[2005] UKAIT 148
- Case title: DE (Suicide, Psychiatric Treatment, J Applied)
- Appellant name: DE
- Status of case: Reported
- Hearing date:
- Promulgation date:
- Publication date:
- Last updated on:
- Country: Turkey
- Judges: Mrs J Gleeson, Mrs S M Kebede
- Keywords Suicide, Psychiatric Treatment, J Applied
The decision
DE (suicide – psychiatric treatment – J applied) Turkey [2005] UKAIT 00148
ASYLUM AND IMMIGRATION TRIBUNAL
THE IMMIGRATION ACTS
Heard at: Hatton Cross
On 21 July 2005
Determination Promulgated
21 October 2005
Before
Mrs J A J C Gleeson (Senior Immigration Judge)
Mrs S M Kebede (Immigration Judge)
Between
Appellant
And
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mrs C Gordon of Counsel, instructed by
Wilson & Co
For the Respondent: Miss A Gill, Home Office Presenting Officer
This case concerns an Appellant whose core account of HADEP/DEHAP sympathies and Alevi Kurdish ethnicity was found not credible but who had a history of depression and claimed suicide risk on return. The Tribunal should assume (following J [2005] EWCA Civ 629) that the Secretary of State will provide appropriately qualified escorts on return. Approach to analysis of suicide risk (J applied). Adequate medical treatment available in Turkey for mental health conditions and Articles 3 and 8 ECHR not engaged.
DETERMINATION AND REASONS
1. This is the reconsideration of the appeal of the appellant a Turkish National against the determination of an Adjudicator, Mrs J E Nichols, who dismissed her appeal against the Secretary of State's refusal to recognise her as a refugee under paragraph 336 of HC 395 and the refusal of leave to enter the United Kingdom. This decision is reported for what it says in paragraphs 69-78 about psychiatric treatment in Turkey for a returning asylum seeker whose account is found otherwise incredible, and application of the test in J [2005] EWCA Civ 629 to claimed suicide risk.
2. The medical evidence is summarised at paragraphs 38-54. The availability of medical treatment is considered at paragraphs 55 -57. Our findings in relation to the approach to a claimed suicide risk are set out at paragraphs 63-72.
3. The appeal was brought under Section 82(1) of the Nationality, Immigration and Asylum Act 2002 and Articles 3 and 8 of the European Convention on Human Rights.
4. The appellant’s core claims are as follows –
(a) The appellant relied upon her actual and perceived political opinion (HADEP) and her ethnicity (Alevi Kurd);
(b) Before coming to the United Kingdom she lived in a district of Istanbul, moving regularly from one district to another with her husband and children. She worked as a quality controller in a jeans manufacturing textile business and was comfortably off;
(c) Her husband was a keen HADEP/DEHAP activist who came to the attention of the authorities and was cautioned on a number of occasions, never formally joined the Party but continued to distribute publications. In 2000, he joined the Party. At Newroz 2003, he was arrested and taken away; she had not seen him since, but paradoxically, the police began to pursue the appellant to find her husband and arrested her on at least four occasions, without charge;
(d) The appellant attended the May Day 2003 celebrations in Istanbul, taking with her an illegal publication; she was arrested and detained, sexually abused and physically beaten, then released because she was a mother. She did not report her abuse; the arrest is said to have been witnessed by her cousin, Mr BK, who saw her being treated roughly by police and driven away to the police station. The cousin has refugee status in the United Kingdom after an appeal heard in September 2003;
(e) In September 2003, the police allegedly visited the appellant’s home while she was at work, looking for her husband. She was frightened, and moved in with a neighbour, who asked her to leave after two or three days, as the neighbour was nervous;
(f) When she returned home, the police came and arrested her between 8-11 pm, took her to the police station and detained her for three days, raping and beating her again. She was kept in a small dark cell and had her hair pulled; she did not report the abuse on release;
(g) She was then released and told a male work colleague what had happened to her. He arranged for an agent to get her out of the country, with her two children; the appellant left on 24 October 2003 and arrived in the United Kingdom 5 days later, claming asylum on arrival;
(h) The appellant has well-documented, longstanding, but rather confusing mental health problems and problems in managing her children. In the United Kingdom, she has lived near her mother and sister in north London until dispersed to Glasgow. She also has a brother here. Her husband’s parents still live in Istanbul and there is no satisfactory evidence that they would not be prepared to help her if she returned to Turkey.
5. The Immigration Judge dismissed the appellant's appeal on both asylum and human rights grounds having rejected her account as incredible for the reasons set out at paragraph 93 to 107 of the determination.
6. The Adjudicator decided the appeal in July 2004, before the entry into force of s.8 of the Asylum and Immigration (Treatment of Claimants etc.) Act 2004, but that section has retrospective effect and in considering credibility now, we must have regard to behaviour which we are directed to treat as designed or likely to conceal information or to mislead
7. The appellant arrived in the United Kingdom illegally on 29 October 2003 to join her mother, already an asylum seeker here. She had travelled for five days concealed in a lorry, with the assistance of the lorry driver. She claimed asylum; she had no passport and had travelled without any nationality documents.
8. Pursuant to s.8 (2) and (3) an Immigration Judge may not in those circumstances treat the appellant’s claim as entirely credible. It is a matter for that Immigration Judge to decide exactly how much the appellant’s credibility is damaged by her behaviour in arriving clandestinely in the United Kingdom. In the present appeal, that is a matter for this Tribunal on the evidence before us.
Grounds for review and grant of permission to appeal
9. The grant of permission to appeal is treated as a decision that the Immigration Judge’s determination should be reviewed for the same reasons. In the grant of leave the Senior Immigration Judge considered that the Immigration Judge (or the Adjudicator, as she then was):
(i) erred in law by reaching her credibility finding before considering the psychiatric report;
(ii) erred in holding it against the appellant that, on medical advice, the appellant chose not to testify; and
(iii) erred in making a finding of fact that the appellant was not arrested at a May Day celebration as alleged, without making it clear that the Home Office concession in that regard was not accepted. Relying on that concession, the appellant failed to call a vital witness, Mr BK.
Procedural history of the reconsideration hearing
10. The appeal was listed for 8 March 2005 but was adjourned, there being no up to date medical evidence. An all female court was directed at the appellant’s request. On 3 April 2005, the Immigration Appellate Authority ceased to exist and was replaced by the Asylum and Immigration Tribunal. A Practice Direction issued on 4 April 2005 by the President of the new AIT sets out the position where an appeal is pending and already remitted on the first day of the new Tribunal –
“14.11 Where, immediately before 4 April 2005, an appeal was pending before an Adjudicator, having been remitted to an Adjudicator by a Court or the Immigration Appeal Tribunal, it will have already been decided that the original Immigration Judge’s determination cannot stand. The Tribunal will accordingly proceed to rehear the appeal.”
11. That direction is based upon rule 9 of the Asylum and Immigration (Treatment of Claimants etc.) Act 2004 (Commencement No. 5 and Transitional Provisions) Order 2005. The appeal was therefore re-listed after the coming in to being of the AIT, for full reconsideration, to be heard on 21 April 2005. It was again ineffective on that date, by reason of the lack of an all female court (as previously directed) and the lack of medical opinion as to whether the appellant was fit to testify. There was also a question of psychiatric evidence relating to the appellant's daughter who is a dependant of the appellant. The reconsideration was adjourned again to 24 May 2005.
12. The 24 May hearing was again ineffective, because the crucial witness to the May Day arrest (Mr BK) was out of the United Kingdom for a substantial period for a family visit to Germany. The appeal was therefore re-listed once more, this time 21 July, by which time an all female court would be available. This being a remitted appeal, it was then heard by a panel of two Judges. The appeal was treated as having passed the ‘error of law’ stage and been set down for further reconsideration based on the grounds for review.
The abortive oral hearing
The Secretary of State's withdrawal of concession
13. For the Secretary of State, Ms Gill indicated at the beginning of the hearing that she would not maintain her concession in relation to the appellant’s attendance at the May Day demonstration. For the appellant, Ms Gordon objected on the basis that she had insufficient notice of that withdrawal and that it was not open to the Secretary of State to withdraw a concession in that way (Carcabuk and Bla (00/TH/01426)).
14. The appellant was on notice that the Immigration Judge at least had not accepted the concession (indeed, that was among her grounds for review); and Mr BK, the appellant’s witness to the May Day demonstration was unavailable for cross-examination despite a previous adjournment specifically so that he could attend. Mr BK's unavailability related to a domestic emergency with one of his children; there was no medical evidence to support that, but we do have his witness statement, to which we give such weight as is appropriate. The appellant was unable to testify and it is common ground that she will not be able to do so in future. Ms Gordon did not request an adjournment to give a further opportunity for Mr BK to testify; she was content at the beginning of the oral hearing to proceed with the case as it stood. The Tribunal has seen no evidence to confirm the reason for his absence.
15. Ms Gordon conceded at the beginning of the oral part of the hearing that, in the absence of Mr BK, this element of her grounds for review fell away (although she renewed her arguments on this point in her written submission – see paragraph 34 below). We are also obliged to have regard to section 8 Asylum and Immigration (Treatment of Claimants etc.) Act 2004 and to its effect on the appellant’s credibility. The appeal proceeded by way of written submissions with seven days being allowed to both parties to submit in writing that which they would have said had the appeal proceeded orally. Both parties accepted that the appellant would not be able to testify.
16. We treat the appeal on the basis that the Secretary of State's concession in relation to the May Day demonstration was withdrawn on appropriate notice (the seven days allowed for written submissions) but in any event, that is of little moment, since at the oral hearing, Ms Gordon had agreed that the only live issue was the effect of the medical evidence before the Immigration Judge and before us on the credibility finding by the original Immigration Judge. Both representatives agreed that it was necessary for this appeal to be dealt with on the material and arguments we have before us. Points (ii) and (iii) therefore both fall away, as Ms Gordon very properly recognised at the beginning of the hearing.
The oral proceedings
17. The Tribunal therefore began hearing the appeal, with a Turkish interpreter translating the oral argument to the appellant. The appellant attended from Glasgow, to where she was dispersed, and was accompanied by her two children and her brother. There is no witness statement from the brother and it does not appear that there was any intention that he should testify. The appellant’s London based mother and sister did not attend or give evidence and we have received no explanation for their absence.
18. During the submissions of the Home Office Presenting Officer, at the point where Ms Gill was submitting that the appellant’s case was a fabrication, the appellant became very upset, sobbing and wailing loudly. It was then just before 1 p.m.; the Tribunal retired for the short adjournment and indicated that if the appellant was able to continue, we would do so at 2 p.m.
19. Ms Gill and Ms Gordon attended in chambers to discuss the case, as it was rapidly clear that the appellant would not be sufficiently calm for the hearing to proceed in her presence at 2 p.m. Both representatives agreed that there was no realistic possibility that the appellant would be fit to testify in the foreseeable future, and after discussion, it was also agreed that written submissions on both sides would be the appropriate way to finalise the reconsideration of this appeal, which had already been adjourned on three occasions between March and July 2005. The appellant’s Counsel would take the appellant to the local mental hospital for possible admission, given her hysterical state; the Tribunal indicated that we hoped to see further medical evidence of her present state, and that we would resume at 2 p.m.
