The decision

SJ (issue of risk of suicide in UK and in country of origin)
Sri Lanka [2004] UKIAT 00265


Date of Hearing: 20 May 2004
Date Determination notified:
22 September 2004


Dr H H Storey (Vice President)
Mr G Warr



Secretary of State for the Home Department

Representatives: Mr S. Cox of Counsel, instructed by A.J. Paterson Solicitors for the appellant; Miss T. Hart for the respondent.

1. The appellant is a national of Sri Lanka. He appeals against a determination of Adjudicator, Mr D.A. Radcliffe, dismissing his appeal against the decision giving directions for his removal following refusal to grant asylum.

2. The Adjudicator found the appellant credible. However, he dismissed the appeal on asylum and Article 3 grounds because he considered that even if his record were to show (falsely) that he escaped, it would also show that he had never been charged with an offence or confessed to anything and had only ever been perceived by authorities as a low-level LTTE supporter. As regards the appellant’s Article 8 grounds of appeal, the Adjudicator accepted that he suffered from PTSD and depression but considered that he could access available treatment in Sri Lanka and that in his home area he would also receive from his mother moral and palliative care. He specifically did not accept that the appellant had attempted to take his own life in October 2002.

3. Permission to appeal was limited to the human rights issue in the light of the appellant's psychiatric condition. In a notice dated 17 May 2004 a request was made that the Tribunal consider grounds on which permission had been refused. These relied on developments in the political situation in Sri Lanka in the ten months or so since the decision to give permission to appeal to the Tribunal. However, in view of the fact that the Tribunal has not found that recent developments in Sri Lanka have significantly altered the approach taken by the authorities to persons previously identified as low level LTTE supporters, we did not accede to this request.

4. Leaving aside, therefore, those grounds which raised asylum-related points, the grounds were essentially threefold. Firstly it was contended that the Adjudicator erred in failing to consider Article 3 in the context of the claimant's mental health. Secondly, the grounds submitted that in respect of both Articles 3 and 8 the Adjudicator had failed to properly consider the medical assessment that he was at real risk of suicide or breakdown if subject to removal. They highlighted the fact that the claimant had said he had attempted suicide previously (in October 2000) and might attempt to kill himself again if returned. Thirdly, it was submitted in respect of Article 8 that the Adjudicator's description of the appellant's family life in the UK with his uncle and brother as “incipient” was perverse, because he had lived with his uncle since arrival in the UK in September 2000 and had a high level of dependency on his uncle.

5. In amplification of the grounds Mr Cox urged the Tribunal to follow the approach set out in Soumahoro [2003] EWCA Civ 840 and in Kurtoli [2003] EWHC 2744 (Admin), [2004] INLR 198. He highlighted the lack of reasons given by the Adjudicator for finding that the appellant had not attempted suicide in October 2002. He alleged that the Adjudicator had taken a selective approach to the medical evidence concerning risk of suicide. There was further medical evidence available showing that a week after the appellant learnt that the Adjudicator had dismissed his appeal, the psychiatrist had re-admitted him for three days.

6. In this type of case it was essential, submitted Mr Cox, that proper weight be given to the appellant's subjective belief that upon return to Sri Lanka he would face a real risk of serious harm either from the authorities, the LTTE or both. The Adjudicator had accepted that he had been tortured and ill-treated by both. The LTTE were still present in the appellant's home area. There was no evidence that any family member would be able to meet the appellant upon his return to Colombo.

7. Miss Hart submitted that the position of the appellant in Kurtoli was different as the evidence in that case was that the appellant's condition was getting worse. If the appellant was at risk of attempting suicide in reaction to an adverse decision from the Tribunal, precautionary action could be taken by those representing him, in cooperation with doctors in the UK. It was not a question as in Kurtoli, of assessing what precautionary measures might be taken in another country (France).

8. In addressing the main issue in this case we have taken careful account of leading cases, including Kurtoli and Soumahoro. However, we note that in both cases the focus was on whether, in the light of psychiatric evidence, the claim was arguable. Neither decision dealt with the proper approach to such cases on the merits, as opposed to the legality. In respect of the proper approach to be taken to medical evidence in cases being decided on their merits, we have applied the principles set out by the Tribunal in P (Yugoslavia) [2003] UKIAT 00057.

9. We have also to decide this case in the light of further evidence submitted to the Tribunal, dealing both with the appellant's previous medical history and with his current medical condition. The medical reports we have before us include a psychiatric report by Dr Kanagaratnam, Consultant Psychiatrist, dated 20 November 2002, and two reports by Dr Anne Patterson, MB, ChB, MR, CPsych, one dated 10 January 2003 and a supplementary report dated 15 May 2004. Nevertheless, even though the evidence casts a different light on some aspects of the evidence, we do not consider that it demonstrates that the Adjudicator reached erroneous conclusions.

