintain certification in the letter dated 26th February was justified, because matters moved on.[34]The Secretary of State was again invited to reconsider his position. It was pointed out that the family's links with the UK were more extensive than those in Zeqiri, and also the issue of Armend and his mother's psychological vulnerability was raised. In the exchange of correspondence dated 6th March 2003 the Secretary of State did not respond to those contentions, he simply maintained both of the earlier decisions.[35]By this stage warning bells should have been ringing somewhat louder, but the Secretary of State could fairly point to the fact that although an assertion had been made about the psychological impact upon Armend and his mother of removal from the UK, no expert evidence had been provided. It will be remembered that Ms Cohen is a social worker rather than a child psychologist. That omission was, however, remedied by the report of Ms Saddik.[36]I am afraid that I am unable to accept the interpretation of the Secretary of State's letter dated 11th July that is urged upon me by Mr Beard. Ms Saddik's report said nothing whatsoever about the availability or otherwise of treatment in Germany. She dealt with the effect of removal from the United Kingdom upon Armend and said in terms that it was likely to jeopardise his mental state and diminish his recovery:
"There is a high risk of relapse and Post Traumatic Stress Disorder"
. She was concerned that there should not be a relapse into PTSD, not with whether there would be mental health facilities in Germany to respond to such a relapse.[37]Faced with a contention that there is a high risk that a 10 year old child who has suffered from PTSD, but no longer does so because of the very supportive environment he currently experiences in the UK, may relapse into PTSD, the Secretary of State's response is that this "adds nothing to the claimant's case." The relevant passage in paragraph 2 of the letter states:
"The Secretary of State notes that Ms Saddik states that removal from the UK is likely to jeopardise Armend's mental state and diminish his recovery. The Secretary of State considers this finding appears speculative, as no evidence is presented to substantiate this assertion. While the Secretary of State accepts that removal may be upsetting for Armend, he does not consider that this is so severe as to even arguably engage Article 8(1)."(my emphasis) I do not accept Mr Beard's submission that the Secretary of State is there saying that Ms Saddik has been speculating about the treatment that will be available to Armend in Germany. It is plainly an assertion that her evidence as to the effect of removal upon his mental state is speculative. It also contends, despite the fact that she is an acknowledged expert in her field, that no evidence is presented to substantiate her assertion. It is not clear what evidence the Secretary of State would have had in mind. It is clear that the Secretary of State must have rejected Ms Saddik's evidence, because he has concluded that removal "may be upsetting"
. There is a significant distinction between the possibility that an event "may be upsetting", and a "high risk" that it will result in relapse and PTSD. The Secretary of State has reached this conclusion without the benefit of any psychological or psychiatric evidence of his own. Paragraph 3 of the letter deals, as a separate topic, with a matter which was not raised by Ms Saddik, namely, what treatment would or would not be available under German law. Mr Henderson would have wished to raise a point about that, as to whether in fact medical treatment would be available in Germany for someone who did suffer from an acute condition, but it is unnecessary for me to consider that aspect of the matter.[38]In my judgment, this approach to Ms Saddik's report fundamentally flaws the letter because the Secretary of State's assessment of whether or not an interference will be proportionate and justified under Article 8(2) plainly relies at least in part upon his assessment of the degree of interference under Article 8(1). If removal from the UK would be merely "upsetting" and no more for Armend, then the conclusion in relation to Article 8(2) would be readily understandable, but if the Secretary of State was not justified in reaching that conclusion, then his conclusion in relation to Article 8(2) also falls. In so concluding, I do not mean to imply that the Secretary of State is not entitled to take the view that the claim under Article 8 should be reject. In a certification case there is a high threshold: the Secretary of State must be satisfied that a claim is bound to fail. Thus, in considering his reasons for refuting a claim, one has to be satisfied that the Secretary of State's argument would be bound to succeed before an adjudicator. I am unable so to conclude in respect of the Secretary of State's final comment that Ms Saddik's finding in relation to Armend's mental state appears "speculative".[39]Thus, conscious as I am of the breadth of discretion conferred upon the Secretary of State under Article 8(2), this is a case where the Secretary of State, in the light of his response to the expert report of Ms Saddik, has said that a particular aspect of Article 8(1) relied upon by the claimant is not even arguably engaged.[40]At the end of the day an adjudicator might well reject Ms Saddik's conclusions, but it cannot be said that the views expressed in the Secretary of State's letter of 11th July are so clearly correct that they would be bound to succeed before the adjudicator. For these reasons, the decision to maintain certification contained in the letters of 6th March and 11th July 2003 must be quashed.[41]MR HENDERSON: My Lord, I am grateful. I have an application for my costs and for detailed assessment in respect of my public funding certificate.

MR JUSTICE SULLIVAN: Yes.

[43]MR BEARD: My Lord, there is nothing to be said on that matter, but the Secretary of State would ask for permission to appeal in this matter.[44]MR JUSTICE SULLIVAN: I will deal with costs first. Your costs and detailed assessment for public funding purposes.[45]Mr Beard, do you want to say anything further about it?[46]MR BEARD: My Lord, although your Lordship in your judgment has dealt with the particular facts of the case and the terms of the letter in particular with which this proceeding has been concerned, there are matters in your Lordship's judgment referring to the consideration of material relating to mental health which are related to the tests under Razgar and Ullah, matters which the Secretary of State considers it may be appropriate to pursue further and have a more full exposition of the relevant test to be applied in circumstances such as this case, and therefore, although your Lordship's judgment focuses upon the particular circumstances of this case, it does raise further issues.[47]MR JUSTICE SULLIVAN: Yes. Thank you very much. I do not think it would be appropriate for me to give permission. As far as I am concerned, it really turns on the terms of the letters of 11th June in particular and 6th March. If you can persuade the Court of Appeal there is a wider point of principle that they should look at, good luck to you, but I refuse permission.

Cited in 1 later judgment