20. At 1.30 pm the appellant’s Counsel took her to the hospital locally, and was unable to return at 2 p.m. We do not criticise her for that; we resumed the adjourned hearing at 2:20 p.m. and adjourned it on the basis already agreed, directing, as already discussed with Ms Gordon, that both parties should send written submissions by email to the Chairman, Mrs Gleeson to reach her not later than 4.00 pm on 28 July 2005. It was agreed that the appeal would be determined on the papers and on submissions. Ms Gill’s submissions were received on time. Ms Gordon’s were two hours late, but the Tribunal has extended time by that period, in the interests of justice.
Secretary of State’s submissions (Ms Gill)
21. As set out above, Ms Gill had commenced her oral submissions when the hearing was adjourned. In her written submission, she adopted the oral submissions to that point as forming part of her written submission. She reminded the Tribunal that the Immigration Judge found the appellant not credible. The only live issue was that of psychiatric evidence, and most of the medical evidence before the Tribunal had been before the Immigration Judge. The appellant was still unable to testify and the evidence added very little to her claim. Mr BK’s statement should not carry any weight without medical evidence of his daughter’s illness and his being tendered for cross-examination.
22. There were additional problems with the appellant’s credibility, should the Tribunal consider that the error of law enabled it to reopen the credibility finding. When unable to name the place of HADEP meetings which she claimed to have attended (asylum interview, paragraphs 38-40), the appellant changed her account and said that it was rallies which she had attended, not meetings. It was extraordinary for a woman who had never attended such a rally with her husband to attend for the first time after his arrest for carrying HADEP/DEHAP literature, and to do so carrying an illegal newspaper. The family had been harassed since 2000 and the danger was then at its highest for a number of years. It simply did not make sense for her to take such a risk.
23. It was also very curious that having been detained on three or four occasions, the appellant could not remember the name of the police station where she was detained. The authorities told her that they did not wish to see her again, which was odd, if they were still searching for her husband. There was no indication that the search had widened to take in other family members or her husband’s parents in Istanbul.
24. Finally, the respondent relied upon the determination of the appellant’s mother’s appeal in 2004. If this appellant’s political connections and problems were by then of four years’ standing, it was very surprising that the appellant’s mother should not have mentioned this at her own hearing, particularly as by that time this appellant was safely in the United Kingdom and could not be harmed by such revelations.
25. Ms Gill argued that the claim was simply fabricated; the appellant’s husband might have left her, but she did not appear to be seeking him. Ms Gill submitted that the medical evidence did not mention any recommendations for HIV, STD or pregnancy tests, and although the appellant now sought an all-female Court, she had been able to discuss her case with a male doctor. In her 11 March 2005 statement, the appellant said she knew of human rights organisations in Turkey but was not prepared to go to them. They were all the same, or insulting in their approach to those who approached them. Ms Gill asked us to dismiss the asylum claim.
26. As to the human rights claims under Articles 3 and 8, Ms Gill submitted that the medical evidence did not reach the appropriate threshold. There was no evidence to suggest that the support which the appellant had been able to use in the United Kingdom would not be available in Turkey. Ms Gill pointed out that there were members of the appellant’s husband’s family in Istanbul who could help her.
27. Ms Gill submitted that the medical evidence was inconsistent; on 21 February 2004, Dr Neil S Egnal, Consultant Clinical Psychologist found the appellant to be suffering mild depression and mild to moderate Post-Traumatic Stress Disorder, but on 24 April 2004, Dr Catherine King in her psychiatric report found the appellant to have a major depressive disorder. There was no mention of any reason for such deterioration.
28. Ms Gill argued that the appellant’s oral evidence regarding her health was inconsistent: at the screening interview, she claimed to be in good general health and not to have been treated by a doctor in the last six months. Six months earlier, she had seen a doctor for stress-related heart problems. She did not mention suicide. When speaking to Dr King in April 2005, the appellant claimed for the first time to have taken an overdose approximately two months before her journey to the United Kingdom and to have been treated in hospital.
29. A letter from Dr R J McNeill of 13 May 2005 indicated that the appellant had denied feeling suicidal at her first interview with the doctor, admitting only to feeling down and having bad dreams. Dr Catherine King’s report of 29 March 2005 recorded her as ‘thinks about suicide daily’.
30. In sum, Ms Gill’s submission was that the appellant’s approach to her suicidal ideation was inconsistent and that nothing in her medical evidence suggested that such serious suicidal feelings would appear and disappear in this manner. She also contended that, the appellant having been found generally incredible, her depressive condition and/or Post-Traumatic Stress Disorder might not have occurred for the reasons given.
31. There were medical facilities in Turkey which would assist her (paragraphs 5.129-5.153 CIPU Country Report Turkey April 2005) and she had her husband’s parents in Istanbul, who could support her on return. The appellant’s claim should therefore fail both under Article 3 (N) and under Article 8. Ms Gill asked us to dismiss the human rights appeal also.
Appellant’s submissions (Ms Gordon)
32. For the appellant, Ms Gordon relied upon her skeleton argument prepared for the abortive hearing on 21 July, which set out the appellant’s history and indicated that the appellant relied upon her actual and perceived political opinion (HADEP) and her ethnicity (Alevi Kurd). The appellant’s core account was set out; she relies upon four arrests, the first of which (May Day 2003) was witnessed by her cousin, Mr BK. He did not witness the alleged rape but did see her being treated roughly by police and driven away to the police station. The cousin had refugee status after an appeal heard in September 2003.
33. The appellant relied upon a home visit in September 2003 when the police asked where her husband was, after which she moved to live with a neighbour, who eventually asked her to leave as the neighbour was nervous. When she returned home, the police came and arrested her between 8-11 pm, took her to the police station and detained her for three days, raping and beating her again. She was kept in a small dark cell and had her hair pulled. She was then released and told a male work colleague what had happened to her. He arranged for an agent to get her out of the country.
34. The skeleton argument also dealt with the medical evidence (paragraphs 15-35). We shall return to that, particularly with reference to the appellant’s ability to give evidence. The appellant argued that she would be seen as a separatist on return, and that due to her risk of self harm, to return her would breach her human rights (with particular regard to her previous suicide attempt). Her family all had refugee status and her husband was still missing.
35. Her psychiatric situation was said to be severe, such that she would be high risk of suicide both in the United Kingdom and if returned. The appellant’s bond with her mother was at a level higher than normal adult child-parent relationships (Kugathas) and Article 8 would also be interfered with at a level not proportionate to the dependency between mother and daughter.
36. Ms Gordon’s final submission, prepared after the abortive hearing, adds the following matters to the submission prepared for the hearing. She explained her failure to re-appear after lunch and in effect, the first three pages of her skeleton argument contain written evidence as to the course of events at the hospital to which she took the appellant. It took almost an hour for the appellant to calm down after her outburst during the hearing. The appellant was prescribed Diazepam, but not admitted, then returned to stay with her mother in North London. On 25 July 2005, four days after the abortive hearing, she returned to Glasgow, accompanied by her children and her London-resident mother.
37. The submissions proper begin at page 4. In relation to the withdrawal of the Secretary of State’s concession that the appellant was arrested at the May Day demonstration as claimed, the appellant relied upon Carcabuk and Bla and the Secretary of State's indication that there was no need for Mr BK to be tendered for cross-examination on this point. He was the crucial witness to the events on May Day. The witness Mr BK had attended seven hearings of this appeal to Counsel’s knowledge and the appellant’s explanation of his absence at the last hearing should be accepted. The Tribunal notes that the appellant had seven days from the date of the abortive hearing to get medical evidence of the reason for Mr BK's non-appearance but did not do so.
38. Ms Gordon submitted that on Carcabuk and Bla principles, it was much too late for the Presenting Officer to withdraw the concession regarding the appellant’s arrest and detention at the May Day demonstration by the date of the reconsideration hearing, particularly as no notice of such withdrawal had been given. The appellant should therefore be treated as having been so arrested. Again, we do not find that, given the seven days allowed for written submissions and her inability to testify, the appellant was placed at a disadvantage by that withdrawal. There is no indication that if the hearing were re-listed, Mr BK would attend.
39. Ms Gordon challenged the Secretary of State's attack on the Immigration Judge’s credibility findings. The appellant’s account was not inconsistent at the level which would make a positive credibility finding an error of law. If there were gaps in the evidence, the Tribunal should not be prepared to fill them with speculation. Where an appellant was mentally ill and unable to testify, greater scrutiny of such evidence as was before the Tribunal should be expected. Regard should be had to the impossibility now of putting to the appellant questions relating to the issues troubling the Immigration Judge at the first hearing. Failure to have a pregnancy, STD or HIV test did not mean that the appellant was not telling the truth about her rape.
40. Given the Home Office policy in relation to the availability of female Immigration Officers to interview female appellants, it was improper of the Secretary of State to hold against the appellant her failure to disclose the rape allegation to the male officer who interviewed her, nor her ability to tell the male doctor assisting with her difficulties with the children (Dr Egnal) about her experiences. The appellant’s outburst in court coincided with the interpreter translating to her the Presenting Officer’s submission that she was fabricating her account.
41. Ms Gill argued that the rape claim had been disclosed immediately on entry and the appellant’s account was not inconsistent. Her brother accompanied her to court. She relied upon J v SSHD [2005] EWCA Civ 629; the appellant’s claim was both foreign and domestic. The suicide risk existed in the United Kingdom and would be aggravated by return to her country of origin.
Medical and social worker evidence
42. On 21 February 2004, due to difficulties with the children, Dr Neil S Egnal, a Consultant Clinical Psychologist assessed the appellant, and her six and seven year old daughters, GE and SE, at the request of the appellant’s solicitor, who was concerned. He describes her as having often contemplated committing suicide, feeling shame, afraid to go out alone, and suffering bouts of depression, nightmares, forgetfulness, fainting spells and torture flashbacks. She had been referred for counselling and prescribed medication for her depression. The children were in a bad way; GE had a stammer, nail biting, poor sleep pattern, loss of appetite, fits of crying and aggressive behaviour at school, and SE suffered bedwetting, restlessness, anxiety, poor sleep pattern, loss of appetite and crying spells.
43. The assessment of the appellant was careful and rigorous. Dr Egnal found her to display features of mild to moderate Post-Traumatic Stress Disorder (nightmares, panic attacks, irritability, and loss of sleep, loss of appetite, fainting spells and memory flashbacks) as well as features of a mild depressive disorder. He used the Stein Thematic Apperception Test and the internationally recognised DSM-IV tests for Post-Traumatic Stress Disorder and depressive illness.
44. He found the children also to be suffering mild depression and moderate Post-Traumatic Stress Disorder, and missing their father. All the family were receiving medication and the appellant had been advised to attend counselling. The children should be given counselling also to ‘assist them in overcoming the loss of their father and help them in coming to terms with the events surrounding their departure from Turkey’. The appellant does not seem to have taken up the counselling option.
