Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/08100/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 13 January 2017
On 30 January 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE SHERIDAN

Between

AA
(ANONYMITY DIRECTION made)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation
For the Appellant: Ms K. Tobin, Counsel instructed by Wimbledon Solicitors
For the Respondent: Mr D. Clarke, Home Office Presenting Officer

Anonymity
Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/269) I make an anonymity order. Unless the Upper Tribunal or a Court directs otherwise, no report of these proceedings or any form of publication thereof shall directly or indirectly identify the appellant. This direction applies to, amongst others, all parties. Any failure to comply with this direction could give rise to contempt of court proceedings.

DECISION AND REASONS

1. By way of a decision promulgated on 10 October 2016 (a copy of which is appended to this decision) I set aside the decision of the First-tier Tribunal ("FtT"). I now remake the decision of the FtT.

2. It is accepted (and a preserved finding from the FtT) that the appellant, who is a citizen of Sri Lanka born on 5 April 1983, was a member of the LTTE who was subjected to torture and brutal treatment whilst in Sri Lanka.

3. For the reasons given in my decision promulgated on 10 October 2016, the appellant does not have an objectively well founded fear of persecution or ill treatment from either the state or non-state actors in Sri Lanka. Accordingly he cannot succeed in his asylum claim.

4. However, the appellant claims that, as a consequence of his experiences in Sri Lanka, he suffers from post traumatic stress disorder ("PTSD") and depression and that there is a significant likelihood he will commit suicide if returned to Sri Lanka. The issue in this appeal, therefore, is whether removing the appellant to Sri Lanka is contrary to the UK's obligation under Article 3 of the ECHR because of the risk that upon being returned, or in transit, he will commit suicide.

5. The evidence before me about the appellant's risk of suicide comprises of three letters from treating doctors (one dated 3 November 2016 and the others both dated 12 July 2016) and an expert report by Dr Chiedu Obuaya obtained through the Helen Bamber Association. The conclusion of Dr Obuaya is categorical and unambiguous. He states that the appellant is convinced he would be at great risk of serious physical harm by the authorities if returned to Sri Lanka. He comments that regardless of whether these fears are well founded, they are, in his view, genuinely held. Dr Obuaya states that this fear may be a barrier to the appellant accessing help in Sri Lanka.

6. Dr Obuaya diagnoses the appellant as having PTSD and Partially Treated Severe Depressive Episode without psychotic features. He states that these conditions and his observations are in keeping with and the result of the trauma suffered in Sri Lanka. He states he finds the appellant plausible. On the issue of suicide, Dr Obuaya states that the appellant has a moderate risk of attempting suicide in the short time but that:

"The risk of suicide or serious self inflicted harm would, in my view, increase even further to a high level upon hearing that he would definitely be returned to Sri Lanka, during the transit there and once he was back there. In all circumstances, it is in my opinion less likely that he would be able to take stock of his situation and make a considered decision in an environment he regards to be full of danger".

7. The respondent has not produced any alternative evidence. She has not sought to nominate a different expert or to secure agreement as to a joint psychiatric examination.

8. At the hearing I heard submissions from Ms Tobin and Mr Clarke. No oral evidence was given.

9. Ms Tobin contended that Dr Obuaya's report demonstrates the severity of the appellant's condition. She argued that his situation is analogous to the third appellant in GJ and others (post-civil war: returnees) Sri Lanka CG [2013] UKUT 319 (IAC) who was unable to succeed in his asylum claim but, because of his suicide risk and the findings in that case about the paucity of mental health provision in Sri Lanka, prevailed under Article 3 ECHR.

10. Mr Clarke noted that the appellant had not disclosed a full set of his GP records and this impedes assessment of the circumstances. He commented on the letter of 12 July 2016 which referred to his family being a protective factor. The appellant's family live in Sri Lanka and therefore the 'protection' will exist upon return. Mr Clarke argued that, looking at the evidence as a whole, this is not a case where the high threshold required for an Article 3 claim is met.

11. It is well established that the rights protected by Article 3 can be engaged where there is a risk that a person who is removed from the UK will, upon return, commit suicide. A six part test was set out in J v SSHD [2005] EWCA Civ 629 which can be summarised as follows:

(1) The ill-treatment relied upon must attain a minimum level of severity.
(2) The appellant must show a causal link between the act or threatened act of removal or expulsion and the inhuman treatment relied on as violating the applicant's article 3 rights.
(3) 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.
(4) An article 3 claim can in principle succeed in a suicide case;
(5) Where the applicant's fear of ill-treatment in the receiving state upon which the risk of suicide is said to be based is not objectively well-founded, that will tend to weigh against there being a real risk that the removal will be in breach of Article 3.
(6) The decision maker must have regard to 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.

12. This is supplemented by the finding of Sedley LJ in Y and another (Sri Lanka) v Home Office [2009] EWCA Civ 362 that:

"...what may nevertheless be of equal importance is whether any genuine fear which the appellant may establish, albeit without an objective foundation, is such as to create a risk of suicide if there is an enforced return".

13. Although Mr Clarke has sought to throw some doubt on Dr Obuaya's report, there has been no challenge to his expertise or competence. It would have been preferable had Dr Obuaya seen, and had regard to, the appellant's GP records, but even without these, it is apparent that the report is internally consistent, logical and based on a recognised methodology. In the absence of an alternative report or good reasons for discounting Dr Obuaya's reasoning or analysis, I accept his conclusions.

14. Accordingly, in light of Dr Obuaya's report, I find that the appellant continues to be traumatised by his experiences in Sri Lanka, fears that he will face serious harm upon return (even though that fear is not well founded) and that there is a real risk that he will commit suicide once in Sri Lanka unless he is able to access care and treatment.

15. The lack of availability of mental health treatment in Sri Lanka was considered in GJ, where it was stated:

"The evidence is that there are only 25 working psychiatrists in the whole of Sri Lanka. Although there are some mental health facilities in Sri Lanka, at paragraph 4 of the April 2012 UKBA Operational Guidance Note on Sri Lanka, it records an observation by Basic Needs that "money that is spent on mental health only really goes to the large mental health institutions in capital cities, which are inaccessible and do not provide appropriate care for mentally ill people"

16. Given the severity of the appellant's mental illness and the risk of suicide as reported by Dr Obuaya, as well as the lack of professional support that will be available to him in Sri Lanka (and his reluctance to access any such support even if it were available), I am satisfied, having regard to the Court of Appeal judgments in Y and in J, that returning the appellant to Sri Lanka would breach the UK's obligations under Article 3 ECHR.

Decision
A. The appellant's appeal against the Secretary of State's refusal of his asylum and humanitarian protection claim is dismissed.
B. The appellant's appeal against the Secretary of State's refusal of his human rights claim under Article 3 of the ECHR is allowed.

Signed

Deputy Upper Tribunal Judge Sheridan

Dated: 27 January 2017