The claimant in this case K, was a thirty five year old Albanian man with paranoid schizophrenia, who claimed judicial review of a decision made by the Secretary of State refusing his fresh claim for asylum. His original claim was rejected and K appealed to an adjudicator on the basis that he had a well founded fear of persecution and on human rights grounds. The adjudicator did not accept that K would suffer any persecution if he returned to Albania and on that basis the claim failed. On the human rights issue, there was no reason to believe that appropriate facilities to handle his problem would be unavailable in Albania. K’s appeal to the Immigration Appeals Tribunal (IAT) against the adjudicator’s decision was dismissed on a similar basis. K sought leave to appeal this decision based on new evidence, indicating deterioration in the claimant’s mental health.
The evidence was provided by two consultant psychiatrists, Dr R and Dr M, who agreed that K suffered from a psychotic form of depression and that his mental health had deteriorated following the refusal of his first asylum claim. K was a significant suicide risk if he was returned to Albania. Dr M suggested that appropriate medical treatment would not be available to him in Albania and even if it was, he would have to pay for it which he would be unlikely to afford. Permission to appeal was refused and it was suggested that a more appropriate course of action would be to make a fresh application for asylum. K made a fresh claim for asylum based on the new medical evidence and that K’s removal from the UK would constitute a serious breach of Articles 3 and 8 of the ECHR due to the risk of K committing suicide. The Secretary of State refused to treat the claimant’s representations as a fresh claim. K appealed to the Court of Appeal.
The Immigration Rules only allow a fresh claim for asylum if the submissions put forward on behalf of the claimant are “significantly different to the material that has been previously considered.” The submissions will only be significantly different if the content had not already been considered and taken together with previous material they create a “realistic prospect of success”. (Paragraph 353 Immigration Rules) K argued that his diagnosis of paranoid schizophrenia was made after the original claim was made. This was conceded by the Secretary of State. The main argument in this case therefore concerned the second question of whether the new material created a realistic prospect of success in a further asylum claim.
The court first examined the Article 3 claim. This was based on the risk of K committing suicide in the event of removal to Albania; because that depended on the situation back in Albania, this part of the claim was classed as a ”foreign case” the test for which was “whether there were strong grounds for believing that the person, if returned, faced a real risk of torture inhuman or degrading treatment or punishment.” J v SSHD applied. There were six specific considerations:
(i) An assessment of the severity of the treatment which it is said the applicant would suffer if removed.
(ii) A causal link between the act of expulsion and the inhuman treatment relied on as violating the applicant’s Article 3 rights
(iii) The Article 3 threshold was particularly high especially where the alleged inhuman treatment was not the direct or indirect responsibility of the public authority of the receiving state.
(iv) In principle an Article 3 claim can succeed in a suicide case.
(v) The issue of fear of ill-treatment in the receiving state upon which the risk of suicide is said to be based must be objectively well-founded.
(vi) Whether the receiving state has effective mechanisms to reduce the risk of suicide
The Court of Appeal could find no authorities of a case such as K’s succeeding on the basis of mental health difficulties and it found it understandable that the Secretary of State would conclude that K had no realistic prospect of success in front of an immigration judge. It was also understandable why the Secretary of State had concluded that whilst K’s circumstances might be potentially appalling in Albania he could not conclude that they were not “exceptional circumstances comparable in impact to those of the terminal patient (in D v UK). The Secretary of State’s own view of the merits of the renewed claim acted as the starting point for his evaluation of its prospects of success, WM (Democratic Republic of Congo) v Secretary of State for the Home Department (2006) applied. The Secretary of State then had to ask himself how an appeal might fare in front of an immigration judge, R (on the application of Razgar) v Secretary of State for the Home Department (2004) applied. By applying the test in J to K’s circumstances the court found that an absence of suitable medication and the resulting deterioration in his mental state, particularly the fifty percent risk of suicide that the experts opinion attributed to K return to Albania, could on the authorities be accepted as sufficiently serious ill treatment as to make it an affront to fundamental humanitarian principles to remove K. Further, it was unlikely that there was a real prospect of a tribunal concluding that the receiving state had effective mechanisms to reduce the risk of suicide, AJ (Liberia) applied. Accordingly the Secretary of State was not entitled, on the material he had and in the light of the legal authorities, to conclude that there was no realistic prospect of success before an immigration judge and that K’s representations did not amount to a fresh claim.