45. A report from Dr Catherine King of 24 April 2004, which was before the Immigration Judge, was based upon a three hour interview which took place on 29 April 2004 (presumably a typographical error for 29 March). The report, after setting out the history taken, analyses the appellant’s psychiatric state at point 4. The appellant is described as emotionally cut off, irritable towards her children, dependent on her family, numb, withdrawn, and often tearful at home. Her mother was mothering the children for her, as the appellant had difficulty making even the simplest decisions about them. She was experiencing intrusive memories and recurrent dreams of the rape and beatings. She felt detached and estranged towards others, and numb towards her children. Dr King misdescribes GE’s age as 10; she gets SE’s age right.
46. The appellant told Dr King of an overdose taken approximately two months before coming to the United Kingdom (August 2003). Dr King’s analysis at paragraph 5 of these symptoms lacks detail but the doctor was nonetheless satisfied that the appellant had a Major Depressive Disorder (Post-Traumatic Stress Disorder).
47. At paragraph 5.4, Dr King considered the effect of removal to Turkey; the Post-Traumatic Stress Disorder would be retriggered to an intense degree and the appellant would deteriorate further. She had already thought out her plans for suicide (eating rat poison or taking pills). She was highly dependent on numerous close family members in the United Kingdom who were helping to parent her children. Taking her away from her support system would impact upon that and might well push her into serious self-harm. In the event, as noted below, relocation to Glasgow where she has no family support has not had the effect of pushing the appellant into serious self-harm as Dr King feared, although the appellant has had difficulties in parenting her children which caused concern at their schools.
48. Dr King advised management and treatment of the appellant’s mental state by a General Practitioner and psychiatrist, preferably with the support of a Community Mental Health Team (CMHT). She would need supportive psychotherapy and later cognitive behavioural therapy from a specialist trauma clinic, as well as medication (in April 2004 she was already taking an antidepressant). If that did not work, Mitrazepine or Sertraline, both SSRIs, were recommended (Sertraline had been licensed for Post-Traumatic Stress Disorder). Dr King recommended that treatment begin as soon as possible, with cognitive behavioural therapy only once the appellant was partially recovered. A letter from the same specialist on 24 May 2004 indicated that the appellant was highly likely to become stressed if asked to give evidence, with a worsening of intrusive flashbacks and exacerbation of symptoms.
49. In early November 2004, the appellant was dispersed by NASS to Glasgow, away from her extended family support. The Tribunal was not notified of this until the following March (2005). On 13 April, a referral was made to an NHS assessment clinic in Glasgow, and by 17 May 2005, the child GE had been referred to the University of Glasgow’s Department of Psychiatry. On 16 May, Dr McNeill contacted the Glasgow City Social Work Services, concerned as to how the appellant was coping. By 2 June, there were also problems at GE’s school and the appellant was given an appointment with the school psychologist for Monday 6 June. GE has had three further appointments to support her, and the appellant was seen in July; she will be seen again in August.
50. On 29 March 2005, Dr King saw the appellant again this time for two hours. The family’s health visitor was concerned that she might harm her children. The children’s school had arranged for them to see a psychologist. The appellant’s sister and mother had travelled to Scotland to help the appellant care for herself and her children, but they had returned; they were not living with her now.
51. Dr King assessed the appellant’s complaints as similar, but her depression as more severe due to lack of family support in Glasgow. The appellant had been prescribed Citalopram 40 mg (an SSRI antidepressant, for sleep, prescribed by Dr McNeill in Glasgow); Amitryptiline 25 mg (a tricyclic antidepressant for sleep and severe headaches) and Lofepramine 70mg twice a day (also a tricyclic antidepressant). It does seem surprising that the appellant should be prescribed three different antidepressants simultaneously; it may be that they were sequential attempts to control her depression. The appellant’s mood was worse in the mornings and she had lost 3 kgs in weight.
52. The appellant still had strong feelings of shame about the rape. Her General Practitioner would not give her much medication at a time, only 10 days’ worth, and she thought about suicide daily. She was functioning at a very low level and Dr King considered she should be referred to a local Community Mental Health Team for assessment from the local community psychiatrist. Discussing the past retraumatised her. She recommenced cognitive behavioural therapy once the appellant was more stable. Nothing appears to have happened on that front since the previous report.
53. On May 13 2005, Dr McNeill, the appellant’s General Practitioner in Glasgow, provided a medical report. She had been moved to Glasgow on 11 November 2004 or thereabouts; at any rate, that was the date she joined his practice. When seen, the appellant was physically unremarkable. She told him she had stopped taking the antidepressant she was taking in London, and felt alone and unsupported. She denied feeling suicidal. He prescribed Lofepramine but the appellant stopped using it after only a short time; it was not helping her. He then prescribed Citalopram and referred the appellant to a psychiatrist, but not yet seen.
54. The appellant was attending a weekly session in Cranhill Church to see the health visitor attached to the practice (who was supporting her) and the health visiting staff nurse. On 12 May, she seemed unwell and was scared of harming her children. She would lock herself in her bedroom rather than risk that. The antidepressant was changed again.
55. The General Practitioner considered that the appellant was suffering a significant depressive illness and would need a prolonged period of treatment, and possibly a period of psychiatric inpatient treatment. He was concerned that her health might suffer adversely if she were returned to Turkey at that time.
56. It is clear that without her family to support her in Glasgow, the appellant’s condition has not improved. Disappointingly, although it was specifically requested, no medical evidence has been produced since her outburst at the hearing last week. We prefer the evidence of Dr McNeill and Dr Egnal to that of Dr King: the reports of Dr King lack rigour (failing to notice that the appellant was only currently taking one antidepressant, failure to apply DSM-IV or ICD-10, errors in the ages of the children and a lack of reasoning in the opinion sections). Dr McNeill and Dr Egnal have spent more time with the appellant and are in a better position to comment; their reports are more careful and rigorous.
57. It is noticeable that the appellant is reluctant to continue medication and has tried a number of drugs without significant improvement. She has had no counselling or cognitive behavioural therapy and the extent to which she is able to use any superior medical facilities in the United Kingdom is unclear. We note that although she is coping badly in Glasgow, she has not, as feared, descended into serious self-harm or hospitalisation in the absence of her London family members.
58. We accept the diagnosis that she is depressed and may be suffering from Post-Traumatic Stress Disorder, but having regard to our general findings on credibility, we do not accept that it has been established that the reason for that depression is as alleged. We note that the appellant was treated for stress and heart problems six months before coming to the United Kingdom. We consider that the problem now presented may well be of long standing and one for which she was previously being treated in Turkey.
Availability of mental health treatment in Turkey
59. Ms Gordon suggests that the appellant as a suspected separatist would have no access to medical facilities in Turkey. She produces no evidence to back up this assertion, and we reject it. In any event, for the reasons set out at paragraph 65 below, we have not found the appellant to be an Alevi Kurd or a suspected separatist; she is simply a returning failed asylum seeker.
60. On the availability of treatment for her mental health problems, we note that the appellant was receiving treatment in February or March 2003 in Turkey. That suggests that such treatment is available in Turkey; the only background material put before us was the current CIPU Country Report (April 2005), referred to by Ms Gill in her submissions, which sets out the availability of treatment for mental health problems in Turkey –
“5.149 According to the World Health Organisation’s (WHO) Department of Mental Health and Substance Dependence Project Atlas (updated 2003) the country has disability benefits for persons with mental disorders. “After being approved by a mental health board as a chronic mental health patient, the patient can benefit from the social security services.” Mental health is part of the primary health care system. Actual treatment of severe mental health is available at the primary level. “Mental health in primary care is available in only some provinces.” Regular training of primary care professional in the field of mental health is present and the approximate number of personnel trained over the last two years totalled 3,000.
5.150 The WHO Project Atlas (updated 2003) further states that there are 1.3 psychiatric beds per 10,000 population, and one psychiatrist, one neurosurgeon, one neurologist, one psychologist and one social worker per 100,000 population.
5.151 The Foreign and Commonwealth Office contacted Hacettepe University Hospital Psychiatric Department in April 2002 and confirmed that antipsychotic and antidepressant medication is available in Turkey.
5.152 According to the WHO Project Atlas (updated 2003)
“The following therapeutic drugs are generally available at the primary health care level: carbamazepine, ethosuximide, phenobarbital, phenytoin sodium, sodium valproate, amitriptyline, chlorpromazine, diazepam, fluphenazine, haloperidol, lithium, biperiden, carbidopa, and levodopa.”
5.153 The WHO Project Atlas (updated 2003) continues
“The mental health department was established within the Ministry of Health in 1983 with the primary tasks of improving mental health services, development and dissemination of preventive mental health services, integration of mental health with primary care, community education and protection of the community from harmful behaviours. The means of achieving these aims were through determination of standards, training programmes, data collection, research, creation of counselling and guiding units, creation of psychiatric clinics in state hospitals, assigning proper tasks to personnel, developing rehabilitation facilities, carrying out public education through the help of media, educating the public on harmful behaviour, and taking care of those who succumb to those behaviours.” “
61. We note that Diazepam is one of the WHO list of drugs available in primary care in Turkey and is the drug presently prescribed for the appellant.
Conclusions
62. As already stated, under the transitional provisions, this appeal which was listed as a remitted oral hearing before 4 April now falls to be treated as a further reconsideration after error of law has been established. The error of law which had already been established was the failure to consider medical evidence before reaching conclusions as to credibility; it was our task to reconsider credibility in the light of that medical evidence (and the new medical evidence before us now), then to determine whether any change in the credibility finding would be material to the outcome of this appeal.
63. This was a reserved determination on written submissions, as set out above. The Tribunal was, in the event, only required to consider the question of credibility. We reminded ourselves that under section 8 the option of finding the appellant entirely credible was no longer open to us. We saw the appellant’s apparent breakdown during the brief oral hearing, but neither of us is medically qualified and any conclusions based upon such observation cannot be determinative of this appeal. It is clear from the medical evidence that this appellant has a history of depression, that she is in the United Kingdom without her husband and has difficulty parenting her children. The case is not without difficulty and the Tribunal has considerable sympathy for the appellant’s predicament and her health problems.
64. The question is whether the appellant’s core claim should be treated as credible, and if not, whether the mental ill-health from which she undoubtedly suffers puts her at risk of suicide on return. if so, we must establish whether the Turkish state has available the necessary facilities to protect her to the Horvath standard, having regard to the high level set for Article 3 ECHR in foreign cases such as this.
65. With those restrictions in mind, we proceeded to reconsideration of the credibility evidence. The Immigration Judge accepted that there was nothing inherently implausible in this appellant’s claim (paragraph 88) and that if the appellant’s account were true, she might be at continued risk on return. However, she disbelieved the key claim that the appellant was an Alevi Kurd (albeit on grounds which were not put to the appellant because she did not testify). The grounds for review do not deal with that issue and nor does either of Ms Gordon’s skeleton arguments; we are therefore not seised of the question whether this appellant is indeed an Alevi Kurd. We accept the unchallenged findings of the Immigration Judge on this element of the claim.
66. The following credibility points emerged -
(a) As the Immigration Judge observed, there are significant contradictions in the appellant’s core account (paragraphs 94-101 of the determination) which are not related to her rape but are plain and inexplicable inconsistencies in relation to what happened to her husband and to her mother-in-law’s description of the family circumstances. The Immigration Judge was entitled to regard those as reducing credibility.