10. We do accept, particularly in the light of the further evidence, that the Adjudicator was wrong to find that the appellant had not attempted to take his own life in October 2002. Equally, however, the later evidence does not demonstrate that he has made any further attempts at self-harm, notwithstanding that he was re-admitted to hospital in August 2003 for several days following news that his appeal to the Adjudicator had been dismissed.

11. We also accept that the Adjudicator was wrong to describe the appellant's personal relationships with his uncle and brother in the UK as “incipient” family life relationships. Given that the medical evidence confirmed the appellant's dependency on his uncle throughout the period of his psychological difficulties, the Adjudicator should have accepted that the appellant had family life relationships in the UK. However, we do not think that this error was sufficient to show that the Adjudicator was wrong to conclude that any interference with his right to respect and private life was proportionate. We shall return to this matter below.

12. Dealing first with the extent of the appellant's mental health difficulties in the UK, we accept that he has been receiving treatment in the UK and has been assessed by two medical experts as suffering from PTSD and depression consistent with the traumatic experiences he described.
We also accept, on the basis of the letter of 11 September 2003 from Springfield Hospital that the appellant had been admitted to Crocus Ward in October/November 2002 with severe depression following an attempt at deliberate self-harm by overdosing with Buspirone.

13. In his May 2004 report Dr Kanagaratnam noted that following his discharge from Springfield Hospital the appellant was provided with regular follow-up, as he continued to be depressed and to suffer from PTSD. In the same report the doctor explained that his decision to readmit the appellant as an in-patient for several days in August 2003 arose because he was “sufficiently concerned by the increased risk of suicide, here at that time” in reaction to news of the Adjudicator's dismissal of his appeal earlier that month. He wrote:

‘He continues to express helplessness, hopelessness and pointlessness. He has a sense of foreshortened future, with a severely damaged self-concept along with a features (sic) of loss of personal and moral integrity.

In my opinion, there is a very significant risk of completed suicide in the UK if [the appellant] knows for certain that he is to be removed to Sri Lanka. He has as mentioned already made one serious attempt at suicide here.

He has found support and sympathy from his relatives in the UK which to a large extent has provided him with a sense of stability.

14. In her May 2004 report supplementing that furnished in January 2003, Dr Anne Paterson confirmed that the appellant continued to take the same antidepressant medication and had continued to attend psychiatric outpatient appointments for review of his mental state and the Traumatic Stress Clinic for psychological treatment. Her assessment was that his mental state was “little changed” since the assessment made in 2002, despite continuing psychiatric treatment. She considered that the need of the appellant to be re-admitted in August 2003 confirmed her view that he remained “at a significant risk of committing suicide in the UK if he knew for certain that he would be returned to Sri Lanka”. She did not think, in his interview with her, either in 2002 or May 2004, that the appellant was at immediate risk of killing himself, but his “continued suicidal ideation” indicated a continued risk. She considered that the appellant being told for certain that he must return to Sri Lanka was “likely ... to be experienced as a significant negative life event, likely to precipitate just such a development of serous suicidal intent”. She further considered that since the appellant had no one to support him in Colombo he would be at similar risk of committing suicide actually either en route to Sri Lanka or upon return there. She repeated in closing the point made in her earlier report that the risk of completed suicide increased one hundred fold in those who have had a previous suicide attempt.

15. In relation to the risk of suicide in the UK, we do not consider that the medical evidence, even take at its highest, demonstrates a real risk that the appellant would commit suicide in the UK. We say this because it is clear that there has been and continues to be excellent cooperation between the appellant's uncle, who supervised him closely, and the medical authorities in the UK. In particular, the events of August 2000 demonstrated that precautionary steps had been successfully taken in the past to ensure he was not at immediate risk of suicide – by re-admitting him to hospital – and there was no reason to suppose that similar steps could not be taken in the future. (In order to further ensure that precautionary measures could be taken, we agreed to Mr Cox’s request that the appellant's copy of our determination be relayed through his representatives).

16. As regards the issue of risk to the appellant upon return to Sri Lanka, it is important to note that his claim to face a real risk of serious harm from the authorities on return to Colombo has been found to be wanting. We have already noted that we refused a request to re-argue the asylum grounds of appeal following their rejection by the Vice President who granted permission to appeal. Our refusal was based on the fact that we were satisfied that the Adjudicator was fully justified in concluding that neither the authorities nor the LTTE would any longer have an adverse interest in the appellant.

17. As regards whether the appellant would be returned to a situation where he had no family support, the Adjudicator found that the appellant would be able to return to his home village of Alvai and there have palliative care and moral support from his mother. Mr Cox has challenged this finding on the basis that the appellant's home area remained under LTTE control. However, whilst accepting that the LTTE detained the appellant between 1998 and 2000 (during which time he had to perform forced labour) and that he eventually escaped from them, the Adjudicator concluded that the appellant would no longer be of adverse interest to this organisation. In the light of the objective evidence before the Adjudicator, which included the April 2003 CIPU Report, we consider that this conclusion was entirely open to him. Even if there continue on the latest evidence to be incidents of LTTE forcibly conscripting young people, it is clear that this is no longer a regular occurrence; and there is no evidence that within the appellant's home area it has remained a regular practice after commencement of the peace process. Furthermore there was no evidence that the appellant's family in his home area continued to have any problems with the authorities or the LTTE.

