KH (Afghanistan) v Secretary of State for the Home Department

22 January 2010, December 2009

KH (Afghanistan) v Secretary of State for the Home Department

[2009] EWCA Civ 1354

Sedley LJ, Longmore LJ, Aikens LJ

ABSTRACT

Only in very exceptional cases would withdrawal of medical treatment as a result of ordering the return of a failed asylum seeker constitute a breach of Article 3 ECHR. The case of an 29 year old man with mental illness and no family support in the country of return was not sufficiently exceptional.

SUMMARY

KH arrived in the UK in October 2002 and unsuccessfully applied for asylum. He subsequently raised mental health problems as the basis of a new claim to remain. In a medical report dated February 2006, KH was diagnosed with a recurrent depressive disorder and symptoms of PTSD (although not PTSD itself). KH had received a similar diagnosis from a GP in 2003 and had responded only minimally to medication. The 2006 medical report expressed concern as to the adverse effects of removal from the UK, both in terms of the stress caused to KH and the loss of support and treatment. It was noted that this would lead to a high risk of relapse and an escalating risk of self-harm and suicide. The Secretary of State decided that the material before her did not disclose a fresh claim for immigration purposes. Her decision was upheld by Burnett J on judicial review.

 Dismissing the appeal, the Court of Appeal held that the question that they needed to address was not whether the Secretary of State was entitled to conclude that the appeal advanced would be hopeless but whether, in the view of the court, there would be a realistic prospect of success before an adjudicator [ZT (Kosovo) v SSHD [2009] UKHL 6, [2009] 1 WLR 348 followed]. The relevant line of authority for medical cases derived from N v Secretary of State for the Home Department [2005] UKHL 31 and N v UK (2008) 47 EHRR 39, in which it was established that only in very exceptional cases would withdrawal of medical treatment as a result of ordering the return of a failed asylum seeker constitute a violation of Article 3. An ordinary adult asylum seeker with mental health problems and no family could not be considered as a very exceptional case, although it was possible that a very young or a very old person would qualify.

Sedley LJ, agreeing with the decision, stated that if the bare prospect of inhuman treatment were enough to secure the protection of Article 3 then this appeal and many like it would succeed. However, as he had said in ZT v Secretary of State for the Home Department [2005] EWCA Civ 1421, the reasoning of the House of Lords in N accepts, in effect, that the internal logic of the Convention has to give way to the external logic of events when these events are capable of bringing about the collapse of the Convention system.

The Court noted that the House of Lords in N were concerned to distinguish the case of D v UK (1997) 24 EHRR 423. The Strasbourg Court had held in that case that the applicant’s Article 3 rights had been violated as a result of his expulsion to a country where he could not be guaranteed nursing or medical care. Their Lordships found a distinction in the fact that in D the applicant had actually been dying or close to death.

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