(b) We consider that inconsistencies set out at paragraphs 94-101 are more than sufficient to justify the Immigration Judge’s finding that there was in fact no family DEHAP/HADEP link.
(c) We also consider that if the appellant’s husband disappeared at the hands of the authorities as claimed, it is most unlikely that they would continually arrest and ill-treat her to get her to tell them where he was; they would know where he was as it would be wherever they had themselves put him;
(d) The Immigration Judge was not bound by a decision of another Immigration Judge at first instance, especially given the variation in the factual accounts. The appellant’s mother did not mention the matters now relied upon as this appellant’s core account, although the appellant was then living with her mother in London.
67. For all the above reasons, having reconsidered the credibility issues on the evidence before the Immigration Judge, we conclude that although the Immigration Judge’s negative credibility finding is erroneous in law, that error is not material, since on a proper examination of all the evidence before the Immigration Judge, we reach the same conclusion.
68. We have also considered whether the new medical evidence provided for us at the reconsideration hearing alters that credibility assessment. We note that –
(a) The appellant has had the opportunity to improve the medical evidence available and has provided further reports.
(b) However, the effect of those reports is not to clarify but further to confuse the assessment of her mental health and the risk of suicide; if anything, her GP’s assessment indicates that she now denies being suicidal and she may, very slightly, be improving.. The appellant does not take her medication and has had no counselling in the United Kingdom.
(c) There is no satisfactory medical evidence from Turkey of the appellant’s past medical and mental health history, and
(d) There is evidence concerning the appellant’s dispersal to Glasgow and the effect of it on her health. She is having difficulty in coping with the children as is set out in the Scottish reports. However, we note that she was not ill enough to be hospitalised, despite her apparent breakdown in court, and returned to Glasgow voluntarily on the Monday after our hearing, spending just four days with her mother in North London.
Having considered the additional evidence, we do not find that it improves the appellant’s situation and we maintain our negative credibility assessment. Having regard to all the different accounts given, for the reasons set out above, we find that her account of the alleged May Day incident and rape (which is correctly identified in the grant of leave as the core of this appeal) is simply not credible.
Effect of Suicide Risk
69. We then considered the claimed risk of suicide if this appellant were to be returned today, guided by the Court of Appeal’s decision in J v SSHD [2005] EWCA Civ 629, which sets out the correct application of the ‘real risk’ test in foreign cases. The Immigration Judge did not have the benefit of the analysis in that decision, which we have found to be of great assistance in approaching the present appeal.
70. We considered whether the risk to the appellant in the process of return is such as to engage the ECHR. The appellant will be personally served with this determination. We remind ourselves of the helpful analysis of the question of the mechanism of return in J –
“61. As regards the risk of suicide en route to Sri Lanka, the IAT's finding was not perverse... They made it clear that the authorities in the UK would be involved in the arrangements. The IAT were entitled to infer that the Secretary of State would take all reasonable steps to discharge his obligations under section 6 of the Human Rights Act 1998 ("the 1998 Act"). As the IAT said in AA v Secretary of State for the Home Department at paragraph [39]:
"Third stage-transit: there are no reasons to suppose that the Secretary of State would not provide appropriately qualified escorts. This is known to be done. Other measures in other cases may include accompanying family members."
62. In our judgment, the IAT were entitled to take judicial notice of the arrangements that, no doubt conscious of his obligations under section 6 of the 1998 Act, the Secretary of State makes to escort vulnerable persons who are removed to their countries of origin. This is reflected in a document that we were shown which sets out Home Office policy for dealing with claimants who threaten suicide.
63. As regards the criticisms made of the finding in relation to the risk upon arrival in Sri Lanka, the IAT were entitled to conclude on the evidence before them that the appellant would have family support on his return to Sri Lanka. Having regard to the very high threshold for article 3 in foreign cases of this kind, the IAT's decision cannot be characterised as perverse. In particular: (i) the adjudicator had found that any subjective fears which the appellant might have on return were not objectively justified; (ii) he would have family support on his return; and (iii) he would have access to medical treatment in Sri Lanka which it was conceded was adequate (the IAT noted in this regard that most of the treatment in the UK had consisted in the prescription of anti-depressant medication; he had only been placed in an institutional setting on two occasions). “
71. Following J, the Tribunal is therefore entitled to take account of the Secretary of State's obligation to provide appropriately qualified escorts and of the available family support from the appellant’s in-laws in Istanbul. Her subjective fears were not objectively justified; she would have family support on return; and we find that she would have access to adequate medical treatment. As in J, the appellant’s treatment in the United Kingdom consists of the prescription of anti-depressant medication (which is available in Turkey). The difference is that this appellant has not even been hospitalised whilst in the United Kingdom.
72. If there is a suicide risk, it must be a real risk, that is, more than ‘not fanciful’, and having regard to the manner in which the ECtHR has applied it in different circumstances, the following guidance is provided in J-
“26. First, the test requires an assessment to be made of the severity of the treatment which it is said that the applicant would suffer if removed. This must attain a minimum level of severity. The court has said on a number of occasions that the assessment of its severity depends on all the circumstances of the case. But the ill-treatment must "necessarily be serious" such that it is "an affront to fundamental humanitarian principles to remove an individual to a country where he is at risk of serious ill-treatment": see Ullah paragraphs [38-39].
27. Secondly, a causal link must be shown to exist between the act or threatened act of removal or expulsion and the inhuman treatment relied on as violating the applicant's article 3 rights. Thus in Soering at paragraph [91], the court said:
"In so far as any liability under the Convention is or may be incurred, it is liability incurred by the extraditing Contracting State by reason of its having taken action which has as a direct consequence the exposure of an individual to proscribed ill-treatment."(Emphasis added).
See also paragraph [108] of Vilvarajah where the court said that the examination of the article 3 issue "must focus on the foreseeable consequences of the removal of the applicants to Sri Lanka…"
28. Thirdly, in the context of a foreign case, the article 3 threshold is particularly high simply because it is a foreign case. And it is even higher where the alleged inhuman treatment is not the direct or indirect responsibility of the public authorities of the receiving state, but results from some naturally occurring illness, whether physical or mental. This is made clear in paragraph [49] of D and paragraph [40] of Bensaid.
29. Fourthly, an article 3 claim can in principle succeed in a suicide case (paragraph [37] of Bensaid).
30. Fifthly, in deciding whether there is a real risk of a breach of article 3 in a suicide case, a question of importance is whether the applicant's fear of ill-treatment in the receiving state upon which the risk of suicide is said to be based is objectively well-founded. If the fear is not well-founded, that will tend to weigh against there being a real risk that the removal will be in breach of article 3.
31. Sixthly, a further question of considerable relevance is whether the removing and/or the receiving state has effective mechanisms to reduce the risk of suicide. If there are effective mechanisms, that too will weigh heavily against an applicant's claim that removal will violate his or her article 3 rights. “
73. In the present appeal, we find that there is no reliable evidence of any past suicide attempt. On the appellant’s interview and witness statement evidence, there are patent contradictions; on one version, she last saw a doctor six months before coming to the United Kingdom and was hospitalised after the claimed rape, yet elsewhere she says that the rape occurred just two months before her journey to the United Kingdom. Those accounts are inconsistent; if the appellant saw a doctor six months before her journey, the rape would have predated the May Day rally at which she says her troubles began. Her account to Dr King was that it took place in August, yet elsewhere, she says that it took place after she returned home, having hidden in a neighbour’s house during September (it would thus have almost immediately preceded her journey to the United Kingdom). Even making full allowance for her psychological difficulties, the appellant is not being frank about the sequence of events between the alleged suicide and the claimed rape, which further damages her credibility. We therefore do not find that she has attempted suicide in the past.
74. We considered the evidence as to the appellant’s present or future suicidal ideation and the risk of an attempt on return to Turkey. Neither Dr McNeill nor Dr Egnal puts the suicide risk as high as Dr King does. However, Dr McNeill is restricting her dosage of her antidepressant to ten days at a time (though it is not clear whether that is sufficient for a suicide attempt). Ms Gordon’s submission, that the Turkish authorities would not be prepared to treat a suspected separatist, is unsupported by any objective evidence and also founders on the lack of credibility of this appellant’s claimed separatist past. As noted above, her usual medications are also available in Turkey and the appellant does not seem to have derived any particular benefit either from medication or other medical support here in the United Kingdom.
75. Reports of her suicidal ideation are surprisingly variable. Following the test in J, we answer the questions therein set out as follows –
(1) The appellant’s claim is fabricated and incredible, even to the low standard required by these appeals; the core claim does not establish a risk of ill-treatment of this appellant if returned to Turkey now at the minimum level of severity, or indeed, any risk at all at the hands of the Turkish authorities;
(2) This is a foreign case and the Article 3 threshold in relation to the claimed suicide risk on return is therefore particularly high. The alleged inhuman treatment in this case would be neither the direct nor the indirect responsibility of the public authorities of the receiving state, but is claimed to result from the appellant’s mental illness;
(3) We recognise that an Article 3 claim can in principle succeed in a suicide case;
(4) The appellant’s fear of ill-treatment in the receiving state is not objectively well-founded, on the facts found, and that weighs against there being a real risk that the removal breaches Article 3;
(5) Turkey has effective mechanisms to reduce the risk of suicide. Ms Gordon’s contention that suspected separatists would not receive medical treatment is unsupported either by the objective evidence or by the appellant’s account, given that we find it to be a fabrication. She is not, on our findings, a suspected separatist at all and thus any differential treatment of suspected separatists (of which there is no evidence) does not apply to her.
76. This appellant’s core account contains significant discrepancies and inconsistencies, and on a proper construction of the medical evidence, they are not resolved in her favour. We must also have regard to the operation of section 8 of the 2004 Act. On the facts as found, Article 3 cannot avail her.
77. We have considered Article 8 and the ‘truly exceptional’ test in Huang [2005] EWCA Civ 105. We have regard, again, to the lack of credibility at the heart of this account, but we recognise that the appellant is unwell and that her life is difficult. ‘Truly exceptional’ means more than that. The question whether a person’s circumstances are ‘truly exceptional’ is, as Huang makes it clear, a question of fact for the Tribunal (Laws LJ, paragraph 40). We have considered the appellant’s arguments as to her exceptional status, but having regard to the difficulties in her medical evidence and with her credibility in general, we do not find that any of her personal circumstances are ‘truly exceptional’ in the Huang sense.
78. It follows that, having regard to the treatment available in Turkey and the United Kingdom’s obligations to ensure her safety during the return journey, the removal of the appellant to Turkey would be proportionate, having regard to the United Kingdom’s right to control immigration. There are adequate mental health facilities in Turkey (which we find are available to this appellant) should she find herself in difficulty after her return.
79. This Tribunal is not satisfied, therefore, that the appellant has proved, even to the lower standard, that she would be at risk either on Refugee Convention or Article 3 grounds, or (following J) that there is a serious suicide risk engaging Articles 2 and 3 ECHR, nor that Article 8 ECHR is engaged such that to return her would be disproportionate. The appeal is therefore dismissed both on asylum and human rights grounds.