18. Even had we found for some reason that the appellant could not return to his home area, we consider that it would still not have been reasonably likely the appellant would have to live in Sri Lanka without family support. On the appellant's own account his family members, both in Sri Lanka and the UK, had gone to extraordinary lengths to help him in the past, including by driving him to different parts of Sri Lanka. It was quite implausible, therefore, to maintain that when his family members in his home area learnt he would be arriving (and remaining) in Colombo, that they would not take steps to ensure that one or more of them joined him. As Miss Hart correctly pointed out by reference to recent objective evidence, there is freedom of movement in Sri Lanka currently, in practice as well as in theory.

19. We consider, therefore, that the Adjudicator was quite entitled when assessing the implications for this appeal of the appellant's mental health to find that he would have family support on return.

20. We also consider that it was open to the Adjudicator to find that the appellant would be able to access medical treatment in Sri Lanka, if he needed it. In this regard we note that despite the extent and length of the appellant's mental health problems, the treatment he has received has in the main consisted of antidepressant medication. Whilst he has seen psychiatrists, he has not been placed in an institutional setting for treatment, apart from two isolated occasions.

21. Turning to the assessment by two specialists that the appellant is at risk of suicide, we would make two main points. Firstly, as the Tribunal has emphasised in P (Yugoslavia), assessment of risk of suicide in the context of an asylum claim has to be made by an Adjudicator taking into account the evidence as a whole, including but not confined to the medical evidence. Doctors are not experts in conditions in destination countries, nor are they expert in or familiar with the criteria of real risk that Adjudicators have to apply under the Refugee and Human Rights Conventions. Secondly, whether or not the Adjudicator was correct to attach significance to the fact that the appellant was not “actively suicidal” in interview (with doctors), we see no error of law in his conclusion that the removal decision would not violate his right to physical and moral integrity.

22. In this case the medical evidence was that the appellant's suicidal ideation was very closely linked to his fears about risk on return from the authorities and the LTTE. His subjective fears are also evident from his asylum interview and 17 November 2000 statement. In the letter, for example, he referred at one point to his alarm at a recent incident he had heard about in which twenty-seven Tamil detainees had been attacked by a Sinhalese mob. However, the Adjudicator for valid reasons found that the appellant's subjective fears were not objectively based.

23. Mr Cox’s response to this finding is to argue that it does not matter what the objective reality will be for the appellant on return to Sri Lanka: it does not matter because the medical evidence is that, irrespective of objective reality, he believes he will be subjected (again) to serious harm. However, even though the medical evidence does state that he is at risk of suicide, it does not demonstrate that this appellant is delusional or unable to distinguish between reality and fantasy. In the absence of medical evidence of this kind, we do not think it can be assumed that, once the appellant realises he is required to return and that there is no prospect of further appeal, he will not take stock by reference to objective realities.

24. This is an important point in this appeal because in large part the appellant has overtly put his case on the following footing: “If you (the appellate authorities) refuse me, I will harm myself. I did it once before when I learnt of a refusal, and I will do it again”.

25. In concluding that the appellant could be expected to come to terms with the fact of removal and to take cognisance of changed circumstances in Sri Lanka, we would re-emphasis the significance in our view of the fact that throughout the time he continues to remain in the UK, it is reasonably likely he will be in receipt of family and medical supervision, and that, upon arrival in Sri Lanka he will have family support, and medical support if needed.

26. As regards the concerns raised about the appellant's conduct en route by aeroplane to Sri Lanka, we do not accept that these could not be allayed by action on the part of the appellant's uncle in the UK, in cooperation if necessary with medical and immigration authorities. If there was any continuing concern on the part of his uncle, the latter could if need be purchase a ticket and accompany him. It is quite absurd, in our view, to voice concerns of this kind without at the same time being practical about what could be done to allay them.

27. In reaching our conclusions we have take careful account of Mr Cox’s submissions based on Kurtoli and Soumahoro. However, not only were these cases concerned essentially with the arguability of a claim as opposed to its merits, but both decisions are fact-specific and fact-sensitive. We are not persuaded that they establish that the Adjudicator's conclusions in this case were erroneous. Nor have we found that the further medical evidence adduced in this case demonstrates that return of this appellant would cause a breach of his fundamental human rights.

28. Even though the Adjudicator did not address Article 3 separately, we consider that his conclusion as to the lack of serious threat to the appellant's physical and moral integrity under Article 8 were sufficient in themselves to establish that the decision did not violate his Article 3 rights either.

29. For the above reasons this appeal is dismissed.