DECISION
The original Tribunal made a material error of law. The following decision is accordingly substituted:
(a) The appeal is dismissed on asylum grounds.
(b) The appeal is dismissed on human rights grounds.
Signed Dated: 23 September 2005
Mrs J A J C Gleeson
Senior Immigration Judge
ASYLUM AND IMMIGRATION TRIBUNAL
THE IMMIGRATION ACTS
Heard at: Hatton Cross
On 21 July 2005
Determination Promulgated
21 October 2005
Before
Mrs J A J C Gleeson (Senior Immigration Judge)
Mrs S M Kebede (Immigration Judge)
Between
Appellant
And
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mrs C Gordon of Counsel, instructed by
Wilson & Co
For the Respondent: Miss A Gill, Home Office Presenting Officer
This case concerns an Appellant whose core account of HADEP/DEHAP sympathies and Alevi Kurdish ethnicity was found not credible but who had a history of depression and claimed suicide risk on return. The Tribunal should assume (following J [2005] EWCA Civ 629) that the Secretary of State will provide appropriately qualified escorts on return. Approach to analysis of suicide risk (J applied). Adequate medical treatment available in Turkey for mental health conditions and Articles 3 and 8 ECHR not engaged.
DETERMINATION AND REASONS
1. This is the reconsideration of the appeal of the appellant a Turkish National against the determination of an Adjudicator, Mrs J E Nichols, who dismissed her appeal against the Secretary of State's refusal to recognise her as a refugee under paragraph 336 of HC 395 and the refusal of leave to enter the United Kingdom. This decision is reported for what it says in paragraphs 69-78 about psychiatric treatment in Turkey for a returning asylum seeker whose account is found otherwise incredible, and application of the test in J [2005] EWCA Civ 629 to claimed suicide risk.
2. The medical evidence is summarised at paragraphs 38-54. The availability of medical treatment is considered at paragraphs 55 -57. Our findings in relation to the approach to a claimed suicide risk are set out at paragraphs 63-72.
3. The appeal was brought under Section 82(1) of the Nationality, Immigration and Asylum Act 2002 and Articles 3 and 8 of the European Convention on Human Rights.
4. The appellant’s core claims are as follows –
(a) The appellant relied upon her actual and perceived political opinion (HADEP) and her ethnicity (Alevi Kurd);
(b) Before coming to the United Kingdom she lived in a district of Istanbul, moving regularly from one district to another with her husband and children. She worked as a quality controller in a jeans manufacturing textile business and was comfortably off;
(c) Her husband was a keen HADEP/DEHAP activist who came to the attention of the authorities and was cautioned on a number of occasions, never formally joined the Party but continued to distribute publications. In 2000, he joined the Party. At Newroz 2003, he was arrested and taken away; she had not seen him since, but paradoxically, the police began to pursue the appellant to find her husband and arrested her on at least four occasions, without charge;
(d) The appellant attended the May Day 2003 celebrations in Istanbul, taking with her an illegal publication; she was arrested and detained, sexually abused and physically beaten, then released because she was a mother. She did not report her abuse; the arrest is said to have been witnessed by her cousin, Mr BK, who saw her being treated roughly by police and driven away to the police station. The cousin has refugee status in the United Kingdom after an appeal heard in September 2003;
(e) In September 2003, the police allegedly visited the appellant’s home while she was at work, looking for her husband. She was frightened, and moved in with a neighbour, who asked her to leave after two or three days, as the neighbour was nervous;
(f) When she returned home, the police came and arrested her between 8-11 pm, took her to the police station and detained her for three days, raping and beating her again. She was kept in a small dark cell and had her hair pulled; she did not report the abuse on release;
(g) She was then released and told a male work colleague what had happened to her. He arranged for an agent to get her out of the country, with her two children; the appellant left on 24 October 2003 and arrived in the United Kingdom 5 days later, claming asylum on arrival;
(h) The appellant has well-documented, longstanding, but rather confusing mental health problems and problems in managing her children. In the United Kingdom, she has lived near her mother and sister in north London until dispersed to Glasgow. She also has a brother here. Her husband’s parents still live in Istanbul and there is no satisfactory evidence that they would not be prepared to help her if she returned to Turkey.
5. The Immigration Judge dismissed the appellant's appeal on both asylum and human rights grounds having rejected her account as incredible for the reasons set out at paragraph 93 to 107 of the determination.
6. The Adjudicator decided the appeal in July 2004, before the entry into force of s.8 of the Asylum and Immigration (Treatment of Claimants etc.) Act 2004, but that section has retrospective effect and in considering credibility now, we must have regard to behaviour which we are directed to treat as designed or likely to conceal information or to mislead
7. The appellant arrived in the United Kingdom illegally on 29 October 2003 to join her mother, already an asylum seeker here. She had travelled for five days concealed in a lorry, with the assistance of the lorry driver. She claimed asylum; she had no passport and had travelled without any nationality documents.
8. Pursuant to s.8 (2) and (3) an Immigration Judge may not in those circumstances treat the appellant’s claim as entirely credible. It is a matter for that Immigration Judge to decide exactly how much the appellant’s credibility is damaged by her behaviour in arriving clandestinely in the United Kingdom. In the present appeal, that is a matter for this Tribunal on the evidence before us.
Grounds for review and grant of permission to appeal
9. The grant of permission to appeal is treated as a decision that the Immigration Judge’s determination should be reviewed for the same reasons. In the grant of leave the Senior Immigration Judge considered that the Immigration Judge (or the Adjudicator, as she then was):
(i) erred in law by reaching her credibility finding before considering the psychiatric report;
(ii) erred in holding it against the appellant that, on medical advice, the appellant chose not to testify; and
(iii) erred in making a finding of fact that the appellant was not arrested at a May Day celebration as alleged, without making it clear that the Home Office concession in that regard was not accepted. Relying on that concession, the appellant failed to call a vital witness, Mr BK.
Procedural history of the reconsideration hearing
10. The appeal was listed for 8 March 2005 but was adjourned, there being no up to date medical evidence. An all female court was directed at the appellant’s request. On 3 April 2005, the Immigration Appellate Authority ceased to exist and was replaced by the Asylum and Immigration Tribunal. A Practice Direction issued on 4 April 2005 by the President of the new AIT sets out the position where an appeal is pending and already remitted on the first day of the new Tribunal –
“14.11 Where, immediately before 4 April 2005, an appeal was pending before an Adjudicator, having been remitted to an Adjudicator by a Court or the Immigration Appeal Tribunal, it will have already been decided that the original Immigration Judge’s determination cannot stand. The Tribunal will accordingly proceed to rehear the appeal.”
11. That direction is based upon rule 9 of the Asylum and Immigration (Treatment of Claimants etc.) Act 2004 (Commencement No. 5 and Transitional Provisions) Order 2005. The appeal was therefore re-listed after the coming in to being of the AIT, for full reconsideration, to be heard on 21 April 2005. It was again ineffective on that date, by reason of the lack of an all female court (as previously directed) and the lack of medical opinion as to whether the appellant was fit to testify. There was also a question of psychiatric evidence relating to the appellant's daughter who is a dependant of the appellant. The reconsideration was adjourned again to 24 May 2005.
12. The 24 May hearing was again ineffective, because the crucial witness to the May Day arrest (Mr BK) was out of the United Kingdom for a substantial period for a family visit to Germany. The appeal was therefore re-listed once more, this time 21 July, by which time an all female court would be available. This being a remitted appeal, it was then heard by a panel of two Judges. The appeal was treated as having passed the ‘error of law’ stage and been set down for further reconsideration based on the grounds for review.
The abortive oral hearing
The Secretary of State's withdrawal of concession
13. For the Secretary of State, Ms Gill indicated at the beginning of the hearing that she would not maintain her concession in relation to the appellant’s attendance at the May Day demonstration. For the appellant, Ms Gordon objected on the basis that she had insufficient notice of that withdrawal and that it was not open to the Secretary of State to withdraw a concession in that way (Carcabuk and Bla (00/TH/01426)).
14. The appellant was on notice that the Immigration Judge at least had not accepted the concession (indeed, that was among her grounds for review); and Mr BK, the appellant’s witness to the May Day demonstration was unavailable for cross-examination despite a previous adjournment specifically so that he could attend. Mr BK's unavailability related to a domestic emergency with one of his children; there was no medical evidence to support that, but we do have his witness statement, to which we give such weight as is appropriate. The appellant was unable to testify and it is common ground that she will not be able to do so in future. Ms Gordon did not request an adjournment to give a further opportunity for Mr BK to testify; she was content at the beginning of the oral hearing to proceed with the case as it stood. The Tribunal has seen no evidence to confirm the reason for his absence.
15. Ms Gordon conceded at the beginning of the oral part of the hearing that, in the absence of Mr BK, this element of her grounds for review fell away (although she renewed her arguments on this point in her written submission – see paragraph 34 below). We are also obliged to have regard to section 8 Asylum and Immigration (Treatment of Claimants etc.) Act 2004 and to its effect on the appellant’s credibility. The appeal proceeded by way of written submissions with seven days being allowed to both parties to submit in writing that which they would have said had the appeal proceeded orally. Both parties accepted that the appellant would not be able to testify.
16. We treat the appeal on the basis that the Secretary of State's concession in relation to the May Day demonstration was withdrawn on appropriate notice (the seven days allowed for written submissions) but in any event, that is of little moment, since at the oral hearing, Ms Gordon had agreed that the only live issue was the effect of the medical evidence before the Immigration Judge and before us on the credibility finding by the original Immigration Judge. Both representatives agreed that it was necessary for this appeal to be dealt with on the material and arguments we have before us. Points (ii) and (iii) therefore both fall away, as Ms Gordon very properly recognised at the beginning of the hearing.
The oral proceedings
17. The Tribunal therefore began hearing the appeal, with a Turkish interpreter translating the oral argument to the appellant. The appellant attended from Glasgow, to where she was dispersed, and was accompanied by her two children and her brother. There is no witness statement from the brother and it does not appear that there was any intention that he should testify. The appellant’s London based mother and sister did not attend or give evidence and we have received no explanation for their absence.
18. During the submissions of the Home Office Presenting Officer, at the point where Ms Gill was submitting that the appellant’s case was a fabrication, the appellant became very upset, sobbing and wailing loudly. It was then just before 1 p.m.; the Tribunal retired for the short adjournment and indicated that if the appellant was able to continue, we would do so at 2 p.m.
19. Ms Gill and Ms Gordon attended in chambers to discuss the case, as it was rapidly clear that the appellant would not be sufficiently calm for the hearing to proceed in her presence at 2 p.m. Both representatives agreed that there was no realistic possibility that the appellant would be fit to testify in the foreseeable future, and after discussion, it was also agreed that written submissions on both sides would be the appropriate way to finalise the reconsideration of this appeal, which had already been adjourned on three occasions between March and July 2005. The appellant’s Counsel would take the appellant to the local mental hospital for possible admission, given her hysterical state; the Tribunal indicated that we hoped to see further medical evidence of her present state, and that we would resume at 2 p.m.
20. At 1.30 pm the appellant’s Counsel took her to the hospital locally, and was unable to return at 2 p.m. We do not criticise her for that; we resumed the adjourned hearing at 2:20 p.m. and adjourned it on the basis already agreed, directing, as already discussed with Ms Gordon, that both parties should send written submissions by email to the Chairman, Mrs Gleeson to reach her not later than 4.00 pm on 28 July 2005. It was agreed that the appeal would be determined on the papers and on submissions. Ms Gill’s submissions were received on time. Ms Gordon’s were two hours late, but the Tribunal has extended time by that period, in the interests of justice.
Secretary of State’s submissions (Ms Gill)
21. As set out above, Ms Gill had commenced her oral submissions when the hearing was adjourned. In her written submission, she adopted the oral submissions to that point as forming part of her written submission. She reminded the Tribunal that the Immigration Judge found the appellant not credible. The only live issue was that of psychiatric evidence, and most of the medical evidence before the Tribunal had been before the Immigration Judge. The appellant was still unable to testify and the evidence added very little to her claim. Mr BK’s statement should not carry any weight without medical evidence of his daughter’s illness and his being tendered for cross-examination.
22. There were additional problems with the appellant’s credibility, should the Tribunal consider that the error of law enabled it to reopen the credibility finding. When unable to name the place of HADEP meetings which she claimed to have attended (asylum interview, paragraphs 38-40), the appellant changed her account and said that it was rallies which she had attended, not meetings. It was extraordinary for a woman who had never attended such a rally with her husband to attend for the first time after his arrest for carrying HADEP/DEHAP literature, and to do so carrying an illegal newspaper. The family had been harassed since 2000 and the danger was then at its highest for a number of years. It simply did not make sense for her to take such a risk.
23. It was also very curious that having been detained on three or four occasions, the appellant could not remember the name of the police station where she was detained. The authorities told her that they did not wish to see her again, which was odd, if they were still searching for her husband. There was no indication that the search had widened to take in other family members or her husband’s parents in Istanbul.
24. Finally, the respondent relied upon the determination of the appellant’s mother’s appeal in 2004. If this appellant’s political connections and problems were by then of four years’ standing, it was very surprising that the appellant’s mother should not have mentioned this at her own hearing, particularly as by that time this appellant was safely in the United Kingdom and could not be harmed by such revelations.
25. Ms Gill argued that the claim was simply fabricated; the appellant’s husband might have left her, but she did not appear to be seeking him. Ms Gill submitted that the medical evidence did not mention any recommendations for HIV, STD or pregnancy tests, and although the appellant now sought an all-female Court, she had been able to discuss her case with a male doctor. In her 11 March 2005 statement, the appellant said she knew of human rights organisations in Turkey but was not prepared to go to them. They were all the same, or insulting in their approach to those who approached them. Ms Gill asked us to dismiss the asylum claim.
26. As to the human rights claims under Articles 3 and 8, Ms Gill submitted that the medical evidence did not reach the appropriate threshold. There was no evidence to suggest that the support which the appellant had been able to use in the United Kingdom would not be available in Turkey. Ms Gill pointed out that there were members of the appellant’s husband’s family in Istanbul who could help her.
27. Ms Gill submitted that the medical evidence was inconsistent; on 21 February 2004, Dr Neil S Egnal, Consultant Clinical Psychologist found the appellant to be suffering mild depression and mild to moderate Post-Traumatic Stress Disorder, but on 24 April 2004, Dr Catherine King in her psychiatric report found the appellant to have a major depressive disorder. There was no mention of any reason for such deterioration.
28. Ms Gill argued that the appellant’s oral evidence regarding her health was inconsistent: at the screening interview, she claimed to be in good general health and not to have been treated by a doctor in the last six months. Six months earlier, she had seen a doctor for stress-related heart problems. She did not mention suicide. When speaking to Dr King in April 2005, the appellant claimed for the first time to have taken an overdose approximately two months before her journey to the United Kingdom and to have been treated in hospital.
29. A letter from Dr R J McNeill of 13 May 2005 indicated that the appellant had denied feeling suicidal at her first interview with the doctor, admitting only to feeling down and having bad dreams. Dr Catherine King’s report of 29 March 2005 recorded her as ‘thinks about suicide daily’.
30. In sum, Ms Gill’s submission was that the appellant’s approach to her suicidal ideation was inconsistent and that nothing in her medical evidence suggested that such serious suicidal feelings would appear and disappear in this manner. She also contended that, the appellant having been found generally incredible, her depressive condition and/or Post-Traumatic Stress Disorder might not have occurred for the reasons given.
31. There were medical facilities in Turkey which would assist her (paragraphs 5.129-5.153 CIPU Country Report Turkey April 2005) and she had her husband’s parents in Istanbul, who could support her on return. The appellant’s claim should therefore fail both under Article 3 (N) and under Article 8. Ms Gill asked us to dismiss the human rights appeal also.
Appellant’s submissions (Ms Gordon)
32. For the appellant, Ms Gordon relied upon her skeleton argument prepared for the abortive hearing on 21 July, which set out the appellant’s history and indicated that the appellant relied upon her actual and perceived political opinion (HADEP) and her ethnicity (Alevi Kurd). The appellant’s core account was set out; she relies upon four arrests, the first of which (May Day 2003) was witnessed by her cousin, Mr BK. He did not witness the alleged rape but did see her being treated roughly by police and driven away to the police station. The cousin had refugee status after an appeal heard in September 2003.
33. The appellant relied upon a home visit in September 2003 when the police asked where her husband was, after which she moved to live with a neighbour, who eventually asked her to leave as the neighbour was nervous. When she returned home, the police came and arrested her between 8-11 pm, took her to the police station and detained her for three days, raping and beating her again. She was kept in a small dark cell and had her hair pulled. She was then released and told a male work colleague what had happened to her. He arranged for an agent to get her out of the country.
34. The skeleton argument also dealt with the medical evidence (paragraphs 15-35). We shall return to that, particularly with reference to the appellant’s ability to give evidence. The appellant argued that she would be seen as a separatist on return, and that due to her risk of self harm, to return her would breach her human rights (with particular regard to her previous suicide attempt). Her family all had refugee status and her husband was still missing.
35. Her psychiatric situation was said to be severe, such that she would be high risk of suicide both in the United Kingdom and if returned. The appellant’s bond with her mother was at a level higher than normal adult child-parent relationships (Kugathas) and Article 8 would also be interfered with at a level not proportionate to the dependency between mother and daughter.
36. Ms Gordon’s final submission, prepared after the abortive hearing, adds the following matters to the submission prepared for the hearing. She explained her failure to re-appear after lunch and in effect, the first three pages of her skeleton argument contain written evidence as to the course of events at the hospital to which she took the appellant. It took almost an hour for the appellant to calm down after her outburst during the hearing. The appellant was prescribed Diazepam, but not admitted, then returned to stay with her mother in North London. On 25 July 2005, four days after the abortive hearing, she returned to Glasgow, accompanied by her children and her London-resident mother.
37. The submissions proper begin at page 4. In relation to the withdrawal of the Secretary of State’s concession that the appellant was arrested at the May Day demonstration as claimed, the appellant relied upon Carcabuk and Bla and the Secretary of State's indication that there was no need for Mr BK to be tendered for cross-examination on this point. He was the crucial witness to the events on May Day. The witness Mr BK had attended seven hearings of this appeal to Counsel’s knowledge and the appellant’s explanation of his absence at the last hearing should be accepted. The Tribunal notes that the appellant had seven days from the date of the abortive hearing to get medical evidence of the reason for Mr BK's non-appearance but did not do so.
38. Ms Gordon submitted that on Carcabuk and Bla principles, it was much too late for the Presenting Officer to withdraw the concession regarding the appellant’s arrest and detention at the May Day demonstration by the date of the reconsideration hearing, particularly as no notice of such withdrawal had been given. The appellant should therefore be treated as having been so arrested. Again, we do not find that, given the seven days allowed for written submissions and her inability to testify, the appellant was placed at a disadvantage by that withdrawal. There is no indication that if the hearing were re-listed, Mr BK would attend.
39. Ms Gordon challenged the Secretary of State's attack on the Immigration Judge’s credibility findings. The appellant’s account was not inconsistent at the level which would make a positive credibility finding an error of law. If there were gaps in the evidence, the Tribunal should not be prepared to fill them with speculation. Where an appellant was mentally ill and unable to testify, greater scrutiny of such evidence as was before the Tribunal should be expected. Regard should be had to the impossibility now of putting to the appellant questions relating to the issues troubling the Immigration Judge at the first hearing. Failure to have a pregnancy, STD or HIV test did not mean that the appellant was not telling the truth about her rape.
40. Given the Home Office policy in relation to the availability of female Immigration Officers to interview female appellants, it was improper of the Secretary of State to hold against the appellant her failure to disclose the rape allegation to the male officer who interviewed her, nor her ability to tell the male doctor assisting with her difficulties with the children (Dr Egnal) about her experiences. The appellant’s outburst in court coincided with the interpreter translating to her the Presenting Officer’s submission that she was fabricating her account.
41. Ms Gill argued that the rape claim had been disclosed immediately on entry and the appellant’s account was not inconsistent. Her brother accompanied her to court. She relied upon J v SSHD [2005] EWCA Civ 629; the appellant’s claim was both foreign and domestic. The suicide risk existed in the United Kingdom and would be aggravated by return to her country of origin.
Medical and social worker evidence
42. On 21 February 2004, due to difficulties with the children, Dr Neil S Egnal, a Consultant Clinical Psychologist assessed the appellant, and her six and seven year old daughters, GE and SE, at the request of the appellant’s solicitor, who was concerned. He describes her as having often contemplated committing suicide, feeling shame, afraid to go out alone, and suffering bouts of depression, nightmares, forgetfulness, fainting spells and torture flashbacks. She had been referred for counselling and prescribed medication for her depression. The children were in a bad way; GE had a stammer, nail biting, poor sleep pattern, loss of appetite, fits of crying and aggressive behaviour at school, and SE suffered bedwetting, restlessness, anxiety, poor sleep pattern, loss of appetite and crying spells.
43. The assessment of the appellant was careful and rigorous. Dr Egnal found her to display features of mild to moderate Post-Traumatic Stress Disorder (nightmares, panic attacks, irritability, and loss of sleep, loss of appetite, fainting spells and memory flashbacks) as well as features of a mild depressive disorder. He used the Stein Thematic Apperception Test and the internationally recognised DSM-IV tests for Post-Traumatic Stress Disorder and depressive illness.
44. He found the children also to be suffering mild depression and moderate Post-Traumatic Stress Disorder, and missing their father. All the family were receiving medication and the appellant had been advised to attend counselling. The children should be given counselling also to ‘assist them in overcoming the loss of their father and help them in coming to terms with the events surrounding their departure from Turkey’. The appellant does not seem to have taken up the counselling option.
45. A report from Dr Catherine King of 24 April 2004, which was before the Immigration Judge, was based upon a three hour interview which took place on 29 April 2004 (presumably a typographical error for 29 March). The report, after setting out the history taken, analyses the appellant’s psychiatric state at point 4. The appellant is described as emotionally cut off, irritable towards her children, dependent on her family, numb, withdrawn, and often tearful at home. Her mother was mothering the children for her, as the appellant had difficulty making even the simplest decisions about them. She was experiencing intrusive memories and recurrent dreams of the rape and beatings. She felt detached and estranged towards others, and numb towards her children. Dr King misdescribes GE’s age as 10; she gets SE’s age right.
46. The appellant told Dr King of an overdose taken approximately two months before coming to the United Kingdom (August 2003). Dr King’s analysis at paragraph 5 of these symptoms lacks detail but the doctor was nonetheless satisfied that the appellant had a Major Depressive Disorder (Post-Traumatic Stress Disorder).
47. At paragraph 5.4, Dr King considered the effect of removal to Turkey; the Post-Traumatic Stress Disorder would be retriggered to an intense degree and the appellant would deteriorate further. She had already thought out her plans for suicide (eating rat poison or taking pills). She was highly dependent on numerous close family members in the United Kingdom who were helping to parent her children. Taking her away from her support system would impact upon that and might well push her into serious self-harm. In the event, as noted below, relocation to Glasgow where she has no family support has not had the effect of pushing the appellant into serious self-harm as Dr King feared, although the appellant has had difficulties in parenting her children which caused concern at their schools.
48. Dr King advised management and treatment of the appellant’s mental state by a General Practitioner and psychiatrist, preferably with the support of a Community Mental Health Team (CMHT). She would need supportive psychotherapy and later cognitive behavioural therapy from a specialist trauma clinic, as well as medication (in April 2004 she was already taking an antidepressant). If that did not work, Mitrazepine or Sertraline, both SSRIs, were recommended (Sertraline had been licensed for Post-Traumatic Stress Disorder). Dr King recommended that treatment begin as soon as possible, with cognitive behavioural therapy only once the appellant was partially recovered. A letter from the same specialist on 24 May 2004 indicated that the appellant was highly likely to become stressed if asked to give evidence, with a worsening of intrusive flashbacks and exacerbation of symptoms.
49. In early November 2004, the appellant was dispersed by NASS to Glasgow, away from her extended family support. The Tribunal was not notified of this until the following March (2005). On 13 April, a referral was made to an NHS assessment clinic in Glasgow, and by 17 May 2005, the child GE had been referred to the University of Glasgow’s Department of Psychiatry. On 16 May, Dr McNeill contacted the Glasgow City Social Work Services, concerned as to how the appellant was coping. By 2 June, there were also problems at GE’s school and the appellant was given an appointment with the school psychologist for Monday 6 June. GE has had three further appointments to support her, and the appellant was seen in July; she will be seen again in August.
50. On 29 March 2005, Dr King saw the appellant again this time for two hours. The family’s health visitor was concerned that she might harm her children. The children’s school had arranged for them to see a psychologist. The appellant’s sister and mother had travelled to Scotland to help the appellant care for herself and her children, but they had returned; they were not living with her now.
51. Dr King assessed the appellant’s complaints as similar, but her depression as more severe due to lack of family support in Glasgow. The appellant had been prescribed Citalopram 40 mg (an SSRI antidepressant, for sleep, prescribed by Dr McNeill in Glasgow); Amitryptiline 25 mg (a tricyclic antidepressant for sleep and severe headaches) and Lofepramine 70mg twice a day (also a tricyclic antidepressant). It does seem surprising that the appellant should be prescribed three different antidepressants simultaneously; it may be that they were sequential attempts to control her depression. The appellant’s mood was worse in the mornings and she had lost 3 kgs in weight.
52. The appellant still had strong feelings of shame about the rape. Her General Practitioner would not give her much medication at a time, only 10 days’ worth, and she thought about suicide daily. She was functioning at a very low level and Dr King considered she should be referred to a local Community Mental Health Team for assessment from the local community psychiatrist. Discussing the past retraumatised her. She recommenced cognitive behavioural therapy once the appellant was more stable. Nothing appears to have happened on that front since the previous report.
53. On May 13 2005, Dr McNeill, the appellant’s General Practitioner in Glasgow, provided a medical report. She had been moved to Glasgow on 11 November 2004 or thereabouts; at any rate, that was the date she joined his practice. When seen, the appellant was physically unremarkable. She told him she had stopped taking the antidepressant she was taking in London, and felt alone and unsupported. She denied feeling suicidal. He prescribed Lofepramine but the appellant stopped using it after only a short time; it was not helping her. He then prescribed Citalopram and referred the appellant to a psychiatrist, but not yet seen.
54. The appellant was attending a weekly session in Cranhill Church to see the health visitor attached to the practice (who was supporting her) and the health visiting staff nurse. On 12 May, she seemed unwell and was scared of harming her children. She would lock herself in her bedroom rather than risk that. The antidepressant was changed again.
55. The General Practitioner considered that the appellant was suffering a significant depressive illness and would need a prolonged period of treatment, and possibly a period of psychiatric inpatient treatment. He was concerned that her health might suffer adversely if she were returned to Turkey at that time.
56. It is clear that without her family to support her in Glasgow, the appellant’s condition has not improved. Disappointingly, although it was specifically requested, no medical evidence has been produced since her outburst at the hearing last week. We prefer the evidence of Dr McNeill and Dr Egnal to that of Dr King: the reports of Dr King lack rigour (failing to notice that the appellant was only currently taking one antidepressant, failure to apply DSM-IV or ICD-10, errors in the ages of the children and a lack of reasoning in the opinion sections). Dr McNeill and Dr Egnal have spent more time with the appellant and are in a better position to comment; their reports are more careful and rigorous.
57. It is noticeable that the appellant is reluctant to continue medication and has tried a number of drugs without significant improvement. She has had no counselling or cognitive behavioural therapy and the extent to which she is able to use any superior medical facilities in the United Kingdom is unclear. We note that although she is coping badly in Glasgow, she has not, as feared, descended into serious self-harm or hospitalisation in the absence of her London family members.
58. We accept the diagnosis that she is depressed and may be suffering from Post-Traumatic Stress Disorder, but having regard to our general findings on credibility, we do not accept that it has been established that the reason for that depression is as alleged. We note that the appellant was treated for stress and heart problems six months before coming to the United Kingdom. We consider that the problem now presented may well be of long standing and one for which she was previously being treated in Turkey.
Availability of mental health treatment in Turkey
59. Ms Gordon suggests that the appellant as a suspected separatist would have no access to medical facilities in Turkey. She produces no evidence to back up this assertion, and we reject it. In any event, for the reasons set out at paragraph 65 below, we have not found the appellant to be an Alevi Kurd or a suspected separatist; she is simply a returning failed asylum seeker.
60. On the availability of treatment for her mental health problems, we note that the appellant was receiving treatment in February or March 2003 in Turkey. That suggests that such treatment is available in Turkey; the only background material put before us was the current CIPU Country Report (April 2005), referred to by Ms Gill in her submissions, which sets out the availability of treatment for mental health problems in Turkey –
“5.149 According to the World Health Organisation’s (WHO) Department of Mental Health and Substance Dependence Project Atlas (updated 2003) the country has disability benefits for persons with mental disorders. “After being approved by a mental health board as a chronic mental health patient, the patient can benefit from the social security services.” Mental health is part of the primary health care system. Actual treatment of severe mental health is available at the primary level. “Mental health in primary care is available in only some provinces.” Regular training of primary care professional in the field of mental health is present and the approximate number of personnel trained over the last two years totalled 3,000.
5.150 The WHO Project Atlas (updated 2003) further states that there are 1.3 psychiatric beds per 10,000 population, and one psychiatrist, one neurosurgeon, one neurologist, one psychologist and one social worker per 100,000 population.
5.151 The Foreign and Commonwealth Office contacted Hacettepe University Hospital Psychiatric Department in April 2002 and confirmed that antipsychotic and antidepressant medication is available in Turkey.
5.152 According to the WHO Project Atlas (updated 2003)
“The following therapeutic drugs are generally available at the primary health care level: carbamazepine, ethosuximide, phenobarbital, phenytoin sodium, sodium valproate, amitriptyline, chlorpromazine, diazepam, fluphenazine, haloperidol, lithium, biperiden, carbidopa, and levodopa.”
5.153 The WHO Project Atlas (updated 2003) continues
“The mental health department was established within the Ministry of Health in 1983 with the primary tasks of improving mental health services, development and dissemination of preventive mental health services, integration of mental health with primary care, community education and protection of the community from harmful behaviours. The means of achieving these aims were through determination of standards, training programmes, data collection, research, creation of counselling and guiding units, creation of psychiatric clinics in state hospitals, assigning proper tasks to personnel, developing rehabilitation facilities, carrying out public education through the help of media, educating the public on harmful behaviour, and taking care of those who succumb to those behaviours.” “
61. We note that Diazepam is one of the WHO list of drugs available in primary care in Turkey and is the drug presently prescribed for the appellant.
Conclusions
62. As already stated, under the transitional provisions, this appeal which was listed as a remitted oral hearing before 4 April now falls to be treated as a further reconsideration after error of law has been established. The error of law which had already been established was the failure to consider medical evidence before reaching conclusions as to credibility; it was our task to reconsider credibility in the light of that medical evidence (and the new medical evidence before us now), then to determine whether any change in the credibility finding would be material to the outcome of this appeal.
63. This was a reserved determination on written submissions, as set out above. The Tribunal was, in the event, only required to consider the question of credibility. We reminded ourselves that under section 8 the option of finding the appellant entirely credible was no longer open to us. We saw the appellant’s apparent breakdown during the brief oral hearing, but neither of us is medically qualified and any conclusions based upon such observation cannot be determinative of this appeal. It is clear from the medical evidence that this appellant has a history of depression, that she is in the United Kingdom without her husband and has difficulty parenting her children. The case is not without difficulty and the Tribunal has considerable sympathy for the appellant’s predicament and her health problems.
64. The question is whether the appellant’s core claim should be treated as credible, and if not, whether the mental ill-health from which she undoubtedly suffers puts her at risk of suicide on return. if so, we must establish whether the Turkish state has available the necessary facilities to protect her to the Horvath standard, having regard to the high level set for Article 3 ECHR in foreign cases such as this.
65. With those restrictions in mind, we proceeded to reconsideration of the credibility evidence. The Immigration Judge accepted that there was nothing inherently implausible in this appellant’s claim (paragraph 88) and that if the appellant’s account were true, she might be at continued risk on return. However, she disbelieved the key claim that the appellant was an Alevi Kurd (albeit on grounds which were not put to the appellant because she did not testify). The grounds for review do not deal with that issue and nor does either of Ms Gordon’s skeleton arguments; we are therefore not seised of the question whether this appellant is indeed an Alevi Kurd. We accept the unchallenged findings of the Immigration Judge on this element of the claim.
66. The following credibility points emerged -
(a) As the Immigration Judge observed, there are significant contradictions in the appellant’s core account (paragraphs 94-101 of the determination) which are not related to her rape but are plain and inexplicable inconsistencies in relation to what happened to her husband and to her mother-in-law’s description of the family circumstances. The Immigration Judge was entitled to regard those as reducing credibility.
(b) We consider that inconsistencies set out at paragraphs 94-101 are more than sufficient to justify the Immigration Judge’s finding that there was in fact no family DEHAP/HADEP link.
(c) We also consider that if the appellant’s husband disappeared at the hands of the authorities as claimed, it is most unlikely that they would continually arrest and ill-treat her to get her to tell them where he was; they would know where he was as it would be wherever they had themselves put him;
(d) The Immigration Judge was not bound by a decision of another Immigration Judge at first instance, especially given the variation in the factual accounts. The appellant’s mother did not mention the matters now relied upon as this appellant’s core account, although the appellant was then living with her mother in London.
67. For all the above reasons, having reconsidered the credibility issues on the evidence before the Immigration Judge, we conclude that although the Immigration Judge’s negative credibility finding is erroneous in law, that error is not material, since on a proper examination of all the evidence before the Immigration Judge, we reach the same conclusion.
68. We have also considered whether the new medical evidence provided for us at the reconsideration hearing alters that credibility assessment. We note that –
(a) The appellant has had the opportunity to improve the medical evidence available and has provided further reports.
(b) However, the effect of those reports is not to clarify but further to confuse the assessment of her mental health and the risk of suicide; if anything, her GP’s assessment indicates that she now denies being suicidal and she may, very slightly, be improving.. The appellant does not take her medication and has had no counselling in the United Kingdom.
(c) There is no satisfactory medical evidence from Turkey of the appellant’s past medical and mental health history, and
(d) There is evidence concerning the appellant’s dispersal to Glasgow and the effect of it on her health. She is having difficulty in coping with the children as is set out in the Scottish reports. However, we note that she was not ill enough to be hospitalised, despite her apparent breakdown in court, and returned to Glasgow voluntarily on the Monday after our hearing, spending just four days with her mother in North London.
Having considered the additional evidence, we do not find that it improves the appellant’s situation and we maintain our negative credibility assessment. Having regard to all the different accounts given, for the reasons set out above, we find that her account of the alleged May Day incident and rape (which is correctly identified in the grant of leave as the core of this appeal) is simply not credible.
Effect of Suicide Risk
69. We then considered the claimed risk of suicide if this appellant were to be returned today, guided by the Court of Appeal’s decision in J v SSHD [2005] EWCA Civ 629, which sets out the correct application of the ‘real risk’ test in foreign cases. The Immigration Judge did not have the benefit of the analysis in that decision, which we have found to be of great assistance in approaching the present appeal.
70. We considered whether the risk to the appellant in the process of return is such as to engage the ECHR. The appellant will be personally served with this determination. We remind ourselves of the helpful analysis of the question of the mechanism of return in J –
“61. As regards the risk of suicide en route to Sri Lanka, the IAT's finding was not perverse... They made it clear that the authorities in the UK would be involved in the arrangements. The IAT were entitled to infer that the Secretary of State would take all reasonable steps to discharge his obligations under section 6 of the Human Rights Act 1998 ("the 1998 Act"). As the IAT said in AA v Secretary of State for the Home Department at paragraph [39]:
"Third stage-transit: there are no reasons to suppose that the Secretary of State would not provide appropriately qualified escorts. This is known to be done. Other measures in other cases may include accompanying family members."
62. In our judgment, the IAT were entitled to take judicial notice of the arrangements that, no doubt conscious of his obligations under section 6 of the 1998 Act, the Secretary of State makes to escort vulnerable persons who are removed to their countries of origin. This is reflected in a document that we were shown which sets out Home Office policy for dealing with claimants who threaten suicide.
63. As regards the criticisms made of the finding in relation to the risk upon arrival in Sri Lanka, the IAT were entitled to conclude on the evidence before them that the appellant would have family support on his return to Sri Lanka. Having regard to the very high threshold for article 3 in foreign cases of this kind, the IAT's decision cannot be characterised as perverse. In particular: (i) the adjudicator had found that any subjective fears which the appellant might have on return were not objectively justified; (ii) he would have family support on his return; and (iii) he would have access to medical treatment in Sri Lanka which it was conceded was adequate (the IAT noted in this regard that most of the treatment in the UK had consisted in the prescription of anti-depressant medication; he had only been placed in an institutional setting on two occasions). “
71. Following J, the Tribunal is therefore entitled to take account of the Secretary of State's obligation to provide appropriately qualified escorts and of the available family support from the appellant’s in-laws in Istanbul. Her subjective fears were not objectively justified; she would have family support on return; and we find that she would have access to adequate medical treatment. As in J, the appellant’s treatment in the United Kingdom consists of the prescription of anti-depressant medication (which is available in Turkey). The difference is that this appellant has not even been hospitalised whilst in the United Kingdom.
72. If there is a suicide risk, it must be a real risk, that is, more than ‘not fanciful’, and having regard to the manner in which the ECtHR has applied it in different circumstances, the following guidance is provided in J-
“26. First, the test requires an assessment to be made of the severity of the treatment which it is said that the applicant would suffer if removed. This must attain a minimum level of severity. The court has said on a number of occasions that the assessment of its severity depends on all the circumstances of the case. But the ill-treatment must "necessarily be serious" such that it is "an affront to fundamental humanitarian principles to remove an individual to a country where he is at risk of serious ill-treatment": see Ullah paragraphs [38-39].
27. Secondly, a causal link must be shown to exist between the act or threatened act of removal or expulsion and the inhuman treatment relied on as violating the applicant's article 3 rights. Thus in Soering at paragraph [91], the court said:
"In so far as any liability under the Convention is or may be incurred, it is liability incurred by the extraditing Contracting State by reason of its having taken action which has as a direct consequence the exposure of an individual to proscribed ill-treatment."(Emphasis added).
See also paragraph [108] of Vilvarajah where the court said that the examination of the article 3 issue "must focus on the foreseeable consequences of the removal of the applicants to Sri Lanka…"
28. Thirdly, in the context of a foreign case, the article 3 threshold is particularly high simply because it is a foreign case. And it is even higher where the alleged inhuman treatment is not the direct or indirect responsibility of the public authorities of the receiving state, but results from some naturally occurring illness, whether physical or mental. This is made clear in paragraph [49] of D and paragraph [40] of Bensaid.
29. Fourthly, an article 3 claim can in principle succeed in a suicide case (paragraph [37] of Bensaid).
30. Fifthly, in deciding whether there is a real risk of a breach of article 3 in a suicide case, a question of importance is whether the applicant's fear of ill-treatment in the receiving state upon which the risk of suicide is said to be based is objectively well-founded. If the fear is not well-founded, that will tend to weigh against there being a real risk that the removal will be in breach of article 3.
31. Sixthly, a further question of considerable relevance is whether the removing and/or the receiving state has effective mechanisms to reduce the risk of suicide. If there are effective mechanisms, that too will weigh heavily against an applicant's claim that removal will violate his or her article 3 rights. “
73. In the present appeal, we find that there is no reliable evidence of any past suicide attempt. On the appellant’s interview and witness statement evidence, there are patent contradictions; on one version, she last saw a doctor six months before coming to the United Kingdom and was hospitalised after the claimed rape, yet elsewhere she says that the rape occurred just two months before her journey to the United Kingdom. Those accounts are inconsistent; if the appellant saw a doctor six months before her journey, the rape would have predated the May Day rally at which she says her troubles began. Her account to Dr King was that it took place in August, yet elsewhere, she says that it took place after she returned home, having hidden in a neighbour’s house during September (it would thus have almost immediately preceded her journey to the United Kingdom). Even making full allowance for her psychological difficulties, the appellant is not being frank about the sequence of events between the alleged suicide and the claimed rape, which further damages her credibility. We therefore do not find that she has attempted suicide in the past.
74. We considered the evidence as to the appellant’s present or future suicidal ideation and the risk of an attempt on return to Turkey. Neither Dr McNeill nor Dr Egnal puts the suicide risk as high as Dr King does. However, Dr McNeill is restricting her dosage of her antidepressant to ten days at a time (though it is not clear whether that is sufficient for a suicide attempt). Ms Gordon’s submission, that the Turkish authorities would not be prepared to treat a suspected separatist, is unsupported by any objective evidence and also founders on the lack of credibility of this appellant’s claimed separatist past. As noted above, her usual medications are also available in Turkey and the appellant does not seem to have derived any particular benefit either from medication or other medical support here in the United Kingdom.
75. Reports of her suicidal ideation are surprisingly variable. Following the test in J, we answer the questions therein set out as follows –
(1) The appellant’s claim is fabricated and incredible, even to the low standard required by these appeals; the core claim does not establish a risk of ill-treatment of this appellant if returned to Turkey now at the minimum level of severity, or indeed, any risk at all at the hands of the Turkish authorities;
(2) This is a foreign case and the Article 3 threshold in relation to the claimed suicide risk on return is therefore particularly high. The alleged inhuman treatment in this case would be neither the direct nor the indirect responsibility of the public authorities of the receiving state, but is claimed to result from the appellant’s mental illness;
(3) We recognise that an Article 3 claim can in principle succeed in a suicide case;
(4) The appellant’s fear of ill-treatment in the receiving state is not objectively well-founded, on the facts found, and that weighs against there being a real risk that the removal breaches Article 3;
(5) Turkey has effective mechanisms to reduce the risk of suicide. Ms Gordon’s contention that suspected separatists would not receive medical treatment is unsupported either by the objective evidence or by the appellant’s account, given that we find it to be a fabrication. She is not, on our findings, a suspected separatist at all and thus any differential treatment of suspected separatists (of which there is no evidence) does not apply to her.
76. This appellant’s core account contains significant discrepancies and inconsistencies, and on a proper construction of the medical evidence, they are not resolved in her favour. We must also have regard to the operation of section 8 of the 2004 Act. On the facts as found, Article 3 cannot avail her.
77. We have considered Article 8 and the ‘truly exceptional’ test in Huang [2005] EWCA Civ 105. We have regard, again, to the lack of credibility at the heart of this account, but we recognise that the appellant is unwell and that her life is difficult. ‘Truly exceptional’ means more than that. The question whether a person’s circumstances are ‘truly exceptional’ is, as Huang makes it clear, a question of fact for the Tribunal (Laws LJ, paragraph 40). We have considered the appellant’s arguments as to her exceptional status, but having regard to the difficulties in her medical evidence and with her credibility in general, we do not find that any of her personal circumstances are ‘truly exceptional’ in the Huang sense.
78. It follows that, having regard to the treatment available in Turkey and the United Kingdom’s obligations to ensure her safety during the return journey, the removal of the appellant to Turkey would be proportionate, having regard to the United Kingdom’s right to control immigration. There are adequate mental health facilities in Turkey (which we find are available to this appellant) should she find herself in difficulty after her return.
79. This Tribunal is not satisfied, therefore, that the appellant has proved, even to the lower standard, that she would be at risk either on Refugee Convention or Article 3 grounds, or (following J) that there is a serious suicide risk engaging Articles 2 and 3 ECHR, nor that Article 8 ECHR is engaged such that to return her would be disproportionate. The appeal is therefore dismissed both on asylum and human rights grounds.
DECISION
The original Tribunal made a material error of law. The following decision is accordingly substituted:
(a) The appeal is dismissed on asylum grounds.
(b) The appeal is dismissed on human rights grounds.
Signed Dated: 23 September 2005
Mrs J A J C Gleeson
Senior Immigration Judge